Can a Dumas city clerk-treasurer combine prior city-employee service to qualify for the half-salary retirement under § 24-12-121, and can she also draw a separate city pension for earlier service?

Plain-English summary

Representative Mark McElroy asked about a city clerk-treasurer who had worked for the city in other roles before taking office and also participated in a city defined-benefit plan. He asked whether six years of earlier city work could combine with four years as clerk-treasurer to meet the ten-year vesting period under Ark. Code Ann. § 24-12-121, how the benefit would be calculated, and whether she could also receive a city-plan pension for earlier work.

The Attorney General said the earlier service could apparently count toward vesting if it was with the same city, covered by a retirement plan, and approved by the city council. The § 24-12-121 benefit would be based on her salary as clerk-treasurer, not on a separate administrative-assistant salary. The city must decide actual eligibility from the applicable facts and law.

Ark. Code Ann. § 14-42-117 permits only one retirement benefit for the same period of service. The request assumed the two pensions would cover different jobs and different periods; the Attorney General said the statute would not bar both if that assumption was true. She did not determine whether it was true. In particular, the proposed use of 2009–2014 service toward clerk-treasurer vesting and the employee's participation in the city plan make the periods a factual issue for the interested parties and local counsel.

Currency note

This 2018 opinion addressed a particular retirement question. Verify current statutes, the city plan, and the employee's service record before applying it to a present benefit claim.

Common questions

Can earlier city service count toward clerk-treasurer vesting? Potentially. Section 24-12-121 allows service in another capacity with the same city to count if that capacity had a retirement plan and the city council approves. The Attorney General said combining the six years described in the request with four years in office would seemingly meet the ten-year service requirement, subject to the city's factual determination.

Which salary sets the clerk-treasurer retirement benefit? The salary for service as clerk-treasurer. The Attorney General read the statute's reference to salary during the last preceding year of “service” as referring to service in that office, excluding the separate administrative-assistant salary.

Can the employee receive a city-plan pension as well? Only if the two benefits are for different periods of service. The Attorney General accepted that as a condition, not as a finding about this employee's records. The city and local counsel must determine whether the service credited to each benefit overlaps.

Does calling the jobs different resolve the double-benefit question? No. Section 14-42-117 focuses on the period of service. The opinion says the clerk-treasurer cannot receive both a § 24-12-121 benefit and a city-plan benefit for her clerk-treasurer service. The remaining question is how the city's plan and the vesting credit account for the earlier service.

Background and statutory framework

Ark. Code Ann. § 24-12-121 provides a retirement benefit for clerks and clerk-treasurers in first-class cities, with a service requirement that qualifying prior city work may help satisfy if the council approves. Section 14-42-117 prevents two retirement benefits for the same municipal service period. The opinion cites Robinson v. Taylor for that prohibition and leaves the application of both benefit schemes to this employee's actual service and local plan terms.

Citations

• Ark. Code Ann. § 24-12-121
• Ark. Code Ann. § 14-42-117
• Ark. Code Ann. § 24-12-123
• Robinson v. Taylor, 342 Ark. 459, 29 S.W.3d 691 (2000)
• Op. Att'y Gen. 2007-067

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKAN SAS
ATTORN EY GENERAL
LESLIE R_UTL EDGE

Opinion No. 2018-069

September 19, 2018

The Honorable Mark D. McElroy
State Representative
2645 Highway 13 8 East
Tillar, AR 71670-9372

Dear Representative McElroy:

You have requested my opinion on several questions concerning the retirement benefits of a particular city official in a city of the first class. As background for your questions, you state that the individual in question was employed by the city in several different capacities from 1985 until 2014, when she was elected to the position of clerk/treasurer, which she currently holds. You state that she also serves in the separate, non-elected position of "administrative assistant," having been hired for that position by the mayor.

You further report that the city maintains a "defined benefit retirement plan for its employees and elected officials," the individual in question became vested in that plan in 2000, and she has continued to participate in the plan through the present time.

With these facts in mind, you ask:

1) If the city votes to allow the current clerk/treasurer to combine her service as a city employee from January 2009 through December 2014 (six years) with her service as clerk/treasurer from January 2015 through December 2018 (four years), for a total of 10 years of service, would she qualify for the half-salary retirement benefits provided for in Ark. Code Ann. § 24-12-121?

2) Assuming the answer to the first question is in the affirmative, should the retirement benefit provided for in Ark. Code Ann. §

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The Honorable Mark D. McElroy
State Representative
Opinion No. 2018-069
Page 2

24-12-121 be based solely on her salary as clerk/treasurer or on her combined salaries from her job as clerk/treasurer and administrative assistant?

3) Assuming the answer to the first question is in the affirmative, and the answer to the second question is that the retirement benefits should only be based on the clerk/treasurer salary, could the current clerk/treasurer also receive retirement benefits from the defined benefit retirement plan for her employment with the city from January 1985 through December [2014], since she became vested in the year 2000? More specifically, would Ark.
Code Ann. § 14-42-117 prohibit the current clerk/treasurer from drawing two retirements since the two retirements would be based upon her service in different jobs for different periods of service?

RESPONSE

I must initially state that questions of this nature concerning the eligibility of particular city officials and city employees for retirement benefits must be presented first to the city for determination, based upon the applicable local benefit provision and relevant state law. You have not indicated what, if any, determination the city has made regarding the individual in question. I will address your questions against the factual backdrop presented in your correspondence. But it must be recognized that there could be other material facts, outside the information before me, to be considered in answering the questions you have posed.

The answer to your first question appears to be "yes" under the facts as presented. It is my opinion in response to your second question that the benefit under Ark. Code Ann. § 24-12-121 is based solely on her salary as clerk/treasurer. With regard to your third question, Ark. Code Ann. § 14-42-117 prohibits an individual from receiving more than one retirement benefit "for the same period of service." You state in your question that "the two retirements would be based upon her service in different jobs for different periods of service." If that is the case, then section 14-42-117' s prohibition would not apply. However, this ultimately presents a factual question that must be handled locally by the interested parties and their counsel.

The Honorable Mark D. McElroy
State Representative
Opinion No. 2018-069
Page 3

DISCUSSION

Question 1: If the city votes to allow the current clerk/treasurer to combine her service as a city employee from January 2009 through December 2014 (six years) with her service as clerk/treasurer from January 2015 through December 2018 (four years), for a total of 10 years of service, would she qualify for the half salary retirement benefits provided for in Ark. Code Ann.§ 24-12-121?

The elected clerk-treasurer in a city of the first class must generally serve at least ten years in the office of clerk-treasurer and reach 60 years of age before becoming retirement-eligible under Ark. Code Ann. § 24-12-121. 1 Of course, the years-of-service requirement can be satisfied through actual service as clerk- treasurer. But if the clerk-treasurer has served the city in "another capacity" covered by a retirement plan, those years of service may be applied, with city council approval, "toward the accrual of the vesting period":

Any city clerk or clerk-treasurer in a city of the first class who has served in another capacity with the same city, and that capacity of service also provides for a retirement plan, may apply all years served in that previous capacity toward the accrual of the vesting period provided for in subsection (a) of this section, if approved by the city council. 2

It seems that the individual in question has not served as clerk-treasurer for the requisite ten years so as to satisfy the vesting period under section 24-12-121. But the facts provided in your request also indicate that if the city council approves, she could retire as clerk-treasurer by applying her previous years of service as a city employee to accumulate the required ten years of service.

The answer to your question thus appears to be "yes." If the city council votes to allow her to combine her six years of service as a city employee with her four years as clerk-treasurer, then she would seemingly have the ten years required to receive the retirement benefit provided in section 24-12-121. I must emphasize, however, that I cannot definitively determine whether any particular individual is eligible for retirement benefits. This is a matter for the city to decide in the first

1
Ark. Code Ann.§ 24-12-121(a)(l)(A) (Repl. 2014).
2
Id. at § 24-12-121 (c)(1 ).

The Honorable Mark D. McElroy
State Representative
Opinion No. 2018-069
Page 4

instance based upon the applicable facts and law and with the advice of local counsel.

Question 2: Assuming the answer to the first question is in the affirmative, should the retirement benefit provided for in Ark. Code Ann. § 24-12-121 be based solely on her salary as clerk/treasurer or on her combined salaries from her job as clerk/treasurer and administrative assistant?

Based on the plain language of section 24-12-121, her retirement pay must be based on her service as clerk-treasurer:

Any city clerk, city treasurer, or any person serving as city clerk or clerk-treasurer who shall retire or be succeeded by another city clerk or clerk-treasurer within the provisions of this section shall be paid monthly a sum equal to one-half ( Yz ) of the monthly salary received by him or her during the last preceding year of his or her service. 3

The term "service" here plainly refers to the person's service as city clerk or city- treasurer. 4

Question 3: Assuming the answer to the first question is in the affirmative, and the answer to the second question is that the retirement benefits should only be based on the clerk/treasurer salary, could the current clerk/treasurer also receive retirement benefits from the defined benefit retirement plan for her employment service in the Dumas Ambulance Department from January 1985 through December [2014] since she became vested in the year 2000? More specifically, would Ark. Code Ann. § 14-42-117 prohibit the current clerk/treasurer from drawing two retirements since the two retirements would be based upon her service in different jobs for different periods of service?

As indicated above, I am not authorized to render judgment on any particular individual's eligibility for retirement benefits or the amount of benefits to which any individual is entitled. These matters depend to a great extent upon the facts of each case. With regard, however, to Ark. Code Ann. § 14-42-117, I will note that

3
Id. at § 24-12-121 (b )( 1) (emphasis added).
4
See Op. Att'y Gen. 2007-067.

The Honorable Mark D. McElroy
State Representative
Opinion No. 2018-069
Page 5

this statute prohibits so-called "double-dipping."5 It prevents entitlement to more than one retirement benefit "for the same period of service":

Notwithstanding any other law to the contrary, any employee of a city of the first class, city of the second class, or incorporated town, and any elected official of a city of the first class, city of the second class, or incorporated town who is entitled by an act of the General Assembly to retirement benefits for service as such an employee or elected official and who also participates in another retirement plan established by the city for the same period of service shall be entitled to only one (1) retirement benefit for the same period of service to the municipality .. .. 6

As applied to the individual in question, I interpret this statute to mean that she may not receive retirement benefits under section 24-12-121 for her service as clerk/treasurer and also receive retirement benefits under the city's defined benefit plan for such service. 7

You state in your question that "the two retirements would be based upon her service in different jobs for different periods of service." If that is the case, then section 14-42-11 Ts prohibition would not apply. However, this ultimately
,_ presents a factual question that must be handled locally by the interested parties
and their counsel.
I

~ ~
LESLIE ~~
Attorney General

5
Robinson v. Taylor, 342 Ark. 459, 464, 29 S.W.3d 691, 694 (2000).
6
Ark. Code Ann. § 14-42-117 (Rep!. 2013) (emphasis added).
7
Cf Robinson v. Taylor, 342 Ark. 459, 462, 29 S.W.3d 691, 693 (2000) (holding that a mayor was not entitled to receive benefits under both a city-maintained retirement plan and Ark. Code Ann. § 24-12-123, which is the mayor's equivalent of Ark. Code Ann . § 24-12-121 ). Accord Op. Att'y Gen. 2000-171 (noting that "[t]he concept of 'double-dipping' envisions two payments for one service.").