Can an Arkansas mayor draw both an APERS pension for service as mayor AND the separate mayor's retirement under § 24-12-123?

Plain-English summary

Senator Ricky Hill asked, on behalf of the City of Ward, whether the city's outgoing mayor could draw both APERS retirement (for his time as mayor) and the local mayor's retirement under Ark. Code Ann. § 24-12-123. The AG declined to decide that mayor's eligibility. She said the question was "intensely factual" and must be resolved with input from the city, APERS, and their counsel. One or more cited statutes may effectively preclude the local benefit in the situation described.

The AG discussed three potentially relevant statutory rules:

1. Election rule. Ark. Code Ann. § 24-4-303(a)(1)(C)(i), enacted under Act 1281 of 2003, provides a written election to participate in the local plan instead of APERS within 90 days after first assuming office. Footnote 2 says a choice of the local benefit is irrevocable under subsection (C)(ii). If this statute applied when the mayor took office and he did not choose the local plan, the AG said he plainly could not also receive its benefit.

2. Same-service prohibition in § 24-12-123 itself. Subsection (a)(3)(B) says service "covered by another benefit provided for by law shall not be applied towards the mayor's retirement benefits provided for under this section." Footnote 3 cites Municipality of Helena-West Helena v. Weaver, 374 Ark. 109, 286 S.W.3d 132 (2008), noting that years covered by another retirement plan cannot be credited.

3. APERS general rule against double-dipping. § 24-4-739(a)(3) says "in no instance shall the same service time and related earnings be credited in more than one (1) system established pursuant to state law." § 24-4-101(17)(B) defines "employee" to exclude persons already in another state-supported retirement system (with a Social Security carve-out).

The AG concluded that factual variations could matter and that one or more statutes may effectively preclude the local benefit while the individual participates in APERS. She left eligibility to the interested parties and their counsel.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The AG specifically noted that 2019 Ark. Acts No. 948 amended § 24-12-123, though the amendment was not relevant to the question.

Common questions

Q: What is the § 24-12-123 mayor's retirement?
A: Section 24-12-123 provides a mayoral retirement benefit. The opinion describes an election to participate in that local plan instead of APERS; footnote 1 says § 24-12-121 provides a plan for city clerks and clerk-treasurers.

Q: When does the election deadline start running?
A: The quoted statute requires written notice of the choice of the local plan no later than 90 calendar days after first assuming office. The AG says its effect depends on whether it was in force when the mayor took office.

Q: Is the election really irrevocable?
A: Footnote 2 says that if the mayor or clerk chooses the local benefit under § 24-12-123, that choice is irrevocable under § 24-4-303(a)(1)(C)(ii).

Q: What if the mayor served in two separate stints?
A: The opinion does not address separate stints of service. It says particular benefit questions require factual determinations by the interested parties and their counsel.

Q: Can a mayor draw APERS for one period of service and § 24-12-123 for a different period?
A: The opinion does not decide whether different periods of service could support benefits under different plans. It quotes rules against crediting the same service under both systems and leaves specific eligibility unresolved.

Background and statutory framework

Arkansas's municipal-officer retirement system has two paths:

• APERS (the Arkansas Public Employees Retirement System) is the plan in which the mayor was reportedly enrolled.
• Section 24-12-123 provides the local mayoral benefit discussed in the opinion. Footnote 1 identifies a separate clerk plan under § 24-12-121.

Footnote 2 identifies Act 1281 of 2003 as the source of the quoted election rule and says a choice of the local benefit is irrevocable. The opinion does not discuss the legislature's purpose.

The opinion quotes § 24-12-123(a)(3)(B) and § 24-4-739(a)(3) as restrictions on crediting the same service. Footnote 3 cites Municipality of Helena-West Helena v. Weaver for the point that years covered by another retirement plan cannot be credited under § 24-12-123.

The opinion does not determine when this mayor first took office or which statutes govern his specific benefit claim. It directs the city and APERS, with counsel, to resolve those factual questions.

Citations

• Ark. Code Ann. § 24-12-121 (city clerks)
• Ark. Code Ann. § 24-12-123 (mayor's retirement plan)
• Ark. Code Ann. § 24-12-123(a)(3)(B) (same-service prohibition)
• Ark. Code Ann. § 24-4-303(a)(1)(C)(i), (ii) (election; irrevocability of a choice of the local plan)
• Ark. Code Ann. § 24-4-739(a)(3) (APERS double-credit prohibition)
• Ark. Code Ann. § 24-4-101(17)(B) (definition of "employee")
• Act 1281 of 2003 (election structure)
• 2019 Ark. Acts No. 948 (amendments not relevant)
• Municipality of Helena-West Helena v. Weaver, 374 Ark. 109, 286 S.W.3d 132 (2008)

Source

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

Original opinion text

Opinion No. 2019-005
October 8, 2019

The Honorable Ricky Hill
State Senator
P. O. Box 177
Cabot, AR 72023

Dear Senator Hill:

This is in response to your request for an opinion from this office concerning retirement benefits for a municipal officer. As background for your question, you state:

> This matter concerns the City of Ward and Arkansas Code Annotated § 24-12-123. It is my understanding the city's exiting mayor elected to enroll in APERS [the Arkansas Public Employees Retirement System] when he became mayor. The exiting mayor's time in APERS is only from his service as mayor. The exiting mayor will be drawing retirement benefits from APERS.

Against this background information, you have asked the following question:

> Would a mayor be eligible for the retirement provided for in Arkansas Code Annotated § 24-12-123, if he has participated in APERS and will be drawing a retirement from that plan?

RESPONSE

Questions of this nature concerning the eligibility of particular individuals for retirement benefits are intensely factual and must be resolved with the advice and interaction of the interested parties involved, including representatives of the city and APERS and their respective counsel. I will address the generally applicable law, but I cannot definitively opine regarding the benefits that any particular individual is entitled to receive.

DISCUSSION

One statute enacted in 2003 gives municipal employees (including the mayor and city clerk) the option to participate in the plan provided under Ark. Code Ann. § 24-12-123 in lieu of participating in APERS:

> If the employee elects not to continue participation in the [APERS] system and opts to participate in the local retirement plan as provided under § 24-12-121 or § 24-12-123, instead, written notice of the election shall be presented to the system in a form determined acceptable by the system not later than ninety (90) calendar days after first assuming office.

If this statute was in effect when the individual in question took office as mayor, then he had a choice upon taking office: either continue to be enrolled in APERS or participate in the plan under section 24-12-123. In other words, if this statute applies and he did not opt for the plan under section 24-12-123, then he will be drawing retirement benefits from APERS; and he plainly cannot also receive the benefit provided under section 24-12-123.

But even if the above option was not in place when the individual in question took office, there is a separate prohibition against receiving benefits under Ark. Code Ann. § 24-12-123 and APERS for the same period of service:

> Service as an elected official or as an employee of the city ... that is covered by another benefit provided for by law shall not be applied towards the mayor's retirement benefits provided for under this section.

This prohibition is echoed in another statute addressing municipal employees' enrollment in APERS that states: "...in no instance shall the same service time and related earnings be credited in more than one (1) system established pursuant to state law."

Additionally, the general law governing APERS does not allow participation in both APERS and other state-supported or state-authorized retirement plans.

In sum, while factual variations could affect the question, one or more of the above statutes may effectively preclude this individual from receiving the retirement provided for in section 24-12-123 while also participating in APERS. Ultimately, however, the issue requires factual determinations and must be resolved with the advice and interaction of the interested parties involved, including representatives of the city and APERS and their respective counsel.

Sincerely,

LESLIE RUTLEDGE
Attorney General

1. Section 24-12-121 provides a retirement plan for city clerks and clerk-treasurers.

2. Ark. Code Ann. § 24-4-303(a)(1)(C)(i) (Repl. 2014) (emphasis added) (enacted under Act 1281 of 2003). If the mayor or clerk chooses the benefit under section 24-12-123, the choice is irrevocable. Id. at § 24-4-303(a)(1)(C)(ii).

3. Ark. Code Ann. § 24-12-123(a)(3)(B) (Repl. 2014). See Municipality of Helena-West Helena v. Weaver, 374 Ark. 109, 115, 286 S.W.3d 132, 136 (2008) (noting that "years of service may not be credited if that service is covered under another retirement plan," citing § 24-12-123(a)(3)(B)). Section 24-12-123 was recently amended, but the amendment is not relevant to your question. See 2019 Ark. Acts No. 948.

4. Ark. Code Ann. § 24-4-739(a)(3) (Repl. 2014).

5. See Ark. Code Ann. § 24-4-101(17)(B) (Supp. 2017) (defining "employee"—with certain exceptions not applicable here—to exclude "persons who are members of any other retirement system, excepting Social Security, which retirement system is supported by state funds or is authorized by the laws of the state.").