Does the AG weigh in when a state agency dispute is already scheduled for an administrative hearing?
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This page answers the general question as of 2020. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
Representative Kenneth Ferguson asked about a constituent who had been a municipal court clerk since about 1999. As she approached 20 years of service in 2019, APERS told her that Ark. Code Ann. § 24-8-311 no longer governed her situation: APERS had absorbed her old retirement system in 2004 or 2005, and under APERS rules she would need 28 years (not 20) to retire with full benefits.
The Attorney General declined to issue an opinion. The reason: the same dispute had already been set for a hearing before the APERS Board of Trustees under Ark. Admin. Code 075.00.1-105, the Board's appeals procedure. The AG's standing policy was to keep out of matters pending in litigation or before an administrative body, citing earlier opinions (Ops. Att'y Gen. 2014-083, 2010-128, 2008-081, 2006-134).
The page is therefore a procedural marker, not a ruling on the underlying merits. The substance of the constituent's claim, whether her vested 20-year status survived the absorption of her old system into APERS, was left for the APERS Board to decide on its own record.
Currency note
This opinion was issued in 2020. 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.
Common questions
Q: Why does the AG decline to opine on pending administrative matters?
A: Issuing a parallel opinion while an agency tribunal is hearing the same dispute would risk prejudicing the proceeding, encroach on the tribunal's fact-finding role, and possibly conflict with the AG's separate duty to advise APERS on legal questions before its Board.
Q: What is Ark. Admin. Code 075.00.1-105?
A: It is APERS's procedural rule for appealing the Executive Director's determinations to the APERS Board of Trustees. It is the in-house mechanism a member uses when they disagree with how APERS has scored their service credit, vesting, or eligibility.
Q: What was Ark. Code Ann. § 24-8-311 (the statute the constituent relied on)?
A: Section 24-8-311 was part of the chapter governing retirement of judges and certain court officers. The constituent's argument was that her hire under that framework let her retire after 20 years of service. APERS's position was that the statute's protections did not survive the merger of her former system into APERS in the mid-2000s.
Q: Did the AG say which side was right?
A: No. The opinion is purely a decline.
Q: Where would someone in this position go for advice?
A: The opinion implicitly directs the constituent to make her case before the APERS Board under Ark. Admin. Code 075.00.1-105. From there, judicial review under the APA would be the next step.
Background and statutory framework
Ark. Code Ann. § 24-4-105(b)(1) and (4) authorized the APERS Board to make rules for administering the retirement system and gave the Board discretionary investment and disbursement authority. Section 24-8-311 covered specific retirement provisions for certain court personnel.
The AG cited four earlier decline-to-opine letters as policy precedent: Ops. Att'y Gen. 2014-083, 2010-128, 2008-081, and 2006-134.
Citations
- Ark. Code Ann. § 24-8-311
- Ark. Code Ann. § 24-4-105(b)(1), (4)
- Ark. Admin. Code 075.00.1-105 (APERS appeals)
Source
Original opinion text
Opinion No. 2019-068
February 10, 2020
The Honorable Kenneth B. Ferguson
State Representative
P. O. Box 5661
Pine Bluff, AR 71611-5661
Dear Representative Ferguson:
This is in response to your request for an opinion concerning Ark. Code Ann. § 24-8-311, and its applicability to the potential retirement of one of your constituents. Your questions pertain to the following scenario:
[Your] constituent was hired as clerk of the municipal court in or about 1999. As she now approaches her potential retirement after twenty years of service, she is being told by the Arkansas Public Employees Retirement System (APERS) that the above referenced statute is no longer governing or applicable law as it pertains to her retirement status. Without speaking for APERS, she is told that APERS took over her retirement system in 2004/2005 and converted those under that system into APERS' system, meaning she would need to work twenty-eight (28) years to achieve retirement with full benefits.
RESPONSE
I must respectfully decline to render an opinion in response to your questions concerning this scenario. It has come to my attention that this matter is scheduled to be heard by the APERS Board of Trustees, pursuant to Ark. Admin. Code 075.00.1-105. It is this office's longstanding policy to decline to issue opinions on matters in litigation or pending before an administrative body.
Sincerely,
LESLIE RUTLEDGE
Attorney General
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