Can a city attorney 'retire' for one minute, collect a pension, and immediately go back to work in the same elected office?
Plain-English summary
The Crossett city attorney had served for over 20 years. On December 29, 2022, he sent a letter to the mayor's office stating he would retire that day at noon, be resworn into the same office on January 1, 2023, and start collecting a pension equal to half his salary for the rest of his life. The Crossett City Council never voted to accept the resignation. He took the new oath on January 1 and resumed working.
State Senator Ben Gilmore asked the AG whether this scheme worked, that is, whether the December 29 letter plus the three-day gap qualified as a "retirement" under Arkansas's municipal-attorney pension statute, A.C.A. § 24-12-120, so that monthly benefit payments could begin.
The AG said no. Two pieces of Arkansas law combine to defeat the attempt:
-
Under A.C.A. § 24-12-120, a city attorney must "retire" (with at least 20 years of service, or at least 10 years and age 60) before pension benefits can begin. The statute does not define "retire," but the AG used dictionary definitions and a 2013 prior opinion to conclude that the employee must actually terminate covered employment.
-
Under Arkansas Supreme Court precedent, a resignation by a public officer is not effective when submitted; it is effective when accepted. Rider v. City of Batesville, 220 Ark. 31 (1952), states the rule. Hopper v. Garner, 328 Ark. 516 (1997), adds that the entity authorized to fill the resulting vacancy is the entity authorized to accept the resignation. For a Crossett alderman or city attorney, that entity is the city council, by operation of A.C.A. § 14-43-412(a). Because the Council never accepted the resignation, the city attorney never resigned, never terminated covered employment, never retired, and is not eligible to receive benefit payments.
The AG flagged a separate point that does NOT save the scheme but is worth understanding: there is no general bar to a city attorney retiring and immediately returning to work. The Arkansas Public Employees' Retirement System (APERS) requires a bona fide separation under A.C.A. § 24-4-520, but the municipal pension statute for paid nonuniformed employees, A.C.A. § 24-12-101 et seq., does not. So a properly executed retirement (resignation accepted, pension started, then re-election or rehire later) could in principle work, unless the city has adopted its own bona fide separation requirement. The AG had no information that Crossett had adopted one.
Two cautions in the opinion. First, this is fact-finding territory. The AG explicitly does not say "this employee did not retire." The AG says the law applied to the facts as described leads to that conclusion. Second, the AG points out that the question should go to the city council in the first instance because eligibility determinations under the municipal pension statute are local.
What this means for you
City councils evaluating a sitting officer's resignation-retirement scheme
Two questions to ask, and to document the answers to:
- Did the council take a formal vote to accept the resignation? If not, the resignation is ineffective under Arkansas case law, and the official has not separated. Pension payments cannot begin.
- Has the city adopted a separation-of-service requirement applicable to the office in question? If yes, even an accepted resignation may not be enough; the official must actually be separated for the period the city's local rules require.
If the resignation was not accepted but pension payments have already started, the city should pause payments and bring the matter back to the council for a formal vote on resignation acceptance and pension eligibility. Continued payments without a valid retirement could expose the city to a clawback claim.
City attorneys considering retirement under A.C.A. § 24-12-120
Read the statute carefully and coordinate with the council. A self-executed resignation letter is not enough. The council must accept the resignation. For continuity, build a written timeline:
- Resignation letter to the council, with an effective date.
- Council action on the resignation (a meeting, a motion, a vote, a recorded resolution).
- Effective date of retirement.
- Start of pension payments (typically the day after the effective resignation date).
- Re-election or reappointment, if any, with a meaningful gap if the city has a local separation requirement.
Cities with local pension boards have flexibility under A.C.A. § 14-43-601(a)(2)(B) to add a bona fide separation rule. Check whether your city has adopted one before assuming a brief gap is enough.
Municipal pension fund boards and administrators
Before initiating monthly payments, confirm the resignation has been formally accepted by the body with vacancy-filling authority. The Hopper v. Garner rule (vacancy-filler equals resignation-acceptor) is the cleanest test. For a city attorney in a city of the first class with a population under 5,000 and a mayor-council form of government, the council fills the vacancy and accepts the resignation under A.C.A. §§ 14-43-412(a), 14-43-319.
Mayors and city clerks
Receiving a resignation letter is not the same as accepting it. The mayor's office may receive the letter, but the body that legally accepts is typically the council. Route the letter to the council for action and document the action in the minutes.
News reporters covering municipal pensions
When a long-serving local official appears to "retire and return," the audit question is: did the legally authorized body accept the resignation, and is there a recorded action? If the answer is no, the scheme is likely defective under Arkansas law and pension payments may be unauthorized. Public records to ask for: the resignation letter, the council meeting minutes, the council resolution accepting the resignation, the pension fund board's resolution starting payments.
Other elected city officials thinking about a similar move
The opinion does not bless the structure. It says the structure failed in this case because of an unaccepted resignation. Even with an accepted resignation, the city's own policies could add a bona fide separation requirement. And the AG opinion is persuasive only; a court could read "retire" more narrowly than this opinion does and still defeat a brief-gap retirement.
Common questions
Does Arkansas state law require a "bona fide separation" before retiring and returning to work?
Not for paid nonuniformed municipal employees under A.C.A. § 24-12-101 et seq. APERS, the state employees' system, does require it under A.C.A. § 24-4-520. Cities may impose their own separation rule by local ordinance under A.C.A. § 14-43-601(a)(2)(B).
Is the resignation effective on the date in the letter or the date of council acceptance?
On the date of acceptance. Rider v. City of Batesville, 220 Ark. 31 (1952), holds that "a mere presentation of a resignation does not work a vacancy and a resignation is not complete until accepted by the proper authority."
Who is the "proper authority" to accept a city attorney's resignation in Arkansas?
The body authorized to fill the resulting vacancy. In a city of the first class, that is the city council under A.C.A. § 14-43-412(a). Hopper v. Garner, 328 Ark. 516 (1997), explains the rule.
What if the resignation letter says "effective immediately" and no one acts?
Under Arkansas law, the letter does not work an automatic resignation. Without acceptance by the council, the official remains in office.
Does this opinion mean the city attorney owes the pension fund money?
The opinion does not directly answer that, but its logic implies that any benefit payments made before the resignation was actually accepted are unauthorized and may be subject to recovery. The city council and pension board would need to address this on the actual facts.
Could the city attorney still retire properly going forward?
Yes. Submit a new resignation, have the council accept it on the record, and begin benefits after acceptance. If the city has a local separation requirement, observe it before any reappointment.
Background and statutory framework
The Arkansas pension framework for paid nonuniformed municipal employees, including city attorneys, is in A.C.A. § 24-12-101 et seq. Two paths to retirement eligibility under § 24-12-120:
- Age 60 with at least 10 years of service, or
- Any age with at least 20 years of service.
The statute does not define "retire," and Arkansas courts have not interpreted that word in this context. The AG used the cardinal rule of statutory construction (a statute is read "just as it reads, giving the words their ordinary and usually accepted meaning") from Tollett v. Wilson, 2020 Ark. 326, 608 S.W.3d 602, plus Black's Law Dictionary and the American Heritage Dictionary, to conclude "retire" means to stop working.
Resignation rules:
- Rider v. City of Batesville, 220 Ark. 31, 245 S.W.2d 822 (1952): resignation is effective only when accepted.
- Hopper v. Garner, 328 Ark. 516, 944 S.W.2d 540 (1997): the entity that fills the vacancy is the entity that accepts the resignation.
- A.C.A. § 14-43-412(a): in cities of the first class, the council fills vacancies in elected city offices (other than ward council seats).
- A.C.A. § 14-43-319: city attorneys are elected in cities of the first class with mayor-council government and population under 5,000, unless an ordinance provides otherwise.
- A.C.A. § 14-37-104: cities with population over 2,500 are cities of the first class. Crossett's 2020 population was 4,822.
Separation-of-service rules:
- A.C.A. § 24-4-520: APERS requires a bona fide separation.
- A.C.A. § 14-43-601(a)(2)(B): authorizes municipal legislation on pension and civil service matters not in conflict with state law. The AG cited Op. Att'y Gen. 2013-127, which had previously suggested local pension boards explore a bona fide separation requirement.
Citations
- A.C.A. § 24-12-120(a), (b) (city attorney retirement eligibility)
- A.C.A. § 24-12-101 (definition of paid nonuniformed employees)
- A.C.A. § 24-4-520 (APERS bona fide separation)
- A.C.A. § 14-43-412(a) (vacancies in cities of the first class filled by council)
- A.C.A. § 14-43-319 (election of city attorney in cities of the first class)
- A.C.A. § 14-43-601(a)(2)(B) (municipal legislation on pension/civil service)
- A.C.A. § 14-37-104 (population threshold for city of first class)
- Tollett v. Wilson, 2020 Ark. 326, 608 S.W.3d 602 (statutory construction)
- Rider v. City of Batesville, 220 Ark. 31, 245 S.W.2d 822 (1952) (resignation requires acceptance)
- Hopper v. Garner, 328 Ark. 516, 944 S.W.2d 540 (1997) (vacancy-filler accepts resignation)
Source
Original opinion text
Opinion No. 2023-003
February 17, 2023
The Honorable Ben Gilmore
State Senator
Post Office Box 1197
Crossett, Arkansas 71635
Dear Senator Gilmore:
I am writing in response to your request for my opinion on whether a particular elected official is currently eligible to receive retirement-benefit payments.
Your correspondence indicates that the City of Crossett's attorney, who has served in that position for more than 20 years, sent a letter to the Office of the Crossett Mayor on December 29, 2022. In that letter, the city attorney stated his intention to retire at noon the same day, December 29, 2022; to be resworn into the office of city attorney on January 1, 2023; and to collect retirement benefits from the city "during the remainder of [his] natural life, payable at the rate of one-half of the salary payable to the City Attorney as of [December 29, 2022]." You note that the Crossett City Council did not accept the city attorney's resignation and that the city attorney had not received any retirement benefits before retaking office on January 1, 2023.
Your correspondence further states since the elected official in question has served 20 years, he is eligible and entitled to retirement benefits upon his retirement. Rather, the question is whether his December 29 resignation letter and near immediate return to work constitutes an actual retirement that would allow him to start receiving the monthly retirement benefits.
RESPONSE
Because the Crossett City Council did not accept the Crossett city attorney's resignation before he was resworn into office, it is my opinion that the Crossett city attorney did not retire, meaning that he is currently ineligible to receive retirement-benefit payments.
DISCUSSION
I am not a factfinder when issuing opinions, and whether any particular city official is eligible to receive retirement benefits is a question of fact. Questions about any specific city official must be presented first to the city for determination, based upon the applicable local-benefit provision and relevant state law. While your correspondence states that the Crossett City Council did not accept the city attorney's resignation, you have not indicated what decision, if any, the city council has made regarding the city attorney's eligibility to receive benefits. Although I cannot render a definitive opinion as to whether the Crossett city attorney is currently eligible to receive retirement-benefit payments, I will discuss the proper application of state law to the situation you have described.
Arkansas law allows cities of the first and second class to provide retirement benefits to city attorneys who meet certain qualifications. The statute creates two different ways for a city attorney to qualify for retirement benefits. First, an attorney who is at least 60 years old can retire after having served at least ten years. Second, an attorney who has served at least 20 years can retire, regardless of the attorney's age.
Since your correspondence states that the city attorney has served in that position for more than 20 years, there is no question that he is eligible to retire. Rather, the question is whether he is currently eligible to receive benefit payments, given that he tendered his resignation on December 29, 2022; remained "retired" for three days; and then was resworn into office on January 1, 2023.
The general rule is that retirees may return to covered employment without forfeiting their retirement benefits, so long as they do not rejoin their retirement systems. In the case of "paid nonuniformed employees," which include city attorneys, this general rule applies. And unlike the Arkansas Public Employees' Retirement System ("APERS"), which generally requires a break in service before a retiree receiving benefits under APERS may assume office, the provisions of A.C.A. § 24-12-101 et seq. that govern the retirement benefits of paid nonuniformed employees do not impose such a requirement. While cities may impose a bona fide separation-of-service requirement on retirees who wish to continue receiving benefits after returning to employment, I have no information to suggest that the City of Crossett has done so. Consequently, I see no impediment to a city attorney retiring briefly and then returning to office without forfeiting his retirement benefits.
Nevertheless, a city attorney still must truly retire to be eligible to receive benefit payments. The word "retire" is not defined in A.C.A. § 24-12-101 et seq., but the cardinal rule of statutory construction is to construe a statute "just as it reads, giving the words their ordinary and usually accepted meaning in common language." The word "retire" generally means "[t]o stop working at a job, usually upon reaching the normal age for leaving employment" or "[t]o withdraw from one's occupation or position, especially upon reaching a certain age; stop working." Looking to the plain meaning of "retire" and the context of its usage in A.C.A. § 24-12-101 et seq., this office has previously opined that a paid nonuniformed employee must terminate his or her covered employment in order to retire. In other words, the employee cannot be eligible to receive retirement benefits without first ceasing the employment that is covered by the retirement plan.
Thus, the question becomes whether the Crossett city attorney's resignation letter stating his intent to retire on December 29, 2022, worked an effective resignation such that his covered employment was terminated. Although the statutes governing city attorneys do not address what constitutes an effective resignation from office, the Arkansas Supreme Court has held that "the general rule, apart from statutory provisions, is that a mere presentation of a resignation does not work a vacancy and a resignation is not complete until accepted by the proper authority." Furthermore, the Court has said, "Although Arkansas law does not designate who is the proper authority to accept a municipal officer's resignation, other jurisdictions have held that the entity or person that has the authority to designate the resigning officer's successor also has the authority to accept a resignation."
Under A.C.A. § 14-43-412, which addresses vacancies in cities of the first class, when "any office of an elected officer, except council members of the ward, becomes vacant before the expiration of the regular term, then the vacancy shall be filled by the city council until a successor is duly elected and qualified." According to the United States Census Bureau, the City of Crossett's population was 4,822 in the most recent federal decennial census, meaning that it is a city of the first class and that its city attorney is elected. Therefore, § 14-43-412 applies here, making the city council the proper authority to fill a vacancy in the office of city attorney and to accept a city attorney's resignation.
In sum, a city attorney's resignation is not effective until it has been accepted by the city council. Because employment does not cease until the resignation takes effect and because one must cease employment to "retire" for purposes of retirement benefit eligibility, it is my opinion that the Crossett city attorney is likely ineligible to receive retirement benefit payments at this juncture. But as explained above, this question must ultimately be presented to the Crossett City Council for determination.
Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General