Can a current Arkansas city alderman keep drawing a retirement benefit earned as a former mayor while also being paid as alderman?
Plain-English summary
Section 21-5-107 of the Arkansas Code is the dual-compensation statute. It prohibits a person who currently holds more than one elected public office from drawing compensation from more than one of those offices. The statute defines "compensation" broadly to include salary, retirement allowances, group insurance, medical benefits, and anything else of value provided in exchange for service.
Representative Richmond asked whether the rule blocks an alderman who previously served as mayor from receiving an alderman salary while also receiving a mayoral retirement allowance.
The AG answered no. The statute uses present-tense language ("holding more than one… offices held"), so the bar applies only when the person currently holds two or more offices simultaneously. A former mayor who now holds only one office (alderman) is not in that situation. The retirement allowance was earned and accrued during prior service as compensation for that prior service, but the receipt of the allowance now does not create a present-day dual-office problem.
The AG flagged caveats. Other Arkansas statutes regulate retirement benefits for mayors and elected city officials and may overlap. Specifically, A.C.A. § 24-12-123(e) bars a mayor from drawing both a city retirement benefit and any other state-authorized plan retirement based on the same period of service. A.C.A. § 14-42-117 prevents an elected city official from drawing more than one retirement benefit for the same period of service from city plans. Section 21-5-107 itself does not prohibit the arrangement described, but the broader retirement statutes might depending on facts not in the request.
What this means for you
City aldermen and former mayors
You can serve as alderman and draw a retirement allowance from earlier service as mayor without violating Arkansas's dual-compensation statute. But before you assume the math works, check three other things. First, A.C.A. § 24-12-123(e) prevents you from collecting two state-authorized retirement allowances for the same period of mayoral service. Second, A.C.A. § 14-42-117 limits you to one city-plan retirement benefit for the same period. Third, the mayoral retirement plan itself may have its own conditions on continued city service. Run the numbers with your city attorney and your retirement plan administrator before counting on the combined income.
Municipal attorneys
If a council member or alderman is collecting retirement from a prior local office, A.C.A. § 21-5-107 is not your problem because the dual-office rule keys on present holding. Your real questions are under the retirement statutes. Same-period overlap is the key concept: you cannot earn or draw two benefits for the same period of service. Different periods, different offices, different plans are generally permissible.
Retirement-plan administrators and city finance officers
The opinion clarifies the dual-compensation rule but says nothing about the duty to administer the retirement plan according to its terms. Continue to apply your plan documents and any specific provisions about post-retirement public service.
Citizens watching local government
Your former mayor running again as alderman, on the city's payroll plus a city pension, is permissible under § 21-5-107 by itself. If you think the math seems wrong (for example, the same period of service generating two benefits), the right statutes to look at are A.C.A. §§ 24-12-123 and 14-42-117.
Common questions
Why does the dual-compensation statute use present-tense language?
The opinion looked at Black's Law Dictionary's definition of "hold," meaning to currently possess or occupy or to be in administration of. The Arkansas legislature wrote A.C.A. § 21-5-107(a)(1) in those present-tense terms, which means it covers people who simultaneously sit in more than one elective seat at the moment. A former mayor is not currently in that office.
But the statute defines "compensation" to include "retirement allowances."
The AG addressed this in a footnote. Just because retirement allowances are included in compensation does not mean the statute reaches retirement allowances earned in formerly held offices. The statute's trigger is current dual office holding. If you hold only one office now, the trigger does not fire, even if a retirement allowance from a former office is technically "compensation" for that earlier service.
What are the other statutes the AG flagged?
A.C.A. § 24-12-123(a) sets the requirements for mayoral retirement benefits. Subsection (e) of that section prevents a mayor from drawing both a city retirement benefit and any other state-authorized plan retirement for the same period of service. A.C.A. § 14-42-117 prevents an elected city official entitled to retirement benefits from also participating in another city retirement plan for the same period of service.
Can a current mayor collect a retirement allowance from a different prior public position?
Probably yes, applying the same logic, but the answer depends on whether the prior position and the current one are in the same retirement system or count as the "same period of service." The opinion does not resolve this directly.
What if the alderman position is officially "elected" only on paper?
Section 21-5-107 is keyed to elected offices. Whether a particular position counts as elective should match the statutory definition of the office. Check the specific charter or statute for that role.
Background and statutory framework
Section 21-5-107(a)(1). "[Anyone] holding more than one… elected office must receive compensation from only one… of the offices held." Present-tense words mean to currently possess or occupy.
Section 21-5-107(a)(2). Requires the official to "select the office from which he or she may receive compensation by filing a statement with the Secretary of State and the disbursing officer of each governmental entity in which he or she holds an elective office." Present-tense again.
Section 21-5-107(b)(1). Defines "compensation" as "all salaries, retirement allowances, group insurance, medical benefits, and anything else of value that a governmental entity provides in return for the services of its officers." Inclusion of retirement allowances in the definition does not, by itself, expand the statute to cover offices previously held.
Other relevant statutes. A.C.A. § 24-12-123(a) sets requirements for mayoral retirement benefits. A.C.A. § 24-12-123(e) provides that "[a] mayor who receives a retirement benefit from a city… shall not be entitled to any retirement benefit based upon service for the same period from any other state authorized plan." A.C.A. § 14-42-117 provides that an elected city official who is entitled to retirement benefits "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."
Citations
- A.C.A. § 21-5-107(a)(1), (a)(2) (dual-office compensation rule)
- A.C.A. § 21-5-107(b)(1) (definition of "compensation")
- A.C.A. § 24-12-123(a), (e) (mayoral retirement benefits; one benefit per period of service)
- A.C.A. § 14-42-117 (elected city officials; one retirement benefit per period of service)
- BLACK'S LAW DICTIONARY 878–79 (11th ed. 2019) (defining "hold")
Source
Original opinion text
Opinion No. 2024-044
May 22, 2024
The Honorable Marcus E. Richmond
State Representative
10509 S and G Circle Lane
Harvey, Arkansas 72841
Dear Representative Richmond:
I am writing in response to your request for my opinion about elected officials receiving "compensation" for more than one office.
Arkansas Code § 21-5-107(a) prohibits someone holding more than one public office from receiving "compensation" for more than one of those offices. Arkansas Code § 21-5-107(b)(1) defines "compensation" to include "all salaries, retirement allowances, group insurance, medical benefits, and anything else of value that a governmental entity provides in return for the services of its officers." You ask if, under A.C.A. § 21-5-107, a current city alderman, who was previously the mayor, may receive compensation for being an alderman while also receiving a retirement allowance for being the former mayor.
RESPONSE
Arkansas Code § 21-5-107 does not prohibit a public official who holds only one elected office from simultaneously receiving his or her (1) retirement allowance from a formerly held elected office and (2) compensation from a currently held elected office.
DISCUSSION
Under A.C.A. § 21-5-107(a)(1), someone "holding more than one" elected office must "receive compensation from only one… of the offices held." These present-tense words mean to currently "possess or occupy" or "to be in… administration of" that office. Here, the alderman, despite formerly serving as mayor, currently holds only one office. Because he does not simultaneously hold multiple elective offices, the person in question is not prohibited under § 21-5-107(a)(1) from simultaneously receiving (1) retirement allowances from a formerly held elected position and (2) compensation from his current elected position. And while a retired official may not use "retirement allowances" until retirement, those allowances are earned and accrued "in return for the services" of that elected official as "compensation" when they hold office.
Although the situation you indicate is not prohibited under § 21-5-107, I caution that there may be different situations or facts with which I have not been provided that could implicate other state statutes.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General