Opinion No. ( 1998 )

The Honorable Jim Argue, Jr. State Senator 5300 Evergreen Drive Little Rock, Arkansas 72205

Dear Senator Argue:

You have requested an Attorney General opinion concerning recoverable damages for the wrongful suspension, discharge, or reduction in rank of a police officer or firefighter by a municipal civil service commission under the provisions of A.C.A. § 14-51-308(f). That statute states:

In the event that it is finally determined that there was a wrongful suspension, discharge, or reduction in rank of any employee, the employee shall be entitled to judgment against the city for whatever loss he may have sustained by reason of his suspension, discharge, or demotion, taking into consideration any remuneration which the officer, private, or employee may have received from other sources pending the final determination of his case.

A.C.A. § 14-51-308(f).

You have noted the fact that many police departments permit their officers to accept off-duty employment, and that such employment often involves the performance of police functions. Employment of this nature requires the employee to be a police officer in good standing.

In light of the foregoing, you have asked:

Does the income that an officer might have earned from an off-duty job, which he could not perform as a result of not being a police officer during a suspension of after termination, constitute "loss," within the meaning of A.C.A. § 14-51-308(f)?

The term "loss," within the meaning of the above-quoted statute, is not defined in the statutes, nor has the Arkansas Supreme Court interpreted the term. Because of the absence of such judicial or legislative guidance on this issue, the matter will necessarily have to be determined on the basis of the particular facts of each case. The Attorney General is not authorized to make determinations of fact. For this reason, I am unable to respond to your question.

This is a matter should be addressed either by a court or by the legislature.

Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.

Sincerely,

WINSTON BRYANT Attorney General

WB:SBA/cyh