Opinion No. ( 1999 )

The Honorable Russ Hunt State Representative P.O. Box 200 Searcy, AR 72145-0200

Dear Representative Hunt:

You have requested an Attorney General opinion concerning a captain who retired from a non-civil service fire department under a private system that has been turned over to the Local Police and Fire Retirement System management.

You have asked:

(1) May this captain be re-hired by the same city to fill another position in the same department, specifically an Assistant Chief position?

(2) May this captain continue to draw his retirement while filling the new position?

(3) May this captain continue drawing his retirement and not join any future retirement system while serving in the new position?

(4) If this captain may not be re-hired directly through the fire department, could he be re-hired by the city and assigned as Administrative Assistant to the Chief of Fire Services?

RESPONSE

Question 1 — May this captain be re-hired by the same city to fillanother position in the same department, specifically an Assistant Chiefposition?

It is my opinion that this captain may be re-hired by the same city to fill another position in the same department, including an Assistant Chief position. Although under certain circumstances there are some restrictions on re-joining retirement systems or on drawing benefits while accruing further credited years of service for retirement purposes (see Ops. Att'y Gen. Nos. 98-162; 96-303; and 96-212; and discussion of this issue in response to Question 2), the law does not appear to prohibit former employees from returning to work for their employers. See Ops. Att'y Gen. Nos. 98-162; 87-439.

I therefore conclude that the captain about whom you have inquired may be re-hired by the city for which he previously worked, to fill another position in the same department, including an Assistant Chief position.

Question 2 — May this captain continue to draw his retirement whilefilling the new position?

It is my opinion that the answer to this question will depend upon whether the captain re-joins his former local retirement system, pursuant to A.C.A. § 24-11-827, joins LOPFI, or opts not to join any retirement system.

Under the provisions of A.C.A. § 24-11-827, the captain may re-join his former local retirement system (which is now being administered by LOPFI).¹ If he should choose to do so, he may not continue to draw his retirement benefits while filling the new position. That statute (A.C.A. § 24-11-827) is the only provision of Arkansas law that allows retirees to re-join their former retirement system and accrue further credited years of service. However, it also provides that previously accrued retirement benefits are not to be paid during the period of re-employment. Therefore if the captain chooses to re-join his former local retirement system as allowed by A.C.A. § 24-11-827, he may not draw his retirement benefits while filling the new position.

This statute (A.C.A. § 24-11-827) would not apply if the captain should choose to join LOPFI, rather than re-joining his former local retirement system. Retirees who return to work are not prohibited by law from joining other retirement systems and continuing to draw benefits from their former retirement systems. See Op. Att'y Gen. No. 96-212. Moreover, they can do so even while drawing a salary for their current re-employment. See Op. Att'y Gen. No. 98-162. Therefore, if the captain should choose to join LOPFI rather than re-joining his former retirement system, he can continue to draw his retirement benefits from the former retirement system (and draw a salary) while filling the new position. State law does not prohibit him from doing so. Id. (It should be noted, however, that he will not be eligible for benefits from LOPFI unless he vests separately in that system.)

Question 3 — May this captain continue drawing his retirement and notjoin any future retirement system while serving in the new position?

It is my opinion that the captain in question may continue to draw his retirement benefits, and opt not to join any other retirement system. However, as noted in response to Question 2, such a choice would not be necessary in order for him to continue to draw his retirement benefits.

Question 4 — If this captain may not be re-hired directly through thefire department, could he be re-hired by the city and assigned asAdministrative Assistant to the Chief of Fire Services?

Because I have opined that the captain in question may be re-hired, this question is moot.

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

Sincerely,

MARK PRYOR Attorney General

MP:SBA/cyh

¹ It is my understanding that LOPFI regards the local retirement systems that it administers in this way as continuing to constitute local systems, subject to the provisions of A.C.A. § 24-11-827, and as discreet from the LOPFI system.