Opinion No. 1994-307

Cathyrn E. Hinshaw

Attorney General of Arkansas — Opinion
Opinion Delivered February 1, 1995

WINSTON BRYANT, Attorney General

Ms. Cathyrn E. Hinshaw, Executive Director Arkansas Fire and Police Pension Review Board P.O. Drawer 34164 Little Rock, AR 72203

Dear Ms. Hinshaw:

This is in response to your request for an opinion answering the following question:

Are dependents of a fire pension fund member, as established by Act 491 of 1921, eligible for benefits which are payable to dependent survivors if the deceased member of the plan was retired on disability before 20 years of service?

In my opinion the answer to your question is “yes.”[1] The benefits which your question describes as “payable to dependent survivors” I assume are those described in A.C.A. § 24-11-820 (Supp. 1993). That section at paragraph (a)(1) provides in part:

Whenever any member of a fire department . . . covered by this act shall have lost his life . . . or any retired member shall die, leaving a spouse, or children under the age of nineteen (19) years, then . . . the board of trustees shall order and direct . . . that a monthly pension . . . shall be paid. . . .

Id. The question becomes whether a pension fund member who dies while on disability retirement before twenty years of service is a “retired member” under § 24-11-820.[2] I believe that to be the case.

Arkansas Code Annotated § 24-11-819(a)(2)(B) (Repl. 1992) deals with full-paid fire fighters injured in the line of duty. Where a disabled fire fighter continues to survive past normal retirement, §24-11-819(a)(2)(B)(iii) provides that “[t]he disability benefit provided . . . shall continue to be paid to the fire fighter so long as he is retired and shall not be reduced to the regular service annuity amount, if less, when he reaches normal retirement age.”[3] Subparagraph (iv) provides, however, that “[u]pon the death of the retirant, any survivor benefits shall be based upon the normal service retirement annuity amount.” Thus, this provision appears to contemplate that survivor benefits will be paid when a disability retirant dies without regard to service years for normal retirement.[4]

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General David R. Raupp.

Sincerely,

WINSTON BRYANT Attorney General

WB:DRR/cyh

[1] I am assuming only the application of Chapter 11 of Title 24 concerning pension and relief funds. Chapter 10 of Title 24 establishes and covers the Local Police and Fire Retirement System and applies to fire fighters employed after January 1, 1983, or those not already covered by a relief fund on that date.

[2] In an opinion involving unused sick leave, this office has said that disability retired fire fighters are retired members. See Op. Att’y Gen. 92-259 (copy enclosed).

[3] This office has reached the same end before by concluding that a disability retired fire fighter continues to be disability retired after twenty years. See Op. Att’y Gen. 88-336 (copy enclosed) (assuming, again, the provisions of the Local Police and Fire Retirement System in Chapter 10 of Title 24 do not apply).

[4] There are numerous code provisions which describe circumstances in which survivors are not covered, e.g., if a fire fighter marries after retirement, § 24-11-820(b)(5) precludes the spouse or that spouse’s children from receiving fund benefits. My opinion assumes otherwise qualified survivors under Chapter 11 of Title 24.