Attorney General of Arkansas — Opinion
Opinion Delivered September 5, 2002
MARK PRYOR, Attorney General
The Honorable Lindbergh Thomas State Representative P.O. Box 505 Grady, AR 71644-0505
Dear Representative Thomas:
You have presented the following questions for my opinion:
(1) Can an individual who is currently receiving retirement benefits from her service as Dumas city clerk/treasurer and Dumas municipal court clerk continue to receive those benefits if elected mayor of Dumas?
(2) If this individual is allowed to collect only the mayor’s salary, can she resume her current retirement benefits after her term as mayor ends?
(3) What would be the status of her clerk’s retirement if she were elected alderman instead?
Question 1 — Can an individual who is currently receiving retirementbenefits from her service as Dumas city clerk/treasurer and Dumasmunicipal court clerk continue to receive those benefits if elected mayorof Dumas?
It is my opinion that this individual can continue to receive her retirement benefits if elected mayor. She can also receive the mayor’s salary. However, she cannot re-join the retirement system and accrue further time in the system while serving as mayor.
It appears from the information you have provided that the individual in question is drawing benefits from a local pension that is made available to “paid nonuniformed employees” in accordance with A.C.A. § 24-12-101 et seq. Nothing in this statutory scheme (or in any other provision of law) precludes this individual from continuing to draw retirement benefits for her previous service while also drawing a salary as mayor. However, she is precluded from rejoining the retirement system and accruing additional years of credited service while simultaneously drawing retirement benefits for her past service and a salary for her current service as mayor.
The act of rejoining a retirement system after retirement is widely regarded in most retirement systems as impermissible unless expressly authorized by statute. The Arkansas legislature has authorized rejoining after retirement in only one retirement system — local fire pension funds. See A.C.A. § 24-11-827. (It should be noted that under that statute, the retiree’s benefits cease during the period of re-employment.) It is my opinion that if the legislature had intended to permit nonuniformed municipal employees to rejoin their local retirement systems after retirement, it would have expressly provided for such a course of action, as it did for local fire fighters. None of the provisions of law that govern nonuniformed municipal employees does so.
The rationale behind the legislature’s declining to make such a provision is clear: To allow a retiree to draw benefits while earning further credited service upon which to calculate further benefits would, in essence, amount to “double-dipping” and would create an unwarranted burden on the retirement system. Accord, Ops. Att’y Gen. Nos. 98-303; 98-162.
I therefore conclude that the individual about whom you have inquired can continue to receive her retirement benefits if elected mayor, and can also receive the mayor’s salary, but she cannot re-join the retirement system and accrue further credited time in the system while serving as mayor.
Question 2 — If this individual is allowed to collect only the mayor’ssalary, can she resume her current retirement benefits after her term asmayor ends?
My response to Question 1 renders this question moot.
Question 3 — What would be the status of her clerk’s retirement if shewere elected alderman instead?
It is my opinion that this individual’s election as alderman would have no effect on her entitlement to receive her retirement benefits.
Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.
MARK PRYOR Attorney General