Stephen D. Bright

Attorney General of Arkansas — Opinion
Opinion Delivered September 10, 2004

MIKE BEEBE, Attorney General

The Honorable Stephen D. Bright State Representative 127 Southshore Drive Maumelle, AR 72113-5810

Dear Representative Bright:

You have requested my opinion concerning the City of Maumelle’s Pension Trust Fund, which was created by Ordinance No. 166 of 1991.

Your questions are:

(1) Is the pension trust legal under Arkansas law concerning the creation and funding of municipal pension funds?
(2) If the answer is no, can the City of Maumelle remedy the same by submission of the ordinance to the voters for approval?
(3) If the pension trust is illegal, what recourse do employees of the City of Maumelle have presently for benefits which are due immediately?

You have provided copies of the ordinance and of the pension trust document for my review.

RESPONSE

I must decline to respond to your questions at this time. The central issue that is raised by your questions, i.e., the legality of a city’s coverage of its employees under a private pension fund, was the subject of Gonzales v. City of Dewitt, 2004 WL 794589 (Ark. 4-15-2004), which the Arkansas Supreme Court recently remanded to the Arkansas County Circuit Court. The matter is therefore currently pending before that court under Docket Number E-99-57. For that reason, I cannot opine on the issue.

Although I have a statutory duty to render my opinion to members of the legislature and various state officials regarding matters of state law see A.C.A. § 25-16-706 (Repl. 2002), my office adheres to a long-standing policy against issuing opinions concerning matters that are the subject of pending litigation, or that are the subject of litigation that appears to be imminent. This policy of declining to address such issues is based primarily upon the separation of powers doctrine. See, e.g., Ops. Att’y Gen. Nos. 2004-232; 2004-102; 2004-034; 2003-311; 2003-294; 2003-233; 2003-182; 2003-032; 2002-302; 99-389; 97-329; 97-105. Any opinion issued from my office would constitute executive comment on matters that are properly decided by a judicial body. Because your questions relate directly to a legal issue that is the subject of pending litigation, any answer to your question must be provided in the judicial forum.

Accordingly, I must decline to address your questions at this time.

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

Sincerely,

MIKE BEEBE Attorney General