Can a Conway court clerk who paid into the city's non-uniformed pension switch to APERS and still draw pension benefits for the prior 20 years?
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This page answers the general question as of 2014. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
Senator Jason Rapert asked AG Dustin McDaniel four questions on behalf of a constituent: a deputy court clerk for Conway Municipal/District Court had worked 20+ years and participated in Conway's Non-Uniformed Employees' Pension Fund under A.C.A. § 24-12-101 et seq. She had accepted a new position as District Court Clerk for a division of the Ninth District Court, which carried APERS participation. The questions involved how the two pension systems would interact, whether seniority carried forward, and whether a retiree could be rehired into the same position.
The AG's answers:
Q1: Can the employee start APERS as a court clerk and still apply for non-uniformed pension benefits for prior deputy service?
In the AG's opinion, yes. Participation in APERS in the new position does not, standing alone, make her ineligible for the non-uniformed pension benefits for her 20+ years of prior service. A.C.A. § 24-12-115 lets eligible employees apply for the city pension based on their qualifying service in the city's non-uniformed system. The new position's APERS status doesn't retroactively disqualify her.
Q2: Does she need to retire first, then start the new position, or can she accept the new position first and then apply for benefits?
The AG opined that she could likely accept the new court clerk position, begin participating in APERS, and then apply for the city's non-uniformed pension benefits. The opinion notes the pension Board apparently had already approved the application, and the AG predicted that decision would likely be upheld if challenged.
Q3: Does seniority for sick leave and vacation carry forward to the new court clerk position, or does it need to be paid out when she separates from the deputy court clerk job?
This depends on the City of Conway's leave policies. State pension law doesn't directly resolve seniority-based leave accrual; that's a matter of the city council's adopted personnel policies. The AG would not opine on the city's specific rules.
Q4: Is there any prohibition against a non-uniformed pension retiree being rehired into the same position they retired from, provided they don't restart contributions to the city pension?
No. The AG found no provision in A.C.A. § 24-12-101 et seq. or other state law that bars rehiring a non-uniformed pension retiree into the same role, as long as they don't resume pension contributions for that work.
Currency note
This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
What is the Conway Non-Uniformed Employees' Pension Fund?
A municipal pension fund authorized by A.C.A. § 24-12-101 et seq. for non-uniformed (non-police, non-fire) city employees. Cities that adopt the framework collect contributions from employees and the city, and pay benefits based on length of service and salary.
What is APERS?
The Arkansas Public Employees' Retirement System, a statewide retirement system covering many state and local government employees. APERS uses defined-benefit formulas based on years of service and final average salary.
Can someone receive benefits from both systems at the same time?
Yes, in the scenario described in this opinion. The two systems operate independently. Service in one does not automatically disqualify someone from benefits earned through the other. The eligibility rules of each system govern its own benefits.
Does seniority carry forward from one position to another?
That depends on the policies of the new employer (in this case, the city council's leave policy for the District Court Clerk position). State pension law does not address seniority-based leave accrual.
Can a city pension retiree be rehired into the same role?
At the time of this opinion, yes, with no state-law bar, provided the retiree does not resume pension contributions on that rehired position. Local policies could still impose additional restrictions.
Background and statutory framework
A.C.A. § 24-12-101 et seq. authorizes municipal non-uniformed employee pension funds. Section -115 sets out the benefit-application process for eligible employees who have completed the qualifying service period (here, 20+ years).
APERS, the statewide system, is governed by other provisions of title 24. Coordination between municipal pension funds and APERS for employees who transition between covered positions is generally permissive: each system applies its own rules to the periods of service it covers.
The AG's analysis on rehiring after retirement reflects the standard Arkansas position: absent an express statutory bar, public employers may rehire their own retirees, with the only catch being whether continued pension contributions or benefits are required during the rehired employment. The AG read the relevant pension statutes as not barring such rehires.
Citations
- A.C.A. § 24-12-101 et seq. (Municipal Non-Uniformed Employees' Pension Fund)
- A.C.A. § 24-12-115 (benefit application for non-uniformed pension retirees)
Source
Original opinion text
Source
Official summary
A deputy court clerk for the Conway Municipal/District Court accepts a position as District Court Clerk for a division of the Ninth District Court and has worked in excess of 20 years as a deputy court clerk and participated in the non-uniformed employees' pension fund for the city pursuant to A.C.A. 24-12-101 et seq. Can that employee now begin participation in the APERS retirement system as a court clerk and make application for retirement benefits pursuant to A.C.A. 24-12-115 for prior service as a deputy court clerk? Q2) In order to receive non-uniformed retirement benefits, as discussed above, would the deputy clerk have to "retire" first and separate employment as a deputy court clerk before being hired as a "new" employee, i.e., division clerk of the court or, chronologically, can the employee accept the "new" position as court clerk, begin participation in APERS, then make application for non-uniform pension benefits? Q3) When the employee ceases contributing to the non-uniformed pension, begins contributing to APERS, do benefits, such as seniority for purposes of calculating sick leave and vacation benefits, remain the same and "carry forward" to the employee's new court clerk position or must they be paid out or otherwise resolved upon separation of employment as a deputy court clerk? Q4) Regarding non-court personnel, is there any prohibition pursuant to the non-uniformed pension fund, A.C.A. 24-12-101 et seq., or some other state law that would prohibit a city employee who retires pursuant to A.C.A. 24-12-115 from being considered for being rehired into the same position from which they retired, as long as they did not subsequently participate in the non-uniformed pension fund? RESPONSE: Q1) In my opinion, the district court clerk's participation in APERS, standing alone, does not make her ineligible for non-uniformed pension benefits under A.C.A. 24-12-101 -- 118. Q2 It is my opinion that the deputy clerk in all likelihood may accept the court clerk position, begin participating in APERS, and then apply for the non-uniformed benefits. Indeed, it seems the Board approved the former deputy clerks retirement application in this case. In my opinion, that decision would likely be upheld if challenged. Q3 This will depend upon the leave policies adopted by the city council. Q4) No.
Original opinion text
STATE OF ARKANSAS
THE ATTORNEY GENERAL
Dustin McDANIEL
Opinion No. 2013-127
February 3, 2014
The Honorable Jason Rapert
State Senator
Post Office Box 10388
Conway, Arkansas 72034
Dear Senator Rapert:
You have requested my opinion on the following questions concerning retirement
and other benefits for employees covered by the City of Conway’s Non-
Uniformed Employees’ Pension Fund:'
-
A deputy court clerk for the Conway Municipal/District Court
accepts a position as District Court Clerk for a division of the Ninth
District Court and has worked in excess of twenty (20) years as a
deputy court clerk and participated in the Non-Uniformed
Employees’ Pension Fund for the City pursuant to Ark. Code Ann. §
24-12-101 et seg. Can that employee now begin participating in the
APERS retirement system [Arkansas Public Employees’ Retirement
System] as a court clerk and make application for retirement benefits
pursuant to A.C.A. § 24-12-115 for prior service as a deputy court
clerk? -
In order to receive Non-Uniformed retirement benefits, as discussed
above, would the deputy clerk have to “retire” first and separate
employment as a deputy court clerk before being hired as a “new”
' The establishment of a pension and relief fund for “paid nonuniformed employees” is governed by A.C.A.
§§ 24-12-101 ~ 118 (Repl. 2002 and Supp. 2013). “Paid nonuniformed employees” is defined to include
certain enumerated city officials, as well as “the other full-time paid nonuniformed employees of the city.”
A.C.A, § 24-12-101 (Supp. 2013). For further information regarding the City of Conway’s non-uniformed
pension program, see Op. Att’y Gen. 2003-129.
323 CENTER STREET, SUITE 200 * LITTLE Rock, ARKANSAS 72201
TELEPHONE (501) 682-2007 * Fax (501) 682-8084
INTERNET WEBSITE ¢ http://www.ag.state.ar.us/
The Honorable Jason Rapert
State Senator
Opinion No. 2013-127
Page 2
employee, i.e., division clerk of the court or, chronologically, can the
employee accept the “new” position as court clerk, begin
participating in APERS, then make application for Non-Uniformed
Pension benefits?
-
When the employee ceases contributing to the Non-Uniformed
Pension, [and] begins contributing to APERS, do benefits, such as
seniority for purposes of calculating sick leave and vacation benefits,
remain the same and “carry forward” to the employee’s new court
clerk position or must they be paid or otherwise resolved upon
separation of employment as a deputy court clerk? -
Regarding non-court personnel, is there any prohibition pursuant to
the Non-Uniformed Pension Fund, Ark. Code Ann. § 24-12-101 et
seq. or some other state law that would prohibit a city employee who
retires pursuant to Ark. Code Ann. § 24-12-115 from being
considered for being rehired into the same position from which they
retired, as long as they did not subsequently participate in the Non-
Uniformed Pension Fund?
RESPONSE
I am somewhat uncertain whether your first question is distinguishable from your
second one. You ask about the employee’s participation in the Arkansas Public
Employees’ Retirement System (APERS), but I assume eligibility under APERS is
not at issue because a district court clerk’s membership in APERS is established
pursuant to A.C.A. §§ 24-8-901-903 (Supp. 2013).” You may be asking whether
her participation in APERS, standing alone, makes her ineligible for non-
uniformed pension benefits under A.C.A. §§ 24-12-101 — 118. The answer to that
question is “no,” in my opinion. It is my opinion in response to your second
question that the deputy clerk in all likelihood may accept the court clerk position,
begin participating in APERS, and then apply for the non-uniformed benefits.
Indeed, according to my understanding, the board that administers the non-
uniformed pension fund approved the former deputy clerk’s retirement application
in this case. In my opinion, that decision would likely be upheld if challenged.
The answer to your third question will depend upon the leave policies that have
- These sections codify Act 1375 of 2003, which placed municipal and district court clerks in APERS as of
January 1, 2005.
The Honorable Jason Rapert
State Senator
Opinion No, 2013-127
Page 3
been adopted by the city council. The answer to your fourth question appears to
be “no.”
Question I - A deputy court clerk for the Conway Municipal/District Court
accepts a position as District Court Clerk for a division of the Ninth District
Court and has worked in excess of twenty (20) years as a deputy court clerk and
participated in the Non-Uniformed Employees’ Pension Fund for the City
pursuant to Ark. Code Ann. § 24-12-101 et seq. Can that employee now begin
participating in the APERS retirement system [Arkansas Public Employees’
Retirement System] as a court clerk and make application for retirement
benefits pursuant to A.C_.A, § 24-12-115 for prior service as a deputy court
clerk?
I assume that eligibility to participate in APERS is not the actual focus of this
inquiry, given that a district court clerk’s membership in APERS is established
pursuant to A.C.A. §§ 24-8-901-903.? Accordingly, I assume you may be asking
whether the former deputy court clerk’s participation in APERS, standing alone,
makes her ineligible for non-uniformed pension benefits under A.C.A. § 24-12-
101 — 118. The answer to that question is “no,” in my opinion. APERS is a
different retirement system and I see no basis in sections 24-12-101 — 118 for
concluding that a person whose non-uniformed benefits have vested (see
discussion below) is ineligible for such benefits due to the person’s membership in
another system.
Question 2 - In order to receive Non-Uniformed retirement benefits, as
discussed above, would the deputy clerk have to “retire” first and separate
employment as a deputy court clerk before being hired as a “new” employee,
i.e., division clerk of the court or, chronologically, can the employee accept the
“new” position as court clerk, begin participating in APERS, then make
application for Non-Uniformed Pension benefits?
Your first question indicates that the individual whose benefits are at issue served
as deputy court clerk for more than 20 years before accepting the position as court
clerk. She thus had a vested right to receive non-uniformed pension fund benefits:
It shall be mandatory for the board [of trustees of the non-uniformed
pension fund] to retire an employee who has performed faithful
3 Id,
The Honorable Jason Rapert
State Senator
Opinion No. 2013-127
Page 4
service as an employee for a period of twenty (20) years at the
employee’s option or election, to be exercised by making written
application therefor....*
Apparently, the former district court clerk did not apply for non-uniformed
pension benefits under A.C.A. §§ 24-12-101 — 118 before becoming the clerk of
the court. Your question, in effect, is whether the apparent absence of a break in
service between the two positions makes her ineligible for the non-uniformed
benefits, In other words, was the former district court clerk required to terminate
employment altogether in order to be retired under sections 24-12-101 — 118?
I believe the answer to this question turns on the meaning of “retire” under A.C.A.
§ 24-12-115, set out above, which makes it mandatory on the board to “retire an
employee who has performed faithful service as an employee for a period of
twenty (20) years.” The term “retire” is not defined in the relevant statutes
(A.C.A. §§ 24-12-101—-118). We have the benefit, however, of general guidelines
for determining its meaning in order to give effect to the intent of the legislature,
recognizing that giving effect to legislative intent is the basic rule of statutory
construction to which all other interpretive guides defer.”
A court will not construe any word to be superfluous and will give each word its
plain and ordinary meaning.° In construing any statute, it may be necessary and
appropriate to place it beside other statutes relevant to the subject and give it
meaning and effect derived from the combined whole.’ It may also be appropriate
to consider the context in which the terms are used.*
“ A.C.A, § 24-12-115(b) (Repl. 2002). The board must also “retire an employee who has attained the age
of sixty (60) and has served as an employee for at least ten (10) years....” /d. As one of my predecessors
noted, the required lengths of service (10 and 20 years) are, in effect, vesting requirements: “Participating
employees who serve these designated lengths of time, who have contributed as required, and who (in the
case of the 10-year vesting requirement) have also reached the designated age, have met the requirements
for receiving benefits from the fund. These individuals have a vested contractual interest in the pension
fund. The statute states no other requirement for receiving benefits....” Op. Att’y Gen, 2002-323 at 3.
° See Vanderpool v. Fidelity & Cas. Ins, Co., 327 Ark. 407, 939 S.W.2d 280 (1997).
° Macsteel, Parnell Consultants vy. Ark. Ok. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005).
7 City of Blytheville v. McCormick, 56 Ark.App. 149, 939 S.W.2d 855 (1997).
- Bush v. State, 338 Ark. 772, 776, 2 S.W.3d 761 (1999) (“It is axiomatic that the meaning of certain words
or phrases cannot be determined in isolation, but must be drawn from the context in which they are used.”).
The Honorable Jason Rapert
State Senator
Opinion No. 2013-127
Page 5
Applying these principles, I first note that it is difficult to give the word “retire” a
singular “plain meaning.” According to the New Oxford American Dictionary, the
verb “retire” means “leave one’s job and cease to work, typically upon reaching
the normal age for leaving employment.”’ The noun “retirement” is defined in
Black’s Law Dictionary as “termination of one’s own employment or career, esp.
upon reaching a certain age or for health reasons....”'° Shorter Oxford Dictionary
defines the verb “retire” as “withdraw, esp. to or from a specified place, position,
or occupation....”"’ These dictionary definitions can yield multiple meanings. In
the case at hand, the person applying for non-uniformed benefits clearly withdrew
from her position as deputy court clerk, but she did not cease to work altogether.
The undefined term “retire” may therefore be ambiguous in the abstract. When
the term is read in context, however — which is essential to assessing its plain
meaning — I believe it becomes clear that in order to “retire” or be “retired” under
A.C.A. § 24-12-115,'* one must terminate employment covered by the non-
uniformed pension plan. This follows initially from section 24-12-115’s reference
to “service” in the phrase “retire an employee who has performed faithful service
as an employee....” (Emphasis added.) This may reasonably be understood to
mean service that entitles the employee to benefits under this statutory scheme,
i.e., service as a “paid non-uniformed employee.” The retired employee is
placed on the pension roll at one-half pay,'? and “the list of retired paid
nonuniformed employees” must be maintained by the board of trustees.’” Section
24-12-111 is further instructive, wherein it provides for the refunding of
contributions to an employee who leaves employment before vesting in non-
uniformed benefits.'® The employee in that instance forfeits his or her “credited
New Oxford American Dictionary 1,491 (Angus Stevenson & Christine A. Lindberg eds., 3d ed. Oxford
Univ. Press 2010).
' Black’s Law Dictionary 1,431 (Bryan A. Garner ed., 9th ed., West 2009).
" Shorter Oxford English Dictionary vol. Il, p. 2,574 (Oxford Univ. Press 1993).
See A.C.A. § 24-12-115(c)(1) (referring to the “employee so retired.”).
3 See A.C.A. § 24-12-101 (Supp. 2013) for definition of “paid nonuniformed employees.”
4 A.CA. § 24-12-1 15(c)(1) (“In cases arising under subsections (a) and (b) of this section, the board shall
place an employee so retired upon the pension roll at one-half (%) pay.”).
'S A.C.A. § 24-12-106(a) (Repl. 2002) (emphasis added).
'® ALC.A. § 24-12-111(d)(1) (Repl. 2002).
The Honorable Jason Rapert
State Senator
Opinion No. 2013-127
Page 6
service” as a member of the non-uniformed pension fund, and is ineligible
thereafter for any benefits for such “service”:
Upon receiving a refund of the amounts deducted from his or her
monthly salary from the pension and relief fund for paid
nonuniformed employees of the city, the employee shall forfeit his
or her credited service as a member of the pension and relief fund
and shall not be eligible thereafter to receive any benefits under the
provisions of this act for his or her service.”
Taken together, and in light of the above definitions of “retire,” these code
sections indicate that a “retired paid nonuniformed employee” is one who has been
approved for benefits under A.C.A. §§ 24-12-101—118 after terminating his or her
covered employment, that is, his or her employment covered by the city’s non-
uniformed pension fund.'® An applicant for non-uniformed benefits plainly cannot
qualify without ceasing employment in a position covered by the non-uniformed
fund. In the case at hand, the employee had terminated her service as deputy court
clerk when she applied for the non-uniformed benefits. She was serving as the
clerk of the court clerk and enrolled in APERS at that point. The fact that she
moved directly to the court clerk position — a position that is not covered by the
non-uniformed pension fund — would not appear to be a basis for denying her
benefits.
Indeed, it seems that this was the determination of the non-uniformed fund’s board
of trustees. According to my understanding, the board approved this individual’s
retirement and she is currently drawing benefits. It is well established that the
interpretation of a law by administrative agents who are charged with
administering that law will be given considerable deference, and will not be
overturned unless clearly wrong,” In my opinion, the board’s decision to retire
this individual would not be held by a court to be clearly wrong. I am further
7 1d. at (2).
'8 While it does not bear directly on your question, | note that this termination requirement is consistent
with that of the state-supported retirement system, APERS. See A.C.A. § 24-4-520(a) (Supp. 2013)
(requiring that members of APERS “terminate covered employment to be cligible for retirement{.]”)
(emphasis added).
"9 Arkansas State Highway & Transp. Dep’t vy. Lamar Advantage Holding Co., 2011 Ark. 195, 381 S.W.3d
787.
The Honorable Jason Rapert
State Senator
Opinion No. 2013-127
Page 7
reinforced in this conclusion by the general maxim that pension acts should be
liberally construed in favor of those to be benefited.”
Question 3 - When the employee ceases contributing to the Non-Uniformed
Pension, [and] begins contributing to APERS, do benefits, such as seniority for
purposes of calculating sick leave and vacation benefits, remain the same and
“carry forward” to the employee’s new court clerk position or must they be paid
or otherwise resolved upon separation of employment as a deputy court clerk?
There are no provisions in the Arkansas Code regulating the leave time of non-
uniformed employees. As explained by my immediate predecessor, the absence of
a controlling state law leaves this matter open for regulation by a city’s governing
body:
The Code expressly includes among “state affairs” subject to the
“general laws” of the state “[h]ours and vacations, holidays, and
other fringe benefits of employees.” A.C.A. § 14-43-601 (a)(1)(G)
(Repl. 1998). Subsection (a)(2) of this statute provides that a city
council may legislate upon state affairs “if not in conflict with state
law.” The Code contains no provisions regulating the leave time of
non-uniformed employees, thus leaving this field open for regulation
by the city council.”!
Your question regarding leave benefits for a deputy district court clerk must
therefore be referred to local counsel, who will be familiar with any policies that
have been fixed by the city council and whether those policies apply to deputy
court clerks under the terms of the city regulations.
Question 4 - Regarding non-court personnel, is there any prohibition pursuant
to the Non-Uniformed Pension Fund, Ark. Code Ann. § 24-12-101 et seq. or
some other state law that would prohibit a city employee who retires pursuant to
Ark, Code Ann, § 24-12-115 from being considered for being rehired into the
same position from which they retired, as long as they did not subsequently
participate in the Non-Uniformed Pension Fund?
?° Looper v. Gordon, 201 Ark. 841, 147 S.W.2d 24 (1941).
*! Op. Att’y Gen. 2005-052 at 6. See also generally Op. Att’y Gen. 2006-112 (opining that a city council is
empowered under state law to establish employment policies respecting deputy district court clerks),
The Honorable Jason Rapert
State Senator
Opinion No. 2013-127
Page 8
The answer to this question appears to be “no.” The general rule is that retirees
may return to covered employment and continue to receive their retirement
benefits, as long as it is understood they cannot rejoin their retirement systems.”
And as my predecessor observed, the general rule appears to apply to non-
uniformed employees covered by A.C.A. § 24-12-101 et seq.”?
The board may wish to consult local counsel to explore imposing a bona fide
separation of service requirement on persons seeking to be rehired into the same
position from which they retired. Although state law explicitly specifies the
subject of retirement pensions as being “state affairs” rather than “municipal
affairs,” it goes on to authorize cities to act upon such state affairs as long as the
cities’ acts with regard to such matters do not conflict with state law on the same
subject.” The Arkansas Code is currently silent on the issue of a break in service
for employees covered by a non-uniformed pension fund, thus arguably leaving
municipalities free to address the matter pursuant to A.C.A. § 14-43-601.
Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion,
which I hereby approve.
Sincerely,
WZ,
DUSTIN MeEDANIEE-
Attorney General
DM:EAW/cyh
2 Op. Att’y Gen. 2005-035,
3 Id.
4 AC.A. § 14-43-601(a)(1)(F) (Supp. 2013).
5 Iq, at (a)(2)(B).
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