Can an Arkansas mayor draw both an APERS pension for service as mayor AND the separate mayor's retirement under § 24-12-123?

Plain-English summary

Senator Ricky Hill asked, on behalf of the City of Ward, whether the city's outgoing mayor could draw both APERS retirement (for his time as mayor) and the local mayor's retirement under Ark. Code Ann. § 24-12-123. The AG's answer was, almost certainly, no, but the AG cautioned that any specific eligibility determination is "intensely factual" and must be resolved with input from the city, APERS, and their counsel.

The AG identified three statutory roadblocks:

1. Election rule. Ark. Code Ann. § 24-4-303(a)(1)(C)(i), enacted under Act 1281 of 2003, gives municipal employees (including mayors and city clerks) the option to participate in the § 24-12-123 plan in lieu of APERS. The election must be in writing within 90 days of taking office. § 24-4-303(a)(1)(C)(ii) makes the election irrevocable. So a mayor who was enrolled in APERS and never opted out (within 90 days) remains in APERS and cannot also draw § 24-12-123 benefits.

2. Same-service prohibition in § 24-12-123 itself. Subsection (a)(3)(B) says service "covered by another benefit provided for by law shall not be applied towards the mayor's retirement benefits provided for under this section." The Arkansas Supreme Court in Municipality of Helena-West Helena v. Weaver, 374 Ark. 109, 286 S.W.3d 132 (2008), interpreted this as forbidding crediting service that is already covered under another retirement plan.

3. APERS general rule against double-dipping. § 24-4-739(a)(3) says "in no instance shall the same service time and related earnings be credited in more than one (1) system established pursuant to state law." § 24-4-101(17)(B) defines "employee" to exclude persons already in another state-supported retirement system (with a Social Security carve-out).

So the AG's general answer was that drawing both benefits for the same service is barred by overlapping statutes. A specific eligibility question still requires the city, APERS, and counsel to look at the individual's election history, service dates, and which periods APERS actually covered.

Currency note

This opinion was issued in 2019. 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. The AG specifically noted that 2019 Ark. Acts No. 948 amended § 24-12-123, though the amendment was not relevant to the question.

Common questions

Q: What is the § 24-12-123 mayor's retirement?
A: A separate municipal-officer retirement plan under Title 24 (with a parallel plan under § 24-12-121 for city clerks and clerk-treasurers). Cities can offer it as an alternative to APERS for mayors and clerks.

Q: When does the election deadline start running?
A: Within 90 days after first assuming office. If the mayor missed it, the default is APERS.

Q: Is the election really irrevocable?
A: Yes, under § 24-4-303(a)(1)(C)(ii). Once elected, the mayor cannot switch back.

Q: What if the mayor served in two separate stints?
A: The opinion does not address that, but the same-service prohibition is keyed to the periods of service. Each period would need to be analyzed against which retirement system covered it. Fact-specific.

Q: Can a mayor draw APERS for one period of service and § 24-12-123 for a different period?
A: The opinion does not directly answer that. It stays narrow on the dual-credit-for-same-service prohibition. A clean separation by time period might or might not work; both APERS and the city would need to agree.

Background and statutory framework

Arkansas's municipal-officer retirement system has two paths:

• APERS (the Arkansas Public Employees Retirement System) is the default for municipal employees. APERS is a defined-benefit system funded through the state's contributions framework.
• Section 24-12-123 plan is a local plan available to mayors, with a parallel under § 24-12-121 for city clerks. It is funded and administered locally.

Act 1281 of 2003 created the election structure now codified at § 24-4-303(a)(1)(C). The 90-day election window is meant to force an early choice; the irrevocability provision was meant to prevent later gaming.

The same-service prohibition in § 24-12-123(a)(3)(B) and the APERS general rule in § 24-4-739(a)(3) work together to ensure that one period of service can only generate one retirement benefit. Helena-West Helena v. Weaver enforced that scheme by holding that years of service cannot be credited for the § 24-12-123 plan if those same years were already covered under another plan.

The opinion is careful not to cross from interpretive guidance into specific eligibility advice. The legal framework is one thing; whether a particular mayor's election was timely, whether his APERS coverage spanned all his mayoral years, and whether either plan has any unique credit rules are facts that have to be developed case by case.

Citations

• Ark. Code Ann. § 24-12-121 (city clerks)
• Ark. Code Ann. § 24-12-123 (mayor's retirement plan)
• Ark. Code Ann. § 24-12-123(a)(3)(B) (same-service prohibition)
• Ark. Code Ann. § 24-4-303(a)(1)(C)(i), (ii) (election; irrevocability)
• Ark. Code Ann. § 24-4-739(a)(3) (APERS double-credit prohibition)
• Ark. Code Ann. § 24-4-101(17)(B) (definition of "employee")
• Act 1281 of 2003 (election structure)
• 2019 Ark. Acts No. 948 (amendments not relevant)
• Municipality of Helena-West Helena v. Weaver, 374 Ark. 109, 286 S.W.3d 132 (2008)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2019-005
October 8, 2019

The Honorable Ricky Hill
State Senator
P. O. Box 177
Cabot, AR 72023

Dear Senator Hill:

This is in response to your request for an opinion from this office concerning retirement benefits for a municipal officer. As background for your question, you state:

This matter concerns the City of Ward and Arkansas Code Annotated § 24-12-123. It is my understanding the city's exiting mayor elected to enroll in APERS [the Arkansas Public Employees Retirement System] when he became mayor. The exiting mayor's time in APERS is only from his service as mayor. The exiting mayor will be drawing retirement benefits from APERS.

Against this background information, you have asked the following question:

Would a mayor be eligible for the retirement provided for in Arkansas Code Annotated § 24-12-123, if he has participated in APERS and will be drawing a retirement from that plan?

RESPONSE

Questions of this nature concerning the eligibility of particular individuals for retirement benefits are intensely factual and must be resolved with the advice and interaction of the interested parties involved, including representatives of the city and APERS and their respective counsel. I will address the generally applicable law, but I cannot definitively opine regarding the benefits that any particular individual is entitled to receive.

DISCUSSION

One statute enacted in 2003 gives municipal employees (including the mayor and city clerk) the option to participate in the plan provided under Ark. Code Ann. § 24-12-123 in lieu of participating in APERS:

If the employee elects not to continue participation in the [APERS] system and opts to participate in the local retirement plan as provided under § 24-12-121 or § 24-12-123, instead, written notice of the election shall be presented to the system in a form determined acceptable by the system not later than ninety (90) calendar days after first assuming office.

If this statute was in effect when the individual in question took office as mayor, then he had a choice upon taking office: either continue to be enrolled in APERS or participate in the plan under section 24-12-123. In other words, if this statute applies and he did not opt for the plan under section 24-12-123, then he will be drawing retirement benefits from APERS; and he plainly cannot also receive the benefit provided under section 24-12-123.

But even if the above option was not in place when the individual in question took office, there is a separate prohibition against receiving benefits under Ark. Code Ann. § 24-12-123 and APERS for the same period of service:

Service as an elected official or as an employee of the city ... that is covered by another benefit provided for by law shall not be applied towards the mayor's retirement benefits provided for under this section.

This prohibition is echoed in another statute addressing municipal employees' enrollment in APERS that states: "...in no instance shall the same service time and related earnings be credited in more than one (1) system established pursuant to state law."

Additionally, the general law governing APERS does not allow participation in both APERS and other state-supported or state-authorized retirement plans.

In sum, while factual variations could affect the question, one or more of the above statutes may effectively preclude this individual from receiving the retirement provided for in section 24-12-123 while also participating in APERS. Ultimately, however, the issue requires factual determinations and must be resolved with the advice and interaction of the interested parties involved, including representatives of the city and APERS and their respective counsel.

Sincerely,

LESLIE RUTLEDGE
Attorney General