Opinion No.

Check Treatment

The Honorable Frank J. Willems State Representative Route 3 Paris, AR 71855

Dear Representative Willems:

This is in response to your request for an opinion concerning firefighters' pension funds. Specifically, you have asked the following question:

If a Fire Department was established four years prior to when a pension plan was established and if the firemen have paid dues since 1973 when the pension fund was established, can these members pay the back dues from 1969 to 1973 and become eligible for a pension in 1989?

In my opinion, assuming the firefighters involved have twenty years of actual service, the answer to your question is "yes". It should be noted, however, that we find no provision mandating the payment of any back dues.

From the dates mentioned in your question, it is my assumption that the provisions of A.C.A. 24-11-801, et seq., governing Firemen's Relief and Pension Funds are controlling, rather than the provisions of 24-10-101, et seq., governing the Local Police and Fire Retirement System, which became operative beginning in 1981. Under the former chapter, 24-11-818 states its intent as being that eligibility for benefits is to be determined from actual time of service regardless of whether such service occurred before or after passage of the pension act. A.C.A.24-11-818(e)(1). It should be noted that this particular provision is not codified in the 1987 supplement to the new Code, although the provision appears expressly in Act 389 of 1987.

Thus, if the firefighters in question have actually served the required twenty years, beginning in 1969, they will be eligible to receive retirement benefits in 1989, assuming they meet all the other conditions and requirements of eligibility. There does not, however, appear to be any requirement in A.C.A. 24-11-801, et seq., that back dues be paid. (I assume that your reference to "dues" applies to the yearly payment required under A.C.A.24-11-816(a)(3)).

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.