Opinion No. ( 1993 )

The Honorable Mike Wilson State Representative P.O. Box 5269 Jacksonville, Arkansas 72076

Dear Representative Wilson:

This is in response to your request for an opinion regarding the disability retirement of police officers. Specifically, you have enclosed a letter from the secretary of the Jacksonville Police Pension Board which asks whether an officer sustaining a disability injury in the line of duty is entitled to 65% of his pay after he reaches what would have been his twenty year employment date.

It is my opinion that the answer to your question is "yes."

The disability retirement of police officers who are members of local pension funds is controlled by A.C.A. § 24-11-423. Subsection (a)(1)(B) of this statute provides that if the police officer is injured in the line of duty, the monthly disability benefit shall either be equal to sixty-five percent (65%) of the salary attached to the rank he or she held, or shall be equal to the benefit paid to normal service retirants, whichever is greater. The benefit paid to normal retirants is one-half of their actual salary based upon the highest salary year. A.C.A. §24-11-422 (as amended by Act 546 of 1993). Certain additional benefits are accorded for service beyond the required twenty years.

In my opinion a police officer injured in the line of duty and "disability retired" is entitled to continue to receive sixty-five percent of his salary (if this is the greater amount under the language above) even after the date at which he or she would have been eligible for ordinary retirement. A similar conclusion was reached in Op. Att'y Gen. No. 88-336 (copy enclosed) with regard to firefighters.¹ As in Opinion No.88-336, it does not appear that the officer would be eligible for normal retirement, because the facts do not indicate that the officer has served twenty years. Under the facts of your question, the officer has been disability retired for a portion of these twenty years. In my opinion therefore he is entitled to continue to receive a disability pension.

Additional support for this conclusion can be found at A.C.A. §24-11-423(b) which provides that "[a]ny police officer retired for reasons of disability who has more than twenty (20) years of service shall also be entitled to receive any supplementary benefit for which he would otherwise be qualified under this section and § 24-11-422." This provision entitles officers who have more than twenty years of service and who are thereafter disability retired to the disability pension plus any additional benefits accorded for the service in excess of twenty years. Although this provision does not expressly address the facts of your question, which I interpret as involving a police officer who is disability retired prior to twenty years of service, it does in my opinion lend support to the conclusion that the mere service of more than twenty years does not make an injured officer a normal retirant rather than a disability retirant under Arkansas law.

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh

¹ It should be noted that the law was amended after the issuance of Opinion No. 88-336 to codify this conclusion with respect to disability retired firefighters. Section24-11-819(a)(2)(B)(iii) of the Arkansas Code, enacted in 1989 by Act 390, provides that: "The disability benefit provided herein shall continue to be paid to the fire fighter so long as he is retired and shall not be reduced to the regular service annuity amount, if less, when he reaches normal retirement age."