Opinion No. ( 1999 )

Ms. Cathyrn E. Hinshaw Executive Director Arkansas Fire Police Pension Review Board P.O. Drawer 34164 Little Rock, AR 72203

Dear Ms. Hinshaw:

This is in response to your request for an opinion on the following question regarding A.C.A. § 24-11-820, involving death benefits under a local firemen's pension and relief fund:

If an active member of a local plan who is fully vested dies leaving no surviving spouse — leaving two children — would the children be entitled to the member's normal retirement benefit only, or would they be entitled to the retirement benefit plus the $125.00 per month per child?

RESPONSE

It is my opinion that the children will receive the monthly retirement benefit plus the monthly benefit under A.C.A. § 24-11-820(b)(1) if the board of trustees of the pension fund has in fact decided to order the monthly benefits to the children as authorized in § 24-11-820(b)(1).¹ This conclusion follows from the fact that the children's receipt of benefits under subsection (b)(1) of § 24-11-820 is discretionary with the board. See n. 1, supra (text of § 24-11-820(b)(1)); see also Op. Att'y Gen. 96-279. As stated in Opinion 96-279, the board may choose whether or not to award this benefit.

Thus, with regard to your specific question, I believe it is incorrect to say that the children are "entitled" to the additional benefit under §24-11-820(b)(1). Their right to this benefit depends, instead, upon whether the board has decided to order such benefits. As you have noted, Section 24-11-820(b)(2) does state that the "total sums" shall be paid to the children if there is no eligible spouse at the time of the member's death.² It is clear, however, that this simply refers to the monthly benefit provided in subsection (a), and the additional benefit, if so authorized, under subsection (b)(1). The purpose of § 24-11-820(b)(2), in my opinion, is to make it clear that the children will receive the payments if there is no eligible spouse. It does not change the discretionary nature of the additional benefit under subsection (b)(1).

Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

MARK PRYOR Attorney General

MP:eaw/cyh

¹ Subsection (b)(1)(A) of § 24-11-820 states as follows:

In addition to the monthly pension provided in subsection (a) of this section, the board of trustees may order and direct the payment of, in the case of volunteer or part-paid fire fighters, the sum of twenty-five dollars ($25.00) per month for each child under nineteen (19) years of age who has not completed high school and, in the case of full-paid fire fighters, the sum of one hundred twenty-five dollars ($125.00) per month for each child under nineteen (19) years of age who has not completed high school.

A.C.A. § 24-11-820(b)(1)(A) (Supp. 1999) (emphasis added).

² Subsection (b)(2)(A) states:

If there is no eligible spouse at the time of the member's death, then the total sums shall be paid to his children until they shall have reached nineteen (19) years of age or until the children have completed high school, whichever occurs first.