Opinion No.

The Honorable Jim Hill State Senator 100 Center Nashville, Arkansas 71852-3821

Dear Senator Hill:

I am writing in response to your request for an opinion on the retirement benefit to be paid to the City Clerk-Treasurer of DeQueen. You relay the following facts and pose the following question:

The clerk-treasurer retired in May 2000. The clerk-treasurer was due a retirement benefit based on Arkansas Code 24-12-121. It says that the retirement benefit was to be "equal to one-half of the monthly salary received by him during the last preceding year in his service." Arkansas Code 24-12-123, which governs a mayor's retirement, provides a benefit based on the mayor's salary "at the time of retirement." The phrase "last preceding year of his service" is the matter in question.

Given the difference in language of Arkansas Code § 24-12-121, as it relates to § 24-12-123, should the retirement benefit of the city's clerk-treasurer be calculated based upon the preceding twelve months salary, the previous calendar year (1999) salary, or the current year's (2000) salary?

RESPONSE

In my opinion the language of the pertinent statute is not entirely clear and could benefit from legislative clarification. Barring any further legislative or judicial interpretation, however, it is my opinion that the words "last preceding year of his service" refer to the preceding twelve months salary.

I have not found any helpful case precedents interpreting the phrase "last preceding year." Cases from other jurisdictions interpreting the phrase "preceding year" in various contexts, however, have held that the phrase means the preceding twelve months, and not the preceding calendar year. See Application of Court Chambers Corporation, 196 Misc. 781,91 N.Y.S.2d 59 (1949); Sherman v. J.S. Brown Mercantile Co., 78 Colo. 335,241 P. 724 (1925); and People ex rel. Escheman, 63 Colo. 227, 165 P. 260 (1917). In my opinion therefore, absent any clarifying legislative or judicial guidance, the term "monthly salary received by him during the last preceding year of his service" in A.C.A. § 24-12-121, refers to the monthly salary received during the twelve months preceding the retirement.

Senior Assistant Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.

Sincerely,

MARK PRYOR Attorney General

MP:ECW/cyh