Opinion No.

Mr. Bill Van Cleve, Interim Executive Director Arkansas Public Employers' Retirement System One Union National Plaza 124 West Capitol Little Rock, Arkansas 72201

Dear Mr. Van Cleve:

You presented a request for an official Attorney General's opinion on the following questions:

(1) Does Opinion No. 97-355 apply to former members of the General Assembly who rendered service prior to the five-year vesting amendment?

(2) Are former contributory members of the General Assembly who have ten or more years of total service, but less than ten years of General Assembly service, eligible to draw a contributory benefit on their legislative service?

(3) Does Opinion No. 97-355 mean that a member or former member who has ten or more years of total service, but less than ten years of General Assembly service is ineligible for any benefit for the legislative service, or that he or she is only ineligible for the legislative benefit?

(4) If a member or former member of the General Assembly is not eligible for any benefit based on legislative service, can the legislative service be combined with other service in the same system or in a reciprocal system to meet vesting requirements to draw benefits on the non-legislative service?

This office issued an opinion on June 5, 1998, in response to your request. It has now come to our attention that litigation is currently pending (and was pending at the time the opinion was issued), the outcome of which could directly impact the issues you have raised. (This litigation is being handled privately; my office is not a party to it.) The June 5 opinion was issued without due consideration of the potential impact of that litigation upon these issues and of the possible overlap between your questions and the matters to be addressed in that litigation.

It is a long-standing policy of this office not to issue legal opinions on matters that are pending before the courts for determination. Such matters are properly decided by the judiciary; commentary from any of the other branches of government would present a threat to the constitutional principle of separation of powers. See Ark.

Const., art. 4, § 2.

For these reasons, I hereby withdraw Opinion No. 98-058, issued on June 5, 1998. That opinion is accordingly without any force or effect. I will be happy to address the issues you have raised after the pending litigation has been concluded.

Sincerely,

WINSTON BRYANT Attorney General

WB:SBA/cyh