Request By:
Honorable L. B. Lawton
City Attorney
City of Henderson
City Building
Henderson, Kentucky 42420
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of November 30 in which you initially relate the following facts and question:
". . . Your Opinion No. 76-748 answered the question as to whether or not this time before the break in service can be added to his subsequent service in order to effect his longevity benefits for retirement. However, it did not answer the question as to whether or not a policeman or fireman employed for five years, has a six months break in service through termination and rehiring, as to whether or not he must have twenty years of continuous service after the rehiring, or fifteen years of continuous service after the rehiring in order to meet the requirements for a twenty year retirement.
"Also, is there any distinction made in regard as to:
"1. Break in service as a result of a termination of employment and subsequent reemployment?
"2. A leave of absence granted by the City Commission?
"3. A termination with a subsequent reinstatement by the City Commission.
"We have situations where individuals have had breaks in service in each of the three above manners. I need to know whether or not in each case after returning to employment or through rehiring, reinstatement or termination of leave of absence they must have twenty years of consecutive service, or after five years can they add in their previous service for the purpose of totaling twenty years?"
As pointed out in OAG 76-748, KRS 95.624 requires twenty (20) years of consecutive service in order to initially qualify for a pension. KRS 95.620, as amended in 1972, provides, in effect, that the board of trustees may refund a member's contributions upon his withdrawal from service prior to qualifying for a pension. At the same time when the member receives a refund, he shall be considered a new member upon subsequent reemployment if he qualifies for membership; however, after completion of at least five (5) years of continuous membership service following his latest reemployment, such member shall have the right to make a repayment to the system of the amount previously received as a refund.
Upon the restoration of such refund, such member shall have reinstated to his account all credited service represented by the refund for which repayment has been made. This provision giving credit to the reemployed employee for previous years of service would equally apply of course to the member who had never withdrawn his funds following the termination of his initial employment. This statute does not, however, provide for the reinstatement of that period of time during which the reemployed officer was not employed as there is no authorization for him to pay into the fund an amount that he would normally contribute during the break in his employment, which, if authorized, would no doubt create a continuous or consecutive period of service within the meaning of KRS 95.560. Referring to 62 CJS, Mun. Corps., § 727f, we quote the following:
"Continuity of employment or service. A statutory requirement or condition that the employee shall have been in the continuous service or employment of the municipality for the specified period must be complied with, and an ordinance permitting the substitution of intermittent service for the continuous service required by the charter is void; . . . Such continuity does not mean that the service shall be performed without interruption from day to day, but does require that the relation of master and servant between the municipality and the employee shall have continued unbroken for the required period; hence, the condition may be satisfied notwithstanding short periods of absence or nonemployment during the time of service, or legally authorized vacations or leaves of absence, or notwithstanding the continuous period of employment did not extend to the date of retirement. "
Under the circumstances, we are forced to conclude that though the legislature has authorized the reinstatment of the employee's previous service to his overall credited service period, it failed to provide that upon such reinstatement the period of time would be considered an uninterrupted part of his required twenty (20) consecutive years of service. Of course, as an alternative the legislature could have eliminated the word "consecutive" in relation to the number of required years of service. However, since the legislature did neither, we are forced to conclude that when an employee's employment is terminated but he is later reemployed, his previous service or employment to which he may be credited cannot be counted as part of the twenty (20) consecutive years of service required for retiring.
On the other hand, an employee temporarily leaving his employment by virtue of a leave of absence granted by the commission would not violate the consecutive years of service requirement as pointed out in the above legal quote from CJS and as held in the case of
Board of Administrators of City's Employee Retirement System v. San Diego, 93 P. 2d 1046, 34 Cal. App. 2d 514. We also believe that the reinstatement of an employee following his suspension or termination of employment where the grounds for same were not sustained on appeal before the commission or by the courts would satisfy the consecutive years of service requirement.
Thus, in answer to your last question concerning what action the board should take regarding pensions that may have been granted improperly, we believe a declaratory judgment suit should be filed to let the court clarify the law and the positions of the parties of interest, particularly in the absence of any domestic case in point.