Request By:
Larry K. Harrington, Esq.
City Attorney, City of Owensboro
City Hall Building
Owensboro, Kentucky 42301
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter seeking an opinion concerning the interpretation of KRS 95.859 as it relates to the fact situation you present.
A fireman in Owensboro, whose family you state is eligible for death benefits under KRS 95.861, recently drowned from non-work related causes and while he was not engaged in the performance of his official duties. The deceased is survived by minor children but at the time of his death was divorced. You refer to KRS 95.861(c)(3) which sets forth the manner in which benefits are computed for children of a deceased who is not survived by a widow. That section provides for a maximum combined payment to all the minor children of 75% of the average salary as defined in KRS 95.851(m). You further state that KRS 95.859 sets out the procedure to use in computing the amount of the retirement annuity and provides in part that no retiree or his surviving widow shall receive a pension of less than $100 a month.
Your specific question is:
". . . whether the provisions of KRS 95.859 relate to the provisions of KRS 95.861(c)(3), and if so, whether the computation of benefits for minor children of a deceased member not survived by a widow is determined solely in accordance with KRS 95.861, or whether the computation of benefits is subject to the minimum limitation of one hundred dollars ($100) per month as set out in KRS 95.859."
KRS 95.851 to 95.885 relate to the Police and Firemen's Benefit Fund in Cities of the Second Class, and Owensboro, of course, is a city of the second class. The constitutionality of the Act was established in
Board of Trustees of Policemen's and Firemen's Retirement Fund of City of Paducah v. City of Paducah, Ky., 333 S.W.2d 515 (1960).
KRS 95.859 which is cited in your letter deals with such factors as the retirement annuity, the rate of the retirement annuity, the minimum payment and a cost of living increase. Your fact situation does not involve a retired fireman or one about to retire. Furthermore, KRS 95.859 does not involve minor children and does not provide for payments because of minor children. It is limited to the retiree or his surviving widow, neither of whom are present in your fact situation. KRS 95.860, which also does not apply to your factual situation, deals with the death of a member fireman due to occupational causes.
KRS 95.861, dealing in part with the death of a member fireman not occasioned by performance of duty, provides in subsection (1) that upon the death of a member occurring while in service, arising from any cause other than in the performance of duty, provided the member has had at least three years of total service, his widow shall receive an annuity. Subsections (a), (b) and (c) of subsection (1) of KRS 95.861 primarily deal with conditions the widow must satisfy to receive that annuity. Subsection (2) sets forth the widow's annuity where minor children under eighteen are involved.
Prior to the 1976 regular session of the Kentucky General Assembly what now appears as KRS 95.861(4) appeared as KRS 95.861(3). That particular provision provides now as it did then that, "These benefits shall also be payable upon death of the member while on retirement, provided marriage was in effect for at least one (1) year before retirement. " Apparently this provision was intended to afford some protection to widows of already retired firemen, regardless of the cause of death of the fireman.
As a result of action taken by the 1976 regular session of the Kentucky General Assembly what now appears as KRS 95.861 (3) was enacted and it provides as follows:
"If the pensioner is not survived by a widow and there are minor children the following benefits shall be paid: (a) one (1) minor child, fifty per cent (50%), (b) two (2) minor children, fifteen per cent (15%) additional, (c) three (3) or more minor children, ten per cent (10%) additional, subject to a maximum combined payment of seventy-five per cent (75%) of the average salary as defined in KRS 95.851 (m). The annuity of each child or children shall continue until each child attains age eighteen (18), or, in the case of a child regularly employed in full time educational activities the age of twenty-three (23). The annuity payments shall be reduced in reverse order."
The above quoted subsection refers to a "pensioner" not survived by a widow and where there are minor children. It is not clear whether the provision is limited to those situations where a fireman already drawing a pension dies without a surviving widow but with minor children or whether the statute covers those situations where a fireman who dies, while in service, from any cause other than in the performance of duty, leaves minor children surviving him but not a widow. As a practical matter not many retired firemen will have minor children.
In view of the primary purpose of the whole statutory provision - to assist widows and minor children of member firemen whose death while in service arises from any cause other than in the performance of duty - we think that the General Assembly probably intended to use additional words such as "member firemen and policemen" which would have more clearly expressed their intent. Considering the actual location of the provisions of KRS 95.861(3) within the overall statutory framework of the pension and benefit plan for cities of the second class, the fact that firemen, in service, are more likely to have minor children than retired firemen, and that there had been a gap as to providing benefits to minor children of deceased firemen not survived by a widow, we think KRS 95.861(3) deserves the broader rather than the more limited interpretation.
Prior to the adoption of KRS 95.861(3) there was a gap in the benefits extended to minor children where firemen, in service, died from non-work related causes, in that such benefits were predicated on the condition that a marriage had to be in effect at the time of death and as a consequence the status of a "widow" had to be created. See OAG 42,920, copy enclosed. The subsection now grants benefits to minor children where the deceased fireman is not survived by a widow. See also KRS 95.860 where benefits are granted to minor children "If a widow does not survive the member, or if she remarries. . . ."
Having attempted to set forth a reasonable explanation as to what KRS 95.861 means and the situations it purports to cover, we answer your question by stating that the benefits granted to minor children of a fireman who died, while in service, from a cause other than in the performance of duty, and who was not survived by a widow, will be determined by the provisions of KRS 95.861. There is nothing in KRS 95.859 which is relevant to the fact situation you have presented as it does not deal with the rights of minor children of a deceased fireman or payments to them. This conclusion is, of course, based on our interpretation of KRS 95.861(3) that it includes the payment of benefits to minor children of deceased firemen, not survived by a widow, where the firemen died, while in service, of non-work related causes. If the subsection is limited to those situations where a fireman was on a pension at the time of his non-occupationally related death, then the minor children cannot receive benefits when a fireman who dies of a non-occupationally related cause, while in service, does not leave a surviving widow. Since there is no reported Kentucky case law on the matter, it obviously is subject to litigation.