Request By:
Hon. Edsel T. Jones
Office of the City Attorney
City Hall
Winchester, Kentucky 40391
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Patrick B. Kimberlin, III, Assistant Attorney General
This is in response to your recent letter of March 13, 1979 wherein you request our opinion pertaining to retirement coverage for your policemen and firemen. You indicate that the City of Winchester, a city of the third class, is considering adopting the provisions of KRS 78.510, et seq., in order to participate in the County Employes Retirement System (CERS). You point out that it is the intent of the City to exclude its policemen and firemen, all of whom currently participate in the Policemen's and Firemen's Pension Fund pursuant to KRS 95.520, from participation in the CERS once it is adopted by the City.
However, you express concern that should the City adopt CERS coverage, (1) it could not keep its current policemen and firemen from transferring to the CERS whenever they might choose to do so (now or in the future), in light of KRS 78.531(1); and, (2) that all policemen and firemen hired after the City has adopted CERS coverage must be included in the CERS.
With reference to the above you now ask our opinion as to the following question:
"May an employing entity such as the City in this case adopt the (CERS) plan and exclude certain employes such as our policemen and firemen who are covered by other statutory retirement plans?"
The answer to your question is yes.
To start at the beginning, KRS 78.540(3) limits membership in the CERS to those employes of the City of Winchester who are not members of some other state, county or local retirement system supported in whole or in part by public funds. Thus, at first blush it would appear that the policemen and firemen of your City, who mandatorily participate in the Policemen's and Firemen's Pension Fund, would not be permitted to participate in the CERS by electing such coverage as would other City employes as permitted under KRS 78.540(2).
However, we believe that KRS 78.531(1) must be read in pari materia 1 with KRS 78.540(3). It is our opinion that KRS 78.531(1) permits those of your employes who are members of the Firemen and Policemen's Pension Fund, and who choose to do so, to terminate their membership in that retirement system once the city has adopted the provisions of the CERS. By thus terminating their membership in the Policemen and Firemen's Pension Fund those individuals are then eligible, pursuant to KRS 78.540(2), to elect participation in the CERS. But, the election must be made within 30 days following the City's initial participation in the CERS or, in the case of those individuals who may be on leave at that time, within 30 days of their return to active service. KRS 78.540(2).
We now come to our final point and to the answer to the question that you have presented to us. It is our opinion that none of your City policemen or firemen who belong to the Policemen and Firemen's Pension Fund may terminate their membership in that retirement system and seek membership in the CERS once the time limits prescribed by KRS 78.540(2) have expired, and any policemen or firemen hired by the City thereafter must belong to the Policemen and Firemen's Pension Fund. Accordingly, it is our belief that the City of Winchester may exclude its policemen and firemen from participation in the CERS. Ordinarily, this is usually done by an adoption of an ordinance to that effect. In passing, we would note that even if an ordinance were not adopted, there would be nothing in Chapter 78 or 95 of the Kentucky Revised Statutes which would legally permit your policemen and firemen to terminate their membership in the Policemen and Firemen's Pension Fund and to become members of the CERS other than the procedure we have already discussed in KRS 78.540 and 78.531.
Footnotes
Footnotes
1 The apparent conflict between KRS 78.540(3) and KRS 78.531(1) is resolved by construing these statutory provisions together in order to give proper effect and meaning to each of them. See generally, City of Bowling Green v. Bd. of Education of Bowling Green Independent School District, Ky., 443 S.W.2d 243 (1969).