Request By:
Florence Kreiger
Assistant Director and Treasurer
Department of Finance
4th and York Streets
Newport, Kentucky 41071
Opinion
Opinion By: Robert F. Stephens, Attorney General; Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of June 11 concerning a request for a refund by a Mrs. Ritter of her deceased husband's contributions pursuant to KRS 95.865(1). You desire our opinion as to the validity of her request. In connection with said request you relate the following facts:
"A brief statement of the facts prompting this letter would show that on July 14, 1977, Charles Ritter, an active member of the Newport Police force died while in an off-duty capacity. The surviving spouse is presently forty (40) years of age, has no dependent children under age eighteen (18), nor is she totally disabled; thereby making the provisions of KRS 96.861 inappicable. Mrs. Ritter, however, is making a claim for refund of her deceased husband's contributions pursuant to KRS 95.865(1)."
After reviewing the matter we have reached the conclusion that Mrs. Ritter is only entitled to the benefits authorized by KRS 95.861(1)(b). This statute is implemented upon the death of a member not occasioned by the performance of his duty and authorizes under such conditions that the surviving widow receive an annuity therein provided subject to certain conditions which according to the facts Mrs. Ritter meets except that under subsection (1)(b) she has not reached the age of 45. This subsection provides in part the following:
"The widow is at least 45 years of age, otherwise payment be deferred until she attains such age. . . ." [Emphasis Added].
You will note that under this benefit statute the annuity is merely deferred until the recipient, in this case Mrs. Ritter, reaches the age of 45. At present she is 40 years of age. As a consequence the argument that this statute is inapplicable is in our opinion not correct as payment is merely deferred to a specific date which is her 45th birthday.
On the other hand KRS 95.865(1) is designed to become effective where, upon the death of a member occasioned while on active service, no widow's annuity is payable; in which event the widow is then entitled to receive as a death benefit, the amount equal to the total contribution made by the member or $300, whichever is greater.
The term "payable" is a descriptive word meaning capable of being paid. Words and Phrases, Vol. 31A. The term "payable" is also defined as something "that can be paid" or "that is to be paid" (on a specified date). Webster's International Dictionary.
Referring to the case of
Policemen's and Firemen's Retirement Fund of the City of Newport v. Shields, 521 S.W.2d 82 (1975) you will note where the court declared that the rights of persons participating in a pension plan are governed entirely by the terms of the pension plan and the statutes under which it is operated. See also McQuillin Municipal Corporations, Vol. 3, Sec. 12.141, from which we quote the following:
"Statutory provisions which govern in the matter of pensions cannot be varied by local regulations, or by judicial construction, nor may the pension provisions of a city charter be altered by an ordinance, or by the rules and regulations of a city department."
We are thus of the opinion that KRS 95.861(1)(b) is controlling and Mrs. Ritter is only entitled to the annuity provided by this statute which is simply deferred, until she reaches the age of 45. As a consequence KRS 95.865(1) is clearly inapplicable to this factual situation.