Request By:
Hon. Jonathan D. Goldberg
Counsel for the City of Louisville
Goldberg & Simpson, P.S.C.
2800 First National Tower
Louisville, Kentucky 40202Hon. Mark L. Miller
Counsel for FOP Lodge #6
1817 Bardstown Road
Louisville, Kentucky 40205
Opinion
Opinion By: David L. Armstrong, Attorney General
On behalf of the city of Louisville and the Fraternal Order of Police, you have requested an opinion from this office concerning whether the police officers employed by the city of Louisville are eligible to participate in the County Employees' Retirement System [hereinafter "CERS"]. You have, more specifically, asked whether the police officers in question are eligible to participate in the CERS Hazardous Duty Plan. We need not address the "hazardous duty" qualification for, if it is determined that the police officers can participate in CERS, the officers would be able to participate in CERS Hazardous Duty Plan upon proper certification. See: KRS 61.592; KRS 78.545(31). Resolution of the question presented will, therefore, hinge upon whether police officers employed by the city of Louisville are eligible to participate in CERS.
The factual situation presented is as follows: Prior to 1961, the city of Louisville established a Police and Firefighters' Pension Fund pursuant to KRS 95.290, a statute dealing with pension systems for police and fire divisions in cities of the first class. See Louisville City Employment Provisions, Section 36.100. On July 1, 1973, the city of Louisville passed an ordinance authorizing participation by its employees in CERS. The ordinance specifically excepted from participation in CERS those employees who were members of the Police and Firefighters' Pension Fund. The city police, and presumably the city firefighters, now desire to switch from the private pension fund to CERS.
The rights of persons participating in pension plans are governed entirely by the terms of the pension plan and the statutes under which it is operated. Policemen's and Firemen's Retirement Fund v. Shields, Ky., 521 S.W.2d 82 (1975). There is no statute permitting a city of the first class which has created a pension plan pursuant to KRS 95.290 to enter CERS. There are statutes permitting cities which had created pension plans under other statutes to enter CERS. See for example, KRS 95.852 (second class cities), KRS 95.768 (fourth class cities). There being no specific enabling statute, the authority for members of the Louisville Police and Firemen's Fund to enter CERS must be found elsewhere.
In my opinion, that authority may be found in the 1973 ordinance authorizing participation of city of Louisville employees in CERS, in the existence at the time the ordinance was passed of KRS 78.540(3), since repealed, and in KRS 78.530(5).
When the city of Louisville joined CERS in 1973, it specifically excepted the members of the Police and Firefighters Fund. Indeed, KRS 78.540 at that time contained a provision which required an entity joining CERS to except members of an already established pension fund:
78.540 Membership. Membership in the system shall consist of the following:
(1) All persons who become employes of a participating county after the date such county first participates in the system; and
(2) All persons who are employes of a county on the date the county first participates in the system, either in service or on authorized leave from service, and who elect prior to the October 1 next following such county's participation, or in the case of persons on authorized leave, within 9 days of their return to active service, to become members and thereby agree to make contributions as provided in KRS 78.510 to 78.880.
(3) Notwithstanding any other provisions of this section, membership in the system shall not include those employes of a county who are members of some other state, county or local retirement system, supported in whole or in part by public funds.
The ordinance was written in compliance with KRS 78.540(3).
In 1982, KRS 78.540(3) was repealed. Members of the police and firefighters fund are no longer statutorily excluded from participation in CERS.
The repeal, however, did not change the historical fact that, when the city of Louisville authorized CERS participation by its employees, it could not extend such participation to the members of the Police and Firemen's Pension Fund. Because of the realities of pension plan funding, police and firefighters were a statutorily-excluded agency at that time.
There is a specific statute authorizing participation in CERS by an excluded agency. KRS 78.530(5) provides:
The order of the governing body of a county [or political subdivision], as provided for in subsection (1) of this section, may exclude from participation in the system, hospitals and any other semi-independent agency. Each such excluded agency shall be identified in the order authorizing participation and such excluded agency may participate in the system as a separate agency.
As an excluded agency, the police officers are eligible to participate in CERS pursuant to KRS 78.530(5). Such participation would have to be accomplished by a new ordinance passed by the city of Louisville.
It should be noted that this opinion is strictly limited to the specific factual situation presented. This opinion is not to be extended to consider police or firefighters a semi-independent agency in any other context. Only because of the statutory exclusion under the now-repealed KRS 78.540(3) can it be considered a semi-independent agency in this context.
Perhaps of related interest is OAG 84-119, copy enclosed.
I trust that this opinion has been of some assistance to you.