Request By:
Albert W. Spenard, Esq.
33 East Broadway
Madisonville, Kentucky 42431
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning the city's police officers' pension fund.
You state that a member of the city's police force has had two terms of service with the force. One term began in 1959 and ended with the officer's resignation in 1970. The second term began in 1973 and has continued up to the present time. The officer is covered by civil service under the existing police and firefighters retirement provisions. At the time he resigned in 1970 he was not permitted to withdraw any of the funds he had paid into the pension fund. He was covered under the pension plan during all of his employment from 1959 to 1970 and since his reemployment in 1973 he has again been covered under the pension plan.
Your question is whether the police officer may, by paying for the three-year gap from 1970 to 1973, connect the two periods of service, thus using both periods plus the three-year period he would pay for in computing his eligibility for retirement benefits.
At the outset, we direct your attention to the case of Policemen's and Firemen's Retirement Fund v. Shields, Ky., 521 S.W.2d 82, 83 (1975) where the court said in part 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." Presumably the city's civil service and pension plans for its police officers are being operated pursuant to KRS 95.761 to KRS 95.784.
Having examined the applicable statutory sections we find no provisions requiring that the periods of service rendered to the city police department be continuous for purposes of the retirement system. We find no provision for counting the time between periods of service to the city and no provisions authorizing a person to purchase the time between periods of service rendered to the city in order to increase his number of years of service for purposes of computing retirement benefits.
KRS 95.768 provides for the pensioning of police officers who have served at least 20 years and KRS 95.775 refers to applications for pension benefits from those who have served the police department for 20 or more years. There is no requirement that the service rendered be for 20 consecutive years, only that it be for at least 20 years.
In 62 C.J.S. Municipal Corporations, § 588(g) the following appears.
". . . In the absence of a provision to the contrary, it is not necessary that the period of service be continuous; but unless a statute provides otherwise, in computing the period of service, the time between the discharge of an officer and his reinstatement may not be counted. . . ."
The court, in the case of Caronia v. Police & Fire Pension Commission of Orange, 18 N.J. Super. 149, 86 A.2d 793 (1952), said in part as follows relative to continuous service:
". . . If only the period subsequent to his reinstatement, or second appointment, be counted, he had not served 25 years and his application for retirement was premature. But if his service prior to his dismissal December 29, be also taken into account, he had served more than the necessary 25 years. The statute does not state that the 25 years of service must be continuous or uninterrupted. In the absence of such a provision, the statute will not be construed to require that the period be continuous. State ex rel. Haberlan v. Love, 95 Neb. 573, 145 N.W. 1010 (Neb. Sup. Ct. 1914); State ex rel. Boyd v. Schneider, 147 Ohio St. 252, 70 N.E.2d 455 (Ohio Sup. Ct. 1946)."
Thus, in the absence of a statutory provision authorizing him to do so, a police officer may not pay for the three-year gap between his periods of service to the city as a policeman to lengthen his service for purposes of computing retirement benefits. However, in figuring the years of service to the city for purposes of eligibility for a pension, the police officer's years of service as an officer do not have to be continuous and uninterrupted.