Request By:
Mr. James R. Pursifull, Chief
Middlesboro Police Department
P.O. Box 601
Middlesboro, Kentucky 40965
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of May 10 in which you request an opinion concerning the following:
"Middlesboro is a 3rd Class City and we are operating under the alternate Police and Firemen's Pension fund for cities under the 3rd class. This comes under KRS 95.621 to 95.629.
"My question is whether or not the Pension Board has the right to make disbursements of pension funds in the form of a cost-of-living increase for members who have retired and been paid the amount prescribed under KRS 95.624. . . ."
Our response to your question would be in the negative. The pensions prescribed in KRS 95.624 for service retirement, disability and survivor benefits are based upon the percentage of the retiree's monthly salary at the time of his retirement, starting at fifty per cent (50%) and increasing to a maximum of seventy-five per cent (75%), depending upon the number of years of service over twenty (20). Where a statute, such as KRS 95.624, details certain conditions that must be met in order for one to qualify for a pension, and where the monthly amount is specified [in this case on a percentage basis] without the possibility of variance, such provisions cannot be altered by regulation or ordinance. In this respect we refer to McQuillin, Mun. Corps., Vol. 5, § 15.22, from which we quote as follows:
"It has been stated broadly that no municipal ordinance can go beyond, be broader than, add to, subtract from, modify or affect, limit, amend or change statutes, at least where the net result is one of conflict. Certainly an ordinance cannot impose any additional regulation in a field where, under state law and statutes, there is no room for its operation in such field, even though the particular regulation set forth in the ordinance does not directly duplicate or otherwise directly conflict with any express provision of the state law. . . ."
See also Hirschfeld v. Commonwealth, 256 Ky. 374, 76 S.W.2d 47 (1934).
We also refer you to the case of Policemen's and Firemen's Retirement Fund of the City of Newport v. Shields, Ky., 521 S.W.2d 82 (1975), which states the following principle governing pension rights:
"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. Doyle v. French Tel. Cable Co., 244 App.Div. 586, 280 N.Y.S. 281 (1935); Board of Education of Louisville v. City of Louisville, 288 Ky. 656, 157 S.W.2d 337 (1941). . . ."
Under the case law cited above and in view of the specific provisions of KRS 95.624 governing pensions, we would be of the opinion that the pension board is not authorized to grant cost of living increases to those persons receiving pensions thereby increasing their pension benefits above that authorized by statute.