Request By:
Mr. George R. Arvin
General Manager
Kentucky Retirement Systems
226 West Second Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Patrick B. Kimberlin, III, Assistant Attorney General
This is in response to your recent letter wherein you request an opinion of this office for an interpretation of KRS 61.615. You ask a number of questions which we shall deal with seriatim.
1. If the Retirement Board discontinues or reduces a disability retirement allowance of a recipient does that individual have the right to request early retirement benefits under KRS 61.595(2), assuming he has sufficient service to qualify for early retirement?
It is our opinion that the answer to the foregoing question must be in the negative. As you are aware, once a member selects a retirement plan (including disability retirement) , he may not select a different plan after the first retirement allowance payment has been drawn by the state treasurer. KRS 61.590(3). We believe that this provision would prohibit an individual on disability retirement from selecting early retirement should his disability benefits be discontinued or reduced under KRS 61.615.
Moreover, when a member of the Kentucky Employes Retirement System (KERS) is granted disability retirement pursuant to KRS 61.600 his membership in the Retirement System is terminated automatically under KRS 61.535(1)(b). The language of KRS 61.595(2) is applicable only to a "member" who is seeking early retirement. 1 Thus, it is clear that a person who has been granted disability retirement is no longer a "member" of the Retirement System and therefore such an individual is not eligible to seek or receive retirement benefits under KRS 61.595(2) since only a "member" of the Retirement System is eligible for such benefits.
We are cognizant of the fact that an argument might be made that when a person's disability benefits have been either discontinued or reduced under KRS 61.615(1), (2), and (3) by the Board, his status with the Retirement System might once again be categorized as a "member" which would permit him to seek and receive early retirement benefits. However, there is clearly no statutory authority which would support such a proposition and, in fact, statutes we have previously cited dealing with membership in the system would preclude such a conclusion.
The Retirement System is a statutory creature and not only its functions, responsibilities and duties but also the rights and alternatives offered to those to which it applies are limited to its statutory language. Absent specific statutory language authorizing a disability recipient whose benefits have been discontinued or reduced under KRS 61.615 to seek early retirement we are constrained to conclude that such an individual may not seek early retirement. 2
2. If the Board reduces or discontinues a disability allowance due to gainful employment, can the former recipient request a reconsideration of his case at any time?
It is our opinion that the individual whose disability allowance has been reduced or discontinued due to gainful employment may request a reconsideration of his case at any time thereafter. There is no statutory authority prohibiting such a reconsideration and it would comport with current statutes as a matter of policy.
Footnotes
Footnotes
1 See KRS 61.510(8) for the definition of a "member."
2 In light of our negative answer to your first two questions there is no necessity to respond to questions 3 and 4 in your letter which were predicated solely upon an affirmative answer on our part.