Request By:
Mr. Everett Kidd, Jr.
Chief of Police
Police Department
Danville, Kentucky 40422
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of July 22 in which you raised the following questions pertaining to KRS 95.550:
"(1) K.R.S. 95.550(c) 'If any member of the police . . . department is killed or dies as the result of an injury received in the performance of duty, or dies of any disease contracted by reason of his occupation, or dies while in the service from any cause as a result of his service in the department, or dies in service or while on the retiredlist from any cause after fifteen years of consecutive yearsofservice in the department, and . . . .' Does the reference to the fifteen years of consecutive service only refer to the condition set out by commas and underlined above: 'or dies in service or while on the retired list from any cause after fifteen years. . . .,' or does the reference refer to the three conditions outlined immediately above this subject condition also? Does a police officer have to serve fifteen years of consecutive service before any benefits would be received by his dependents in the event of his death resulting from the performance of his duty, occupational disease, or from any cause as a result of his service with the department? If fifteen consecutive years is a requirement, what provisions are made for the family of a police officer perhaps killed in the performance of his duties who has served less than fifteen years?
"(2) If a police officer has and claims prior time with the department before establishment of the pension plan referred to in this statute, would this period of time apply toward his total retirement time?
"(3) If a police officer has interrupted time with the department since establishment of the pension plan, but did not withdraw his contributions into the plan, would this interrupted time count against him in computing his 'fifteen consecutive years' of service even though his contributions were not withdrawn?"
In response to your initial question, the reference to "fifteen years of consecutive service" found in subsection (c) of KRS 95.550 refers only, in our opinion, to the following excerpt within the subsection, to wit: "or dies in service or while on the retired list from any cause after fifteen years of consecutive years of service in the department, . . ." (Emphasis added.) The basis of our conclusion is the fact that this excerpt refers only to a member who dies from any cause other than a cause related to the performance of his duties as a police officer covered by the prior provisions of subsection (c), and is thus separate, distinct and exclusive within itself.
In response to your second question, KRS 95.560 provides that any member of a police or fire department having served twenty years or longer consecutively in the police or fire department may petition the board of trustees for retirement. This statute appears to refer to the years of service that the policeman or fireman has spent with his respective department. As to whether the legislature intended to give credit for those years served prior to the city's adoption of the pension act is usually determined from the language of the act itself. For example, under KRS 95.855, pertaining to cities of the second class, there is a specific provision that "each person becoming a member on the date of the establishment of the fund shall be entitled to full credit for all service rendered prior to such date."
We find no similar provision to that quoted above that pertains to cities of the third class operating under KRS 95.520-95.620 and, as a consequence, we believe that the answer is dependent upon local interpretation pursuant to the rules and regulations that may be adopted by the board of trustees under KRS 95.540. In other words, the board would, without specific direction by the legislature on the subject, appear to be empowered to determine this question.
Our response to your third question would be in the affirmative as held in OAG 76-748, a copy of which we are attaching. As a consequence, a police officer should be given credit for the period of time that he was a member of the department before such was interrupted, where he did not withdraw his contributions paid during the initial period of employment.