Request By:
Honorable Sam Boyd Neely
City Attorney
City of Mayfield
Mayfield, Kentucky 42066
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 initially refer to KRS 95.560 which requires that members of the police and fire department of cities of the third class must serve twenty (20) years or longer consecutively in order to be eligible for retirement. Pursuant to this statute you raise the question as to whether or not a policeman who has made application for a year's leave of absence in order to obtain a master's degree could, upon his return to the police force, continue in the service without a service break. In other words, would his consecutive years of service be broken by the leave of absence.
Our response to your question would be in the negative as held in OAG 77-735 [copy attached] in which we stated that:
"On the other hand, an employee temporarily leaving his employment by virtue of a leave of absence granted by the commission would not violate the consecutive years of service requirement as pointed out in the above legal quote from CJS and as held in the case of Board of Administrators of City's Employee Retirement System v. San Diego, 93 P. 2d 1046, 34 Cal. App. 2d 514. . . ."
You next relate that a member of the police or fire department recently died who had not qualified for a pension under KRS 95.550. The question is raised as to whether or not the board of trustees of the pension fund may make a refund of the deceased member's contribution to the administrator of the estate in view of the terms of KRS 95.620(2), which reads as follows:
"The board of trustees of the pension fund may refund a member's contributions upon that member's withdrawal from service prior to qualifying for pension. The member shall be entitled to receive a refund of the amount of contributions made by the member after the date of establishment, without interest." (Emphasis added).
Our response to the above question would be in the negative as held in OAG 76-641 [copy attached] . You will note from the opinion that we do not believe the term "withdrawal" would include a person who dies while in service prior to retirement.
Also, in connection with the provision of KRS 95.620 above quoted, you raise the additional question as to whether or not by the use of the word "may" in the statute, it would be discretionary on the board's part as to whether any refund of contributions is to be made to the decedent's estate.
Though our negative answer to the previous question makes this question moot, we will nevertheless point out that the use of the word "may" does, in fact, give to the board discretion in returning any contribution to a member upon his withdrawal, voluntarily or involuntarily, from service. See OAG 72-431 [copy attached] and the case styled Police and Retirement Fund v. Shields, Ky., 521 S.W.2d 82 (1975), where the Court defined the term "withdrawal" to include involuntary withdrawal though such definition involved a different factual situation.