Request By:
Mr. Jackie Cooper
Chief, Murray Fire Department
City Hall Building
Murray, Kentucky 42071
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter presenting questions concerning eligibility for retirement under the firemen's pension fund in cities of the third class.
You state that Murray operates its firemen's pension fund pursuant to KRS 95.621 to 95.629. The provisions of KRS 95.620 which you mention apply to any city of the third class which has adopted KRS 95.621 to 95.629 and in part provides that after the completion of at least five years of continuous membership service following a member's latest reemployment, he shall have the right to make a repayment to the system of the amount received as a refund, including six percent interest. Upon the restoration of such refunds, such member shall have reinstated to his account all credited service represented by the refunds of which repayment has been made.
You ask whether the employe may retire after a total of twenty years of service and qualify for pension benefits.
You further state that you were initially employed by the Murray Fire Department from January 15, 1961 to September 15, 1965. You were reemployed by the fire department on January 15, 1966.
You ask whether you can retire after 20 years of total service and be eligible for the benefits set forth in KRS 95.621 to 95.629.
In response to the two situations you have presented we first direct your attention to KRS 95.624 which provides in part as follows:
"In cities of the third class, any member of the police or fire department having served twenty (20) years or longer consecutively in the police or fire department may petition the board of trustees for retirement. . . ."
As set forth in OAG 73-643, copy enclosed, at page two, the word "consecutively" conveys the meaning of an unbroken sequence or uninterrupted succession. Thus, the period of time during which a person's fire service career is interrupted breaks the sequence of continuous service with the fire department. In other words, if a person works for the fire department, terminates his fire department service, and is then subsequently reemployed by the fire department, his previous service to which he may be credited cannot be counted as part of the twenty consecutive years of service required for retiring.
An exception to this situation would be if the person left his employment with the fire department to enter the military service. In such a case if he was honorably discharged and he returned to the fire department, he would be entitled to the same pension or benefits provided by statute as if he had remained on duty with the fire department and his time served in the armed forces shall be added to his previous service and shall be construed as a part and continuation of his consecutive years of service with the fire department. This provision, set forth in KRS 95.625, applies only to those members who served in World War II or any emergency conflict called by the President of the United States.
At this point we direct your attention to OAG 77-735, copy enclosed, where we said that the provision in KRS 95.620, giving credit to the reemployed fireman for previous years of service if he pays back the funds received as a refund, does not provide for the reinstatement of that period of time during which the reemployed fireman was not employed as a fireman, as there is no authorization for him to pay into the fund an amount he would have contributed but for the break in his employment as a fireman. At page three of OAG 77-735 we said in part as follows:
"Under the circumstances, we are forced to conclude that though the legislature has authorized the reinstatement of the employee's previous service to his overall credited service period, it failed to provide that upon such reinstatement the period of time would be considered an uninterrupted part of his required twenty (20) consecutive years of service. Of course, as an alternative the legislature could have eliminated the word 'consecutive' in relation to the number of required years of service. However, since the legislature did neither, we are forced to conclude that when an employee's employment is terminated but he is later reemployed, his previous service or employment to which he may be credited cannot be counted as part of the twenty (20) consecutive years of service required for retiring. "
In conclusion, KRS 95.624(1) provides for service in a fire department in a third class city of twenty years or longer consecutively before a person may petition the board of trustees of the pension fund for retirement. If a person works for the fire department, terminates his fire department service, and is then subsequently rehired by the fire department, his previous fire service cannot be counted as part of the twenty consecutive years of service required for retirement. While KRS 95.620 provides for the reinstatement of the fireman's previous service to his overall credited service period by his repayment of sums refunded when he first left the fire department, reinstatement of such prior fire service cannot be counted as part of the twenty consecutive years of service required for retirement. The fireman's pension should be based on his total credited service but he must have at least twenty consecutive years of service with the fire department regardless of his total credited years of service. See OAG 76-748, copy enclosed.