Request By:
Mr. Gary Watts
President
Ashland Fire Fighters Association
Local 706, I.A.F.F.
Box 1512
Ashland, Kentucky 41101Representative Charles R. Holbrook, III
200 Home Federal Building
Ashland, Kentucky 41101
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letters raising questions concerning the legality of a city of the second class rehiring a firefighter who has withdrawn from the fire service.
The city is governed by the provisions of KRS 95.851 to 95.884 and 95.991 in connection with the police and firefighters retirement fund in a city of the second class.
In 1980 a captain retired from the city fire department after 20 years of service. He was 44 years old at the time and has not received any money from the retirement system as he will not be eligible for benefits until he is 50 years old. The man now wishes to return to work at the fire department but the city has an ordinance that says newly hired firefighters must be between the ages of 21 and 37.
The city has a collective bargaining agreement with the firefighters which apparently does not prohibit rehiring and the bargaining unit apparently has no objection to the rehiring of this particular officer. While the man involved has drawn no retirement benefits he was permitted to receive payment for his accumulated sick leave.
Representative Holbrook asks what, if any, are the impediments to reemployment while Mr. Watts asks four specific questions, the first of which is whether this man is eligible to return to work under the provisions of the retirement system.
From a technical, legal standpoint the man in question has not retired but has withdrawn from the fire service. He has not retired within the meaning of KRS 95.856 as he is not receiving a service retirement annuity. Although he has completed 20 years of service he has not yet met the statutory requirement of attaining the age of 50.
KRS 95.857 provides in part that any member who withdraws from service prior to age 50 after having completed at least 20 years of total service, and who does not accept a refund of contributions, shall receive, upon application, a certificate entitling him to a service retirement annuity upon reaching the age of 50. There is no provision in this particular statute dealing with reinstatement or reemployment.
KRS 95.866 deals with withdrawal from service prior to retirement. That statute provides in part that any member who has received a refund of his contributions to the pension plan shall be considered a new member upon subsequent reemployment. In addition, after the completion of at least 5 years of continuous membership service following his latest reemployment, the member shall have the right to make a repayment to the system of the amounts received as a refund, including six percent interest, from the date of the refund to the date of repayment.
Thus, in the absence of a judicial decision to the contrary, it would be our opinion that the retirement fund statutes applicable to the fire department of a city of the second class permit, but do not require, the reemployment of a fireman, who voluntarily withdrew from the fire service prior to qualifying for or actually receiving his retirement annuity, who subsequently seeks reemployment. KRS 95.866 does not deal with the mechanics of the reemployment process and does not specifically refer to a person who has already worked 20 years with the fire service but it appears to authorize any former member of the fire service, who has not actually retired and is, therefore, not eligible for the retirement annuity, to become reemployed with the fire service.
Mr. Watts next asks whether the city can rehire the man since he is now 47 years old.
Although a city ordinance provides that newly hired firefighters must be between the ages of 21 and 37, the Kentucky Civil Rights Act (KRS Chapter 344) would preclude such a hiring practice. KRS 344.040(2) provides that it is unlawful practice for an employer:
"To limit, segregate, or classify his employes in any way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect his status as an employe, because of such individual's race, color, religion, national origin, sex, or age between forty (40) and seventy (70)."
As stated in OAG 74-138, copy enclosed, cities are employers subject to the provisions of KRS Chapter 344 and cannot discriminate for employment purposes against persons between the ages of 40 and 65. Note that the age range in the law has been expanded to cover persons between the ages of 40 and 70.
Mr. Watts' remaining questions ask if the person can be rehired must he return as a new employee or will he return to his previous position as fire captain, if the person is rehired does he proceed through normal city hiring practices or is he just reinstated as a fire captain, and if reinstated must there be a vacancy in the position he is to fill.
The provisions in the firefighters retirement fund for cities of the second class merely authorize the reemployment of former firefighters, they do not require reemployment. Furthermore, the statute uses the word "reemployment" as opposed to reinstatement or reinstatement in the same position. Reinstatement frequently refers to restoring a person to his former position while reemployment would only be the securing of a job somewhere within the fire service. The retirement fund provisions only mention reemployment and do not deal at all with the mechanics of the reemployment process.
KRS 95.440(2), dealing with the qualifications of members of the fire department, states in part that they shall have the specific qualifications mentioned in the statute and such other qualifications as may be prescribed. We do not know what the city has provided, by way of ordinances, relative to the city fire department and the hiring of firefighters and other municipal employees.
Since the statutes dealing with the retirement fund do not set forth any provisions dealing with the mechanics of the reemployment process, it is our opinion that if a firefighter who voluntarily left the fire service desires to seek reemployment with the fire service he would proceed through the city's established practices relative to hiring (and rehiring) . He would not automatically return to his old position but could do so if a vacancy exists and other requirements in the hiring process have been satisfied.