Request By:
Mr. Melvin C. Miller
1752 Waddy Road
Lawrenceburg, Kentucky 40342
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your letter to this Office, you requested an Opinion interpreting KRS 164.2842, entitled Free tuition at state-supported school for widow, widower, or child of police officer, firefighter, or volunteer firefighter permanently and totally disabled in line of duty. Your question concerns the eligibility of the spouse, or any child of a disabled law enforcement officer, firefighter, or volunteer firefighter for free tuition.
You note that KRS 164.2842, unlike KRS 164.2841, does not include language making eligibility for benefits to the spouse and any child of a firefighter or volunteer firefighter contingent on occurrence of disability of the officer as of a particular date. KRS 164.2841, which, generally, provides free tuition at state-supported schools for survivors of officers who are killed while in active service, expressly applies to officers who die on October 1, 1989 or thereafter.
You ask, in particular, when the spouse and any child of a law-enforcement officer, firefighter, or of a volunteer firefighter who is permanently and totally disabled, would qualify for free tuition. You enclose a copy of the June, 1991 edition of Quarterly Dispatch, a newsletter for members of the policemen's and Fire Fighters' Retirement fund which states, in part:
Free tuition is available at state supported educational institutions to widows, widowers or dependents of firefighters or police officer killed or permanently disabled in the line of duty.
This applies to families of persons killed or disabled on or after October 1, 1989. Children cannot be past age 23 to receive this benefit.
The issue that you raise concerns whether eligibility for free tuition under KRS 164.2842 may be based on disability incurred prior to as well as after the date mentioned in the newsletter, October 1, 1987.
It is the Opinion of this Office that as of the effective date of the amendment to KRS 164.2841, on July 13, 1991, the spouse or any child of a permanently and totally disabled law enforcement officer, firefighter or volunteer firefighter became eligible for free tuition at state-supported schools, regardlesss of when the disability occurred. As you point out, the General Assembly has not made eligibility for benefits contingent on the occurrence of disability of an officer as of a particular date. Therefore, the eligibility does not occur as of October 1, 1989, but on the effective date of the act.
Moreover, when KRS 164.2841 makes available benefits as of July 13, 1991, regardless of when the disability of the officer occurred, that is not a retroactive application of the statute, prohibited by KRS 446.080(3). It is well established in Kentucky that a statute is retroactive in effect only when it is applied to rights that were acquired prior to its enactment.
Dumesnil v. Reeves, 283 Ky. 563, 142 S.W.2d 132 (1940). In the case at hand, no rights to tuition existed prior to the enactment of the amendment to KRS 164.2842 which would be harmed or diminished by the act.
Therefore, as of July 13, 1991, the effective date of the amendment to KRS 164.2842, the spouse or any child of a law enforcement officer or firefighter who became disabled due to injury while in active service, or while in training for active service, became eligible for free tuition at state supported schools, assuming all other statutory criteria have been met.