Retirement, Law Enforcement Officers, Special Separation Allowance Benefit

Subject:

Retirement, Law Enforcement Officers, Special Separation Allowance Benefit

Requested By:

Claire McNaught Public Safety Attorney City of Winston-Salem, N.C.

Questions:

QUESTION 1:
What does the term "creditable service" mean for purposes of determining a local law
enforcement officer’s eligibility for the Special Separation Allowance Benefit as provided in G.S.
143-166.42 and for calculating the amounts of that benefit?

QUESTION 2:

What governmental agency is responsible for determining a local law enforcement officer’s
eligibility for the Special Separation Allowance Benefit?

Conclusion:

(1)

Creditable service is service for which credit is allowed under either retirement system of which the officer is a member.

(2)

The officer’s local governmental employer.

The facts provided indicate that the city employs a number of law enforcement officers, as defined by G.S. 128-21(11b) or G.S. 143-166.50(a)(3), who are members of both the Local Governmental Employees Retirement System and the city’s own retirement system.

G.S.

143-166.42 provides a special separation allowance benefit for law enforcement officers employed by local governmental employers and specifies that the terms and conditions set out in

G.S.

143-166.41 shall apply to this benefit. G.S. 143-166.41 provides this benefit for state law enforcement officers. G.S. 143-166.41(b) defines "creditable service" as "the service for which credit is allowed under the retirement system of which the officer is a member." G.S. 143-166.42 makes this definition applicable to law enforcement officers employed by local governmental employers. Therefore, service for which an officer is given credit under either retirement system to which the officer belongs would be creditable service for purposes of determining the officer’s eligibility for the special separation allowance benefit and for purposes of calculating the amount of said benefit.

G.S.

143-166.41(b) [as amended effective January 1, 1987] provides that for an officer to be eligible for this benefit, at least fifty percent (50%) of the creditable service allowed under the retirement system must be as a law enforcement officer. Pursuant to G.S. 143-166.42, this 50%

requirement is also applicable to law enforcement officers employed by local government employers.

As one example, if an officer joined the city retirement system as a law enforcement officer on January 1, 1957 and if the officer joined the Law Enforcement Officers’ (LEO) Retirement System on January 1, 1960 [service in LEO was transferred to the Local Governmental Employees Retirement System effective 1/1/86], that officer would have 30 years of creditable service on January 1, 1987 and, if the officer was not yet 62 years of age, would be eligible for the special separation allowance benefit and the benefit would be calculated upon 30 years of creditable service, plus any creditable service allowed for military service, unused sick leave, etc.

A local law enforcement officer who claims creditable service for membership in the city’s retirement system would have his eligibility determined by the city since nothing to the contrary appears in the legislation creating the special separation allowance benefit. Also, G.S. 143

166.42 specifies that "the governing bodies for each unit of local government shall be responsible for making determinations of eligibility for their local officers" who claim creditable service for membership in the Local Governmental Employees Retirement System. This language in G.S. 143-166.42 makes it clear that an officer’s eligibility for the special separation allowance benefit is not determined by the Local Governmental Employees Retirement System’s Board of Trustees nor the Retirement Systems Division of the Department of the State Treasurer, even when the officer retires pursuant to the provisions of G.S. 128-27(a). A local law enforcement officer’s eligibility for the special separation allowance benefit is in all instances determined by the officer’s local government employer.

LACY H. THORNBURG Attorney General

Edmond W. Caldwell, Jr. Assistant Attorney General