Opinion
November 5, 1980
The Attorney General is in receipt of your request for an opinion wherein you ask: "1. Does Section 34 of enrolled Senate Bill 265 Laws 1980, c. 352 require a municipality having a Firefighters' Pension and Retirement Fund to transfer interest earned by such fund to the State Board? "2. Can a municipality expend all or a portion of the money in its pension and retirement fund prior to July 1, 1981, for purposes for which it was not obligated on the effective date of the act and if so for what such purposes could such money be expended?" Senate Bill No. 265, 2 to be codified as 11 O.S. 49-100.2 [ 11-49-100.2] (1980), creates the Oklahoma Firefighters' Pension Retirement System which shall be the responsibility of the State and not that of the participating municipalities. Section 34 of Senate Bill No. 265 to be codified as 11 O.S. 49-122.2 [ 11-49-122.2] (1980), provides: "Any municipality having a Firefighters' Pension and Retirement Fund prior to January 1, 1981, shall transfer all assets of such fund to the State Board on July 1, 1981. Assets shall be transferred in the form of cash, negotiable securities and such other specific assets as permitted by the State Board. The State Board shall maintain separate accounts for each municipality and each firefighter." Section 35, to be codified as 11 O.S. 49-122.3 [ 11-49-122.3] (1980), provides in pertinent part: "The assets of the fund shall consist of such assets and the income therefrom, . . . all legal right, title and interest in and to the assets of the fund shall at all times be vested exclusively in the State Board or its nominee and no municipality shall be deemed to have severable ownership of any asset of the Fund or any right of partition or possession thereof, but each municipality shall have a proportionate undivided interest therein . . ." Emphasis added Section 34 imposes a duty upon municipalities having a Firefighters' Pension and Retirement Fund to transfer all assets of such fund to the State Board on July 1, 1981, including the interest income derived from the principal thereof. Your second question is addressed by 11 O.S. 49-101 [ 11-49-101] et seq. (1978). 11 O.S. 49-101 [ 11-49-101] sets forth the amount payable to retired volunteer firefighters in subsection B. 11 O.S. 49-132 [ 11-49-132] provides: "Money paid to any municipality, or to the treasurer thereof, for the benefit of the Firemen's Relief and Pension Fund of the fire department of such municipality, shall, unless otherwise provided by law relating to the apportionment and payment of such money to the several municipalities of this state, be used solely for the payment of such pensions and other benefits to retired members of such fire department, injured or otherwise disabled members of such fire department, and surviving spouses and children of deceased members of such fire department, and such expenses of administering said Firemen's Relief and Pension Fund, as may be authorized by law." Emphasis added Section 35 expresses a legislative intent that the term "assets" as used in Section 34 includes not only the principal but also the income derived therefrom. In Wallace v. Childers, 180 P.2d 1005 (Okl. 1947), the Supreme Court of Oklahoma stated: ". . . The Firemen's Relief and Pension Fund is not a municipally-owned fund, but is held only in a separate distinct right and capacity . . . It is a trust fund in which the cities and towns have no pecuniary interest whatever . . . ." 180 P.2d 1007. Expenditure made from the pension and retirement funds held by municipalities through July 1, 1981, must be solely for the payment of such benefits as are authorized by 11 O.S. 49-101 [ 11-49-101] (1978). It is, therefore, the official opinion of the Attorney General that your questions be answered as follows: 1. Senate Bill No. 265, Laws 1980, Ch. 352, 34, imposes a duty upon each municipality having a Firefighters' Pension and Retirement Fund to transfer the interest earned by such fund to the State Board. 2. Expenditures made from the Firefighters' Pension and Retirement Funds held by municipalities through July 1, 1981, must be solely for the payment of such benefits as are authorized by 11 O.S. 49-101 [ 11-49-101] (1978). (JOHN PAUL JOHNSON) (ksg)