Opinion
June 24, 1987
J.E. McCarthey Executive Secretary Arkansas Highway and Transportation Department Retirement Board P. O. 2261 Little Rock, AR 72203
RE: Section 6 of Act 187 of 1987
Dear Mr. McCarthey:
We are writing in response to your request for our opinion concerning Section 6 of Act 187 of 1987. Your question was "under the provisions of Section 6 of Act 187 of 1987, does an active member of the retirement system, on the effective date of the Act, have to be vested in the retirement system on the effective date of the Act or can vesting occur at any time up to July 1, 1987?" Based upon the reasoning which follows, it is our opinion that vesting in the retirement system, for purposes of Section 6 of Act 187 of 1987, may occur at any time up to and including July 1, 1987.
The provision of Act 187 in issue reads:
"An active member of the system on the effective date of this Act whose benefits are vested and who is entitled to a reduced annuity as provided by subsection (c) of Section 11 of Act 454 of 1949, as amended, on July 1, 1987 and who has credit in the system for thirty-six (36) consecutive months of actual service with the Highway Employees Retirement System immediately prior to the effective retirement date may choose two (2) of the retirement incentives from subsections (a)(b)(c)(d) and (e) as set forth below, provided the member retires during the period July 1, 1987 through January 1, 1988, inclusive." (Emphasis supplied)
The phrase on the "effective date of this Act" apparently has caused confusion as to whether it modifies only the antecedent "an active member of the system" or whether it modifies the immediately following phrase "whose benefits are vested". In the latter case, an employee's benefits must be vested on the effective date of the Act, February 12, 1987, before he or she can qualify for the early retirement incentives.
As a rule of statutory construction, "a limiting clause (e.g. `on the effective date of this act') is to be restricted to the last antecedent (e.g. `an active member of the system'), unless the subject matter requires a different construction." Bell v. Board of Directors, 109 Ark. 433, ___, 160 S.W. 390, 391 (1913). Accordingly, it is our opinion that the phrase "on the effective date of this Act" relates only to membership in the system, not vesting of benefits. In other words, someone wishing to take advantage of Act 187 must have a member of the retirement system on the effective date of the Act, however, they need only vest on or before July 1, 1987.
We hope that the foregoing will prove of material benefit to you. This opinion, which I hereby approve, was prepared by Assistant Attorney General Frank J. Wills. If we can be of further assistance, please advise.