RE: QUESTIONS ON AGENDA FOR MAY 18 MEETING OKLAHOMA FIREFIGHTERS PENSION AND RETIREMENT BOARD
PER OUR CONVERSATION ON MAY 17, I AM WRITING THIS LETTER TO ADDRESS THE TWO QUESTIONS ON THE MAY 18 AGENDA (ITEMS (E) 1 2). THE DISCUSSION WHICH FOLLOWS IS BASED ON A CURSORY REVIEW OF THE APPLICABLE STATUTES (AND ATTORNEY GENERAL OPINION 82-024) AND IS NOT AN OFFICIAL OPINION BUT RATHER MY ANALYSIS AND CONCLUSIONS. THE QUESTIONS ASKED ARE AS FOLLOWS:
1. "WHAT CAN BE DONE WITH CITIES WHO WORK VOLUNTEER FIREFIGHTERS AS PAID, NOT PAYING CONTRIBUTIONS ON SALARY AND THE FIREFIGHTER HAS NOT PASSED THE REQUIRED PHYSICAL EXAMINATION?N
2. "THE PENSION BOARD RECALLS A FIREFIGHTER WHO IS RECEIVING A "DISABILITY PENSION IN LINE OF DUTY" AND FINDS THE DISABILITY HAS CEASED. THE LAWS SAYS THE PENSION STOPS. IF THE CITY REFUSES TO RE-HIRE THE FIREFIGHTER, WHAT IS THE BOARD'S RESPONSIBILITY IN GETTING THE FIREFIGHTER BACK TO WORK?"
AS WE DISCUSSED ON THE PHONE, 11 O.S. 49-116(A) ESSENTIALLY STATES THAT ANY PERSON SERVING A CITY AS A PAID FIREFIGHTER MUST SUCCESSFULLY COMPLETE A PHYSICAL EXAM IN ORDER TO PARTICIPATE IN OR RECEIVE BENEFITS FROM THE SYSTEM. THIS WOULD INCLUDE PAID VOLUNTEER FIREFIGHTERS. FURTHER, AS STATED IN ATTORNEY GENERAL OPINION 82-024 ANY PAID FIREFIGHTER MUST PASS THE REQUIRED PHYSICAL EXAM BEFORE ENTERING EMPLOYMENT WITH THE CITY. HOWEVER, THERE IS NOTHING IN THE STATUTES THAT AUTHORIZES THE BOARD TO TAKE STEPS TO ENSURE THAT CITIES COMPLY WITH THE REQUIREMENTS SET OUT IN SECTION 11 O.S. 49-116(A). ALL THE BOARD CAN DO IS TO NOT ALLOW ANY FIREFIGHTER WHO HAS NOT PASSED THE PHYSICAL EXAM TO PARTICIPATE OR RECEIVE BENEFITS.
AS TO THE SECOND QUESTION, SECTION 11 O.S. 49-109 PROVIDES IN THE CASE OF DISABILITY PENSION (IN THE LINE OF DUTY) WHEN THE DISABILITY CEASES, THE DISABILITY PENSION SHALL CEASE. SECTION 11 O.S. 49-109 FURTHER PROVIDES N., THAT IF THE DISABILITY CEASES WITHIN TWO (2) YEARS FROM THE DATE OF THE FIREFIGHTERS' DISABILITY RETIREMENT, THE FORMERLY DISABLED PERSON SHALL BE RESTORED TO ACTIVE SERVICE . . .," HOWEVER, IF THE CITY REFUSES TO RESTORE THE FIREFIGHTER TO ACTIVE SERVICE (OR OTHERWISE FAILS TO COMPLY WITH THE STATUTES), THE BOARD IS NOT AUTHORIZED TO TAKE ANY ACTION TO FORCE THE CITY TO COMPLY WITH THE STATUTORY PROVISIONS. THE FIREFIGHTER MAY HAVE RECOURSE AGAINST THE CITY IN DISTRICT COURT BUT AGAIN, THE BOARD APPARENTLY DOES NOT HAVE ANY REMEDY AGAINST THE CITY.
(DAN M. PETERS)