Daley v. City of Little Rock

• Decision Date: 13 February 1995
• Docket Number: No. 94-216,94-216
• Citation: 319 Ark. 440,892 S.W.2d 254
• Parties: Frank DALEY, Appellant, v. CITY OF LITTLE ROCK and Tom Dalton as Chairman of the Board of Trustees of the Little Rock Firemen's Relief & Pension Fund and the Members of That Board, Appellees.
• Court: Arkansas Supreme Court

Page 254

892 S.W.2d 254

319 Ark. 440

Frank DALEY, Appellant, v. CITY OF LITTLE ROCK and Tom Dalton as Chairman of the Board of Trustees of the Little Rock Firemen's Relief &amp Pension Fund and the Members of That Board, Appellees.

No. 94-216.

Supreme Court of Arkansas.

Feb. 13, 1995.

R. David Lewis, Little Rock, for appellant.

Thomas M. Carpenter, City Atty., Melinda S. Raley, Dep. City Atty., Little Rock, for appellees.

GLAZE, Justice.

Appellant Frank Daley appeals the trial court's order denying disability benefits under the Firemen's Relief and Pension Fund, because Daley had been terminated for cause and was not a member of the Fund when he applied for benefits. Daley argues his right to disability benefits vested at the time he was injured, not when he became permanently disabled or applied for benefits. In light of controlling statutory language at issue, we must affirm the trial court's decision.

The evidence shows that Daley had been employed as a fire fighter by Little Rock for fourteen years. On December 21, 1983 and January 24, 1984, Daley had separate on-the-job injuries. After being terminated for cause on September 1, 1987, Daley litigated or attempted to litigate the reasons for his termination in both federal and state courts. See Daley v. Webb, 885 F.2d 486 (8th Cir.1989); Daley v. City of Little Rock, 36 Ark.App. 80, 818 S.W.2d 259 (1991).

Until his September 1, 1987 termination, Daley had been a member of the Little Rock Firemen's Relief and Pension Fund, which is administered by the Fund's Board of Trustees. From the time of his on-the-job injuries and through the time of his termination, Daley never applied for a disability pension. Instead, on March 10, 1988, he wrote to the Fund's Board, requesting the withdrawal of his prior contributions to the pension fund. On March 15, the Board responded by mailing Daley a check in the amount of $10,542.77. Daley did not cash this check, and subsequently destroyed it.

On March 22, 1988, Daley wrote two letters to the Board: one withdrawing his request for return of his contributions, and the other requesting a disability pension. On June 30, 1989, the Board notified Daley that he was not eligible for disability benefits. Daley did not appeal that decision.

Over three years later on August 19, 1992, Daley reapplied to the Board for a disability pension. On September 18, the Board again refused to consider Daley's application because Daley was no longer a member of the Fund. On October 6, Daley filed a complaint in circuit court seeking payment of benefits from the Fund. Based on the pleadings and supporting affidavits, the trial court granted the city's summary judgment motion, dismissed Daley's complaint, and ordered the Board to mail a cashier's check payable to Daley in the amount of his contributions. The trial court held that Ark.Code Ann. § 24-11-819(a)(1) (Repl.1992) limits fire fighter disability pensions to members of the Fund, that Daley's termination for cause ended his membership in the Fund, and that Daley was not a member at the time he applied for benefits under the Fund. It is this order from which Daley brings this appeal.

For reversal, Daley contends there is no statutory provision which says that discharge either does or does not terminate an employee's right to a disability pension. He points out that only one statute addresses grounds for forfeiture of Fund benefits, and that statute limits the grounds to conviction of a felony, habitual drunkenness, and failure to report for an examination. See Ark.Code Ann. § 24-11-821(a) (Repl.1992). ¹ Daley points out he was not discharged for any of these reasons, and cites the doctrine of expressio unius est exclusion alterius (the expression of one thing is the exclusion of another). This argument is without merit, as we more fully discuss below. In further support of his quest for benefits, Daley also cites cases from other states. However, we generally find those cases inapposite because they involve pension laws employing different statutory language and prove unhelpful when construing our own Fund provisions.

Daley further claims that, because his right to a pension vested at the time he was injured, the time when he applied for benefits is irrelevant. Daley cites no Arkansas authority to support this argument. ² Additionally, he claims the attempt by the Board to return his contribution was without effect because he never cashed the check. And finally, Daley argues the denial of benefits in 1988 was of no effect because there was no evidence at that time that he was either permanently or totally disabled, and any appeal would have been unsuccessful. Daley avers that evidence exists now.

While Daley offers numerous arguments as described above, the issue of whether he is entitled to benefits under the Fund is purely statutory. Hughes v. Firemen's Relief & Pension Fund, 231 Ark. 877, 333 S.W.2d 716 (1960). The statutes governing the administration and disbursement of the Firemen's Relief and Pension Funds are found at Ark.Code Ann. §§ 24-11-801--830 (Repl.1992 and Supp.1993). This Fund's purpose is to pay fire fighters' retirement salaries and pensions, and pensions to the widows and minor children of deceased fire fighters and the widows and minor children of deceased retired fire fighters. § 24-11-812(a)(1). Further, a fire fighter may receive benefits under the Fund either pursuant to § 24-11-818 for voluntary retirement following twenty years of service, or pursuant to § 24-11-819 for retirement due to disability. Because Daley's right to voluntary retirement benefits had not vested, his only avenue for receiving benefits under the Fund must be based on disability. We now turn to those statutes governing receipt of benefits due to disability.

Section 24-11-816(a)(1) provides that in order to become a member of the Fund, an individual must be a fire fighter employed in the fire department of any city or town in this state and file a statement indicating a desire that the fireman and his or her beneficiaries participate in the Fund. The remainder of § 24-11-816(a) provides for either payroll deduction or payment by fire fighters directly into the fund, and for contribution by the municipalities or fire protection districts. Thus, the threshold condition for membership in the Fund is employment as a fire fighter, and it is uncontested that, at one time, Daley was a member of the Fund.

Section 24-11-816(b)(1) provides the following:

In the event a former member again becomes an employee of the same fire department where previously employed, the fire fighter shall again become a member of the system, and the credited service forfeited by him shall be restored to his credit if he returns to the fund the amount refunded to him plus interest from the date of withdrawal to the date of repayment.

(Emphasis added). The foregoing subsection implies that membership is lost, or at the least, is abated by becoming unemployed as a fire fighter. And § 24-11-816(d)(2) provides in part as follows:

In the event of the resignation or discharge from the fire department of any member, all moneys deducted from the salary of the person, or voluntarily paid by the person, shall immediately be returned to him without interest[.]

(Emphasis added). The language of § 24-11-816 is clear in raising the implication that resignation or discharge as a fire fighter terminates membership in the Fund.

Next, we turn to § 24-11-819 which provides for the retirement of "[a]ny fire fighter who becomes totally and permanently physically or mentally incapacitated for any suitable duty as an employee" and for the payment of benefits under the fund upon meeting specific conditions, for as long as the disability continues preventing return to active service. Additionally, the statute provides for suspension of benefits if the retirant refuses to comply with certain requirements. Under § 24-11-819, only a "fire fighter" is eligible for disability retirement with payment of benefits from the Fund. At the time of his re-application to the Board, Daley was not a fire fighter.

Our review of § 24-11-821 is also critical to our analysis of the Fund law and what affects or terminates benefits under that law. Subsection (a) of § 24-11-821 provides that once receipt of benefits begins, those benefits "shall immediately cease" to the individual receiving them when that person is convicted of any felony, becomes a habitual drunkard, or fails to report for medical examination as required. Because Daley never received any benefits under the Fund, § 24-11-821(a) does not apply to him. Consequently, Daley's argument based on expressio unius est exclusion alterius must fail.

The remaining provisions of § 24-11-821 are especially illustrative in considering whether Daley is entitled to benefits and provide in relevant part as follows:

(b) In the event the chief or any member of the fire department shall be removed or discharged without just cause, the removal or discharge shall not in any way affect the right of the person to the benefits of this act....

(c) In the event it shall be determined on appeal that the removal was without just cause, then the person so removed shall be reinstated by the board and shall be entitled to all the rights under the provisions of this act.

(Emphasis added). These subsections provide that upon removal or discharge of a fire fighter, benefits under the Fund shall continue through the appeal procedure until a finding of removal or discharge without just cause is made, and the fire fighter is reinstated. By the same token, these provisions suggest benefits will be discontinued if a determination had been made that the fire fighter had been discharged for cause.

Daley contends there was never any proper determination that he was discharged for cause. This argument is disingenuous because after Daley was discharged, he simply failed to timely complete an appeal or challenge of...