by Max Brantley
Attorney General Dustin McDaniel has issued an opinion in response to state Rep. Allen Kerr's effort to get into the records of the Arkansas Public Employees Retirement System to learn which county officials evaded the law by pulling a fake retirement in order to capture both retirement and continuing regular paychecks. Call it a no-decision.
Total separation from a job for 90 days was required for a county official to qualify for retirement. Some elected county officials -- acting on advice from APERS apparently -- went off payroll for several months, but they didn't actually stop working. Many also didn't widely announce the retirements. Typically, the retirements occurred for elected officials after they'd safely been elected to another term in office. Kerr wants to know which current county officials are drawing retirement and regular paychecks.
McDaniel's opinion won't please anyone looking for clarity. He says the law isn't clear on whether a small part of retirement law, which protects secrecy of certain retirement information, constitutes a blanket exception from the Freedom of Information Act. He punts the request for a list of double-dippers to APERS, custodian of the records. My guess is they'll continue to follow their belief that the list should be secret. Then a lawsuit would be required to answer the question.
McDaniel notes, however, that Legislative Audit is at work thanks to Kerr to compile a list of county official double dippers. While legislatiive audit and legislative records enjoy a "working papers exemption" from the FOI, McDaniel notes thats Kerr and Legislative Audit could choose to voluntarily release to the public the information Kerr wants open under the FOI.
The FOI issue is incidental to the real issue at APERS and also at Arkansas Teacher Retirement System, where monumental screwups also occurred over the years in complying with state law on retirement benefit payments in the name of helping double dippers. Is anyone going to be held accountable for millions in retirement benefits that shouldn't have been paid and retirement withholdings that weren't collected over the years?
My guesses: No retirees or local governments will be held accountable. The sums are simply too big to recover. Plus, agencies and retirees acted on advice from officials of the retirement agencies. This is an arguable legal defense, if not ironclad.
So then, will retirement agency officials be held accountable in some way? At ATRS, no. The officials who enabled illict teacher retirement deals are gone. At APERS, some of those who counseled officials on dubious double-dips are still around. Could they be made to pay refunds, or otherwise be somehow held accountable? That's a question for the days ahead.
Much depends on whether someone takes legal action to force the issue. None is pending.
McDaniel is attorney for APERS. What will he do? Defend the agency? Or go after the bad actors? More interesting questions.
I've been told lately that the list of county officials who took advantage of the illegal double dip at APERS might be smaller than originally thought. That would reduce political fallout should some do-gooder actually insist on enforcing the law. (Funny concept, that, enforcing a law.) Believe it or not, many county officials looked at the double-dip deal as too good (or smelly) to be true and avoided it.