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Not April Fool’s: DOI Flip-Flops On Tier 2 Firefighters’ Reciprocity

April 6th, 2016

Last quarter we wrote an article regarding a, December 22, 2015, DOI Opinion issued by Deputy Director Mary Jane Adkins. As you may remember, DOI had opined tier 2 firefighters who exercise reciprocity would be considered tier 1 because the reciprocity section of the Pension Code does not provide for a tier 2 benefit.  However, apparently after some prodding, the DOI changed its mind.

On February 11, 2016, Deputy Director Adkins wrote “a follow up to our advisor opinion issued on December 22, 2015.” The DOI clarified, “the letter issued on December 22, 2015, does not accurately reflect the Division’s interpretation of the law and opinion in this matter; the letter is now withdrawn and superseded by this advisory opinion.” That is the legalese way of writing, “and this time, we mean it…”

In its second opinion on the subject, DOI concludes tier 2 firefighters, even if they exercise reciprocity, will remain tier 2 firefighters regardless of they engaged in reciprocity. DOI reaches this position despite there being no tier 2 provision in the reciprocity section of Article 4. DOI explains its latest theory for this change of heart in its, February 11, 2016, opinion.

This time, the DOI explains, firefighters (who are hired after January 1, 2011) who exercise reciprocity are not tier 1 firefighters because the General Assembly used the term “notwithstanding any provision of this Article” at the beginning of the Section describing regular retirement benefits. The DOI asserts after a “plain reading” of the statute, “it clear that 4-109.3 would only provide the appropriate benefit for a firefighter as provided for by their ‘tier’ status and would not provide ‘tier 1’ type benefits to those firefighters who would otherwise receive ‘tier 2’ benefits.” The DOI also concludes the retirement portion of the Pension Code “unambiguously” changes the separate and distinct reciprocity section of the Pension Code. On March 15, 2016, the DOI stuck to its, February 11, 2016, interpretation of the impact of reciprocity on firefighters’ tier 2 status.

All three opinions were issued by the Deputy Director of the Public Pension Division of DOI, Mary Jane Adkins. Apparently, the DOI’s “plain reading” of an “unambiguous” statutory provision proved less “clear” during the 2015 holiday season when it issued a formal opinion expressing an opinion that is diametrically opposite of its current position. Even with a “plain reading” of the “unambiguously” “clear” language of the DOI’s opinions, some readers are left wondering why did the DOI change its position? The manner by which this change of position came about is a matter of public record and will be explored further.