(a) On and after January 1, 1987, every sworn law enforcement officer as defined by G.S. 128-21(11d) or G.S. 143-166.50(a)(3) employed by a local government employer who qualifies under this section shall receive, beginning in the month in which the officer retires on a basic service retirement under the provisions of G.S. 128-27(a), an annual separation allowance equal to eighty-five hundredths percent (0.85%) of the annual equivalent of the base rate of compensation most recently applicable to the officer for each year of creditable service. The allowance shall be paid in equal installments on the payroll frequency used by the employer. To qualify for the allowance, the officer shall:
(1) Have (i) completed 30 or more years of creditable service or (ii) have attained 55 years of age and completed five or more years of creditable service; and
(2) Not have attained 62 years of age; and
(3) Have completed at least five years of continuous service as a law enforcement officer as herein defined immediately preceding a service retirement. Any break in the continuous service required by this subsection because of disability retirement or disability salary continuation benefits shall not adversely affect an officer's qualification to receive the allowance, provided the officer returns to service within 45 days after the disability benefits cease and is otherwise qualified to receive the allowance.
(b) As used in this section, "creditable service" means the service for which credit is allowed under the retirement system of which the officer is a member, provided that at least fifty percent (50%) of the service is as a law enforcement officer as herein defined.
(c) Payment to a retired officer under the provisions of this section shall cease at the first of:
(1) The death of the officer;
(2) The last day of the month in which the officer attains 62 years of age; or
(3) The first day of reemployment by a local government employer in any capacity.
Notwithstanding the provisions of subdivision (3) of this subsection, a local government employer may employ retired officers in a public safety position in a capacity not requiring participation in the Local Governmental Employees' Retirement System, and doing so shall not cause payment to cease to those officers under the provisions of this section.
(d) This section does not affect the benefits to which an individual may be entitled from State, local, federal, or private retirement systems. The benefits payable under this section shall not be subject to any increases in salary or retirement allowances that may be authorized by local government employers or for retired employees of local governments.
(e) The governing body of each local employer shall determine the eligibility of employees for the benefits provided herein.
(f) The governing body of each local employer shall make the payments set forth in subsection (a) of this section to those persons certified under subsection (e) of this section from funds available.
(1985 (Reg. Sess., 1986), c. 1019, s. 2; § 2009-396, s. 1.)
Editor's Note. - This section, as rewritten by Session Laws § 2009-396, s. 1, effective July 31, 2009, is applicable prospectively to payments required by this act whether the officer retired before, on, or after July 31, 2009.
Session Laws § 2009-396, s. 2, provides: "Nothing in this act shall be deemed to (i) entitle a law enforcement officer to retroactive payments of any benefit for the period prior to the effective date of this act for which the officer's employer previously determined that the officer was not entitled; (ii) prospectively deny payment of an annual separation allowance to an officer who was previously determined by the officer's employer to be eligible for such benefit; (iii) apply to any pending litigation related to the special separation allowance; or (iv) extend the payment beyond the date when payment shall cease pursuant to G.S. 143-166.42(c), as enacted by Section 1 of this act."
At the direction of the Revisor of Statutes, in 2011, the reference to "G.S. 128-21(11b)" near the beginning of subsection (a) was changed to "G.S. 128-21(11c)" to conform to the redesignation of subdivision (11b) as (11c) as a result of changes made to the section by Session Laws § 2011-92. In 2012, the reference to "G.S. 128-21(11c)" near the beginning of subsection (a) was changed to "G.S. 128-21(11d)" to conform to the redesignation of G.S. 128-21(11c) as G.S. § 128-21(11d) by Session Laws § 2012-185.
"Creditable Service." - Superior court erred in granting partial summary judgment awarding a sheriff a special separation allowance for 36 years of creditable service through two North Carolina retirement systems, state and local, because the sheriff was not a member of the state system when he retired since, prior to his retirement from the sheriff's department, he began receiving retirement benefits from that system, and the sheriff was only entitled to credit for his 12 years of service under the local system where the county never issued the sheriff a prior service certificate, the sheriff never transferred membership of his state service to the local system, and the county never gave the sheriff credit for prior service. Lovin v. Cherokee Cnty., - N.C. App. - , 789 S.E.2d 869 (2016).
Authority of Municipalities. - Section § 143-166.41 and this section do not authorize municipalities to make separation allowances based on overtime pay, longevity pay, and accrued vacation. Bowers v. City of High Point, 339 N.C. 413, 451 S.E.2d 284 (1994).
Pursuant to the plain and unambiguous language of G.S. 143-166.42, as well as of G.S. 143-166.41 upon which it was based, the actions of a county and a county board of commissioners in entering into a contractual relationship with a retired local law enforcement officer, wherein he was to receive a special separation allowance, were legislatively authorized; accordingly, such was not an ultra vires act on the part of the county entities. Wiggs v. Edgecombe County, 361 N.C. 318, 643 S.E.2d 904 (2007).
Reemployment By Local Government. - Retired city police officer lost his right to receive a separation allowance pursuant to G.S. 143-166.42 when he became reemployed by a county sheriff's office, which was a local government as defined by G.S. 143-166.41. Campbell v. City of Laurinburg, 168 N.C. App. 566, 608 S.E.2d 98 (2005).
Resolution Restricting Vested Allowance was Improper. - County's resolution, pursuant to its authority under G.S. 143-166.42, restricting a former officer's ability to collect a special separation allowance, impaired the obligation of the state's contract with former officer under the retirement system; because the resolution was enacted after the former officer had retired and his right to receive the special separation had become vested, it was improper. Wiggs v. Edgecombe County, 179 N.C. App. 47, 632 S.E.2d 249 (2006), aff'd, 361 N.C. 318, 643 S.E.2d 904 (2007).
Contracts Clause Violated by Retroactive Resolution to Stop Payments. - County and county board of commissioners' attempt to terminate a retired local law enforcement officer's payments of a special separation allowance under G.S. § 143-166.42 was violative of the contracts clause of U.S. Const., Art. I, § 10, as the statute allowed the parties to enter into the payment arrangement without any restrictions and, accordingly, the county entities could not pass a resolution to terminate the payments upon re-employment by the retired officer with another participant in the North Carolina Local Government Employees' Retirement System; such a resolution would have retroactively terminated his contractual right, which would have unconstitutionally impaired the contract. Wiggs v. Edgecombe County, 361 N.C. 318, 643 S.E.2d 904 (2007).
Cited in N.C. Ass'n of Educators, Inc. v. State, 241 N.C. App. 284, 776 S.E.2d 1 (2015).
Opinions of Attorney General
"Creditable service," for purposes of determining a local law enforcement officer's eligibility for the special separation allowance benefit and for calculating the amount of that benefit, is service for which credit is allowed under either retirement system of which the officer is a member. See opinion of Attorney General to Claire McNaught, Public Safety Attorney, City of Winston-Salem, 56 N.C.A.G. 40 (1986).
A local law enforcement officer's eligibility for the special separation allowance benefit is in all instances determined by the officer's local government employer. See opinion of Attorney General to Claire McNaught, Public Safety Attorney, City of Winston-Salem, 56 N.C.A.G. 40 (1986).