2014 AG Opinions
Date

Description

January 2, 2015

No. I14-009 (R14-019)
Re: Antique Firearms

December 30, 2014

No. I14-008 (R14-018)
Re: Instant Wagering

October 3, 2014

No. I14-007 (R14-013)
Re: Inmate’s Parole Eligibility

September 25, 2014

No. I14-006 (R14-008)
Re: Procedures for disincorporating a municipality as set forth in
A.R.S. §§ 9-211 through 9-226

August 27, 2014

No. I14-005 (R14-007)
Re: Whether an employee “participates” in PSPRS when an
employee who returns to work in a PSPRS designated position
continues to receive the employee’s pension benefit and the
Department makes a contribution to PSPRS on behalf of the
employee

July 30, 2014

No. I14-004 (R14-012)
Re: Whether Certain Statutes Apply To Electronic Cigarettes

July 15, 2014

No. I14-003 (R14-011)
Re: Regulation of Fire District Boards

February 28, 2014

No. I14-002 (R14-002)
Re: Interpretation of Arizona Law Dealing With Real Estate Broker's
Licensure as it Relates to Managing Properties

January 30, 2014

No. I14-001 (R13-020)
Re: Regulation of the Alarm Industry Pursuant to A.R.S. § 32122.07(A)

STATE OF ARIZONA
OFFICE OF THE ATTORNEY GENERAL

No. I14-009
(R14-019)

ATTORNEY GENERAL OPINION
by

Re: Antique Firearms
THOMAS C. HORNE
ATTORNEY GENERAL
January 2, 2015

To:

Hon. Lydia Hernandez
Arizona House of Representatives
Questions Presented
You requested an opinion on the following question: Does Arizona law subject a person

to criminal prosecution for firing an “antique firearm” as that term is defined under federal law?
Summary Answer
Yes. Arizona criminal statutes do not distinguish between an “antique firearm” as
defined in 18 U.S.C. § 921(a)(3) and other types of firearms. Under Arizona law, it is a crime to
fire an antique firearm under circumstances in which firing any other type of firearm would be a
crime.
Analysis
Arizona statutes do not define or use the term “antique firearm.” Arizona’s criminal code
defines a “firearm” as “any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other

weapon” that will expel, is designed to expel, or can readily be converted to expel a projectile by
the action of expanding gases or an explosive. A.R.S. §§ 13-105(19); 13-3101(A)(4). These
statutory definitions specifically exclude “a firearm in permanently inoperable condition,” but
they do not exclude an operable antique firearm. Id.
The federal criminal code, however, does define an “antique firearm” and excludes it
from the definition of a firearm for purposes of criminal liability under 18 U.S.C. § 922. See 18
U.S.C. § 921(a)(3) (“The term ‘firearm’ … does not include an antique firearm.”). Under 18
U.S.C. § 921(a)(16), the term “antique firearm” means the following:
(A) any firearm (including any firearm with a matchlock, flintlock,
percussion cap, or similar type of ignition system) manufactured in or
before 1898; or
(B) any replica of any firearm described in subparagraph (A) if
such replica-(i) is not designed or redesigned for using rimfire or conventional
centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed ammunition which
is no longer manufactured in the United States and which is not readily
available in the ordinary channels of commercial trade; or
(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle
loading pistol, which is designed to use black powder, or a black powder
substitute, and which cannot use fixed ammunition. For purposes of this
subparagraph, the term “antique firearm” shall not include any weapon
which incorporates a firearm frame or receiver, any firearm which is
converted into a muzzle loading weapon, or any muzzle loading weapon
which can be readily converted to fire fixed ammunition by replacing the
barrel, bolt, breechblock, or any combination thereof.
Arizona Revised Statutes section 13-1211 makes it a class 2 felony to knowingly
discharge a firearm at a residential structure and a class 3 felony to discharge a firearm at a
nonresidential structure. Section 13-1211 draws no distinction between antique firearms and
other firearms. Similarly, Arizona Revised Statutes section 13-3107 classifies the criminally

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negligent discharge of firearms within or into the limits of a municipality as a class 6 felony. See
A.R.S. § 13-3107(A). Again, the statute draws no distinction between antique firearms and other
firearms. Finally, the Legislature defined a “violent or aggravated felony” for sentencing
purposes to include “[d]ischarging a firearm at a residential structure if the structure is occupied”
without creating any exception for antique firearms. A.R.S. 13-706(F)(2)(g).
Under all of these Arizona laws, the discharge of an antique firearm (as defined under
federal law) has the same criminal consequences as the discharge of any other firearm.1
Conclusion
Firing an antique firearm subjects a person to criminal prosecution in Arizona to the same
extent that firing any other type of firearm subjects that person to criminal prosecution.

Thomas C. Horne
Attorney General

1

In 2013, Arizona lawmakers introduced HB 2234, which would have (1) amended the
definition of a firearm under A.R.S. § 13-105(19) by, among other things, excluding weapons
manufactured on or before January 1, 1899, and (2) deleted the definition of a firearm in A.R.S.
§ 13-3101(4). The amendment of A.R.S. § 13-105(19), had it been enacted into law, would have
created a state statutory analog to the federal definition of an antique firearm under 18 U.S.C. §
921(a)(16)(A).
In 2014, Arizona lawmakers introduced SB 1064, which contained the same two
provisions. Like HB 2234, SB 1064 was never enacted.

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STATE OF ARIZONA
OFFICE OF THE ATTORNEY GENERAL

No. I14-005
(R14-007)

ATTORNEY GENERAL OPINION
by
THOMAS C. HORNE
ATTORNEY GENERAL
August 27, 2014

To:

Re: Whether an employee “participates” in
PSPRS when an employee who returns to
work in a PSPRS designated position
continues to receive the employee’s pension
benefit and the Department makes a
contribution to PSPRS on behalf of the
employee

Larry D. Voyles
Arizona Game and Fish Department Director

Questions Presented
You have asked whether an Arizona Game and Fish Department (“GAF”) employee who is
receiving a retirement benefit from the Arizona Public Safety Personnel Retirement System
(“PSPRS”) thereby “participates” in the PSPRS under Arizona Revised Statutes (“A.R.S.”) § 38727(A)(1)(c) and is exempt from membership in the Arizona State Retirement System (“ASRS”).
Summary Answer
Under the statutes governing the PSPRS and the Arizona State Retirement System, a
retired PSPRS member who returns to work with an employer participating in the
ASRS and who receives PSPRS pension payments during such employment is not
exempt from membership in ASRS if the PSPRS retiree otherwise satisfies the ASRS
membership requirements during such period of reemployment.

Analysis

GAF has hired an employee who retired from a law enforcement position with the City of
Glendale and is receiving a PSPRS pension benefit while working for GAF as permitted by A.R.S. §
38-849(H). The GAF hired the retired PSPRS member as a law enforcement specialist, which is a
PSPRS-designated position in which the occupant ordinarily would meet all of the qualifications of
being an active member of the PSPRS within the scope of the definition of a PSPRS “member” in
A.R.S. § 38-842(31).
The reemployment of a retired member of the PSPRS is governed by A.R.S. § 38-849(H),
which states as follows:
At any time following retirement, if the retired member becomes employed by an
employer, other than the employer from which the member retired, in a position
ordinarily filled by an employee of an eligible group, employee contributions shall
not be made on the retired member’s account, and any service shall not be credited
during the period of reemployment. The employer shall pay the alternate contribution
rate pursuant to section 38-843.05.
Pursuant to A.R.S. § 38-849(H), while working for GAF, the PSPRS retiree will not receive
PSPRS service credit nor will contributions be remitted to PSPRS on his behalf, but GAF will make
the alternate contribution that A.R.S. § 38-843.05 requires.
The Legislature has mandated membership in the ASRS for all public officers and employees
who meet three statutory membership requirements. First, an employee must be employed by the
State of Arizona or a political subdivision of Arizona that is participating in the ASRS.
A.R.S. § 38-711(13) and (23)(a). Second, the employee’s position must be covered by the Social
Security Section 218 Agreement between the United States and the State of Arizona, extending
federal old age and survivors insurance to designated Arizona public officers and employees
(“Section 218 Agreement”). A.R.S. § 38-727(A)(l).1 Third, the officers and employees whose

1

The Legislature enacted 2014 Ariz. Sess. Laws ch. 44 (effective July 24, 2014), eliminating the requirement that an
employee’s position must be covered under Arizona’s Social Security Section 218 Agreement in order for an employee in

2

positions are covered under the Section 218 Agreement must be engaged to work at least twenty
weeks in a fiscal year and at least twenty hours per week. A.R.S. § 38-711(23)(b). All public
officers and employees who meet these three statutory requirements are subject to mandatory ASRS
membership unless one of the exceptions in A.R.S. § 38-727(A)(1) applies.
The subject GAF employee appears to satisfy all three requirements for mandatory ASRS
membership. The employee is employed by a participating ASRS employer because GAF is an
agency of the State of Arizona. The position of GAF Law Enforcement Specialist is covered by
Arizona’s Section 218 Agreement. Finally, assuming that GAF has engaged the PSPRS retiree to
work at least twenty weeks in a fiscal year and at least twenty hours per week, the GAF employee
meets the ASRS membership requirement and must participate in the ASRS unless the employee is
exempt from ASRS participation.
In 2001, the Legislature amended the ASRS statute to exempt from membership in ASRS
“any employee or officer who is eligible to participate and who participates in the elected officials’
retirement plan . . . ;[2]the elected officials’ defined contribution retirement system . . . ; [3]the
public safety personnel retirement system . . .; [4]or the corrections officer retirement plan . . . ”[5]
2001 Ariz. Sess. Laws ch. 136, § 7 (codified in 2001 as A.R.S. § 38-727(1)(e) and codified currently
as A.R.S. § 38-727(A)(1)(c)). Accordingly, the PSPRS retiree employed by GAF is exempt from

that position to be eligible for ASRS membership. Since July 24, 2014, eligibility for ASRS membership is based on
whether A.R.S. § 38-727 excludes a person from ASRS membership.
2
A.R.S. §§ 38-801 through -822.
3
A.R.S. §§ 38-831 through -833.
4
A.R.S. §§ 38-841 through -860.
5
A.R.S. §§ 38-881 through -91

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mandatory ASRS membership under A.R.S. § 38-727(A)(l)(c) only if the retiree is participating in
the PSPRS. The issue is whether the receipt of PSPRS retirement benefits constitutes participation.
The term “participate” is not defined in the ASRS or PSPRS statutes. Accordingly, as
provided in A.R.S. § 1-213, the term “shall be construed according to the common and approved use
of the language.” “By declining to define a statutory term, the legislature generally intends to give
the ordinary meaning to the word.” Circle K Stores, Inc. v. Apache Cnty., 199 Ariz. 402, 408, ¶ 18,
18 P.3d 713, 719, ¶ 18 (App. 2001). “[W]e will give terms ‘their ordinary meanings, unless the
legislature has provided a specific definition or the context of the statute indicates a term carries a
special meaning.” Kessen v. Stewart, 195 Ariz. 488, 491, ¶ 6, 990 P.2d 689, 692, ¶ 6 (App.1999)
(quoting Wells Fargo Credit Corp. v. Tolliver, 183 Ariz. 343, 345, 903 P.2d 1101, 1103 (App.
1995)).
“Participate is defined as “to take part, be or become actively involved, or share (in).”
Collins Dictionary, CollinsDictionary.com, http://www.collinsdictionary.com/dictionary/english
(last visited Aug. 6, 2014); see also Merriam-Webster Dictionary, Merriam-Webster.com, http:
www.merriam-webster.com/dictionary/participate (last visited Aug. 6, 2014) (“a: to take part
<always participates in class discussions> b: to have a part or share in something.”). The American
Heritage Dictionary, defines “participate” as follows: “1. To be active or involved in something;
take part: participated in the festivities. 2. To share in something: If only I could participate in your
good fortune.” The American Heritage ® Dictionary of the English Language (5th edition, 2013),
http://www.yourdictionary.com/participate#americanheritage, (last visited Aug. 21, 2014). [cite]
Black’s Law Dictionary defines the term “participate” as follows: “ to have a share in or to join in
with

others

in

an

enterprise

or

an

endeavor.”

http://thelawdictionary.org/participate/ (last visited Aug. 6, 2014).

4

The

Law

Dictionary.com,

These definitions lend little to the analysis because they are subject to contrary applications
in the context of whether the receipt of retirement benefits constitutes “participation” in PSPRS. We
therefore look to the Agency’s interpretation of the statute. In Arizona, ‘the contemporaneous
construction of a statute by those officials charged with its administration is entitled to great weight
in arriving at its proper interpretation.’ Police Pension Bd. v. Warren, 97 Ariz. 180, 186, 398 P.2d
892, 895 (Ariz. 1965) (quoting Long v. Dick, 87 Ariz. 25, 347 P.2d 581 (Ariz. 1959)). In Eastern
Vanguard Forex, Ltd. v. Arizona Corporation Commission, 206 Ariz. 399, 410, ¶ 35, 79 P.3d 86, 97,
¶ 35 (App. 2003), the court of appeals said the following: “[E]ven though we resolve questions of
law involving statutory construction de novo, we give great deference to the agency’s interpretation
and application of the statute.” Since the enactment in 2001 of what now is A.R.S. § 38727(A)(1)(c), the ASRS has interpreted and applied the exemption from ASRS membership of an
employee “who is eligible to participate and who participates in” any of the retirement plans listed in
the statute as exempting from ASRS only an employee who is making contributions to and earning
credited service in another plan.6
From the foregoing, we conclude that “participate” should be construed to mean actively
contributing and accruing credited service rather than some other passive membership status such as
retired, inactive or receiving long-term disability benefits. This conclusion is consistent with the
conclusion reached on a similar question involving a retired corrections officer. In Ariz. Att’y Gen.
Op. I01-018 (R00-056), the Attorney General opined that pursuant to A.R.S. § 38-727(1)(e) (now
A.R.S. § 38-727(A)(1)(c)), a correctional officer who had retired under the Corrections Officer
Retirement Plan (“CORP”) and had returned to work in a CORP-designated position was not exempt
from mandatory membership in the ASRS. In that opinion, the Attorney General noted that A.R.S. §

6

Although this is ASRS’s long standing practice, it is not reflected in a rule or written policy.

5

38-884(J) (the statute that in 2001 governed the reemployment of a retired member of CORP)
prohibited a CORP retiree from contributing to the CORP fund or from accruing credited service
while working in a CORP-designated position, and as a consequence, precluded the employee from
participating in CORP during such reemployment. Because the retired CORP member who returned
to work in a CORP-designated position was not eligible to participate in CORP and was not
otherwise exempt from the requirement that State employees participate in the ASRS, the Attorney
General concluded that retired CORP members returning to work in CORP-designated positions had
to participate in ASRS. Ariz. Att’y Gen. Op. I01-018 at 2.
Effective July 20, 2011, the Arizona Legislature required public employers to remit an
Alternative Contribution Rate (“ACR”) to the applicable Arizona retirement system when a retiree
returned to work in a public employment position. 2011 Ariz. Sess. Laws ch. 357, §§ 11, 20, 26 &
47 (adding A.R.S. §§ 38-766.02, -810.04, -843.05, and -891.01 within the ASRS, the Arizona
Elected Officials’ Retirement Plan, the PSPRS, and the CORP statutes respectively). The Senate
Fact Sheet for the legislation indicates that the Legislature established the ACR to mitigate the
potential actuarial impact that a retired member who returns to work for an employer may have on
ASRS, EORP, PSPRS, and CORP. Ariz. State Senate, Final Amended Fact Sheet for S.B. 1609,
50th Leg., 1st Reg. Sess., at 94(a) and (b) (May 10, 2011).
These statutes require participating public employers to remit an ACR in a percentage that
the respective public retirement system actuarially determines on behalf of any retiree employed by
the participating employer and occupying an employment position that would ordinarily be occupied
by an actively contributing member of that retirement system. The ACR statutes, however, do not
provide any associated benefit or service credit to the retired member on whose behalf the employer
is remitting the ACR. The GAF ACR payment to the PSPRS pursuant to A.R.S. § 38-843.05

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therefore does not render its employee who retired from the PSPRS as “participating” in the PSPRS
for purposes of A.R.S. § 38-727(A)(l)(c).
Conclusion
A PSPRS retiree who is employed with GAF and who satisfies ASRS membership
requirements is not “participating” in the PSPRS for purposes of the ASRS exclusion under A.R.S. §
38-727(A)(l)(c). A PSPRS retiree who is employed with GAF and who satisfies ASRS membership
requirements must be enrolled in and contribute to the ASRS.

Thomas C. Horne
Attorney General

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