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AGO 1955 No. 70 - May 09, 1955
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Don Eastvold | 1953-1956 | Attorney General of Washington

CITIES -- FIRST CLASS -- POLICE PENSION

Rate of payment for policeman seeking credit for time spend in armed services to cover pension requirements.

Policemen seeking credit for time spent in service toward retirement must pay at the rate set forth and effective as of date of payment.

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                                                                    May 9, 1955

Honorable A. E. Farrar
State Representative, 27th District
784 Commerce Street
Tacoma 2, Washington                                                                                                                Cite as:  AGO 55-57 No. 70

Dear Sir:

            In your letter of April 4, 1955, previously acknowledged, you have requested our opinion on the effect of the 1955 amendment to RCW 41.20.130 (Section 8, chapter 69, Laws of 1955) will have on the amount it will be necessary for an ex-serviceman to pay in order to take advantage of the provision set forth in RCW 41.20.050 granting policemen the right to receive credit for time spent in the service toward their retirement.  It is noted that the 1955 amendment raises the rate after June 9, 1955, from two percent to four and one‑half percent of the yearly salary as the amount to be paid to receive such credit.

            In our opinion any payment made subsequent to the effective date of the act should be made at the rate set forth in the act as amended by the 1955 legislature; i.e. four and one‑half percent.

                                                                     ANALYSIS

            That portion of section 1, chapter 45, Laws of 1945, from which RCW 41.20.050 is derived, relating to the right to receive credit for military service reads as follows:

            "Any person affected by this chapter who at the time of entering the armed services was a member  [[Orig. Op. Page 2]] of such police department and has honorably served in the armed services of the United States in the time of war, shall have added to his period of employment as computed under this chapter, his period of war service in the armed forces, but such credited service shall not exceed five years and such period of service shall be automatically added to each member's service upon payment by him of his contribution for the period of his absence at the rate provided in RCW 41.20.130, or acts amendatory thereto."  [The underlined portion appears in the session laws but was not carried into the code.]

            The statute covering the rate as amended reads as follows:

            "Section 1, chapter 30, Laws of 1933 and RCW 41.20.130, are each amended to read as follows:

            "There is created in each city subject to the provisions of this chapter a police relief and pension fund.  The fund shall be constituted as follows:

            "A sum equal to four and one‑half percent thereof shall be deducted monthly from the salary of each police officer by the city treasurer and placed in the fund, but the maximum deduction shall not exceed four and one‑half percent of the basic monthly salary of a member holding the rank of captain.

            "At the time the annual tax levy of the city is made, the city council, or other legislative body, shall order the transfer of an amount of money into the fund, sufficient with the salary deductions, to meet the financial requirements thereof;

             [[Orig. Op. Page 3]]

            "(1) From moneys collected or received from all licenses issued;

            "(2) From fines and forfeitures collected or received in money for violation of city ordinances."  (RCW 41.20.130 as amended by section 8, chapter 69, Laws of 1955)

            The great weight of authority is to the effect that public servants can acquire no vested rights in a public pension fund.  54 A.L.R. 943; 137 A.L.R. 249.

            Claims arising as a result of legislative changes in the pension law have been almost universally litigated on the grounds that "vested rights" of the pensioner have been affected.

            In the case ofMacLeod v. Fernandez, 101 F. (2d) 20, writ of certiorari denied 309 U.S. 561 (1939), the court said that where the pensioner had retired receiving a pension at a certain sum after compliance with the pension law that a reduction of such pension was not an unconstitutional interference with a vested right even though compulsory contributions had been exacted.

            In the instant case the right claimed must be accepted, i.e. the returned serviceman may accept or refuse the privilege of credit for his military service.  If his acceptance is made prior to the effective date of the new law a payment of two percent of his annual salary would cover the cost.  If made after that date the contract must be measured by the rate governing as of the acceptance date and he must pay four and one‑half percent.

            If the rights the policeman has to his pension are not vested then neither are his rights to a privilege offered by statute and not yet accepted.

            In the case ofPape v. Department of Labor and Industries, 43 Wn. (2d) 736, 264 P. (2d) 241, the court points out that laws are generally construed as prospective rather than retrospective in their application but that such rule is not applied when the

            "statute related to remedies only, and does not affect vested rights.  (emphasis added)

            The instant situation is one where the parties affected can, if they so elect, obtain credit for their military service.  It is a privilege that can be withdrawn  [[Orig. Op. Page 4]] by the legislature which gave it.  The terms of acceptance are subject to the discretion of that body and until acceptance there can be no vested right in those affected.  A prior opinion of this office on January 21, 1948, to the director of Veterans Rehabilitation Council, indicates that there is no time limitation for exercising the privilege under previous laws on the claiming of credit for time served in the armed forces where none is fixed by the statute allowing the credit.

            In view of the foregoing, the legislature can enact appropriate legislation providing that the rate applicable at the time the service credit was earned shall apply without prejudicing the rights or privileges of any person.  In the meantime we are constrained to hold that the rate applicable at time of payment must be collected.

Very truly yours,

DON EASTVOLD
Attorney General


B. F. RENO, JR.
Assistant Attorney General

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