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AGO 1953 No. 103 - July 27, 1953
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Don Eastvold | 1953-1956 | Attorney General of Washington

EMPLOYEES RETIREMENT SYSTEM ‑- TIME OF APPLICATION FOR SERVICE RETIREMENT

Limitations as to time of submitting application for optional retirement are not applicable to application for service retirement.

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                                                                    July 27, 1953

Lilburn H. Stevens
Major General, AGC, WNG
The Adjutant General
Camp Murray
Fort Lewis, Washington                                                                                                              Cite as:  AGO 53-55 No. 103

Dear Sir:

            Your letter of June 30, 1953, requested an opinion from this office as to whether or not it was the intent of the state legislature in enacting the State Employees' Retirement Act to require a minimum of thirty days' notice by means of a written application to the retirement board in the case of an employee desiring to retire who had reached the age of sixty and who had completed over thirty years of service.

            The facts as set forth in your letter are as follows:

            "A member of our staff, eligible for retirement on 1 May 1953, upon reaching the age of 60 (birthdate 7 April 1893), and with more than thirty years' service, applied for retirement on 2 April 1953, twenty-nine days prior to 1 May 1953, but was denied retirement pay for the month of May because retirement was not requested thirty days prior to the date of retirement."

            The pertinent statutory provisions set forth in RCW 41.40.180 as amended by § 10 of chapter 200 of the Session Laws of 1953 are as follows:

             [[Orig. Op. Page 2]]

            "(1) On and after April 1, 1949, any member who has attained age sixty or over may retire upon his written application to the retirement board, setting forth at what time, not less than thirty days, nor more than ninety days subsequent to the execution and filing thereof, he desires to be retired * * *

            "* * *

            "(3) On and after April 1, 1953, any member who has completed thirty years of service may retire on his written application to the retirement board, if he so desires, subject to war measures."

            Our conclusion may be summarized as follows:

            Due to the absence of an express statutory limitation as to the time of filing an application with the retirement board in the case of members eligible to retire after having completed thirty years of service, the written application of the member of your staff to the board was timely.

                                                                     ANALYSIS

            The State Employees' Retirement System was initiated by chapter 274, Session Laws of 1947.  Section 19 of that act provided for three types of retirement, namely,optional retirement of a member reaching the age of sixty;compulsory retirement of a member reaching the age of sixty-five; andservice retirement, after a member completed thirty-five years of service.  See Rem. Supp. 1949, § 11072-1.  In chapter 81 of the Session Laws of 1951, the requirement for compulsory retirement was changed from sixty-five years of age to seventy.  In 1953, as shown above, the legislature reduced the years of service for service retirement from thirty-five years to thirty, and re‑enacted [[reenacted]]the requirements for optional retirement and compulsory retirement without change.

            The retirement board has never before ruled upon a factual situation identical to the one now presented.  Neither is there any formal regulation now in existence governing the time at which application for service retirement must be filed.

            In connection with the submission of a written application for retirement upon the fulfillment of certain age or service requirements by a member of a state  [[Orig. Op. Page 3]] retirement system, a detailed examination of the state employees' retirement systems existing in a large number of states was made.  None of the statutes examined required a definite period of notice before any of the various membership benefits accrued, with the exception of the statutes of the State of Michigan.

            The retirement statute for state employees of the State of Michigan, upon which our act was largely based, contains the identical requirements for optional retirement, including the limitations as to the time for making application, that our own act provides.  See § 3.981 (19) Michigan Statutes Annotated.  A provision similar to § 3 of RCW 41.40.180 provides for automatic compulsory retirement at the age of seventy.  The Michigan statutes, however, do not provide for a service retirement following the completion of any definite period of state employment.  It would appear, therefore, that this provision in our statutes was either drafted here or adopted from legislation of another state which did not limit the time of making application for retirement benefits.  This seems to us to be particularly significant.

            Prior to 1953, the retirement board has interpreted the notice requirements pertaining to optional retirement at age sixty to mean that failure to submit an application thirty to ninety days prior to the first day of the month following separation from service would prevent the accruing of retirement benefits until the first day of the next succeeding month.  In a substantial number of cases members of the retirement system were thereby deprived of any compensation, either salary or retirement benefits, for a period of at least one month.  This office was never called upon to consider the soundness of that interpretation.

            In 1953, however, the legislature amended § 6 of RCW 41.40.190 to read as follows:

            "(6) Retirement allowances paid to members eligible to retire under the provisions of RCW 41.40.180 (2), 41.40.200, 41.40.210, 41.40.220, 41.40.230, 41.40.240 and 41.40.250 shall accrue from the first day of the calendar month immediately following the calendar month during which the member is separated from service.  Retirement allowances paid to members eligible to retire under any other provisions of this act shall accrue from the first day of a calendar month but in  [[Orig. Op. Page 4]] no event earlier than the first day of the calendar month immediately following the calendar month during which the member is separated from service."  (C. 200, Laws of 1953, § 11 (6)).

            The cited sections pertain to compulsory retirement at age seventy and to retirement for various forms of disability.  The fact that retirement allowances paid to members eligible to retire under other provisions of the act do not necessarily accrue from the calendar month immediately following the calendar month during which the member is separated from service appears to be a tacit recognition by the legislature of the interpretation by the retirement board.

            The action of the retirement board in notifying your staff member that his written application was not timely and that retirement benefits would not accrue until the first of June, 1953, constituted an initial interpretation by the board of § 3 of RCW 41.40.180, as amended.  While an interpretation of a statute by an executive department of a state is entitled to be given great weight, our court has refused to accord such consideration in a situation where an administrative interpretation has not been made and followed for such length of time as to acquire weight as a precedent.  SeePuget Sound Bridge and Dredging Co. v. Department of Labor, 26 Wn. (2d) 550, 174 P. (2d) 957.

            In the absence of a strong indication that the legislature intended to require a definite period of notice in connection with the application forservice retirement by a member, this office is compelled to decide that such period of notice may not be required by the administrative agency.  In this connection it should be noted that the courts have often held that retirement statutes are to receive a liberal construction for the benefit of the recipients.  SeeRiggs v. District Retirement Board of the Los Angeles City Schools, 21 Cal. (2d) 382, 132 P. (2d) 1.  See alsoFischer v. Tremaine, 229 N.Y.S. 505, 164 Misc. 576; Demming v. State Employees Retirement Board, 52 Dauph. 378, affirmed inDom v. State Employees Retirement Board, 345 Pa. 489, 28 A. (2d) 796.  This reasoning is based upon the fact that allowances paid to public employees from retirement fund in part maintained by them are not pure "pensions," "gratuities," or "bounties," but are given in consideration of services which were not fully compensated when rendered.  The retirement benefits for state employees in fact become a part of the contemplated compensation for services and are in a sense a part of the contract of employment.  SeeBrophy v. Employees Retirement System, 71 Cal. App. (2d) 455, 162 P. (2d) 939, andTalbott v. Independent School District of Des Moines, 230 Ia. 949, 299 N.W. 556.  Statutes relating to fees or compensation of public officers must be strictly construed in favor  [[Orig. Op. Page 5]] of the government and such officers are only entitled to what is clearly given by law.  But this rule is not applicable in the given case for the reasons stated above and for the further, and, we believe, conclusive reason that the funds involved are notpublic funds, but are funds in the custody of the state treasurer "belonging to the retirement system."  SeeState ex rel. State Retirement Board v. Yelle, 31 Wn. (2d) 87, 195 P. (2d) 646, 201 P. (2d) 172.

            In view of the above considerations this office cannot insert a limitation in a statute which the legislature did not place there.  This would be in accord with the reasoning of our court in the case of State ex rel. National Bank of Commerce of Seattle v. Stacy, 198 Wash. 708, 90 P. (2d) 264.  See alsoState ex rel. Ewing v. Reeves, 15 Wn. (2d) 75, 129 P. (2d) 805.  It is, therefore, our conclusion that the action of the member of your staff in submitting his written application for retirement under § 3 of the act, as amended, fully complied with the requirements of notice set forth therein.  The benefits should accrue from the first day of May, 1953, being the first day of the calendar month immediately following the calendar month during which he was separated from service.

Very truly yours,

DON EASTVOLD
Attorney General

ROBERT E. STOEVE
Assistant Attorney General

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