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AGLO 1980 No. 16 - April 04, 1980
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Slade Gorton | 1969-1980 | Attorney General of Washington

RETIREMENT ‑- PENSIONS ‑- LAW ENFORCEMENT OFFICERS' AND FIRE FIGHTERS' RETIREMENT SYSTEM ‑- COMPUTATION OF DISABILITY RETIREMENT ALLOWANCES

The disability retirement allowance payable to a Plan I member of the Law Enforcement Officers' and Fire Fighters' Retirement System under RCW 41.26.130 is to be based on the salary which would have been payable to him had he still been in active service at the time of disability retirement (reversing AGO 1978 No. 8 in part).

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                                                                    April 4, 1980

Honorable Robert L. Hollister, Jr.
Director
Department of Retirement Systems
1025 E. Union
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1980 No. 16

Dear Sir:

            By recent letter you have requested our opinion on a question which we paraphrase as follows:

            Is the disability retirement allowance payable to a Plan I member of the Law Enforcement Officers' and Fire Fighters' Retirement System under RCW 41.26.130 to be based on his salary at the time he began his period of disability leave or, instead, on the salary which would have been payable to him had he still been in active service at the time of disability retirement?

            We answer the foregoing question as indicated in the following analysis.

                                                                     ANALYSIS

            Under RCW 41.26.120, when a Plan I member of the Law Enforcement Officers' and Fire Fighters' Retirement  [[Orig. Op. Page 2]] System is determined to have become disabled, he is first to be placed on disability leave for a period of not more than six months during which time the member ". . . shall receive an allowance equal to his full monthly salary and shall continue to receive all other benefits provided to active employees from his employer for such period. . . ." Thereafter, when the member has properly completed his period of disability leave and is found to be qualified to receive a disability retirement allowance, RCW 41.26.130(1) specifies the amount of that allowance.  This subsection reads as follows:

            "(1) Upon retirement for disability a member shall be entitled to receive a monthly retirement allowance computed as follows:  (a) A basic amount of fifty percent offinal average salary at time of disability retirement, and (b) an additional five percent of final average salary for each child as defined in RCW 41.26.030(7), (c) the combined total of subsections (1)(a) and (1)(b) of this section shall not exceed a maximum of sixty percent of final average salary."  (Emphasis supplied)

            In AGO 1978 No. 8, copy enclosed, we interpreted this provision to mean that the disability retirement allowance payable thereunder is to be based on the member's salary at the time he began his period of disability leave.  In so concluding we first made note of the following definition of "final average salary" in RCW 41.26.030(12)(a):

            "(12)(a) 'Final average salary' for persons who establish membership in the retirement system on or before September 30, 1977, means . . . (iii) in the case of disability of any member, the basic salary payable to such member at the time of disability retirement; . . ."

            Then, bearing both that statute and RCW 41.26.130(1) in mind, we indicated that we were confronted with an anomaly, saying:

            ". . .  Literally read, both RCW 41.26.130(1) and RCW 41.26.030(12)(a) purport to set the disability retirement allowance of a Plan I member of the LEOFF System at a designated percentage of his salary at the time of disability retirement.  Yet because of the  [[Orig. Op. Page 3]] intervening period of disability leave which first must be completed under RCW 41.26.120, supra, such an individual is actually in receipt of no salary at all at the time he converts from disability leave to disability retirement status.  Therefore, the only reasonable solution to the problem is to utilize, once again, the definition of 'basic salary' in RCW 41.26.030(13)(a), supra, and thereby revert to the basic salary which the member was receiving when he was first placed on disability leave.  The mere fact that other members of the police or fire department may have received salary increases (or, conceivably, salary decreases) during the interim, while interesting, is thus of no legal relevance insofar as the disability retirees'own 'final average salary' and 'basic salary' are concerned."  (Emphasis supplied)

            Subsequent to the issuance of this March 23, 1978, opinion, however, the same issue was litigated in court‑-specifically in the Spokane County Superior Court‑-in the case ofCity of Spokane, et al. v. State of Washington, Board of Retirement Systems, et al. Cause No. 79204814-8.  And, in a well-reasoned opinion from which no appeal was taken by the department, the trial judge disagreed with us and rules that the proper salary figure to be looked to in computing any disability retirement allowance under RCW 41.26.130,supra, is that which would have been payable to the member if he had, in fact, been in active service at the time of disability retirement.

            You have therefore asked us to review and reconsider AGO 1978 No. 8,supra, in the light of the reasoning of this intervening court decision.  We have done so and wish to advise you that we agree with the Court.  Accordingly, insofar as it relates to the computation of disability retirement allowances for Plan I members of the Law Enforcement Officers' and Fire Fighters' Retirement System, AGO 1978 No. 8 is hereby reversed.

            The critical point to be noted and underscored stems from so much of RCW 41.26.030(12)(a),supra, as defines the "final average salary" of a disability retiree, as ". . . the basic salary payable to such member at the time of disability retirement."  As noted by the trial judge in the  [[Orig. Op. Page 4]]Spokane case, supra, this statutory definition ". . . doesn't say the basic salarypaid, it says 'payable'."  And that, we must confess, is the point which seemingly was missed by this office in the preparation of our prior opinion.  It is, perhaps, a rather fine point but, in our considered judgment at this time, it is a valid one‑-particularly in light of the well-established principle of liberal construction which applies to public employees' pension statutes in this state.1/

             We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/See, e.g.,Bowen v. Statewide City Employees Retirement System, 72 Wn.2d 397, 433 P.2d 150 (1967) and authorities cited therein;cf.,Jordan v. O'Brien, 79 Wn.2d 406, 486 P.2d 290 (1971).

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