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AGLO 1975 No. 28 - March 17, 1975
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Slade Gorton | 1969-1980 | Attorney General of Washington

RETIREMENT ‑- PENSIONS ‑- CITIES AND TOWNS ‑- EMPLOYEES ‑- LEOFF ‑- CONSTITUTIONALITY OF CERTAIN PENSION LEGISLATION

(1) The legislature can require those cities which desire not to have their employees covered by a state pension system to establish and maintain a local, municipal pension system for all of their law enforcement officers and fire fighters who are currently members of the state law enforcement officers' and fire fighters' retirement system (LEOFF), as codified in chapter 41.26 RCW.

(2) In the event a city determines to stay out of a proposed state pension system, the city may, in the event that it is currently operating a pension system of its own for its general, municipal employees, include within the coverage of that system any new fire fighters or law enforcement officers employed by it after the effective date of a state law which disqualifies all such newly employed fire fighters or law enforcement officers from coverage under the LEOFF system.

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                                                                  March 17, 1975

Honorable A. L. "Slim" Rasmussen
State Senator, 29th District
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 28

Dear Sir:

            By recent letter you have made reference to a proposal currently pending before the legislature to establish a new pension system for all state and local governmental employees.  One of the aspects of this proposal, according to your letter,

            ". . . would give the cities the option of staying out of the new pension plan if they would agree to take those employees that are presently on (sic) the LEOFF System back as a responsibility of the city."

            You have then asked two questions regarding this proposal which we paraphrase as follows:

            (1) Can the legislature require those cities which desire not to have their employees covered by a state pension system to establish and maintain a local, municipal pension system for all of their law enforcement officers and fire fighters who are currently members of the state law enforcement officers' and fire fighters' retirement system (LEOFF), as codified in chapter 41.26 RCW?

            (2) In the event that a city determines to stay out of a proposed state pension system, may the city, in the event that it is currently operating a pension system of its own for its general, municipal employees, include within the coverage of that system anynew fire fighters or law enforcement officers employed by it after the effective date of a state law which disqualifies all such newly employed fire fighters or law enforcement officers from coverage under the LEOFF system?

            We answer both of these questions in the affirmative.

             [[Orig. Op. Page 2]]                       ANALYSIS

            Question (1):

            In answer to your first question we have no doubt as to the constitutional ability of the legislature to require those cities not desiring to participate in the new plan to establish a local pension system for those law enforcement officers and fire fighters employed by them who are currently covered by the LEOFF pension system, chapter 41.26 RCW.  In theory, we perceive no difference between such a requirement and the imposition of a statutory obligation upon cities and towns to provide pension coverage for given categories of their employees in the first instance.  See, e.g., the various pre‑1969 pension systems for municipal fire fighters or law enforcement officers (chapters 41.14, 41.16 and 41.20 RCW) which were enacted by the legislature and mandatorily adopted by the various cities and towns in accordance with the requirements of the applicable law.

            Question (2):

            In responding to your second question it is important to note and underscore the fact that, as above worded, this question only applies to those law enforcement officers or fire fighters employed by a city after the effective date of a state law precluding such newly employed personnel from being covered by the LEOFF system.

            Clearly, it would not be constitutional for those law enforcement officers and fire fightersalready employed by a city, and participating in the LEOFF system, simply to be made members of an existing city retirement system for other municipal employees.  Instead, in order to give effect to the requirements of such cases as Bakenhus v. Seattle, 48 Wn.2d 695, 296 P.2d 536 (1956), the pension coverage thus to be afforded by a city or town determining not to participate in the proposed new state pension system would have to be at least comparable to that provided under chapter 41.26 RCW as of the date of any transfer of current members of the LEOFF system back to some form of municipal system.  Compare, RCW 41.26.040(2) by which the legislature provided for a similar protection of existing pension rights when, in 1969, it established the LEOFF system and required all full time municipal fire fighters and law enforcement officers to transfer to that system from their preexisting municipal pension systems.

             [[Orig. Op. Page 3]]   On the other hand, this doctrine of state constitutional law would not be applicable to newly employed personnel in the police or fire department of a city or town; i.e., personnel having no rights under the provisions of chapter 41.26 RCW arising out of their membership in the LEOFF system as of the effective date of the state law closing entry into that system.  Therefore, assuming that a given city is currently operating a pension system for its other classes of employees pursuant to constitutional or statutory authority of some kind,1/ there would be no constitutional objection to a decision by that city to place all newly employed law enforcement officers or fire fighters in this system as well.

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

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/See, Ayers v. Tacoma, 6 Wn.2d 545, 108 P.2d 348 (1940), and chapter 41.28 RCW.

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