RETIREMENT ‑- PENSIONS ‑- CITIES AND TOWNS ‑- FIRST-CLASS CITY POLICE OFFICERS ‑- COMPUTATION OF CERTAIN SERVICE RETIREMENT BENEFITS
Under the provisions of RCW 41.20.050, as amended by § 36, chapter 209, Laws of 1969, 1st Ex. Sess., a first-class city police officer's service retirement allowance may not be based upon the salary of a position higher than that of captain in the absence of an election to that effect made on or before September 1, 1969.
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June 12, 1978
Honorable John Erak
617 West Third Street
Aberdeen, WA 98520 Cite as: AGLO 1978 No. 19
By letter previously acknowledged you requested our opinion on a question which we paraphrase as follows:
Under the provisions of RCW 41.20.050, as amended by § 36, chapter 209, Laws of 1969, 1st Ex. Sess., may a first-class city police officer's service retirement allowance be based upon the salary of a position higher than that of captain in the absence of an election to that effect made on or before September 1, 1969?
We answer the foregoing question in the negative for the reasons set forth in our analysis.
[[Orig. Op. Page 2]] ANALYSIS
RCW 41.20.050 relates to the service retirement allowance payable to certain retiring first-class city police officers. First, it applies to all such police officers who retired prior to March 1, 1970, and, hence, never became members of the LEOFF retirement system provided for in chapter 41.26 RCW. And second, it also bears upon the service retirement allowance payable to those first-class city police officers who retired after that date to the limited extent that the pension payable under RCW 41.20.050, in a given case, exceeds that to which a retiree is entitled under the provisions of RCW 41.26.100. See, RCW 41.26.040(2).
Prior to its amendment by § 36, chapter 209, Laws of 1969, 1st Ex. Sess., RCW 41.20.050 read, in material part, as follows:
"Whenever a person has been duly appointed, and has served honorably for a period of twenty-five years, as a member, in any capacity, of the regularly constituted police department of a city subject to the provisions of this chapter, the board, after hearing, if one is requested in writing, may order and direct that such person be retired, and the board shall retire any member so entitled, upon his written request therefor. The member so retired hereafter shall be paid from the fund during his lifetime a pension equal to fifty percent of the amount of salary at any time hereafter attached to the position held by the retired member for the year preceding the date of his retirement: PROVIDED, That no such pension shall exceed the amount equivalent to fifty percent of the salary of captain, and all existing pensions shall be increased to not less than one hundred fifty dollars per month as of July 1, 1957: . . ."
By this 1969 act, however, the legislature first amended the above‑quoted proviso so as to cause it to read as follows:
"PROVIDED, That,except as to a position higher than that of captain held for at least three calendar years prior to date of retirement, no such pension shall exceed the amount equivalent to fifty percent of the salary of captain, and all [[Orig. Op. Page 3]] existing pensions shall be increased to not less than one hundred fifty dollars per month as of July 1, 1957: . . ."
Then, as a part of the same amendment, the legislature added the following new, second paragraph, to the statute:
"Any person who has served in a position higher than the rank of captain for a minimum of three years may elect to retire at such higher position and receive for his lifetime a pension equal to fifty percent of the amount of the salary attached to the position held by such retired member for the year preceding his date of retirement: PROVIDED, That such person make the said election to retire at a higher position by September 1, 1969 and at the time of making the said election, pay into the relief and pension fund in addition to the contribution required by RCW 41.20.130; (1) an amount equal to six percent of that portion of all monthly salaries previously received upon which a sum equal to six percent has not been previously deducted and paid into the police relief and pension fund; (2) and such person agrees to continue paying into the police relief and pension fund until the date of retirement, in addition to the contributions required by RCW 41.20.130, an amount equal to six percent of that portion of monthly salary upon which a six percent contribution is not currently deducted pursuant to RCW 41.20.130."
As we read it, this 1969 amendment, which took effect on July 1, 1969,1/ afforded all first-class city police officers holding ranks higher than that of captain the option of having their retirement benefits based upon the salary attached to the rank actually held, provided, however, that:
[[Orig. Op. Page 4]] (1) Such higher rank or ranks were, or would be, actually held by the retiree for at least three calendar years prior to the date of retirement;2/
(2) The election to retire on that basis was made by September 1, 1969 (or within two months of the effective date of the law);
(3) Certain stipulated additional employees' contributions were then and thereafter made to the pension fund on the basis of the salary attached to the higher rank or ranks actually held.3/
Clearly, in our judgment, the second of these requirements (as contained in the proviso to the new, second paragraph of RCW 41.20.050) constitutes a qualification or limitation upon the right of any person to retire at a rank or position higher than that of captain.4/ Specifically, we would read the phrase "such person" in the proviso as meaning any person who has served in a position higher than the rank of captain for a minimum of three calendar years. Thus, this particular proviso simply fulfills the typical role of a proviso which, as explained in such cases as State ex rel. Pendleton v. Superior Court, 119 Wash. 73, 204 Pac. 1053 (1922), is either to modify the operation of that part of the statute immediately preceding the proviso or to except something from the operation of the statute which would otherwise have been within it.
Here, but for the proviso, the right granted by § 36, chapter 209,supra (to retire on the basis of the salary attached to a rank higher than captain) would have been available to any retiring first-class police officer who had held such a higher rank for at least three calendar years prior to his date of retirement. The legislature, however, was apparently unwilling to allow such an open-ended exception to its previous general rule to the effect that,
[[Orig. Op. Page 5]] ". . . no such pension shall exceed the amount equivalent to fifty percent of the salary of captain, . . ."
Therefore, it qualified that right by adding the subject proviso and thereby made it necessary for any person, otherwise eligible, seeking to invoke the right to make an election to that effect by no later than September 1, 1969. Accordingly, consistent with the views previously expressed by the Aberdeen city attorney in connection with the specific case giving rise to your inquiry,5/ we must likewise answer your question in the negative.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/See § 45, chapter 209, Laws of 1969, 1st Ex. Sess.
2/Those years, however, need not have been consecutive nor need they have occurred immediately prior to retirement. See, AGO 1969 No. 13 [[ to Ernest H. Campbell, Bureau of Government Resources and Services on August 25, 1969]], copy enclosed, at p. 6.
3/AGO 1969 No. 13, supra, at pp. 6-9.
4/Unlike the other two, notably, this requirement of the statute was not discussed in AGO 1969 No. 13, supra.
5/In an opinion dated January 9, 1978, to the City of Aberdeen Police Power Board, a copy of which you have provided to us.