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AGLO 1974 No. 79 - September 11, 1974
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Slade Gorton | 1969-1980 | Attorney General of Washington

PENSIONS ‑- RETIREMENT ‑- FIREMEN ‑- COMPUTATION OF CERTAIN DISABILITY RETIREMENT BENEFITS

Where a municipal fireman otherwise eligible for a disability retirement allowance under the provisions of RCW 41.18.060 was, at the time of retirement, holding a rank or receiving a salary in excess of that of a battalion chief, he is not thereby precluded from receiving the additional increments in such allowance that are payable under that statute by reason of years of service in excess of twenty-five years.

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                                                              September 11, 1974

Honorable Richard A. King
State Representative
Office of Program Research
House of Representatives
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1974 No. 79

Dear Sir:
 
            By letter previously acknowledged you have requested the opinion of this office upon a question which we have paraphrased as follows:
 
            Where a municipal fireman otherwise eligible for a disability retirement allowance under the provisions of RCW 41.18.060 was, at the time of retirement, holding a rank or receiving a salary in excess of that of a battalion chief, is he thereby precluded from receiving the additional increments in such allowance that are payable under that statute by reason of years of service in excess of twenty-five years?
 
            We answer this question in the negative for the reasons set forth in our analysis below.
 
                                                                     ANALYSIS
 
            Your question has reference to a municipal fireman who was employed, prior to March 1, 1970, by a municipality having a regularly organized, full-time, paid fire department and who was, by reason of that employment, a member of the retirement system established pursuant to chapter 41.18 RCW.1/
 
             [[Orig. Op. Page 2]]
            RCW 41.18.050, a part of that chapter, provides for the granting of retirement benefits to such firemen who have become disabled as the result of the performance of their duties.  The "additional increments" in retirement allowances cited in your question are the additional percentages of basic salary which such a fireman is entitled to receive for each full year of service in excess of twenty-five, to a maximum of five additional years of service.  See, RCW 41.18.060 which provides for the method of payment of the duty disability retirement allowance to those firemen retired for disability under RCW 41.18.060 in the following language:
 
            "Whenever the retirement board, pursuant to examination by the board's physician and such other evidence as it may require, shall find a fireman has been disabled while in the performance of his duties it shall declare him inactive.  For a period of six months from the time of such disability he shall draw from the pension fund a disability allowance equal to his basic monthly salary and, in addition, he shall be provided with medical, hospital and nursing care as long as the disability exists.  If the board finds at the expiration of six months that the fireman is unable to return to and perform his duties, then he shall be retired at a monthly sum equal to fifty percent of the amount of his basic salary at any time thereafter attached to the rank which he held at the date of his retirement:  PROVIDED, That where, at the time of retirement hereafter for disability under this section, such fireman has served honorably for a period of more than twenty-five years as a member, in any capacity of the regularly constituted fire department of a municipality, he shall have his pension payable  [[Orig. Op. Page 3]] under this section increased by two percent of his basic salary per year for each full year of additional service to a maximum of five additional years."  (Emphasis supplied.)
 
            Quite obviously, there is nothing in this statute which excludes from the application of its here critical proviso those firemen who, at the time of their retirement for disability, were holding a rank or receiving a salary in excess of that of a battalion chief.  If we are to find such an exclusion, therefore, we must look elsewhere.
 
            As you have noted in your letter, one critical factor in the calculation of retirement benefits pursuant to the above quoted statute is the particular fireman's salary.  In fact, the statute itself uses the term "basic salary," a term which is defined by RCW 41.18.010(4) as follows:
 
            "'Basic salary' means the basic month salary, including longevity pay, attached to the rank held by the retired fireman at the date of his retirement, without regard to extra compensation which such fireman may have received for special duties assignments not acquired through civil service examination:  PROVIDED, That such basic salary shall not be deemed to exceed the salary of a battalion chief.  (Emphasis supplied.)
 
            It is the proviso to this definition which raises the issue contained in your question.  Returning to RCW 41.18.060, and with this knowledge of the definition of "basic salary," we see that although a retiring fire chief, for example,2/ will be able to receive an additional two percent benefit for each additional full year of service in excess of twenty-five years, the new percentage thus derived will be applied against a salary which may not exceed that of a battalion chief.  Therefore, although this fire chief will receive the benefits of the additonal increments provided by RCW 41.18.060, those additional increments will not be calculated on the basis of his own salary at retirement but, instead, will be measured against the presumably lower salary of a battalion chief in his department.
 
             [[Orig. Op. Page 4]]
            Having noted this restriction on the computation of basic salary in the course of our conclusion that additional increments in a retirement allowance, based on such salary, are nevertheless payable, we should go on to note that the practical effect of this answer to your question will be greatly lessened for those firemen covered by chapter 41.18 RCW who also are, or were, members of the LEFF retirement system.  As indicated above,3/ RCW 41.26.040(2), guarantees those individuals who were thus mandatorially transferred to LEFF a pension which is equal to the higher of that provided by chapter 41.26 RCW or chapter 41.18 RCW.  If the benefits the individual would have received under chapter 41.18 RCW are greater than those he is granted by chapter 41.26 RCW, the excess is paid by the municipality which was the member's employer on March 1, 1970.
 
            RCW 41.13.130 provides a duty disability retirement allowance equal to fifty percent of the salary a fire fighter was actually receiving at the time he retired for disability, with no limitation based upon the salary of a battalion chief.  In addition, if an individual has children he will receive an additional five percent of salary for each child to a maximum of an additional ten percent.  Therefore, for an individual who retires from the LEFF retirement system, the practical effect of the limitation contained in chapter 41.18 RCW will be lessened, since the fifty percent he is eligible to receive under this new system may well be greater than the fifty-five percent he could potentially receive under chapter 41.18 RCW‑-inasmuch as the larger percentage will be calculated on the salary of a battalion chief.  Additionally, if he has any children, the additional percentage he will receive from LEFF because of this fact under RCW 41.26.130(1) will undoubtedly compensate for the limitation contained in the formula prescribed by RCW 41.18.060, supra.
 
            We trust that the foregoing explanation will be of assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General

WAYNE L. WILLIAMS
Assistant Attorney General

                                                         ***   FOOTNOTES   ***
 
1/Since March 1, 1970, most full-time, fully compensated municipal fire fighters have been members of the new Law Enforcement Officers' and Fire Fighters' Retirement System (LEFF).  See RCW 41.26.040 and RCW 41.26.045.
 
            However, as provided for in subsection (2) of the first of these two statutes, those who were currently employed as of that date also remain members of their prior systems (in this case, that provided for in chapter 41.18 RCW but in certain other cases, another prior system established by chapter 41.16 RCW) for the purpose of qualifying for and receiving the benefits provided for thereunder to the extent they may be greater than those provided for by the new law.  Accord, AGO 1970 No. 17 [[to Walter B. Williams, State Senator on June 30, 1970]].
 
2/A rank higher than battalion chief.
 
3/See footnote 1.

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