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February 1, 1972
Honorable Norwood Cunningham
State Representative, 30th District
Olympia, Washington Cite as: AGLO 1972 No. 11 (not official)
By letter previously acknowledged, you have requested an opinion of this office on a question which we paraphrase as follows:
Where a member of the Law Enforcement Officers' and Fire Fighters' Retirement System (LEFF) had been granted and was drawing a disability retirement allowance under RCW 41.26.130, as of the effective date of chapter 257, Laws of 1971, 1st ex. sess., and where such retiree then had a child between the ages of 18 and 21 years of age in attendance at a state higher educational institution, would the legislature's redefinition of the term "child" in section 6 (7) of this 1971 act have the effect of increasing the disability retiree's allowance by an amount equal to five percent of his final average salary in recognition of the existence and status of such a child?
We answer the question in the negative for the reasons set forth below:
The Washington Law Enforcement Officers' and Fire Fighters' Retirement System (LEFF), established in chapter 41.26 RCW, provides for a disability retirement allowance for any member who is physically or mentally disabled from the further performance of duty.1/ The amount of this disability retirement allowance is set forth in RCW 41.26.130 (1) as follows:
"(1) Upon retirement for disability a member shall be entitled to receive a monthly retirement [[Orig. Op. Page 2]] allowance computed as follows: (a) A basic amount of fifty percent of final 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.)
Your question has arisen because of the 1971 legislature's redefinition of the term "child". By § 6 (7), chapter 257, Laws of 1971, 1st ex. sess., the legislature amended the prior definition of this term, as contained in RCW 41.26.030 (7), to read as follows:
". . .
"(7) 'Child' or 'children' whenever used in this chapter means every natural born child, posthumous child, child legally adopted or made a legal ward of a member prior to the date benefits are payable under this chapter, stepchild and illegitimate child legitimized prior to the date any benefits are payable under this chapter, all while ((under the age of eighteen years and)) unmarried, and either under the age of eighteen years or mentally or physically handicapped as determined by the retirement board except a handicapped person in the full time care of a state institution. A person shall also be deemed to be a child up to and including the age of twenty years and eleven months while attending any high school, college, or vocational or other educational institution accredited or approved by the state of Washington." (the interlined language was deleted.)
Because § 21 of this act contained an emergency clause, this amendment became effective on May 21, 1971, when the act was signed by the governor. Your question involves a situation in which a former member of the LEFF retirement system was, on that date, already receiving a previously granted disability retirement allowance under RCW 41.26.130 (1), supra ‑ and had a son or daughter then over the age of 18 years of age but under the age of 20 years and 11 months, attending an educational institution accredited by the state of Washington. Since the subject amendment was not in effect at the time the member retired, his offspring had ceased to be a "child" under the prior definition of that term, and [[Orig. Op. Page 3]] was no longer of any consequence insofar as the amount of the member's retirement allowance was concerned. Your question is whether the amendment to the prior definition of "child" operates in this case to alter this result. In short, which definition of "child" now applies to the retired member: (1) The definition that existed at the time he retired; or (2) the definition enacted by § 6 of the 1971 amendatory act ‑ enacted after the member's retirement?
Based upon the reasoning of AGO 1969, No. 12 [[to F. Pat Wanamaker, State Representative on July 15, 1969]], copy enclosed, we believe that the former and not the latter definition must be applied in this case. In that opinion, we explored in great detail the contractual nature of public employees' pensions in this state,2/ together with the historical development of constitutionally permissible post-retirement pension act modifications.3/ We then concluded, in essence, that
". . . a public employee's [contractual] pension rights are governed by the law in effect at the time of commencement of employment, together with any beneficial amendments which are enacted during his period of service ‑ at or prior to the time of his retirement.";
subject only to such post-retirement amendments (noncontractual in nature) with regard to which the legislature
". . . manifests a clear intent to make the enactment applicable to persons already retired as is now permitted by the constitution."
Applying these rules to the instant situation, we can find nothing in the amendatory provisions of § 6 (7) of chapter 257, Laws of 1971, 1st ex. sess., supra, which would constitute any sort of clear manifestation of legislative intent that the critical redefinition of the term "child" should apply in cases involving persons already retired. Simply stated, a member of the LEFF system who retired prior to the effective date of that act rendered his services in return for the promise of the state that his disability pension would be increased for each "child" as that term was defined in the law [[Orig. Op. Page 4]] at the time those services were rendered. He did not render those services in return for a promise that the legislature, at some future date, would modify that definition to his benefit.
For this reason, it is the opinion of this office that the amendment to RCW 41.26.030 (7) contained in § 6, chapter 257, Laws of 1971, 1st ex. sess., does not apply to the disability retirement allowance of an individual who was already drawing such an allowance prior to the effective date of that 1971 act, and we therefore answer your question in the negative.
We trust this information will be of assistance.
Very truly yours,
FOR THE ATTORNEY GENERAL
WAYNE L. WILLIAMS
Assistant Attorney General
*** FOOTNOTES ***
1/See, RCW 41.26.120 (2).
2/See, e.g., Bakenhus v. Seattle, 48 Wn.2d 695, 296 P.2d 536 (1956).
3/Compare Sonnabend v. Spokane, 57 Wn.2d 362, 333 P.2d 918 (1958), with Luders v. Spokane, 57 Wn.2d 162, 356 P.2d 331 (1960).