Navigation Top
AGO Logo Graphic
AGO Header Image
File a Complaint
Contact the AGO
AGLO 1971 No. 111 - September 23, 1971
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington
- - - - - - - - - - - - -
 
 
                                                              September 23, 1971
 
 
 
Honorable Lloyd G. Baker, Director
Washington Public Employees'
Retirement System
201 General Administration Building
Olympia, Washington 98504
                                                                                          Cite as:  AGLO 1971 No. 111 (not official)
 
 
Dear Sir:
 
            This is in response to your request for an opinion of this office on certain questions pertaining to the rights of certain former members of the public employees' retirement system who are currently participating in the new judicial retirement system, created by chapter 267, Laws of 1971, 1st Ex. Sess.  We paraphrase your questions as follows:
 
            (1) May a member of the judicial retirement system, formerly a member of the public employees' retirement system, who has reinstated his membership in this latter system in the manner and for the purposes specified in subsection (2) of § 22, chapter 267, Laws of 1971, 1st Ex. Sess., recover service credit for an initial six months' period of probationary service prior to becoming a member of the public employees' retirement system as provided for in RCW 41.40.010 (11) (c) and 41.40.010 (11) (d)?
 
            (2) May such person, for the purpose of transfer thereof to the judicial retirement system, recover service credit under RCW 41.40.120 (3) for a period or periods of elective service to an employer under the public employees' retirement system, rendered at a time when he had not exercised his option of becoming a member of that retirement system, by paying both the employee's and employer's shares of the contribution therefor?
 
            (3) If question (2) is answered in the affirmative, does this right to obtain service credit under RCW 41.40.020 (3) also extend to a member of the judicial retirement system who is covered by subsection (1) of § 22, supra?
 
            (4) Assuming that the individual described in questions (1) and (2) has thirty years of service credit with the public employees' retirement system (comprised of twelve years of prior service and eighteen years of membership service), how many years of this service may be transferred under the provisions of § 22, supra?
 
             [[Orig. Op. Page 2]]
            We answer question (1) in the negative and questions (2) and (3) in the affirmative.  Our answer to question (4) is that the individual described therein may only transfer nine years of his public employees' service credit to the judicial retirement system.  Our reasons in support of these answers appear in the following analysis.
 
                                                                     ANALYSIS
 
            By its enactment of chapter 267, Laws of 1971, 1st Ex. Sess., the legislature established a new retirement system for judges of the state supreme court, court of appeals, and superior courts.1/   Membership in this system is mandatory for all such judges first elected or appointed to one of the courts covered by the act on or after its effective date; in addition, the act provides for optional transfers to the new system for persons serving as judges on the effective date of the act who were then covered by the provisions of the prior judges' retirement act.2/
 
             Recognizing that many judges in this state have rendered prior public service in positions covered by the Washington public employees' retirement system, the legislature enacted § 22, chapter 267, Laws of 1971, 1st Ex. Sess., which provides as follows:
 
            "(1) Any member of the Washington public employees' retirement system who is eligible to participate in the judicial retirement system may, by written request filed with the retirement boards of the two systems respectively, transfer such membership to the judicial retirement system.  Upon the receipt of such request, the board of the Washington public employees' retirement system shall transfer to the board of the Washington judicial retirement system (1) all employee's contributions and interest thereon belonging to such member in the employees' savings fund and all employer's contributions credited or attributed to such member in the benefit account fund and (2) a record of service credited to such member.  One‑half of such service shall be computed and not more than nine years shall be credited to such member as though such service was performed as a member of the judicial retirement system.  Upon such transfer being made the state treasurer shall deposit such moneys in the judicial retirement fund.  In the event that any such member should  [[Orig. Op. Page 3]] terminate judicial service prior to his entitlement to retirement benefits under any of the provisions of this 1971 act, he shall upon request therefor be repaid from the judicial retirement fund an amount equal to the amount of his employee's contributions to the Washington public employees' retirement system and interest plus interest thereon from the date of the transfer of such moneys.
 
            "(2) Any member of the judicial retirement system who was formerly a member of the Washington public employees' retirement system but who has terminated his membership therein under the provisions of chapter 41.40 RCW, may reinstate his membership in the Washington public employees' retirement system, for the sole purpose of qualifying for a transfer of membership in the judicial retirement system in accordance with subsection (1) above by making full restoration of all withdrawn funds to the employees' savings fund prior to January 1, 1972.  Upon reinstatement in accordance with this subsection, the provisions of subsection (1) and the provisions of RCW 41.40.120 (3) shall then be applicable to the reinstated member in the same manner and to the same extent as they are to the present members of the Washington public employees' retirement system who are eligible to participate in the judicial retirement system.
 
            "(3) Any member of the judicial retirement system who has served as a judge for one or more years and who has rendered service for the state of Washington, or any political subdivision thereof, prior to October 1, 1947, or the time of the admission of the employer into the Washington public employees' retirement system, may ‑ upon his payment into the judicial retirement fund of a sum equal to 5% of his compensation earned for such prior public service ‑ request and shall be entitled to have one‑half of such service computed and not more than six years immediately credited to such member as though such service had been performed as a member of the judicial retirement system, provided that any such prior service so credited shall not be claimed for any pension system other than a judicial retirement system."
 
            Questions (1), (2) and (4) each involve the case of a member of the new judicial retirement system, formerly a member of the public employees' retirement system, who seeks to avail himself of the provisions of subsection (2) of this statute.  Question (3), on the other hand, involves a case covered by subsection (1) thereof.
 
             [[Orig. Op. Page 4]]
            QUESTION (1):
 
            Prior to enactment of § 1, chapter 128, Laws of 1969, the provisions of RCW 41.40.010 (relating to membership in the public employees' retirement system) required that employees in positions covered by the retirement system serve for at least six consecutive months before attaining membership in the system.  RCW 41.40.010 (11), to which you refer in your first question, now entitles such members to obtain service credit for the initial six-month period of so-called "probationary service" by contributing to the public employees' retirement fund an amount equal to those contributions which would have been made by the employer if the employee had been covered by the system at the time service was rendered.
 
            Your first question is whether a member of the judicial retirement system, upon reinstating his membership in the public employees' retirement system under § 33 (2), supra, may avail himself of this procedure and thereby obtain service credit for his initial six months of employment.  We believe that this question must clearly be answered in the negative.
 
            The legislature has expressed the proposition, in § 22 (2), chapter 267, Laws of 1971, 1st Ex. Sess., that reinstatement of membership in the public employees' retirement system is "for the sole purpose of qualifying for a transfer of membership in the judicial retirement system in accordance with [§ 22 (1)] . . .".  The only provisions of chapter 41.40 RCW expressly made applicable by subsection (2) are those contained in RCW 41.40.120 (3), which allows recovery for prior elective or appointive service.  The legislature's specific reference to this portion of chapter 41.40 RCW must, in our judgment, be viewed as an implied exclusion of all other portions of that chapter, including RCW 41.40.010 (11).  See Bradley v. Department of Labor and Industries, 52 Wn.2d 780, 329 P.2d 196 (1958); Ramsay v. Department of Labor and Industries, 36 Wn.2d 410, 218 P.2d 765 (1950).
 
            QUESTION (2):
 
            This question deals, specifically, with the one portion of chapter 41.40 RCW which is referred to in subsection (2) of § 22, supra.  RCW 41.40.120 (3), after first providing that persons holding elective offices or persons appointed to office directly by the governor are not to be regarded as members of the public employees' retirement system unless they affirmatively exercise their option to join, states, in material part,
 
            " . . . That any persons holding elective offices or persons appointed by the governor who are members in the retirement system and who have, prior to becoming such members, previously held an elective office, and did not at the start of such initial or successive terms of office exercise their option  [[Orig. Op. Page 5]] to become members, may apply for membership and be accepted by action of the retirement board, to be effective during such term or terms of office, and shall be allowed to recover or regain the service credit applicable to such term or terms of office upon payment of the employee and employer contributions therefor:"
 
            Whatever the prior practice may have been, this statute now3/ clearly provides for a single procedure to be followed by those members of the public employees' retirement system to whom it refers.  This procedure consists of (1) application to the retirement board and (2) payment of both employer and employee contributions related to the previous period of elective or appointive service.
 
            There lurks a broader question, however, of whether this procedure is to be regarded as being available to members of the new judicial retirement system at all.
 
            In stating this question, we begin by noting that while § 22 (2) expressly refers to the provisions of RCW 41.40.120 (3), it makes them applicable ". . . in the same manner and to the same extent as they are to the present members of the Washington public employees' retirement system who are eligible to participate in the judicial retirement system."  Inasmuch as § 22 (1) makes provision for "any member of the public employees' retirement system . . . eligible to participate in the judicial retirement system," it becomes evident that the legislature's objective in § 22 (2) was simply that of placing those judges electing to reinstate their public employees' retirement system membership on equal footing with those persons covered by § 22 (1).  The individuals described in subsection (1) are, then, those persons who never gave up their public employees' retirement system membership upon qualification for membership in the judicial retirement system.  The difficulties arise because the class thus descirbed is one having an extremely limited existence.  RCW 41.40.120 (4), dealing with eligibility for membership in the public employees' retirement system, provides that membership therein shall not include:
 
            "Employees holding membership in, or receiving pension benefits under, any retirement plan operated wholly or in part by an agency of the state or political subdivision thereof, or who are by reason of their current employment contributing to or otherwise establishing the right to receive benefits from any such retirement plan:  . . ."
 
            It seems clear, under this provision, that it is not possible for an individual to participate, on an active basis, in the public employees' retirement system after he has obtained election or appointment to a position on one of the courts covered by the judicial  [[Orig. Op. Page 6]] retirement system act.  Instead, he may only be regarded as retaining membership in the public employees' retirement system to the extent allowed by RCW 41.40.150.  That statute provides, in material part, as follows:
 
            "Should any member die, or should he separate or be separated from service without leave of absence before attaining age sixty years, or should he become a beneficiary, except a beneficiary of an optional retirement allowance as provided by RCW 41.40.190, he shall thereupon cease to be a member except;
 
            ". . .
 
            "(3) A member who separates or has separated after having completed at least five years of service shall remain a member during the period of his absence from service for the exclusive purpose only of receiving a retirement allowance to begin at attainment of age sixty-five.  . . .
 
            ". . .
 
            "(5) Subject to the provisions of RCW 41.04.070, 41.04.080 and 41.04.100, any member who leaves the employment of an employer and enters the employ of a public agency or agencies of the state of Washington, other than those within the jurisdiction of the state employees' retirement system, and who establishes membership in a retirement system or a pension fund operated by such agency or agencies and who shall continue his membership therein until attaining age sixty, shall remain a member for the exclusive purpose only of receiving a retirement allowance without the limitation found in RCW 41.40.190 (5) to begin on attainment of age sixty-five, . . ."  (Emphasis supplied.)
 
            We are presented, then, with the following argument for an anomolous result.  The only persons presently eligible to participate in the new judicial retirement system are those persons currently serving on one of the courts covered by the Washington judicial retirement system act and those appointed or elected to one of those courts on or after the effective date thereof.  Section 4, chapter 267, Laws of 1971, 1st Ex. Sess.  The provisions of RCW 41.40.120 (4) make it clear, however, that upon appointment or election, these persons cease to be active members of the public employees' retirement system.  Instead, they may be regarded as members "for the exclusive purpose only of receiving a . . . [deferred] retirement allowance.  . . ."  RCW 40.41.150.  (Emphasis supplied.) This, then, would preclude those persons described in § 22 (1), chapter 267, Laws of 1971, 1st Ex. Sess. as "[members] of the Washington public retirement system . . . eligible to participate  [[Orig. Op. Page 7]] in the judicial retirement system," from recovering past elective or appointive credit under RCW 41.41.120 (3).  Furthermore, since those members of the judicial retirement system who reinstate their membership in the Washington public employees' retirement system under § 22 (2) may avail themselves of the provisions of RCW 40.41.120 (3) only to the extent that it applies to "present members of the Washington public employees' retirement system . . . eligible to participate in the judicial retirement system," they too would be unable to recover past credit for elective or appointive service.
 
            In responding to this argument, we begin by noting the oft-quoted proposition, most recently stated in Bowen v. Statewide Retirement System, 72 Wn.2d 397, 402, 433 P.2d 150 (1967), that:
 
            ". . . in cases involving pensions when there is a statutory ambiguity, doubt should be resolved in favor of the party for whose benefit the pension statute was intended.  . . ."
 
            The state legislature, when enacting new legislation, is presumed to be familiar with its own prior enactments.  In re Bale, 63 Wn.2d 83, 385 P.2d 545 (1963); Ropo, Inc. v. City of Seattle, 67 Wn.2d 574, 409 P.2d 148 (1965); Dando v. King County, 75 Wn.2d 598, 452 P.2d 955 (1969).  Thus, in mentioning RCW 41.40.120 (3) in its enactment of § 22 (2), supra, the legislature must be presumed to have known that this provision allowed recovery of credit for past service as an elective or appointive official and to have intended that this procedure be available to the persons to whom this new subsection applies.
 
            While the same legislative familiarity must be initially presumed as to the provisions of RCW 41.40.120 (4), it is also well-established that the courts will not presume the legislature to have indulged in vain or useless acts, and they will assume that some significant purpose or object is implicit in every legislative enactment.  Guinness v. State, 40 Wn.2d 677, 246 P.2d 433 (1952); Kelleher v. Ephrata School District No. 165, Grant County, 56 Wn.2d 866, 355 P.2d 989 (1960).  Therefore, in our judgment, the legislature's evident purpose in § 22 (2) to allow recovery of past service credits under RCW 41.40.120 (3) cannot be defeated by the otherwise restrictive provisions of RCW 41.40.120 (4), for if it were, the provisions of § 22 (2) would be rendered "vain and useless".  We believe that the language of § 22 (2) of chapter 267, Laws of 1971, 1st Ex. Sess. should be construed to mean that RCW 41.40.120 (3) is now available to judges reinstating their membership in the public employees' retirement system for the purposes expressed in § 22 (2), supra.  Thus, we answer your second question affirmatively.
 
            QUESTION (3):
 
            Moreover, we are of the opinion that those persons described in § 22 (1), chapter 267, Laws of 1971, 1st Ex. Sess., may also recover past service credits under RCW 41.40.120 (3).  The main purpose of statutory interpretation is to ascertain and give effect to legislative intent, which is to be determined by giving consideration to the statute as a whole, rather than isolating a single sentence or paragraph out of context.  State ex rel. Tarver v. Smith, 78 Wn. Dec.2d 141 [[78 Wn.2d 152]], 470 P.2d 172 (1970).  Having stated in subsection (2) that "the provisions of RCW 41.40.120 (3) shall . . . be applicable to the reinstated member[s] in the same manner and to the same extent as they are to the present members of the Washington public employees' retirement system who  [[Orig. Op. Page 8]] are eligible to participate in the judicial retirement system." it becomes clear that, in granting recovery to those persons described in that subsection, the legislature intended that they have no more or less than those described in subsection (1).  Courts are required to attempt to five to a statute a reasonable and fair interpretation which would make provisions thereof consistent.  State ex rel. Sater v. Board of Pilotage Comm., 198 Wash. 695, 90 P.2d 238 (1939).
 
            Therefore, it is our opinion that the person described in subsection (1) of § 22, chapter 267, Laws of 1971, 1st Ex. Sess., may recover past service credit for elective or appointive service under RCW 41.40.120 (3) upon proper application and payment of both employee and employer contributions.  Your third question, as paraphrased, is, then, answered in the affirmative.
 
            QUESTION (4):
 
            Your final question deals with the amount of service credit which can be transferred to the judicial retirement system under the provisions of § 22, chapter 267, Laws of 1971, 1st Ex. Sess.  You posit the case of a member of the judicial retirement system, reinstated in the public employees' retirement system under § 22 (2), who previously had 30 years of credit with the public employees' retirement system, consisting of 18 years membership service and 12 years of prior service.4/   How much of this service, you ask, may be credited "as though such service had been performed as a member of the judicial  [[Orig. Op. Page 9]] retirement system?"
 
            The issue thus raised is whether subsections (2) and (3) of § 22, supra, are mutually exclusive in their respective coverages.  If they are, then only one‑half of the individual's public employees' retirement service, subject to a nine‑year maximum, may be transferred, based upon the following language of subsection (2):
 
            ". . . Upon reinstatement in accordance with this subsection, the provisions of subsection (1) and the provisions of RCW 41.40.120 (3) shall then be applicable to the reinstated member in the same manner and to the same extent as they are to the present members of the Washington public employees' retirement system who are eligible to participate in the judicial reitrement system."  (Emphasis supp.)
 
            If, however, those subsections are not mutually exclusive, then it could be argued that the individual in question may segregate his 18 years of membership service and his 12 years of prior service.  Upon doing so, he could then obtain credit for up to nine years on a transfer basis under subsection (2) and, in addition, another six years under subsection (3) which provides:
 
            ". . .
 
            "(3) Any member of the judicial retirement system who has served as a judge for one or more years and who has rendered service for the state of Washington, or any political subdivision thereof, prior to October 1, 1947, or the time of the admission of the employer into the Washington public employees' retirement system, may ‑ upon his payment into the judicial retirement fund of a sum equal to 5% of his compensation earned for such prior public service ‑ request and shall be entitled to have one‑half of such service computed and not more than  [[Orig. Op. Page 10]] six years immediately credited to such member as though such service had been performed as a member of the judicial retirement system, provided that any such prior service so credited shall not be claimed for any pension system other than a judicial retirement system."
 
            It is a well-established rule that statutes are to be construed as a whole, and the intention of the legislature is to be determined from a consideration of all the provisions of the statute.  Finley v. Finley, 43 Wn.2d 755, 264 P.2d 246 (1953); Alderwood Water District v. Pope and Talbot, Inc., 62 Wn.2d 319, 382 P.2d 639 (1963); State v. Lee, 62 Wn.2d 228, 382 P.2d 491 (1963).
 
            In our opinion, the two subsections in question must be regarded as being mutually exclusive.  Subsection (2), with which we have been dealing throughout this opinion, covers those members of the judicial retirement system who were formerly members of the public employees' retirement system, while subsection (3) covers those who never were members of this system but who, instead, had at some time served an employer prior to its admission to the public employees' retirement system.  The proof of this conclusion is to be found, we think, in the final clause of subsection (3) which provides that any prior service for which credit is obtained thereunder ". . . shall not be claimed for any pension system other than a judicial retirement system."  Yet if the individual in question had, as you suppose, been a former member of the public employees' retirement system and had obtained reinstatement therein under subsection (2) for the purpose of transferring service credit to the judicial retirement system under subsection (1), he would, of necessity, have had transferred credit both for his membership service and his prior service.  We think this is so because "service," as defined by RCW 41.40.010 (9), consists of "periods of employment rendered to any employer for which compensation is paid."  The board of the Washington public employees' retirement system would, therefore, under the provisions of subsection (1) of § 22, transfer to the board of the judicial retirement system a "record of service" which would include both prior service and membership service.  This would, of course, preclude any second recovery of credit for prior service under subsection (3) of § 22.


 
            Thus, we conclude that the maximum amount of transferrable credit for the individual described is one‑half of his public employees' retirement system credit not to exceed nine years, and this must be our answer to your fourth question.  Because the supposed individual was formerly a member of the public employees' retirement system, he is not covered, additionally, by subsection (3).  He may not, therefore, obtain six years of prior service credit thereunder in addition to one‑half of his stipulated 18 years of membership service credit.
 
             [[Orig. Op. Page 11]]
            We trust the foregoing will be of assistance.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
WAYNE L. WILLIAMS
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/See the definition of "judge" in § 3 (2).
 
2/See, § 4, chapter 267, Laws of 1971, 1st Ex. Sess.  The prior judges' retirement act was codified as chapter 2.12 RCW.
 
3/As amended by § 4, chapter 271, Laws of 1971, 1st Ex. Sess.
 
4/Prior service and membership service are defined in RCW 41.40.010 (10) and 41.40.010 (11), as amended by § 2, chapter 271, Laws of 1971, 1st Ex. Sess., in relevant part, as follows:
 
            ". . .
 
            "(10) 'Prior service' means all service of an original member rendered to any employer prior to October 1, 1947.
 
            "(11) 'Membership service' means:
 
            "(a) In the case of any person who first becomes a member through the admission of an employer into the retirement system on and after April 1, 1949, all service rendered after October 1, 1947, . . .
 
            "(b) In the case of all other members, all service as a member, and any additional service to the employer if the employer has paid the employer contributions for such service;
 
            "(c) Service not to exceed six consecutive months of probationary service rendered after April 1, 1949, and prior to becoming a member, in the case of any member, upon payment in full by such member, prior to July 1, 1972 of the total amount of the employer's contribution to the retirement fund which would have been required under the law in effect when such probationary service was rendered if the member had been a member during such period.
 
            "(d) Service not to exceed six consecutive months of probationary service, rendered after October 1, 1947, and before April 1, 1949, and prior to becoming a member, in the case of any member, upon payment in full by such member prior to July 1, 1972, of five percent of such member's salary during said period of probationary service."
Content Bottom Graphic
AGO Logo