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November 18, 1970
Herbert Faubion, Jr.
Board of Volunteer Firemen
Olympia, Washington 98501
Cite as: AGLO 1970 No. 150
Dear Mr. Faubion:
In a letter, previously acknowledged, you have requested the opinion of this office on three questions, substantially as follows:
(1) Can a volunteer fireman who was properly retired prior to effective date of chapter 118, Laws of 1969, but who was not yet drawing a retirement pension because of age, now elect to begin drawing a reduced pension at age 60 or age 62 if such age is attained after effective date of chapter 118, Laws of 1969?
(2) If the answer to question (1) is affirmative, can the retired volunteer fireman receive benefits from date of his eligibility or only from date he notifies the state of his election?
(3) Can a volunteer fireman, eligible to receive the maximum retirement pension payable, delay retirement for a year or more and then claim and receive benefits from the date of his eligibility when he does retire from active service?
We answer your first and third question in the negative, rendering the second question irrelevant, for reasons set forth herein.
Prior to the enactment of chapter 118, Laws of 1969, RCW 41.24.170 (relating to the pensions payable to firemen covered by the volunteer firemen's relief and pension system) [[Orig. Op. Page 2]] was limited by the provision which we have underscored in quoting this statute below:
"Whenever any fireman has been a member and served honorably for a period of twenty-five years or more as an active member in any capacity, of any regularly organized volunteer fire department of any municipality in this state, and which municipality and fireman are enrolled under the retirement provisions, and the fireman has reached the age of sixty-five years, the board of trustees may order and direct that he be paid a monthly pension of twenty-five dollars from the fund.
"Whenever a fireman has been a member, and served honorably for a period of twenty-five years or more as an active member in any capacity, of any regularly organized volunteer fire department of any municipality in this state, and the annual retirement fee has been paid for a period of twenty-five years, the board of trustees shall order and direct that such fireman be paid a monthly pension of seventy-five dollars from the fund upon his attaining the age of sixty-five years and for the balance of his life.
"Whenever any fireman has been a member, and served honorably for a period of twenty-five years or more as an active member in any capacity, of any regularly organized volunteer fire department of any municipality in this state, and the annual retirement fee has been paid for a period of less than twenty-five years, the board of trustees shall order and direct that such fireman shall receive the twenty-five dollar minimum monthly pension herein provided increased by the sum of two dollars each month for each year the annual fee has been paid, but not to exceed the maximum monthly pension herein provided, upon such fireman attaining the age of sixty-five years and for the balance of his life.
"No pension herein provided shall become payable before the sixty-fifth birthday of the fireman, nor for any service less than twenty-five years: . . ." (Emphasis supplied.)
[[Orig. Op. Page 3]]
Because of this limitation, a fireman might "retire" (i.e., terminate his service as a volunteer fireman after completing a sufficient period of service to be eligible for a pension) at one point in time, but not actually begin receiving his pension until later‑-upon attaining age sixty-five.
Chapter 118, Laws of 1969, amended this section to read as follows:
"No pension herein provided shall become payable before the sixty-fifth birthday of the fireman, nor for any service less than twenty-five years: PROVIDED, HOWEVER, That:
"(1) Any fireman, upon completion of twenty-five years' service and attainment of age sixty, may irrevocably elect, in lieu of the pension to which he would be entitled hereunder at age sixty-five, to receive for the balance of his life a monthly pension equal to sixty percent of such pension.
"(2) Any fireman, upon completion of twenty-five years' service and attainment of age sixty-two, may irrevocably elect, in lieu of the pension to which he would be entitled hereunder at age sixty-five, to receive for the balance of his life a monthly pension equal to seventy-five percent of such pension."
It is clear that without more, these changes would not apply to a volunteer fireman who retired prior to the effective date of the 1969 act.1/ The retiree was not employed and hence gained no further rights in a pension that represented deferred compensation, in the absence of a clear expression of legislative intent to the contrary. See AGO 1969 No. 12 [[to F. Pat Wanamaker, State Representative on July 15, 1969]], copy enclosed.
"Washington follows the rule that pension rights vest upon commencement of employment or, as in our case, when the pension statute becomes applicable to the employee. Pensions are in [[Orig. Op. Page 4]] essence deferred compensation. Tembruell v. Seattle, 64 Wn.2d 503, 392 P.2d 453 (1964); Bakenhus v. Seattle, 48 Wn.2d 695, 296 P.2d 536 (1956). . . ." (Emphasis supplied.) Bowen v. Statewide Retirement System, 72 Wn.2d 397, 400, 433 P.2d 150 (1967).
In the situation posed by your question, chapter 118, Laws of 1969, never became applicable to the employee since the retired fireman was no longer an employee.
One might urge that RCW 41.24.175 dictates that the new provision be applicable to the retiree. This statute provides as follows:
"Payments to persons who are now receiving, or who may hereafter receive any disability or retirement payments under the provisions of chapter 41.24 [[chapter 41.24 RCW]]shall be computed in accordance with the last act enacted by the legislature relative thereto: PROVIDED, HOWEVER, That nothing herein contained shall be construed as reducing the amount of any pension to which any fireman shall have been eligible to receive under the provisions of section 1, chapter 103, Laws of 1951."
However, this section is limited, by its terms, to computations of payments and not to the threshold issue of the vesting of the right to payments. The amendments contained in chapter 118, Laws of 1969, clearly create a new right to a pension at an earlier age for those who were employed when the amendments became effective.
Therefore, we conclude that a volunteer fireman who was retired before the effective date of chapter 118, Laws of 1969, may not elect to receive a reduced pension under the present provisions of RCW 41.24.170.
Since no election may be made, the situation envisioned by your second question cannot arise and we need not discuss it in this opinion.
We turn, then, to the final question: whether a volunteer fireman eligible to receive the maximum retirement pension may delay retirement and upon retiring at a later date receive benefits from the date of his eligibility.
[[Orig. Op. Page 5]]
As a conceptual base, one must remember that a pension is in the nature of deferred compensation for services rendered. The value of a pension is that it provides security and a source of income so that the retiree may better enjoy the leisure of his retirement years unburdened by financial pressures. To receive a pension payment for a period that the recipient is actually in service would, of course, subvert this underlying rationale.
Further, as your question envisions a retiree receiving the maximum pension provided by RCW 41.24.170, no authority exists to add to the pension, after retirement, to recapture payments he would have received if he had retired when first eligible. RCW 41.24.180 limits the authority of the board of trustees to make "lump sum" payments to certain specified situations. None of these provisions could justify lump sum payments which represent pension payments not collected in the past.
Therefore, no authority exists to make payments which would represent a retirement payment for a period when the volunteer fireman was still in service as such. If such a method did exist, we have indicated that payments of that type would clearly be contrary to the purpose of the pension laws, generally.
We therefore conclude that a volunteer fireman retired prior to the effective date of chapter 118, Laws of 1969, may not take advantage of the reduced pension provisions of that amendatory act. We further conclude that a volunteer fireman may not receive pension payments for a period when he was actually employed, although eligible to retire.
We trust the foregoing has been of assistance to you.
Very truly yours,
WAYNE L. WILLIAMS
Assistant Attorney General
*** FOOTNOTES ***
1/June 12, 1969, in accordance with Art. II, § 1 (Amendment 7) of the Washington Constitution.