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AGO 1971 No. 30 - October 05, 1971
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTY ‑- DEPUTY SHERIFF ‑- PARTICIPATION IN RETIREMENT SYSTEM ‑- ELIGIBILITY

(1) Section 3, chapter 257, Laws of 1971, 1st Ex. Sess., does not prohibit a person who cannot meet the minimum medical and health standards necessary for membership in the Washington law enforcement officers' and fire fighters' retirement system from serving as a county deputy sheriff or from retaining his civil service position or rank under chapter 41.14 RCW.

(2) A county deputy sheriff who cannot meet the minimum medical and health standards necessary for membership in the Washington law enforcement officers' and fire fighters' retirement system is, if otherwise eligible under RCW 41.40.120, thereby required to participate in the Washington public employees' retirement system if the county by which he is employed is an employer under that system.

                                                              - - - - - - - - - - - - -

                                                                 October 5, 1971

Honorable Herbert H. Davis
Benton County Prosecuting Attorney
P. O. Box 510
Prosser, Washington 99350

                                                                                                                 Cite as:  AGO 1971 No. 30

Dear Sir:

            By recent letter you have requested an opinion of this office relative to the construction and effect of § 3, chapter 257, Laws of 1971, 1st Ex. Sess.  We paraphrase your questions as follows:

            (1) Does § 3, chapter 257, Laws of 1971, 1st Ex. Sess., prohibit a person who cannot meet the minimum medical and health standards necessary for membership in the Washington law enforcement officers' and fire fighters' retirement system from serving as a county deputy sheriff or from retaining his civil service position or rank under chapter 41.14 RCW?

             [[Orig. Op. Page 2]]

            (2) If question (1) is answered in the negative, is the deputy sheriff envisioned by this question, if otherwise eligible under RCW 41.40.120, thereby required to participate in the Washington public employees' retirement system where the county by which he is employed is an employer under that system?

            We answer question (1) in the negative and question (2) in the affirmative, for the reasons set forth below.

                                                                     ANALYSIS

            Prior to the enactment of chapter 257, Laws of 1971, 1st Ex. Sess., chapter 41.26 RCW clearly required that all "law enforcement officers" and "fire fighters" be members of the law enforcement officers' and fire fighters' retirement system (LEFF) provided for in that chapter.  See, RCW 41.26.040 (1), which reads as follows:

            ". . .

            "(1) All fire fighters and law enforcement officers employed as such on or after March 1, 1970, on a full time fully compensated basis in this state shall be members of the retirement system established by this chapter with respect to all periods of service as such, to the exclusion of any pension system existing under any prior act except as provided in subsection (2) of this section.

            ". . ."

            In addition, the language of various definitional phrases contained in RCW 41.26.030, also clearly reflected this intent:

            ". . .

            "(2) 'Employer' means the legislative authority of any city, town, county or district or the elected officials of any municipal corporation that employs any law enforcement officer and/or fire fighter . . .

            "(3) 'Law enforcement officer' means any person who is serving on a full time, fully compensated basis as a county sheriff or deputy sheriff, . . .

             [[Orig. Op. Page 3]]

            "(4) 'Fire fighter' meansany person who is serving on a full time, fully compensated basis as a member of a fire department by an employer . . .

            ". . .

            "(14) 'Service' meansall periods of employment for an employer as a fire fighter or law enforcement officer, for which compensation is paid, . . ."  (Emphasis supplied.)

            It is easy to see from the foregoing that the law enforcement officers' and fire fighters' act as it was originally passed by the legislature1/ contemplated that all persons employed by an "employer" as "fire fighters" or "law enforcement officers" would be subject to mandatory coverage under the retirement system.  However, by its recent enactment of § 3, chapter 257, Laws of 1971, 1st Ex. Sess., the legislature has created an exception to this general rule with the following language:

            "After the effective date of this act no law enforcement officer or fire fighter, including sheriff, may become eligible for coverage in the pension system established by this chapter, until he has met and has been certified as having met minimum medical and health standards:  PROVIDED, That in cities and towns having not more than two law enforcement officers and/or not more than two fire fighters and if one or more of such persons do not meet the minimum medical and health standards as required by the provisions of this 1971 act, then such person or persons may join any other pension system that the city has available for its other employees."

            By virtue of this enactment it is to be seen that now, the only newly employed law enforcement officers or fire fighters who are to become members of the LEFF system are those who meet and  [[Orig. Op. Page 4]] have been certified as having met minimum medical and health standards adopted by the state retirement board.2/

             Question (1):

            Your first question asks whether, in view of this new statute, a person who cannot meet these minimum medical and health standards is prohibited from being employed as a county deputy sheriff or from retaining his civil service position or rank.  As noted above, § 3, chapter 257, Laws of 1971, 1st Ex. Sess., merely creates an exception to the previous mandatory coverage under the LEFF system for those new employees who have not met or have not been certified as having met those standards.  The relevant language is as follows:

            ". . . no law enforcement officer or fire fighter . . . may become eligible for coverage in the pension system . . . until he has met and has been certified as having met minimum medical and health standards: . . ."

            It is important to note the use of the phrases "law enforcement officer" and "fire fighter."  RCW 41.26.030 (3) and (4),supra, define these terms as meaning a person "who is serving" as a law enforcement officer or fire fighter.  Both terms obviously relate to a person who is presently employed.  Therefore, the new statute in question provides no restriction on employment, but merely upon coverage in the law enforcement officers' and fire fighters' retirement system.  For this reason, a person's failure to meet the minimum medical and health standards for membership in the LEFF system does not preclude his continued employment; nor does it affect his civil service position or rating.  Your first question, therefore, is answered in the negative.

            Question (2):

            Your county, as we understand it, is and for many years has been an "employer" participating in the Washington public employees' retirement system (PERS).  Your second question asks whether, in view of the inability of the deputy sheriff described in question (1) to qualify for membership in the LEFF system, this individual is now to be covered by PERS  [[Orig. Op. Page 5]] instead.

            We begin our response by noting the material provisions of RCW 41.40.120, relating to membership in PERS as follows:

            "Membership in the retirement system shall consist of all regularly compensated employees and appointive and elective officials of employers as defined in this chapter who have served at least six months without interruption or who are employed, appointed or elected on or after July 1, 1965, with the following exceptions:

            ". . .

            "(4) 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, . . ."

            It is, of course, partially because of subsection (4) of this statute that a county deputy sheriff who is a member of the LEFF system is not also to be covered by PERS where his county is an employer under both.3/   Conversely, if the deputy sheriff is not a member of the LEFF system, he falls within the mandatory coverage of PERS unless (a) one of the other exclusions in RCW 41.40.120 is applicable (and we have paraphrased your question to exclude this possibility) or (b) he is to be regarded as being barred from such coverage by virtue of the proviso to § 3, chapter 257, Laws of 1971, 1st Ex. Sess.,supra, which (repeated for ease of reference) says:

            ". . . PROVIDED, That in cities and towns having not more than two law enforcement officers and/or not more than two fire fighters and if one or more of such persons do not meet the minimum medical and health standards as required by the provisions of this 1971 act, then such person or persons may join any other pension system that the city has available  [[Orig. Op. Page 6]] for its other employees."

            This proviso expressly permits a physically disqualified (for LEFF membership) law enforcement officer or fire fighter employed by a city or town to be covered by another pension system only if such city or town does not have more than two law enforcement officers or fire fighters (as the case may be) in its police or fire department.  By implication, in cities or towns having more than two law enforcement officers and/or two fire fighters, those persons who do not meet the minimum medical and health standards for LEFF may not join any other pension system the city has available for its employees.  The issue raised by your second question is whether this negative implication should be extended to those physically disqualified law enforcement officers or fire fighters who are employed by some other category of employer; e.g., a county (as here) or a fire protection district.  We think not.

            At the present time, this state has by statute provided retirement security for almost every type of employee of state and local government.4/   It is hardly consistent with this manifested state policy and legislative purpose to exclude certain employees of political subdivisions from membership in all pension systems.  Any such revolutionary change would have to be clearly expressed or implied (as above).

            Of course, it is a rule of statutory construction that provisos should be strictly construed and not be held to include any instance not clearly within the purpose or express terms of the proviso.  50 Am. Jur., Statutes, § 437.  In this instance, application of the rule limits the proviso's affect, both affirmative and negative, to "cities and towns."

            It is also a rule of statutory construction that:

            ". . . in cases involving pensions when there is statutory ambiguity, doubt should  [[Orig. Op. Page 7]] be resolved in favor of the party for whose benefit the pension statute was intended. . . ."  Bowen v. Statewide Retirement System, 72 Wn.2d 397, 402, 433 P.2d 150 (1967).

            Here, the statute in question was obviously intended to protect the fiscal integrity of the LEFF retirement system by excluding those members whose questionable health might lead them to seek retirement benefits (either for service or for disability) earlier than those whose health was clearly established.  Of course, this end is served by the exclusion of persons who cannot meet the minimum medical and health standards necessary for membership in the system.  Nothing is added by excluding those same persons from any other pension systems ‑ particularly a pension system such as PERS which does not require, as a prerequisite for membership, that an employee have met minimum medical and health standards.

            For these reasons, we conclude that a county deputy sheriff who is unable to meet the minimum medical and health standards required for membership in the LEFF retirement system, if otherwise eligible for membership in PERS under RCW 41.40.120 (4), is required to participate therein.  Your second question is, therefore, answered in the affirmative.

            We trust the foregoing information will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

WAYNE L. WILLIAMS
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Chapter 209, Laws of 1969, 1st Ex. Sess., as amended by chapter 6, Laws of 1970, 1st Ex. Sess.

2/See, RCW 41.26.050 and § 4, chapter 257, Laws of 1971, 1st Ex. Sess.

3/In addition, see RCW 41.26.040 (1), supra, which provides for exclusive LEFF coverage for the members of that system.

4/See, chapter 41.24 RCW (volunteer firemen's relief and pensions); chapter 41.26 RCW (law enforcement officers' and fire fighters' retirement system); chapter 41.28 RCW (retirement of personnel in certain first class cities); chapter 41.32 RCW (teachers' retirement); chapter 41.40 RCW (Washington public employees' retirement system); and chapter 41.44 RCW (state‑wide [[statewide]]city employees' retirement system).

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