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AGO 1981 No. 12 - August 12, 1981
AGO Opinion Header Image
Ken Eikenberry | 1981-1992 | Attorney General of Washington

PENSIONS ‑- RETIREMENT ‑- LAW ENFORCEMENT OFFICERS' AND FIRE FIGHTERS' RETIREMENT SYSTEM ‑- MEMBERSHIP ON LOCAL DISABILITY BOARD 

(1)  A municipal fire fighter or law enforcement officer who was first employed as such on or after October 1, 1977, and thus is classified as a Plan II member of the Law Enforcement Officers and Fire Fighters Retirement System (LEOFF), may nevertheless be elected to, and serve as a member of, a local LEOFF disability board established pursuant to RCW 41.26.110. 

(2)  Likewise, a municipal fire fighter or law enforcement officer who is a Plan II LEOFF member may vote for the fire fighter or law enforcement officer position on a city disability board under RCW 41.26.110(a); but such a Plan II fire fighter or law enforcement officer may not do so in the case of a county disability board under RCW 41.26.110(b).

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

                                                                 August 12, 1981 

Honorable H. A. "Barney" Goltz
State Senator, 42nd District
3003 Vallette Street
Bellingham, Washington 98225

Cite as:  AGO 1981 No. 12                                                                                                                

 Dear Sir: 

            By letter previously acknowledged you requested our opinion on two questions which we paraphrase as follows:

             (1) May a municipal fire fighter or law enforcement officer who was first employed as such on or after October 1, 1977, and thus is classified as a Plan II member of the Law Enforcement Officers' and Fire Fighters' Retirement System (LEOFF), be elected to and serve as a member of a local LEOFF disability board established pursuant to RCW 41.26.110?

              [[Orig. Op. Page 2]]

(2) May a municipal fire fighter or law enforcement officer who is a Plan II LEOFF member vote for the fire fighter or law enforcement officer position on a local LEOFF disability board?

             We answer your first question in the affirmative for the reasons set forth in our analysis and respond to your second question in the manner set forth therein.

                                                                      ANALYSIS

             Your questions relate to RCW 41.26.110 which provides for the establishment of local law enforcement officers and fire fighters (LEOFF) disability boards.  That statute reads, in material part, as follows:

             ". . .

             "(a) Each city having a population of twenty thousand or more shall establish a disability board having jurisdiction over all members employed by said cities and composed of the following five members:  Two members of the city legislative body to be appointed by the mayor, one fire fighter to be elected by the fire fighters employed by the city, one law enforcement officer to be elected by the law enforcement officers employed by the city and one member from the public at large who resides within the city to be appointed by the other four appointed members heretofore designated in this subsection.  Beginning with the next election following February 19, 1974, the law enforcement officer member shall serve a one year term and the fire fighter member shall serve a two year term.  Thereafter each of the elected members shall serve a two year term.  The members appointed pursuant to this subsection shall serve for two year terms:  Provided, That cities of the first class only, shall retain existing firemen's pension boards established pursuant to RCW 41.16.020 and existing boards of trustees of the relief and pension fund of the police  [[Orig. Op. Page 3]] department as established pursuant to RCW 41.20.010 which such boards shall have authority to act upon and approve or disapprove claims for disability by fire fighters' or law enforcement officers' as provided under the Washington law enforcement officers' and fire fighters' retirement system act.

             "(b) Each county shall establish a disability board having jurisdiction over all members residing in the county and not employed by a city in which a disability board is established.  The county disability board so created shall be composed of five members to be chosen as follows:  One member of the legislative body of the county to be appointed by the county legislative body, one member of a city or town legislative body located within the county which does not contain a city disability board established pursuant to subsection (1)(a) of this section to be chosen by a majority of the mayors of such cities and towns within the county which does not contain a city disability board,one fire fighter to be elected by the fire fighters subject to the jurisdiction of the county disability board, one law enforcement officer to be elected by the law enforcement officers subject to the jurisdiction of the county disability board, and one member from the public at large who resides within the county but does not reside within a city in which a city disability board is established, to be appointed by the other four appointed members heretofore designated in this subsection.  All members appointed or elected pursuant to this subsection shall serve for two year terms.

             ". . ."  (Emphasis supplied.)

             The basic function of such disability boards is to made the initial decision to deny, grant or cancel disability benefits for those law enforcement officers and fire fighters who became members of the LEOFF Retirement System on or before September 30, 1977‑-commonly referred to as Plan I members.  Conversely, those fire fighters and law enforcement officers  [[Orig. Op. Page 4]] who first became LEOFF members on or after October 1, 1977‑-referred to as Plan II members‑-are covered by a different pension plan and, as a consequence, the local disability boards have nothing to do with the disability claims of those members.  See, RCW 41.26.005 which, in conjunction with the establishment of LEOFF Plan II, provides as follows:

             "The provisions of the following sections of this chapter shall applyonly to persons who establish membership in the retirement system on or before September 30, 1977:  RCW 41.26.080, 41.26.090, 41.26.100, 41.26.110, 41.26.120, 41.26.130, 41.26.140, 41.26.150, 41.26.160, 41.26.170, 41.26.190, 41.26.200, 41.26.240, 41.26.250, 41.26.260, and 41.26.270."  (Emphasis supplied.)

             Instead, the entitlement of such Plan II members to what is referred to in RCW 41.26.470 as an "earned disability allowance" is determined by the Department of Retirement Systems on the basis of recommendations made by the state LEOFF Board.

             Let us also make note of one further point of some interest before turning, directly, to your questions.  Prior to August 1, 1971,all full-time municipal fire fighters or law enforcement officers (as defined in RCW 41.26.0301/)   [[Orig. Op. Page 5]]

were mandatorily covered by the LEOFF System‑-which was initially established by chapter 209, Laws of 1969, 1st Ex. Sess., and first became operative on March 1, 1970.  For law enforcement officers or fire fighters first employed after that date, however, membership in the retirement system became dependent upon their meeting certain medical and health standards.  See, § 5, chapter 257, Laws of 1971, 1st Ex. Sess. as amended by § 3, chapter 131, Laws of 1972, 1st Ex. Sess.  Thus, from that point forward, it became possible for one to be a "law enforcement officer" or a "fire fighter," as statutorily defined, and yet not be a member of the retirement system of which RCW 41.26.110,supra, is a part.

             We mention this because, in a sense, it is comparable, on a lesser scale, to the situation which now exists as a result of the legislature's creation, in 1977, of LEOFF Plan II.  Because of that action it is now possible, in addition, for one to be a "law enforcement officer" or a "fire fighter," as statutorily defined, and yet not be a member of the retirement system of which RCW 41.26.110, supra, is a part (i.e., LEOFF Plan I) because, instead, the individual is a member of LEOFF Plan II.

             With that in mind, and in order now to focus, directly, on your questions, let us next note again, comparatively, the above‑underscored language of RCW 41.26.110(1) (a) and (b) relating to the composition of city and county disability boards, respectively.  That language, in the case of subparagraph (a) which governs disability boards in cities having a population of 20,000 or more, reads:

             ". . . one fire fighter to be elected by the fire fighters employed by the city, one law enforcement officer to be elected by the law enforcement officers employed by the city . . ."

              [[Orig. Op. Page 6]]

            In the case of subparagraph (b), relating to county disability boards, the pertinent language is as follows:

             ". . . one fire fighter to be elected by the fire fighterssubject to the jurisdiction of the county disability board, one law enforcement officer to be elected by the law enforcement officers subject to the jurisdiction of the county disability board, . . ."  (Emphasis supplied.)

             Question (1):

             Your first question involves the eligibility for membership on a disability board of a law enforcement officer or fire fighter (as defined by RCW 41.26.030(3) and (4),supra) who is not subject to the jurisdiction of such a board because he or she is covered by LEOFF Plan II.  The issue to be resolved is whether the fact that RCW 41.26.110 does not "apply" to such a person (see, again, RCW 41.26.005, supra) should be taken to mean that he (or she) is no longer to be regarded as a "law enforcement officer" or "fire fighter" (as the case may be) at all‑-insofar as RCW 41.26.110 is concerned.

             We think not and, therefore, answer your question (as paraphrased) in the affirmative.  In the absence of any disqualifying language in RCW 41.26.110, supra, itself, a municipal fire fighter or law enforcement officer who was first employed as such on or after October 1, 1977, and thus is classified as a Plan II member of the Law Enforcement Officers' and Fire Fighters' Retirement System (LEOFF), may be elected to, and serve as a member of, a local LEOFF disability board established pursuant to the aforesaid statute.

             We base this conclusion on two separate, but related, lines of reasoning.  First, as evidenced by the language of subparagraph (b) of the statute, relating to county disability boards, the legislature has demonstrated that it knows how to limit both the right to elect and the right to be elected‑-to those who are subject to a disability board's jurisdiction.  But, in establishing LEOFF Plan II in 1977, the legislature did not further amend the language of RCW 41.26.110 to similarly disqualify, for election to a disability board, those law enforcement officers or fire fighters who are not subject to the jurisdiction of either a city or county disability  [[Orig. Op. Page 7]] board because of their status as Plan II, rather than Plan I, LEOFF members.

             Secondly, this failure of the legislature to have thus amended RCW 41.26.110 is also significant from another standpoint‑-involving the provisions of Article II, § 37 of our State Constitution which provides that:

             "No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length."

             It is, of course, a well-settled rule of statutory interpretation that where a statute is open to two constructions, one of which will render it constitutional and the other unconstitutional or open to grave doubt in that respect, the former construction and not the latter is to be adopted.  Soundview Pulp Co. v. Taylor, 21 Wn.2d 261, 268, 150 P.2d 839 (1944) and cases cited therein.  Yet it will readily be seen that for one to read RCW 41.26.005, supra, as having the effect of disqualifying certain law enforcement officers or fire fighters (i.e., those covered by LEOFF Plan II) for membership on an RCW 41.26.110 local disability board would quite probably run afoul of Article II, § 37,supra, particularly as that section of the Constitution has recently been applied by the Washington Supreme Court in such cases asWashington Education Association v. State, 93 Wn.2d 37, ___ P.2d ___(1980); Weyerhaeuser v. King County, 91 Wn.2d 721, 592 P.2d 1108 (1979); andFlanders v. Morris, 88 Wn.2d 183, 558 P.2d 769 (1977).  Therefore, mindful of the above‑cited rule of construction, we must reject that reading of the legislation in question.

             Question (2):

             Your second question is whether a municipal fire fighter or law enforcement officer who is a Plan II LEOFF member may vote for the fire fighter or law enforcement officer position on his or her local LEOFF disability board.

             In the case of a city disability board under RCW 41.26.110(a),supra, our answer must also be in the affirmative‑-for the same reason.  Just as there is no statutory qualification as to who, among the fire fighters or law enforcement officers employed by the city, may serve on the board  [[Orig. Op. Page 8]] there is, likewise, no qualification in the statute with respect to who among them may vote.

             That, however, is not so in the case of a county disability board under RCW 41.26.110(b).  There, although any fire fighter or law enforcement officer may be elected to the board, he or she is to be so elected only by those fire fighters or law enforcement officers (as the case may be) who are ". . . subject to the jurisdiction of the county disability board . . ."  But, for the reason above explained, a Plan II member does not meet that standard.

             Accordingly, we believe that this portion of your second question is properly answerable in the negative.  While a municipal fire fighter or law enforcement officer who is a Plan II LEOFF member may vote for the fire fighter or law enforcement officer position on acity disability board, such a Plan II member may not do so in the case of a county board.

           We recognize, of course, the anamoly.  Notably, however, it has actually existed‑-albeit, on a somewhat smaller scale‑-since 1971, when it first became possible for one to be a city or county law enforcement officer (as statutorily defined) and yet not be a member of (what we now refer to as) LEOFF Plan I.  Perhaps, now that we have pointed out the problem by our issuance of this opinion, the legislature will respond with an appropriate amendment.2/

              [[Orig. Op. Page 9]]

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

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/With certain qualifications not here material, RCW 41.26.030(3) defines "law enforcement officer" to mean:

            ". . . any person who is serving on a full time, fully compensated basis as a county sheriff or deputy sheriff, including sheriffs or deputy sheriffs serving under a different title pursuant to a county charter, city police officer, or town marshal or deputy marshal, . . ."

             And likewise, also with certain qualifications not here material, RCW 41.26.030(4) defines "fire fighter" to mean:

             "(a) any person who is serving on a full time, fully compensated basis as a member of a fire department of an employer and who is serving in a position which requires passing a civil service examination for fire fighter, or fireman if this title is used by the department, and who is actively employed as such;

             "(b) anyone who is actively employed as a full time fire fighter where the fire department does not have a civil service examination;

             "(c) supervisory fire fighter personnel;

             ". . ."

 2/In this connection we should also make note of a special situation which exists in first-class cities only.  Under the proviso in RCW 41.26.110(1)(a), supra, as quoted on page 2, above, disability applications by LEOFF Plan I members are initially processed by "retained" firemen's or police pension boards established pursuant to RCW 41.16.020 or RCW 41.20.010 rather than by disability boards formed pursuant to the LEOFF retirement act.  Therefore, eligibility for membership on such boards, as well as voting eligibility, is in these situations governed by the prior statutes.  Pursuant to RCW 41.16.020, a firemen's pension board includes "two regularly employed firemen elected by secret ballot of the firemen;" and, in the case of RCW 41.20.010, the board of trustees of a first-class city police officers' relief and pension funds includes "three regularly appointed, qualified, and acting members of the [police] department" to be elected by the police department of the city.  In either instance, these statutes are broad enough to include both Plan I and Plan II members of the LEOFF system. 

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