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AGO 1963 No. 2 - January 09, 1963
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John J. O'Connell | 1957-1968 | Attorney General of Washington


CITIES ‑- THIRD CLASS ‑- PENSION PROGRAM ‑- PURCHASE FROM PRIVATE LIFE INSURANCE COMPANY.

A city of the third class does not have the statutory authority to purchase a pension program for its employees from a private life insurance company.

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

                                                                  January 9, 1963

Honorable Edward F. Riley
State Senator, 35th District
222 Westlake Avenue North
Seattle 9, Washington

                                                                                                                  Cite as:  AGO 63-64 No. 2

Dear Sir:

            By letter dated October 4, 1962, you have asked for an opinion of this office on a question which we paraphrase as follows:

            May a city of the third class purchase a pension plan for its employees from a private insurance company?

            We answer your question in the negative for the reasons stated in our analysis.

                                                                     ANALYSIS

            It is fundamental that the powers of a municipal corporation, including a city of the third class, are only such as have been expressly granted to it by the legislature, or as are necessarily to be implied from the expressly granted powers.  Othello v. Harder, 46 Wn. (2d) 747, 284 P. (2d) 1099 (1955); Pacific First Federal Savings and Loan Association v. Pierce County, 27 Wn. (2d) 347, 178 P. (2d) 351 (1947).  If there is a doubt as to the existence of a power, it must be denied.  Pacific First Federal Savings and Loan Association v. Pierce County, supra, page 352.

            Of course, a third class city in Washington has express authority to make available to its qualified employees the retirement provisions of the Washington state employees' retirement system (RCW 41.40.410) or the state‑wide [[statewide]]city employees' retirement system (RCW 41.44.050).

             [[Orig. Op. Page 2]]

            In addition, we note that RCW 35.23.460 provides as follows:

            "Any city of the second or third class or town may contract with an insurance company authorized to do business in this state to provide group insurance for its employees, and pursuant thereto may use a portion of its revenues to pay an employer's portion of the premium for such insurance, and may make deductions from the payrolls of employees for the amount of the employees' contribution and may apply the amount deducted in payment of the employees' portion of the premium."

            However, a pension plan, as we understand you to have used that term, is not a form of insurance within the meaning of this statutory grant of authority.1/

             In AGO 61-62 No. 12 [[to John A. Petrich, State Senator on February 20, 1961]], a copy of which is enclosed herewith, we advised that a port district does have authority to contribute to a pension program for its employees established by contract between a trade organization and a labor union.  However, there we found, upon examination of the statutes relating to port districts, an express grant of authority (RCW 53.08.170) to

            ". . . establish such benefits for employees, including holiday pay, vacations or vacation pay, retirement and pension benefits, medical, surgical or hospital care, life, accident, or health disability insurance, and similar benefits, already established by other employers of similar employees, as the port commissioner shall be resolution provide.  The port commission shall have authority to provide or pay such benefits directly, or to provide for such benefits by the purchase of insurance policies or entering into contracts with and compensating any person, firm, agency or organization furnishing such benefits, or by making contributions to vacation plans or funds, or health and welfare plans and funds,or pension plans or funds, or  [[Orig. Op. Page 3]] similar plans or funds, already established by other employers of similar employees and in which the port district is permitted to participate for particular classifications of its employees by the trustees or other persons responsible for the administration of such established plans or funds. . . ." (Emphasis supplied.)

            Thus, where the legislature has intended to authorize a municipal corporation to purchase for its employees a pension or retirement plan from a private insurance company or like organization, it has clearly expressed its intention and has not been satisfied merely to grant authority to purchase group insurance.

            AGO 61-62 No. 12,supra, should be compared with AGO 57-58 No. 223 [[to Prosecuting Attorney, Spokane County on October 28, 1958]], dated October 28, 1958, a copy of which is also enclosed.  In the 1958 opinion the question presented was whether a rural county library district (also a form of municipal corporation) has the power to purchase for its employees a pension program "other than the state employees' retirement system's program."

            We answered this question as follows:

            "The question then remains whether a rural county library district is legally empowered to provide for a retirement plan other than the state employees' retirement system.

            "Section 8, chapter 65, Laws of 1941, (cf. RCW 27.12.210) provides in part:

            "'The trustees, immediately after their appointment or election, shall meet and organize by the election of such officers as they deem necessary.  They shall . . . (3) employ a librarian, and upon his recommendation employ such other assistants as may be necessary, all in accordance with the provisions of section 11 of this act, prescribe their duties, fix their compensation, and remove them for cause; . . . (10) do all other acts necessary for the orderly and efficient management and control of the library.'  (Emphasis supplied.)

            "Section 6, chapter 59, Laws of 1955, (cf. RCW 27.12.060), above, provides that the rural county library district shall have such powers  [[Orig. Op. Page 4]] as are necessary to carry out its functions.

            "Obviously there is no express power in the above provisions to provide for a retirement plan, nor do we find such elsewhere.  However, municipal corporations and other governmental units have not only those powers expressly granted but also those essential and indispensable, not simply convenient, to execution of the purposes for which such are created and those necessarily or fairly implied in or incidental to the powers expressly granted.  State ex rel. Wauconda Investment Co. v. Superior Court, 68 Wash. 660, 124 Pac. 127 (1912);State ex rel. McMannis v. Superior Court, 92 Wash. 360, 159 Pac. 383 (1916);State ex rel. Port of Seattle v. Superior Court, 93 Wash. 267, 160 Pac. 755 (1916); Carpenter v. Okanogan County, 163 Wash. 18, 299 Pac. 400 (1931); 3 Sutherland, Statutory Construction, 19 § 5402.  See also Board of Directors v. Peterson, 4 Wash. 147 (1892); Beasley v. Assets Conservation Co. 131 Wash. 439, 230 Pac. 411 (1924);In re Riverside Irrigation District, 131 Wash. 532, 230 Pac. 649 (1924).

            "We must determine whether or not the broad power to employ and compensate personnel and to do all acts necessary for efficient management and control of the district impliedly or incidentally empowers the district to provide for a retirement plan other than the state program.

            "Our court has set forth and approved the basic rule that when there is a reasonable doubt as to the implied power of a municipal corporation, political subdivision, or similar governmental unit except in the case of first class cities, the doubt is resolved against the governmental unit and the power is denied.  SeeState ex rel. Port of Seattle v. Superior Court, supra;Ayers v. Tacoma, supra.

            "We think it at least reasonably doubtful, if not certain, that a pension program, although  [[Orig. Op. Page 5]] desirable, is actually necessary for efficient management and control of the district library; and we think it likewise doubtful, if not certain, that the power to employ and compensate personnel impliedly or incidentally empowers the district to establish its own retirement system.

            "Consequently, it is our opinion that, under present conditions and existing statutes, a court would deny a rural county library district power to establish its own separate retirement plan."

            Manifestly, this reasoning is equally applicable to the question which you have posed in regard to a third class city.

            Finally, there is to be noted AGO 61-62 No. 18, dated March 21, 1961 [[to Prosecuting Attorney, Yakima County on March 21, 1961]], a copy of which we are also enclosing.  The question there considered was:

            "May a Fire Protection District pay part, or all, of the $3.50 premium per person per month for $5,000 per person of group life insurance for all the non-paid [[nonpaid]]voluntary firemen, and the paid fire chief and secretary of such District?"

            We also answered that question in the negative.  In so doing, we observed:

            ". . . We are here dealing with a particular type of municipal activity (i.e., the providing of various types of 'fringe benefits' for employees or others rendering services) with regard to which we believe the legislature has established a policy of spelling out clearly and expressly its intention to authorize such activity in those areas where such is in fact its intent.  That is to say, an examination of statutes relating to certain types or classes of municipal corporations, other than fire protection districts, reveals a general course of legislative policy to grant the power to pay or provide fringe benefits, over and above normal and basic compensation, only by clear and express language evidencing such intent.  See for example,  [[Orig. Op. Page 6]] RCW 53.08.170 (expressly authorizing port districts to provide 'life, accident, or health disability insurance,' for its employees); RCW 28.76.410 (expressly authorizing school districts to provide 'liability, life, health and accident insurance or any one of, or a combination of the enumerated types of insurance for . . . employees of the . . . school district.'); RCW 54.04.050 (expressly authorizing public utility districts to 'enter into contracts of group insurance for the benefit of its employees, and pay all or any part of the premiums for such insurance.'); and RCW 36.32.400 (providing that 'Any county by a majority vote of its board of county commissioners may enter into contracts to provide health care services and/or group insurance for the benefit of its employees, and may pay all or any part of the cost thereof. . . .').

            "The existence of this pattern of legislation, together with the absence of any express grant of power to fire protection districts to provide for its employees or volunteers the fringe benefit of group life insurance (again with the limited exception of RCW 41.24.020, supra), makes it at least doubtful that the legislature has thus far determined that fire protection districts should have this power.  See 3 Sutherland, Statutory Construction (3rd Ed.) 156, § 6101, etc."

            In other words, in the area of so-called "fringe benefits" for public employees in the state of Washington, there has developed a pattern of legislation from which it is to be concluded that only where the legislature has granted authority to provide a particular type of "fringe benefit" in clear and unmistakable language is a legislative intent to allow such benefits to be found.

            Accordingly, it is our opinion that there presently exists no authority for a city of the third class in Washington to purchase for its employees a pension program from a private life insurance company.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/An annuity contract, of course, could well provide a form of pension.  However, research has revealed generally an attitude of distinguishing between annuity contracts and insurance contracts.  In re Smiley's Estate, 35 Wn. (2d) 863, 216 P. (2d) 212 (1950), and authorities cited therein.

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