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AGO 1978 No. 8 - March 23, 1978
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Slade Gorton | 1969-1980 | Attorney General of Washington

RETIREMENT ‑- PENSIONS ‑- LAW ENFORCEMENT OFFICERS' AND FIRE FIGHTERS' RETIREMENT SYSTEM ‑- COMPUTATION OF DISABILITY LEAVE AND DISABILITY RETIREMENT ALLOWANCES

(1) Where a Plan I member of the Law Enforcement Officers' and Fire Fighters' Retirement System has been placed on disability leave under RCW 41.26.120, his disability leave allowance is not affected by salary increases (or decreases) granted to active members of the police or fire department during the period he remains on disability leave.

(2) The disability retirement allowance payable to a Plan I member of the Law Enforcement Officers' and Fire Fighters' Retirement System under RCW 41.26.130 is to be based on his salary at the time he began his period of disability leave.

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                                                                  March 23, 1978

Honorable John M. Fischer
State Representative, 21st District
23424 ‑ 88th West
Edmonds, Washington 98020

                                                                                                                   Cite as:  AGO 1978 No. 8

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on two questions which we paraphrase as follows:

            (1) Where a Plan I member of the Law Enforcement Officers' and Fire Fighters' Retirement System has been placed on disability leave under RCW 41.26.120, is his disability leave allowance affected by salary increases (or decreases) granted to active members of the police or fire department during the period he remains on disability leave?

            (2)  Is the disability retirement allowance payable to a Plan I member of the Law Enforcement Officers' and Fire Fighters' Retirement System under RCW 41.26.130 to be based on his salary at the time he began his period of disability leave?

             [[Orig. Op. Page 2]]

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

                                                                     ANALYSIS

            Both your questions relate to a Plan I member of the Law Enforcement Officers' and Fire Fighters' Retirement System (LEOFF); i.e., a person who became a member of that system prior to October 1, 1977.1/   Such a member who becomes disabled and wishes to apply for a disability retirement allowance is governed by the provisions of RCW 41.26.120 and 41.26.130, the first of which reads, in material part, as follows:

            "Any member, regardless of his age or years of service may be retired by the disability board, subject to approval by the retirement board as hereinafter provided, for any disability which has been continuous since his discontinuance of active service and which renders him unable to continue his service, whether incurred in the line of duty or not.  No disability retirement allowance shall be paid until the expiration of a period of six months after the disability is incurred during which period the member, if found to be physically or mentally unfit for duty by the disability board following receipt of his application for disability retirement, shall be granted a disability leave by the disability board and shall receive an allowance equal to his full monthly salary and shall continue to receive all other benefits provided to active employees from his employer for such period. . . ."  (Emphasis supplied)

            Then, after completion of this six-month period of disability leave, if the member remains disabled he is to be granted a disability retirement allowance in accordance with the ensuing provisions of RCW 41.26.120, after which RCW 41.26.130,supra, comes into play as follows:

             [[Orig. Op. Page 3]]

            "(1) Upon retirement for disability a member shall be entitled to receive a monthly retirement allowance computed as follows:  (a) A basic amount of fifty percent of final average salary at time of disability retirement, and (b) an additional five percent of final average salary for each child as defined in RCW 41.26.030(7), (c) the combined total of subsections (1)(a) and (1)(b) of this section shall not exceed a maximum of sixty percent of final average salary."

            Question (1):

            We have above underscored the portion of RCW 41.26.120 which is particularly relevant to your first question and states that an individual who is qualified for disability leave:

            ". . . shall leave an allowance equal to his full monthly salary and shall continue to receive all other benefits provided to active employees from his employer for such period. . . ."

            Two points are immediately to be noted:  First, a person on disability leave does not simply continue to receive his full monthly salary, per se; instead, such a person is to be removed from the regular payroll and paid a disability leave allowance in an amount equal to his full monthly salary.  See, our previous opinion of September 9, 1971, to the Benton County prosecuting attorney [[to Herbert H. Davis, an Informal Opinion, AIR-71606]], copy enclosed, in which we explained:

            "The critical point to be noted . . . is that a 'disability leave allowance' constitutes a benefit which is paid to a disabled law enforcement officer or fire fighter in lieu of salary; in other words, disability leave connotes a separation from an employer's payroll because of disability‑-followed by payment to the separated member of a disability leave allowance equal to the full salary which was payable to the member at the time of incurrence of his disability."2/

             [[Orig. Op. Page 4]]

            Secondly, by its use of the further words "other benefits," the legislature in enacting RCW 41.26.120, supra, manifested an intent to distinguish between a member's salary and his other benefits.  That clearly indicated intent, in turn, precludes us from considering this further language as constituting a basis for the authorization of a disability leave allowance which fluctuates with increases and decreases in the salaries for active employees.

            Next to be noted is RCW 41.26.030(13)(a) which defines the term "basic salary" as follows:

            "(a) 'Basic salary' for persons who establish membership in the retirement system on or before September 30, 1977, means the basic monthly rate of salary or wages, including longevity pay but not including overtime earnings or special salary or wages,upon which pension or retirement benefits will be computed and upon which employer contributions and salary deductions will be based."  (Emphasis supplied)

            The underscored portion of this statute leads us to another previous opinion, a copy of which is also enclosed, written to the then director of the LEOFF retirement system on October 4, 1971 [[to Lloyd G. Baker, Director, Law Enforcement Officers' and Fire Fighters' Retirement System, an Informal Opinion, AIR-71615]].  In that opinion we considered the question of whether or not employer and employee contributions were required to be made on disability leave allowance payments and, for the following reasons, we concluded that they were not:

            ". . .  RCW 41.26.080, which requires employer and employee contributions to the system, reads as follows:

            "'. . .

            "'(1) Every member shall have deducted from each payroll a sum equal to six percent of hisbasic salary for each pay period.

            "'(2) Every employer shall contribute monthly a sum equal to six percent of the basic salary of each employee who is a member of this retirement system.  The employer shall transmit the employee and employer contributions with a copy of thepayroll to the retirement system monthly.

            "'. . .'  (Emphasis supplied)

             [[Orig. Op. Page 5]]

            "The references in this statute to payroll and salary obviously indicate that it is directed to the basic payments made to an employee for services rendered.  As we have noted above, a member must separate from the payroll to be in receipt of a disability leave allowance.  Therefore, as he is no longer on the payroll during his period of disability leave, the employer and the employee are not required to make contributions based upon disability leave allowance payments."

            But likewise, since the same term "basic salary" is also defined so as to constitute the base upon which pension or retirement benefits will be computed, it additionally follows from the foregoing that the only "salary" factor which is relevant to the computation of a member's disability leave allowance under RCW 41.26.120,supra, is the basic salary which was payable to him at the time he was placed on disability leave.  Conversely, such salary increases (or decreases) as may be granted to other, active members of the police or fire department (as the case may be) while a particular member is on disability leave do not affecthis "basic salary"‑-either from the standpoint of contributions to the retirement fund or from that of the proper computation of his own disability leave allowance.  We thus answer your first question, as above paraphrased, in the negative.

            Question (2):

            When a member has properly completed his period of disability leave and is qualified to receive a disability retirement allowance, RCW 41.26.130(1),supra, specifies the amount he will receive.  Here repeated for ease of reference, this subsection reads as follows:

            "(1) Upon retirement for disability a member shall be entitled to receive a monthly retirement allowance computed as follows:  (a) A basic amount of fifty percent offinal average salary at time of disability retirement, and (b) an additional five percent of final average salary for each child as defined in RCW 41.26.030(7), (c) the combined total of subsections (1)(a) and (1)(b) of this section shall not exceed a maximum of sixty percent of final average salary." (Emphasis supplied)

            The above underscored portion of RCW 41.26.130(1), in turn, leads us to another defined term;i.e., "final average salary."  RCW 41.26.030(12)(a) defines this term, in material part, as follows:

             [[Orig. Op. Page 6]]

            "(12)(a) 'Final average salary' for persons who establish membership in the retirement system on or before September 30, 1977, means . . . (iii) in the case of disability of any member, the basic salary payable to such member at the time of disability retirement; . . ."

            Bearing these two statutes in mind, however, we are next immediately confronted with an anomoly.  Literally read, both RCW 41.26.130(1) and RCW 41.26.030(12)(a) purport to set the disability retirement allowance of a Plan I member of the LEOFF System at a designated percentage of his salary at the time of disability retirement.  Yet because of the intervening period of disability leave which first must be completed under RCW 41.26.120,supra, such an individual is actually in receipt of no salary at all at the time he converts from disability leave to disability retirement status.  Therefore, the only reasonable solution to the problem is to utilize, once again, the definition of "basic salary" in RCW 41.26.030(13)(a), supra, and thereby revert to the basic salary which the member was receiving when he was first placed on disability leave.  The mere fact that other members of the police or fire department may have received salary increases (or, conceivably, salary decreases) during the interim, while interesting, is thus of no legal relevance insofar as the disability retirees'own "final average salary" and "basic salary" are concerned.

            Therefore, in summary, having answered your first question, above, in the negative we answer your second question (as paraphrased) in the affirmative.  The disability leave allowance payable to a Plan I member of the Law Enforcement Officers' and Fire Fighters' Retirement System is not affected by either increases or decreases in the salaries of active members of the police or fire department during his period of disability leave.  Then, following the completion of this six-month period, the disability retirement allowance payable to the member is to be based on his salary at the time he began his period of disability leave; i.e., his own "basic salary" as defined in RCW 41.26.030(13)(a),supra.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


WAYNE L. WILLIAMS
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Conversely, a Plan II member is one who first became a member on or after October 1, 1977, and whose benefits are established by the provisions of chapter 294, Laws of 1977, 1st Ex. Sess.  See, RCW 41.26.400 through RCW 41.26.550 and AGLO 1977 No. 37 [[to Robert L. Hollister, Jr., Director, Department of Retirement Systems, on August 18, 1977, an Informal Opinion, AIR-77537]].

2/Accord, as well, RCW 41.26.030(19) which defines the term "disability leave" to mean:

            ". . . the period of six months or any portion thereof during which a member is on leave at an allowance equal to his full salary prior to the commencement of disability retirement. . . ."

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