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AGO 1989 No. 3 - February 15, 1989
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

LEOFF ‑- VACATION ‑- LONGEVITY PAY ‑- RETIREMENT 

1.         Where a LEOFF member after a period of temporary disability retirement returns to active duty, the member's employer is not required under RCW 41.26.140 to grant longevity pay, vacation accrual or similar benefits to the member to the same extent such benefits would be available to another employee of the same rank who had been continuously employed with no period of disability retirement. 

2.         The term "current salary" as used in RCW 41.26.140(2) may or may not include "longevity pay", depending on the type of "longevity pay" used by a particular LEOFF employer.

 3.         RCW 41.26.140 does not restrict LEOFF employers from adopting policies or entering into collective bargaining agreements regarding longevity pay and vacation accrual, so long as the policies or collective bargaining agreements are consistent with the requirements of the statute.

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

                                                                February 15, 1989

The Honorable Phil Talmadge
State Senator, 34th District
1725 SW Roxbury #5
Seattle, WA 98106

Cite as:  AGO 1989 No. 3                                                                                                                  

 Dear Senator Talmadge:

             By letter previously acknowledged, you have requested our opinion on certain questions which we have renumbered as follows:

             1.         Where a LEOFF member after a period of temporary disability retirement returns to active duty, is the employer required by RCW 41.26.140 to grant longevity pay, vacation accrual or similar benefits to the member to the same extent as they would be available to another employee of the same rank who had been continuously employed with no period of disability retirement?

              [[Orig. Op. Page 2]]

             2.         Does the term "current salary" as used in RCW 41.26.140(2) include longevity pay?

             3.         How does RCW 41.26.140 affect the authority of employers to adopt policies or to enter into collective bargaining agreements regarding longevity pay and vacation accrual, and providing for the circumstances under which these benefits will accrue to employees with noncontinuous service?

             We answer your first question in the negative, and your second and third questions as indicated in the analysis below.

                                                                      ANALYSIS

            RCW 41.26.140 is part of a series of statutes relating to disability retirement for law enforcement officers and fire fighters covered by chapter 41.26 RCW.  The statutory scheme permits members of the Law Enforcement Officers' and Fire Fighters' Retirement System (LEOFF) to retire for disability under certain circumstances described in the statute.  RCW 41.26.120 relates to retirement for disability incurred in the line of duty, while RCW 41.26.125 concerns retirement for disability not incurred in the line of duty.  RCW 41.26.130 provides a calculation of the disability retirement allowance, along with other matters not directly pertinent to this opinion, and specifically provides that benefits will cease if a LEOFF member on disability retirement ceases to be disabled.1/

              This background brings us to the statute you have asked us about, RCW 41.26.140.  This statute contains provisions concerning reexaminations of disability beneficiaries, reentry into active duty, and appeal rights.  The portion that is directly related to your questions is subsection (2), which provides as follows:

             If the disability board shall determine [sic] that the beneficiary is not so incapacitated his retirement allowance shall be canceled and he shall be restored to duty in the same civil service rank, if any, held by the beneficiary at the time of his retirement or if unable to perform the duties of said rank, then, at his request, in such other like or lesser rank as may be or become open and available, the duties of which he is  [[Orig. Op. Page 3]] then able to perform.  In no event, shall a beneficiary previously drawing a disability allowance be returned or be restored to duty at a salary or rate of pay less than the current salary attached to the rank or position held by the said beneficiary at the date of his retirement for disability.  If the disability board determines that the beneficiary is able to return to service he shall be entitled to notice and a hearing, both the notice and the hearing shall comply with the requirements of chapter 34.04 RCW, as now or hereafter amended. (Emphasis added.)

             We begin consideration of your specific questions with two observations about the underscored language:  (1) As a general matter, the statute requires that a member be restored to duty at the rank previously held; and (2) the statute entitles a member to be restored to duty with at least the current salary or rate of pay "attached to the rank or position held by the said beneficiary at the date of his retirement for disability."  Neither of these provisions requires that the member be restored to the same level of benefits he or she would have held without a period of disability retirement, only that the member be restored (if practicable) to the rank previously held at the time of disability retirement,2/

             and at the current salary or rate of pay attached to that rank.

 Question 1

             Where a LEOFF member after a period of temporary disability retirement returns to active duty, is the employer required by RCW 41.26.140 to grant longevity pay, vacation accrual or similar benefits to the member to the same extent as they would be available to another employee of the same rank who had been continuously employed with no period of disability retirement?

             We answer this question in the negative, because RCW 41.26.140(2) does not address the issue of benefits (such as vacation accrual), and because the same subsection contains no provision regarding any longevity pay which would have been earned by the member but for a period of disability retirement.

              [[Orig. Op. Page 4]]

             We analyze vacation accrual first.  In Washington, local ordinances, policies, or contracts, not state statutes, determine vacation accrual by law enforcement officers and fire fighters.  The LEOFF Retirement System covers law enforcement and fire fighters employed by any city, town, county, or other district or municipal corporation in the state, in addition to a few employees of private associations and labor guilds.  See RCW 41.26.030(2).  The Legislature has not established by statute the vacation leave entitlements of various classes of municipal employees, but has left that to each individual municipal corporation.  For example, RCW 35A.13.090, relating to optional municipal code cities operating under the council-manager plan of government, simply provides that "compensation of appointive law officers and employees may be fixed by ordinance after recommendations are made by the city manager."  Fire protection districts are granted a general power "to appoint and employ the necessary officers, agents, and employees."  RCW 52.12.021.  The other municipal corporations that employ law enforcement officers or fire fighters have similarly broad authority, and individually establish vacation accrual policies through legislative action or through collective bargaining.

             Thus, we cannot discuss all the variations in vacation accrual available to members of the LEOFF system.  We assume that a "typical" vacation accrual system would allow a certain number of hours per month of vacation to new employees, with increasing allowances varying with seniority and, perhaps, also with rank.  Your question seems to presuppose this kind of system, in which a more senior employee would be entitled to accrue more vacation per year than a junior employee.  In such a system, it may well make a difference in individual cases whether an employee returning to service after a period of disability retirement is "credited" with the lost service for purposes of vacation accrual.

             We do not read RCW 41.26.140 as requiring such a credit.  Vacation accrual is a benefit and is a form of compensation that generally is not included in the narrower term "salary" as used in RCW 41.26.140.  See AGO 1974 No. 15.  The rate of vacation earned by an employee is not commonly understood to be equivalent to the "rate of pay" or "salary" of the employee.  We therefore conclude that RCW 41.26.140 does not require an employer to credit an employee returning from a period of disability retirement with a rate of vacation accrual to which the employee would have been entitled without the break in service.

             The other subject of your first question is "longevity pay".  This term is used (without definition) in the definition of "basic salary" for certain LEOFF members.  RCW 41.26.030(13)(a).  We doubt that all LEOFF employers who use longevity pay use it in the same way, but we understand the general concept to be the  [[Orig. Op. Page 5]] payment of an additional amount above the base salary rate for a particular rank, based upon seniority or longevity in the job.  Conceptually, longevity pay could be calculated and paid separately from base salary, or longevity could simply be a factor used in calculating the salary payable to a particular employee.

             To illustrate the problem you have asked us to address, we will use an example derived from your opinion request.  Suppose Captain A, a LEOFF member, worked for ten years, then for five years was on disability retirement pursuant to chapter 41.26 RCW, and today has reentered active duty pursuant to a determination that disability has ceased.  A's employer factors longevity into its salary base such that, as of today, a Captain with fifteen years of service earns more than a Captain with only ten years of service.  Does RCW 41.26.140 require that Captain A be reemployed at the fifteen-year salary level or only at the ten-year salary level?

             This question is answered by the sentence in RCW 41.26.140(2) (underlined above) which provides that a person on disability retirement may not be restored to duty "at a salary or rate of pay less than the current salary attached to the rank or position held by the said beneficiary at the date of his retirement for disability."  In our example, Captain A held the rank of Captain at the time of separation for disability retirement and, as of that date, had served for ten years and was entitled to longevity pay accordingly.  Today, upon reemployment, Captain A is entitled, by operation of RCW 41.26.140(2), to restoration to the rank formerly held, and to the salary presently attached to that rank.  Nothing in the statute, however, requires the employer to grant the employee credit for the five years of disability retirement in calculating longevity pay.  So long as an employee is paid the salary attached to the rank being served at the time of disability retirement, employers are free to calculate credit for longevity or other adjustments to base salary according to the terms of their respective contracts, ordinances, or policies.

             The Legislature did not draft RCW 41.26.140 so as to require employers to restore full seniority rights to an employee with a break in service due to a period of disability retirement.  Had that been the Legislature's intention, it could have specifically required that members returning to active duty be treated identically to a similar employee continuously serving at the same rank without a break in service.  Cf. RCW 41.26.120, 41.26.125 (requiring LEOFF employers to continue "benefits" for certain members on disability leave).  The language chosen by the Legislature has a different import and requires only payment of the current salary "attached to the rank" of the member at the time of disability retirement.

              [[Orig. Op. Page 6]]

             We therefore answer your first question in the negative.

 Question 2

             Does the term "current salary" as used in RCW 41.26.140(2) include longevity pay?

             To some extent, your second question overlaps with your first question, in that the reason for asking whether longevity pay is included in the term "current salary" is primarily to find out to what extent employers are statutorily obligated to give "longevity" credit to LEOFF members with a break in service due to disability retirement.

             The second question is slightly broader, however, because even if an employer is not required to give credit for longevity relating to the period of disability retirement, there is still a question whether the employer is statutorily required to consider the "longevity pay" status of the member at the time of disability retirement.

           In the example we gave in the answer to question 1, Captain A retired five years ago at the rank of Captain with ten years' longevity at that time.  Now that Captain A has been reemployed, does RCW 41.26.140 require only that Captain A be reemployed at the base pay for Captain, or that Captain A be reemployed at not less than the current salary payable to a Captain with ten years' longevity?

             In our opinion, the answer to the second question depends upon the salary system used by an individual employer.  Where longevity or seniority is an automatic factor in calculating the salary of officers of a certain rank, the term "current salary" as used in RCW 41.26.140(2) logically includes the longevity factor.  To return to our example, Captain A five years ago held the rank of Captain with ten years' credit for longevity.  If Captain A's employer had a system of automatic step increases whereby a Captain with ten years' service was paid more than a Captain with five years' service, it best serves the underlying purpose of the statute to interpret the term "current salary attached to the rank or position held" to include the longevity factor.  Thus, with such an employer, Captain A would be entitled to reemployment at a salary rate not less than that currently payable to one holding the rank of Captain with ten years' service.

             However, not all longevity pay systems operate the same way.  Particular employers may calculate longevity in very different ways, or may by ordinance, policy, or contract establish particular circumstances under which longevity pay is or is not available.

              [[Orig. Op. Page 7]]

             For instance, we can imagine a system in which an employer, rather than adjusting the monthly salary based on longevity, would agree to pay a fixed sum to each employee on reaching a specified number of years of service.  For instance, suppose Captain A's employer, though paying salary at a flat level for the rank of Captain, had a policy or contract entitling employees to an additional $10,000 payment at the end of each seventh year of continuous employment.  In such a case, the "longevity pay" would not be a part of "current salary" because it does not affect the monthly rate at which a Captain is entitled to be paid.  Nor would Captain A be entitled to the $10,000 payment for achieving fourteen years of service, because Captain A has not yet served fourteen years, having been on disability retirement for the last five.

             To summarize, whether longevity pay should be included in the term "current salary" for purposes of applying RCW 41.26.140(2) must be resolved on a case‑by-case basis.  Only where longevity pay directly affects the monthly or weekly salary or wages payable to an employee should it be treated as a part of "current salary".

 Question 3

             How does RCW 41.26.140 affect the authority of employers to adopt policies or to enter into collective bargaining agreements regarding longevity pay and vacation accrual, and providing for the circumstances under which these benefits will accrue to employees with noncontinuous service?

            As stated in our answer to your first question, the salary and other compensation of local government employees covered by the LEOFF Retirement System is not established in state statute, but is left to local ordinance, policy, or collective bargaining agreement.  Most, if not all, fire fighters and police officers who are members of this retirement system also are statutorily entitled to collective bargaining concerning wages and other compensation.  See generally RCW 41.56 [chapter 41.56 RCW].  Those employers who are not obligated to enter into collective bargaining, or whose employees have not formed bargaining units, may adopt compensation and benefit standards by local legislation or policy adoption.

             As long as employers follow the statutory requirement of restoring members to their former rank and salary to the extent provided in RCW 41.26.140, the statute does not preclude local employers from adopting their own ordinances and rules, or from entering into collective bargaining agreements concerning the applicability of longevity pay, vacation accrual, and other benefits to employees who return to service following disability  [[Orig. Op. Page 8]] retirement.  Allowing local flexibility serves the general legislative policy of leaving these matters to local decision, without harming the policies underlying the retirement statutes.  We therefore conclude that LEOFF employers are free to adopt ordinances, policies, and collective bargaining agreements on the subject, so long as they do not conflict with the mandatory requirements of RCW 41.26.140.

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

 Sincerely,
 KENNETH O. EIKENBERRY
Attorney General

JAMES K. PHARRIS
Sr. Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

 1/It is important to note that these statutes only apply to persons who joined LEOFF prior to October 1, 1977, the so-called "Plan 1" members.  See RCW 41.26.005.

 2/The first portion of subsection (2) is not the subject of your question; we reserve discussion of the rank at which the member would be rehired. 

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