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AGO 1968 No. 15 - April 03, 1968
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John J. O'Connell | 1957-1968 | Attorney General of Washington


PENSIONS - POLICE - FIRST CLASS CITIES - COMPUTATION OF PENSION FOR CERTAIN POLICE WIDOWS.

(1) The proviso contained in the second paragraph of § 1, chapter 140, Laws of 1961 (RCW 41.20.085), which requires certain police widows' pensions to be reduced by the amount being received by the recipient "under social security or any other pension grant" applies only against the special pension of $150 per month for those surviving spouses not otherwise qualified for a pension under § 2, chapter 78, Laws of 1959, and does not require offsetting social security or any other pension grant against the general pension provided for by the 1959 act, as amended.

(2) In the case of a surviving spouse who is in receipt of a pension to which the "offset" proviso is applicable, all social security and all other pension benefits that the surviving spouse is receiving, whether in her own right or as a survivor, must be offset against the amount of the pension.

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

                                                                    April 3, 1968

Honorable R. F. Atwood
State Senator, 42nd District
317 Park Ridge
Bellingham, Washington 98255

                                                                                                                 Cite as:  AGO 1968 No. 15

Dear Sir:

            We are writing in response to your recent request for an opinion of this office with regard to the computation of the pensions which are payable to certain widows of deceased police officers under RCW 41.40.085.  We paraphrase your questions as follows:

            (1) Are all pensions payable to the surviving spouse of a deceased police officer under RCW 41.40.085 to be reduced by "the amount such surviving spouse may be receiving under social security or any other pension grant"?

            (2) In the case of a surviving spouse who is in receipt of a pension to which this "offset" proviso is applicable, are her own social security or other pension benefits, as well as any survivor's benefits she may be receiving by reason of the death of her husband, to be offset against the amount of police  [[Orig. Op. Page 2]] widow's pension payable?

            We answer question (1) in the negative as explained in our analysis.  Question (2) is answered in the affirmative.

                                                                     ANALYSIS

            RCW 41.20.085, which we will examine in detail in a moment, is a part of the laws governing the pension system for police officers in first class cities.  Police officers and other peace officers in lesser cities and towns, and in other municipalities, are not covered by these laws; rather, they are for the most part covered either by the laws governing the Washington Public Employees' Retirement System (chapter 41.40 RCW or the State wide [[Statewide]]City Employees' Retirement System (chapter 41.44 RCW).  When, in this opinion, we speak of police officers or their surviving spouses, we will therefore be speaking only of those who qualified for pension benefits by reason of the police officer's membership in the police department of a first class city.

            In 1959, the legislature for the first time provided for monthly payments to a surviving spouse of any such member of a first class city police department upon death, either while still in service or after retirement, without regard to the cause of death.1/   This provision, which was enacted by § 2, chapter 78, Laws of 1959, provided as follows:

            "Whenever any member of the police department of any such city, or whenever any such member who is hereafter retired for length of service or a disability, shall die, leaving a surviving spouse or child or children under the age of eighteen years, upon satisfactory proof of such facts made to it, the board shall order and direct that a pension equal to one third of the amount of salary at any time hereafter attached to the position held by such member in the police department at the time of his death or retirement, not to exceed one third of the salary of captain, shall be paid to the surviving spouse during his life, and in addition, to the  [[Orig. Op. Page 3]] child or children, until they are eighteen years of age, as follows:  For one child, one eighth of the salary on which such pension is based; for two children, a total of one seventh of said salary; and for three or more children, a total of one sixth of said salary:  Provided, If such spouse or child or children marry, the person so marrying shall receive no further pension from the fund.  In case there is no surviving spouse, or if the surviving spouse shall die, the child or children shall be entitled to the spouse's share in addition to the share specified herein until they reach eighteen years of age.  No spouse shall be entitled to any payments on the death of a retired officer unless he has been married to such officer for a period of at least five years prior to the date of his retirement."

            However, this law (codified as RCW 41.20.085) did not provide a pension for a surviving spouse of a member of a police department who had died or retired prior to the effective date of the act.  Therefore, by § 1, chapter 140, Laws of 1961, the legislature amended the 1959 act by providing that whenever a member of the police department of any such first class city

            ". . . shall die, or shall have heretofore died, or whenever any such memberwho has been heretofore retired or who is hereafter retired for length of service . . . shall have died, or shall die, . . ."  (Emphasis supplied.)

            a pension shall be paid to his surviving spouse.  The Washington supreme court has since upheld the constitutionality of this amendment in the case of a surviving spouse of an officer who had retired before its enactment but who died more than a year later,2/ but has denied its constitutionality as to the widow  [[Orig. Op. Page 4]] of an officer who had both retired and died before the effective date of the amendment.3/

             In addition to thus qualifying the surviving spouse of a previously retired police officer for the widow's pension initially established by the 1959 act, the 1961 amendment added two new paragraphs to what had previously been a single paragraph section.  It is the first of these two new paragraphs which raises the questions which you have asked.  This paragraph, which was enacted by § 1, chapter 140, Laws of 1961, provides as follows:

            "As of July 1, 1961, a surviving spouse not otherwise covered by the provisions of section 2, chapter 78, Laws of 1959, shall be entitled to a pension of one hundred fifty dollars per month:  Provided, Thatsuch pension shall be reduced by the amount of any pension such surviving spouse may be receiving under social security or any other pension grant."4/   (Emphasis supplied.)

            Question (1):

            Your first question raises the issue of whether the proviso contained in this paragraph has any application against the general police widows' pension provided for by § 2, chapter 78, Laws of 1959, as amended by the first paragraph of § 1, chapter 140, Laws of 1961.  Or, conversely, does this offset proviso apply only against the special one hundred fifty dollar per month pension payable under the amendatory paragraph to those surviving spouses who are not ". . . otherwise covered by the provisions of section 2, chapter 78, Laws of 1959 . . ."?

            In our opinion, the latter is the case.  The pertinent rule of statutory construction was stated by the court in Bayha v. Public Utility District No. 1, 2 Wn.2d 85, 96, 97 P.2d  [[Orig. Op. Page 5]] 614 (1939), as follows:

            "In 59 C.J. 1090, § 640, the rule relative to a proviso is stated as follows:

            "'The operation of a proviso is usually and properly confined to the clause or distinct portion of the enactment which immediately precedes it, and does not extend to or qualify other sections, unless the legislative intent that it shall so operate is clearly disclosed.'

            "SeeState v. Robinson, 67 Wash. 425, 121 Pac. 848; also State v. Fabbri, 98 Wash. 207, 167 Pac. 133; 2 Lewis' Sutherland Statutory Construction (2d ed.), 673, § 352.

            "InTowson v. Denson, 74 Ark. 302, 86 S.W. 661, the rule is thus announced:

            "'"When the enacting clause is general in its language and objects, and a proviso is afterwards introduced, that proviso is construed strictly, and takes no case out of the enacting clause which does not fall fairly within its terms."'

            "InUnited States v. Bernays, 158 Fed. 792, we find the following statement:

            "'A proviso should be construed with reference to the subject-matter of the sentence of which it forms a part unless it clearly appears to be designed by the Legislature for a broader or more independent operation.'

            "See, also, 2 Lewis' Sutherland Statutory Construction (2d ed.), 811, § 420;State ex rel. Peck v. Anderson, 92 Mont. 298, 13 P. (2d) 231; Hopkins v. Anderson, 218 Cal. 62, 21 P. (2d) 560."

            Clearly, nothing on the face of § 1, chapter 140, Laws of 1961 (amending § 2, chapter 78, Laws of 1959) discloses any indication of legislative intent that the offset proviso  [[Orig. Op. Page 6]] should apply to anything other than the special one hundred fifty dollar per month pension provided for by the amendatory paragraph in which the proviso is contained.  Furthermore, a review of the legislative history of the amendment, as it proceeded through the legislature at its 1961 session, also supports this conclusion.5/

             This amendatory act was originally introduced in the 1961 session as Senate Bill No. 167.  The first paragraph of the bill was identical to the first paragraph of the final act; i.e., it simply amended the 1959 act by providing that whenever a member of the police department of a first class city

            ". . . shall die, or shall have heretofore died, or whenever any such member who has beenheretofore retired or who is hereafter retired for length of service . . . shall  [[Orig. Op. Page 7]] have died, or shall die, . . ."  (Emphasis supplied.)

            a pension shall be paid to his surviving spouse.6/

             However, the second paragraph of the original bill read quite differently than did the corresponding second paragraph of the final act.  This provision of the original bill simply read as follows:

            "As of July 1, 1961, a surviving spouse shall be entitled to a minimum pension of one hundred fifty dollars per month."

            Thus, it is to be seen that originally, this amendatory paragraph was designed only to establish a fixed dollar minimum pension of one hundred fifty dollars per month for those widows who were in receipt of a pension under the formula set forth in the opening paragraph of the bill.  However, when the bill reached the senate floor, Senator Riley proposed an amendment to strike this paragraph in its entirety and to substitute the following:

            "As of July 1, 1961, a surviving spouse not otherwise covered by the provisions of section 2, chapter 78, Laws of 1959, shall be entitled to a pension of one hundred fifty dollars per month."  (p. 528, 1961 Senate Journal) (Emphasis supplied.)

            Thereupon, according to materials appearing on page 528 of the 1961 Senate Journal, the following transpired:

             [[Orig. Op. Page 8]]

                        "Point of Inquiry

            "Senator Rasmussen:

            "'Will Senator Riley yield to a question?'

            "Senator Riley:

            "'Yes, I will.'

            "Senator Rasmussen:

            "'Do I understand your amendment now limits a surviving spouse to one hundred fifty dollars including whatever Social Security they might receive?'

            "Senator Riley:

            "'My amendment simply states that they shall receive one hundred fifty dollars per month.  There is no provision here for a surviving spouse that might be covered by Social Security.  My amendment would give this in addition to anything else.'

            "Senator Rasmussen:

            "'I have an amendment.  I move that Senate Bill No. 167 be placed at the end of the second reading calendar for today in order that I may have time to consult with the sponsors.'

            "The motion carried.

            "Senate Bill No. 167 was ordered placed at the end of the second reading calendar for today."

            Then, on page 562 of the Senate Journal, we find the following:

                        "Ruling of the President

            "The President ordered Senate Bill No. 287 placed on the second reading calendar after Senate Bill No. 167.

            "Senate Bill No. 167, by Senators Connor,  [[Orig. Op. Page 9]] Cooney and Gallagher:

            "Relates to policemen's pensions.

            "The bill was read the second time by sections.

            "Senator Happy moved that the following amendment be adopted:

            "After the Riley Amendment to section 1, add 'Provided the cost of which shall be reimbursed to the municipalities from the state general fund.'

            "The motion lost and the amendment was not adopted.

            "On motion of Senator Rasmussen, the following amendments were adopted:

            "In the last line of the amendment after 'per month' strike the period and insert the following:  ': PROVIDED,That such pension shall be reduced by the amount of any pension such surviving spouse may be receiving under social security or any other pension grant.'

            "Following the amendments by Senator Riley and Senator Rasmussen, insert a new paragraph as follows:

            "'"Surviving spouse" as used in this section means surviving female spouse.'

            "On motion of Senator Gallagher, the rules were suspended, Engrossed Senate Bill No. 167 was advanced to third reading, the second reading considered the third, and the bill was placed on final passage."

            The bill, as thus amended, was then passed by the Senate.  When it reached the House of Representatives, the bill was approved as it had been passed by the Senate, and was signed into law by the governor in that form.  The net result, as we view it, is that:

            (1) Senator Riley's amendment transformed the second paragraph of the bill from a provision for a minimum pension of one hundred fifty dollars per month for those police widows to whom the first paragraph applied into a provision for a  [[Orig. Op. Page 10]] flat one hundred fifty dollar per month pension for the widows to whom the first paragraph did not apply;7/ and

            (2) Senator Rasmussen's further amendment then provided for reducing this pension (i.e., the flat one hundred fifty dollar per month provision "such pension," in the terms of the amendment) by ". . . the amount of any pension such surviving spouse may be receiving under social security or any other pension grant."

            Question (2):

            These excerpts from the Senate Journal also provide us with the basis for answering the second question raised by your inquiry.  Repeated for ease of reference, this question, as we have paraphrased it, is as follows:

            In the case of a surviving spouse who is in receipt of a pension to which this reduction proviso is applicable, are her own social security or other pension benefits, as well as any survivor's benefits she may be receiving by reason of the death of her husband, to be offset against the amount of police widow's pension payable?

            When Senator Rasmussen asked Senator Riley how his amendment was related to social security benefits, he made no distinction between such benefits received by the surviving spouse in her own right and those received by way of survivorship.  Nor did Senator Riley, when he answered, saying:

            "'My amendment simply states that they shall receive one hundred fifty dollars per month.  There is no provision here for a surviving spouse that might be covered by Social Security.  My amendment would give this in addition to anything else.'"

            In response, to rectify this matter, Senator Rasmussen proposed his amendment the proviso that

            "'. . .such pension shall be reduced by the amount of any pension such surviving spouse  [[Orig. Op. Page 11]] may be receiving under social security or any other pension grant.'"

            Accordingly, by way of summary, we conclude as follows:

            (1) The proviso contained in the second paragraph of § 1, chapter 140, Laws of 1961 (RCW 41.20.085) applies only against the special pension of one hundred fifty dollars per month for those surviving spouses "not otherwise qualified under the provisions of section 2, chapter 78, Laws of 1959," and does not require an offsetting of social security and other pension benefits against the general pension provided for by the 1959 act, as amended by the first paragraph of the 1961 act.

            (2) In applying the proviso to the one hundred fifty dollar per month special pension, all social security and other pension benefits that the surviving spouse is receiving, whether in her own right or as a survivor, must be offset against the amount of the pension.

            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/Previously, the only pension payable upon death of a police officer was the pension payable upon death in the performance of duty as provided for in RCW 41.20.080.

2/State ex rel. Albright v. Spokane, 64 Wn.2d 767, 394 P.2d 231 (1964).

3/State ex rel. Bolen v. Seattle, 61 Wn.2d 196, 377 P.2d 454 (1963).

4/The second new paragraph added by the 1961 amendment simply defined the term "surviving spouse" as follows:

            "'Surviving spouse' as used in this section means surviving female spouse."

5/This resort to the history of the amendatory act is, of course, entirely appropriate as a means of deducing true legislative intent, under the rule announced by our court in Lynch v. Dept. Labor & Industries, 19 Wn.2d 802, 809, 145 P.2d 265 (1944), in which the court said:

            "It is a rule of statutory construction that resort may be had to the history of the passage of a law under consideration.  State ex rel. Griffin v. Superior Court, 70 Wash. 545, 127 Pac. 120; State ex rel. Northwest Airlines, Inc. v. Hoover, 200 Wash. 277, 93 P.(2d) 346;Shelton Hotel Co. v. Bates, 4 Wn.2d 98, 104 P.2d 478;Ayers v. Tacoma, 6 Wn.2d 545, 108 P.2d 348; Crawford, Statutory Construction 383, § 216; 2 Sutherland, Statutory Construction (3rd ed.) chapter 50, p. 481.

            "In fact, from the record before this court, the 'legislative intent' becomes clearly evident from the history of the passage of the law under consideration, and to disregard that history would be to ignore the above expressed principle that legislative intent is the paramount factor in construing a law."

6/Notably, this first paragraph of the bill, and, as well, the first paragraph of the final act continued in effect the disqualifying final sentence of § 2, chapter 78, Laws of 1959, which read:

            ". . . No spouse shall be entitled to any payments on the death of a retired officer unless he has been married to such officer for a period of at least five years prior to the date of his retirement."

7/E.g., a widow who had not been married to the deceased officer for at least five years prior to his retirement.

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