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AGO 1969 No. 22 - November 25, 1969
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Slade Gorton | 1969-1980 | Attorney General of Washington


PENSIONS - FIREMEN - POST-RETIREMENT PENSION INCREASES FOR CERTAIN WIDOWS OF DECEASED MUNICIPAL FIREMEN

The widow of a municipal fireman (covered under the provisions of chapter 41.18 RCW at the time of his death) whose death in line of duty or retirement for service connected disability occurred prior to July 1, 1969, is covered by § 33, chapter 209, Laws of 1969, Ex. Sess.; accordingly, such a widow is entitled to have her monthly pension payable under RCW 41.18.100 annually increased by two percent, with the first increase becoming effective on July 1, 1969, or one year after commencement of payments, whichever is later.

The annual post-retirement pension increase payable to the widow of a municipal fireman covered under the provisions of chapter 41.18 RCW at the time of his death in line of duty or following retirement for service connected disability, but who was still living and in service on July 1, 1969, when chapter 209, Laws of 1969, Ex. Sess., became effective, will be governed by the provisions of § 28 of that act, to the end that her annual two percent pension increases will be effective with each January pension payment she receives under that section.

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                                                               November 25, 1969

Honorable R. Ted Bottiger
State Representative, 29th District
8849 Pacific Avenue
Tacoma, Washington 98499

                                                                                                                 Cite as:  AGO 1969 No. 22

Dear Sir:

            This is written in response to your request for an opinion clarifying what you have referred to as an apparent inconsistency between the provisions of §§ 28 and 33, chapter 209, Laws of 1969, Ex. Sess.  We paraphrase the question to be considered as follows:

            Is the widow of a municipal fireman who was covered under the provisions of chapter 41.18 RCW at the time of his death, but whose death in line of duty or retirement for service connected disability occurred prior to July 1, 1969, entitled to have her monthly pension payable under RCW 41.18.100 annually  [[Orig. Op. Page 2]] increased by two percent, with the first increase becoming effective on such date or one year after commencement of payments, whichever is later, as provided for in § 33, chapter 209, Laws of 1969, Ex. Sess.; or, alternatively, are such a widow's post-retirement pension increases governed by § 28 of said act to the end that they shall be effective and paid in January of each year, starting with the January, 1970, payment?

            We answer this question in the manner set forth in the following analysis.

                                                                     ANALYSIS

            Basically speaking, chapter 209, Laws of 1969, Ex. Sess., is comprised of three distinct component parts:  (1) The establishment of a new, state wide [[statewide]]pension system for law enforcement officers and fire fighters, to become operative on March 1, 1970;1/ (2) amendments or additions to chapter 41.20 RCW, the preexisting pension system for first class city police officers;2/ and (3) amendments or additions to chapters 41.16 and 41.18 RCW, relating to full-time, fully-paid municipal firemen.3/   Sections 28 and 33 of the act, to which your question refers, come within this latter category and read, respectively, as follows:

            Section 28:

            "Section 8, chapter 382, Laws of 1955 as amended by section 4, chapter 45, Laws of 1965 ex. sess., and RCW 41.18.100 are each amended to read as follows:

            "In the event a fireman is killed in the performance of duty, or in the event a fireman retired on account of service connected disability shall die from any cause his widow shall receive a monthly pension ((equal to fifty percent of his basic salary or,))under one of the following applicable provisions:

             [[Orig. Op. Page 3]]

            (1) If a fireman is killed in the line of duty his widow shall receive a monthly pension equal to fifty percent of his basic salary at the time of his death; (2) if a fireman who has retired on account of a service connected disability dies, his widow shall receive a monthly pension equal to the amount of the monthly pension such retired fireman was receiving at the time of his death.  If she at any time so elects in writing and the board after hearing finds it to be financially beneficial to the pension fund, she may receive in lieu of all future monthly pension and other benefits, including benefits to child or children, the sum of five thousand dollars in cash.  If there be no widow at the time of such fireman's death or upon the widow's death the monthly pension benefits hereinabove provided for shall be paid to and divided among his child or children share and share like, until they reach the age of eighteen or are married, whichever occurs first.  ((If there be a widow and a child or children at the time of such fireman's death, the widow's monthly pension benefit shall be increased in a sum equal to five percent of the basic salary of such fireman for each child until such child reaches the age of eighteen years:  PROVIDED, That such increased benefit shall in no event exceed ten percent of the basic salary of such fireman.))  The widow's monthly pension benefit, including increased benefits to her children shall cease if and when she remarries.  All pensions payable under the provisions of this section shall be subject to an annual cost of living increase which shall be equal to two percent of the pension granted the widow at the time of the death of the fireman.  This increase shall be effective and be paid starting with the January payment of each succeeding year."  (New language underscored and deleted language interlined.)

            Section 33:

            "There is added to chapter 382, Laws of 1955  [[Orig. Op. Page 4]] and to chapter 41.18 RCW a new section to read as follows:

            "The amount of all benefits payable under the provisions of RCW 41.18.040, 41.18.080 and41.18.100 as now or hereafter amended, shall be increased annually as hereafter in this section provided.  The present benefits payable under RCW 41.18.040, 41.18.080 and 41.18.100 at the effective date of this 1969 amendatory act shall be increased two percent each year using as a basis for such two percent increase, the amount of the present benefit payable and not the amount of the future benefit payable which will hereafter be increased by the provisions of this section.

            "Said increases shall become effective July 1, 1969 or one year after the date when the said benefits are payable, whichever is later.  Each year effective with the July payment all benefits specified herein, shall be increased two percent as authorized by this section.  This benefit increase shall be paid monthly as part of the regular pension payment and shall be cumulative but shall not be compounded.  The increased benefits authorized by this section shall not affect any benefit payable under the provisions of chapter 41.18 RCW in which the benefit payment is attached to a current salary of the rank held at time of retirement."  (Emphasis supplied.)

            The "apparent inconsistency" between these two sections arises because of the fact that § 33 makes express reference, inter alia, to the benefits payable under RCW 41.18.100 which is, of course, the code section which was amended by § 28.  Thus, both of these sections make provision for annual post-retirement pension increases at the rate of two percent per annum for the widows of those firemen killed in the performance of duty or those who, having been retired on account of service connected disability, thereafter die from any cause.  However, under § 28 these increases are to be effective "starting with the January payment of each succeeding year," whereas § 33  [[Orig. Op. Page 5]] states that "Said increases shall become effective July 1, 1969, or one year after the date when the said benefits are payable, whichever is later."4/

             When faced with such an apparent conflict between two sections of the same statute, our supreme court has ruled that before determining that one section must stand and the other fall, every attempt must be made to reconcile the conflict so as to preserve both provisions.  See, e.g.,Booth Fisheries Corp. v. Case, 182 Wash. 392, 47 P.2d 834 (1935), and cases cited therein.  One approach to be taken, in attempting to achieve such a reconciliation, is to consider the possibility that the two apparently inconsistent provisions actually relate to different subjects.  Rosenoff v. Cross, 95 Wash. 525, 164 P.2d 236 (1917).  In the instant case, by more carefully reading the precise terms of § 33 of the act under consideration, and by reading § 28 in the light of another section of the act namely, § 32 we find this approach to be the key to a solution.

            First, we note that § 33 speaks in terms of the ". . . present benefits payable under . . . RCW 41.18.100 at the effective date of this 1969 amendatory act. . ."  (Emphasis  [[Orig. Op. Page 6]] supplied) indicating an intent on the part of the legislature, at this point, to be dealing only with persons who were already receiving pensions under this section5/ (prior to its amendment by § 28), as of July 1, 1969, when chapter 209, Laws of 1969, Ex. Sess., became effective.6/   Second, we find in § 32 of the act a specific statement of legislative intent with respect to the class of persons to whom § 28 (RCW 41.48.100, as amended) is to be applicable.  This section reads as follows:

            "The provisions of sections28 and 29 of this 1969 amendatory act shall be applicable to all firemen employed prior to March 1, 1970, but shall not apply to any former fireman who has terminated his employment prior to the effective date of this 1969 amendatory act."  (Emphasis supplied.)

            In other words, § 28 (as well as § 29, which added an "escalator" clause to the regular service retirement allowance provided for under RCW 41.18.040) only applies in cases where the firemen for whose benefit the section was amended were still employed (and thus, of course, living) on July 1, 1969, the act's effective date a conclusion which, coupled with the conclusion that § 33 is only applicable to persons already in receipt of benefits as of that date, renders the two sections totally consistent.

            Thus, our answer to your question is that the widow of a municipal fireman who was covered under the provisions of chapter 41.18 RCW at the time of his death, but whose death in line of duty or retirement for service connected disability occurred prior to July 1, 1969, is entitled to have her monthly pension payable under RCW 41.18.100 annually  [[Orig. Op. Page 7]] increased by two percent, with the first increase effective on that date or one year after commencement of payments, whichever is later as provided for in § 33 of the act; conversely, a qualified widow whose husband was still living and in service on that date will be governed by the provisions of § 28 to the end that her annual two percent pension increases will be effective with each January pension payment she receives under that section.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, §§ 1-24 and 42-46.

2/See, §§ 26, 27, 34, 35, 36, 37 and 39.

3/See, §§ 25, 28, 29, 30, 31, 32, 33, 38, 40 and 41.

4/Your letter describes the problem as follows:

            "There would appear to be an inconsistency in the statute.  Your attention is directed to Section 28, page 25, lines 13 through 18, where it states that there is to be a 2% increase in pensions starting January 1, 1970.  However, in Section 33, page 28, lines 18 and 19, it states that on July 1, 1969 all retired firefighters [[fire fighters]], or their widows, who do not have an escalator pension will receive a 2% increase each year . . ."

            However, while you have alluded, generally, to all benefits payable to retired fire fighters, or their widows, under the provisions of RCW 41.18.040, 41.18.080, and 41.18.100, it seems quite clear that the governing statute in the case of the first two RCW sections is § 33, supra, alone.  Nothing contained in RCW 41.18.040 or 41.18.080 is in any manner inconsistent with § 33 of the 1969 act.

5/As well as under RCW 41.18.040 and 41.18.080 relating, respectively, to service retirement and to nonduty disability retirement.

6/See, § 45.

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