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AGO 1959 No. 26 - March 27, 1959
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John J. O'Connell | 1957-1968 | Attorney General of Washington

STATE EMPLOYEES' RETIREMENT SYSTEM - ELECTIVE OFFICIALS - TERMINATION OF MEMBERSHIP OF ELECTED COUNTY OFFICIALS UPON RE ELECTION [[REELECTION]]TO OFFICE.

An elected official who has exercised his option under RCW 41.40.120 and became a member of the state employees' retirement system may not terminate his membership in the system at the expiration of a term of office where he has been re elected [[reelected]]to another term.

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                                                                  March 27, 1959

Honorable D. L. McMannis
Prosecuting Attorney
Whitman County
116 Spring Street
Colfax, Washington                                                                                                     Cite as:  AGO 59-60 No. 26

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:

            May an elected official who has exercised his option, under RCW 41.40.120, of becoming a member of the state employees' retirement system and has been accepted by resolution of the retirement board, terminate his membership in the system at the expiration of his present term of office although he has bee re elected [[reelected]]to the office for another term?

            We answer this question in the negative.

                                                                     ANALYSIS

            The establishment and administration of the state employees' retirement system are governed by the provisions of chapter 41.40 of the Revised Code of Washington [[chapter 41.40 RCW]].  Membership in the system is defined therein by RCW 41.40.120 and, in so far as pertinent to our inquiry, reads as follows:

             [[Orig. Op. Page 2]]

            "Membership in the retirement system shall consist of all regularly compensated employees and appointive and elective officials of employers as defined in this chapter who have served at least six months without interruption, with the following exceptions:

            ". . .

            "(3) Persons holding elective offices or persons appointed directly by the governor:Provided, That such persons shall have the option of applying for membership and to be accepted by the action of the retirement board, suchmembership may become effective at the start of the initial or successive terms of office held by the person at the time the application is made: . . ." (Emphasis supplied.)

            In AGO 53-55 No. 35 [[to the State Auditor on May 8, 1953]]this office stated:

            "Our attention is directed to the fact that membership in the system is optional in the case of elective officials and for this reason their status may differ from that of ordinary employees.  But the distinction is merely the procedure by which they come into the system.  Having chosen to be covered by the act, they accept that status with all of the conditions and limitations upon the expected benefits which are applicable to all members. . . ."

            In AGO 57-58 No. 151 [[to Prosecuting Attorney, Whitman County on January 23, 1958]], this office was presented with the question of whether an elected official could terminate his membership in the state employees' retirement system, at his own option, after having previously applied for and been accepted as a member therein.  We stated:

            "RCW 41.40.150 defines termination of membership and provides that when a member dies, separates from service or retires he thereupon ceases to be a member.  This is the only provision in the act pertaining to termination of membership and in our opinion is all-inclusive under the applicable rule of statutory construction that the express mention of one thing in a statute implies the exclusion of others not expressed.  Ramsay v. Dept. of Labor and Industries, 36 Wn. (2d) 410; State v. Thompson, 38 Wn. (2d) 774."

             [[Orig. Op. Page 3]]

            Therefore, we concluded:

            ". . . that a participating elective or appointive official may not voluntarily withdraw from the system, and that his membership can be terminated only by death,separation from service or retirement with a benefit as provided by the act."  (Emphasis supplied.)

            Copies of the foregoing opinions are attached hereto for your consideration.

            From the foregoing, it is readily apparent that the only question to be decided here is whether a "separation of service" occurs, within the meaning of RCW 41.40.150, when an elected official who is a member of the retirement system, is re elected [[reelected]]to office.

            The term "service," as used in chapter 41.40 RCW, is defined in RCW 41.40.010 (9), in pertinent part, as follows:

            ". . . periods of employment rendered to any employer for which compensation is paid, andincludes the time spent in office as an elected or appointedofficial of an employer."  (Emphasis supplied.)

            As a general proposition it may be conceded that where an elected official is re elected to office the terms are separate and distinct.  (SeeWest Bergen Trust Co. v. United States Fidelity & Guaranty Co., 127 N.Y. Eq. 228, 12 A. (2d) 377 (1940); 67 C.J.S., Officers, § 46, p. 200.)  However, this is not determinative of the question here presented.

            Under the State Employees' Retirement System Act of 1947, elective officials, like other employees coming within the provisions of the act, became members of the system by operation of law.  (Section 13, chapter 274, Laws of 1947)  In 1949, however, the act was amended to provide that an elected official had the option of applying for membership in the system.  (Section 7, chapter 240, Laws of 1949)  By § 2 (3), chapter 277, Laws of 1955, the section as last amended provided that membership of an elected official could "become effective at the start of the initial or successive terms."

            Although the procedure for elected officials coming into the system has been changed by the legislature, there has been no change in the law relative to termination of membership since the original law of 1947.

             [[Orig. Op. Page 4]]

            With this history of the retirement law in mind, and considering our previous opinions on this subject, we must conclude that although the terms of office of an official re elected [[reelected]]to office are separate and distinct, re election [[reelection]]is not to be construed as a "separation from service" within the meaning of RCW 41.40.150.

            It is our opinion that where an elective official has exercised his option of becoming a member of the system either at the start of his initial term or at a successive term, and has been accepted by resolution of the retirement board, he is a member thereof until there is an actual, and not merely a possibly technical or theoretical, separation from public employment.  This conclusion we believe to be in accord with purpose and policy intended by our legislature when the above act was passed.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

LLOYD G. BAKER
Assistant Attorney General

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