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AGO 1958 No. 151 - January 23, 1958
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John J. O'Connell | 1957-1968 | Attorney General of Washington

STATE EMPLOYEES' RETIREMENT SYSTEM ‑- ELECTIVE OFFICIALS ‑- VOLUNTARY WITHDRAWAL ‑- TERMINATION OF MEMBERSHIP ‑- DUTY OF COUNTY AUDITOR

Participating elective officials may not terminate membership voluntarily.  After membership is established all employees are treated equally and it is the duty of the county auditor to withhold employee contributions.

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

                                                                 January 23, 1958

Honorable D. L. McMannis
Prosecuting Attorney of Whitman County
16 Spring Street
Colfax, Washington                                                                                                              Cite as:  AGO 57-58 No. 151


Dear Sir:

            By letter previously acknowledged, you have requested an opinion of this office on the following questions:

            (1) May an elective official terminate membership in the State Employees' Retirement System at his own option after having previously applied for and been accepted as a member therein; and

            (2) In the event such membership cannot be terminated as to contributions previously made, can the elective official demand that the county auditor cease withholding future contributions being paid into the retirement system.

            It is our opinion that the above two questions should be answered in the negative.

                                                                     ANALYSIS

            In respect to your first question, RCW 41.40.120 defines membership and provides in part 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, . . ."

            The foregoing section relates to status only and once the option is exercised to become a member and the official has been accepted by the resolution of the board, then all distinguishing characteristics between the elective officials, state employees and employees of political subdivisions cease.  In the remaining definitions under the act all rights, privileges and disabilities apply equally to all members of the system.

            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.

            In a related problem, the Attorney General ruled in AGO 53-55 No. 143 [[to S. P. Totten, State Retirement System on October 5, 1953]]that elective officials were clearly persons who could become eligible for membership under the act.  They fitted perfectly within the statutory definition of the term "employee".  Consequently, while holding office they were "employees" within the meaning of the act.  Further, in AGO 53-55 No. 35 [[to Cliff Yelle, State Auditor on May 8, 1953]], the Attorney General 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. . . ."

             [[Orig. Op. Page 3]]

            Therefore, it is our opinion 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.

            In respect to your second question, RCW 41.40.330 defines contributions and provides that all employees shall contribute 5 per cent of their compensation earnable, plus $1.25 every six months to the expense fund.  The officer responsible for preparation of the payroll of the various agencies and political subdivisions is required to deduct from the compensation of each member the foregoing amount and forward it to the State Employees' Retirement System.

            RCW 41.40.340 provides that every member shall be deemed to consent and agree to the deductions made for him.

            RCW 41.40.350 defines transmittal of deductions and provides that the officer responsible for making up the payroll shall transmit promptly to the board at the end of each payroll period the necessary payroll report as the board may require, showing the deductions for the retirement system made from the compensation earnable from each member, together with warrants or checks covering the total deductions.  From the foregoing, it is the duty of the county auditor to mandatorily withhold the required sum and forward it to the retirement system even if a member demands otherwise.  It is our opinion that the county auditor cannot be instructed by a member to cease withholding future contributions.

            We hope the foregoing 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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