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AGO 1957 No. 121 - September 20, 1957
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John J. O'Connell | 1957-1968 | Attorney General of Washington

OASI COVERAGE OF THE MEMBERS OF THE JUDGES RETIREMENT ACT

All of the members of the judges retirement act including both supreme court judges and superior court judges can be covered by OASI as state employees, or the superior court members of the retirement system can be covered alone as county-employee members of the retirement system under the existing statutes.

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                                                              September 20, 1957

Honorable Hobart S. Dawson
President
Superior Court Judges Association
Court House
Bellingham, Washington                                                                                                              Cite as:  AGO 57-58 No. 121


Dear Judge Dawson:

            This is in answer to your request for an opinion on the following question which we paraphrase as follows:

            May members of the Washington state judges retirement system be covered by OASI under the existing statutes?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            Chapter 184, Laws of 1955 (chapter 41.48 RCW), contains the enabling act providing for OASI coverage for public employees.  Section 1 of that act (RCW 41.48.010) contains a declaration of the purpose of the act as follows:

            "In order to extend to employees of the state and its political subdivisions and to the dependents and survivors of such employees, the basic protection accorded to others by the old-age  [[Orig. Op. Page 2]] and survivors insurance system embodied in the social security act,it is hereby declared to be the policy of the legislature, subject to the limitations of this chapter, that such steps be taken as to provide such protection to employees of the state and its political subdivisions on as broad a basis as is permitted under the social security act.  Persons now members of or protected by any state or local pension or retirement plan or system may be covered under the federal social security act only as provided by the federal social security act amendments of 1954. . . ."  (Emphasis supplied.)

            Thus, the legislature has specifically expressed the intention that the act be given as liberal an interpretation as is consistent with the provisions of the federal social security act, and such declarations of public policy by statutory enactment, are, when within constitutional limitations, conclusive.  State ex rel. Schlarb v. Smith, 19 Wn. (2d) 109, State v. Nelson, 146 Wash. 17.

            RCW 41.48.020 contains the definition of terms used in the act, including the following ones with which we are here concerned:

            "(2) 'Employment' means any service performed by an employee in the employ of the state, or any political subdivision thereof, for such employer, . . .

            "(3) 'Employee' includes all officers and employees of the state or its political subdivisions except officials compensated on a fee basis;

            ". . .

            "(5) 'Political subdivision' includes an instrumentality of the state, of one or more of its political subdivisions, or of the state and one or more of its political subdivisions. . . ."

            RCW 41.48.030 provides in part as follows:

            "(1)The governor is hereby authorized to enter on behalf of the state into an agreement with the secretary of health, education, and welfare consistent with the terms and provisions of this chapter, for the purpose of extending the benefits of the federal old-age and survivors insurance system to employees  [[Orig. Op. Page 3]] of the state or any political subdivision not members of an existing retirement system, or to members of a retirement system established by the state or by a political subdivision thereof or by an institution of higher learning with respect to services specified in such agreement which constitute 'employment' as defined in RCW 41.48.020. . . .

            "(3)The governor is empowered to authorize a referendum, and to designate an agency or individual to supervise its conduct, in accordance with the requirements of section 218 (d) (3) of the social security act, and subsection (4) of this sectionon the question of whether service in all positions covered by a retirement system established by the state or by a political subdivision thereof should be excluded from or included under an agreement under this chapter. . . ."  (Emphasis supplied.)

            In addition, RCW 41.48.030 (4) provides, in part, as follows:

            "(4) The governor, before authorizing a referendum, shall require the following conditions to be met:

            "(a) The referendum shall be by secret written ballot on the question of whether service in positions covered by such retirement system shall be excluded from or included under the agreement between the governor and the secretary of health, education, and welfare provided for in RCW 41.48.030 (1);

            "(b) An opportunity to vote in such referendum shall be given and shall be limited to eligible employees;

            "(c) Not less than ninety days' notice of such referendum shall be given to all such employees;

            "(d) Such referendum shall be conducted under the supervision (of the governor or) of an agency or individual designated by the governor;

            "(e) The proposal for coverage shall be approved only if a majority of the eligible employees vote in favor of including services in such positions under the agreement;

            "(f) The state legislature, in the case of a referendum affecting the rights and liabilities of state employees covered under the state employees' retirement system and employees under the  [[Orig. Op. Page 4]] teachers' retirement system, and in all other cases the local legislative authority or governing body, shall have specifically approved the proposed plan and approved any necessary structural adjustment to the existing system to conform with the proposed plan."

            With regard to the provisions of subsection (f), it is our opinion that the rule of statutory construction that express mention of one thing in a statute implies the exclusion of another thing is applicable, and accordingly the requirement that the state legislature approve the proposed plan does not apply to the Washington state judges retirement act.  Ramsay v. Department of Labor and Industries, 36 Wn. (2d) 410; State v. Thompson, 38 Wn. (2d) 774.

            The board of the Washington state judges retirement act which has been appointed by the chief justice of the supreme court and the president of the association of superior court judges acting jointly, and which is composed of members of both the supreme court and superior courts has the authority to submit the proposed plan to the governor for his approval on behalf of the state judges retirement system.

            RCW 41.48.050 provides specifically for the extension of social security benefits to employees of the state or its political subdivisions as follows:

            "(1) Each political subdivision of the state is hereby authorized to submit for approval by the governor a plan for extending the benefits of title II of the social security act, in conformity with the applicable provisions of such act, to those employees of such political subdivisions who are not covered by an existing pension or retirement system.  Each pension or retirement system established by the state or a political subdivision thereof is hereby authorized to submit for approval by the governor a plan for extending the benefits of title II of the social security act, in conformity with applicable provisions of such act, to members of such pension or retirement system. . . ."  (Emphasis supplied.)

            Chapter 2.12 RCW establishes a retirement system for judges of the Washington supreme court and of the superior courts of the state.  Under Article IV, § 13, of the state constitution, the salaries of the judges of the supreme court are paid by the state and the salaries of the superior court judges are paid one‑half by the state and one‑half by the county in which the judge is elected.

             [[Orig. Op. Page 5]]

            The employee contributions to the judges retirement system are based upon the total state or state and county salary paid to the supreme or superior court judges, but all contributions are withheld solely from the state portion of the salary.  The state also contributes to the retirement fund and guarantees the solvency of the fund.

            The position of the judges of the superior courts differs from that of the judges of the supreme court in view of the rulings of the supreme court of this state that a superior court judge occupies a dual position and is both a "state officer" and a "county officer."  State ex rel. Edelstein v. Foley, 6 Wn. (2d) 444; State ex rel. Lawler v. Grant, 178 Wash. 61; and State ex rel. Pischue v. Olson, 173 Wash. 60.  Thus supreme court judges are state employees whereas superior court judges are employees of the county as well as of the state.

            The question you have posed was referred to the Regional Director of the Department of Health, Education and Welfare in San Francisco in order to ascertain whether there was any provision in the federal social security act which would prevent the OASI coverage of all or part of the judges of this state.  The following is an excerpt from the opinion of the regional attorney, Arthure Miller:

            "There is no provision in the Federal law which would preclude the extension of social security to the members of the Judges Retirement System including both the supreme court and superior court judges.  Under section 218 (d) (4) this retirement system could constitute a coverage group in which a referendum could be held and which could be covered by an appropriate modification.  If as indicated, the judges of the superior court are joint employees of the State and counties, then if the State so desired this retirement system could be divided into several coverage groups in accordance with the provisions of the first sentence of section 218 (d) (6).  There could be one coverage group consisting of all State employees who are members of the retirement system, i.e., the supreme court judges and all superior court judges and there could be separate coverage groups for the superior court judges for each county or for any combination of counties.  Each superior court judge would, of course, be in two coverage groups, i.e., he would be a member of the retirement system coverage group composed of State employees since he is a State employee and he would also be a member of the retirement system coverage group composed of employees of one or more of the counties."

             [[Orig. Op. Page 6]]

            We also direct your attention to Title 42 U.S.C.A. § 418 (d) (6) (1956 Supp.), which reads as follows:

            "If a retirement system covers positions of employees of the State and positions of employees of one or more political subdivisions of the State, or covers positions of employees of two or more political subdivisions of the State, then, for purposes of the preceding paragraphs of this subsection, there shall, if the State so desires, be deemed to be a separate retirement system with respect to any one or more of the political subdivisions concerned and, where the retirement system covers positions of employees of the State, a separate retirement system with respect to the State or with respect to the State and any one or more of the political subdivisions concerned. . . ."

            Inasmuch as both the county portion and the state portion of the superior court judge's salary is in excess of $4200 a year, the coverage of superior court judges either as county employees of the judges retirement system or as state employees along with the members of the supreme court would give superior court judges maximum protection under the social security act.  In this instance, under the provisions of RCW 41.48.030 (4) (f), the local governing body as to county employees would be the boards of county commissioners of the respective counties, and accordingly the funds for the employer contributions would have to be secured from the local governing body.  With respect to the state employees of the retirement system, the board of the Washington judges retirement system would present the plan and state funds would be used to pay the employer contribution.

            In answer to the question posed by the previous opinion of this office where a superior court judge serves more than one county, the opinion of the regional attorney states as follows:

            "There is also a problem presented concerning superior court judges who serve more than one county.  Such judges would appear to be joint employees of the State and of the several counties they serve.  If the section 218 (d) (4) coverage group were composed of members of this retirement system who are employees of all the counties of the State and if there were an affirmative referendum and the plan for coverage were approved by all of the county governing bodies there could be joint reporting of all the superior court judges and responsibility for payment of the employer contributions and the  [[Orig. Op. Page 7]] withholding and payment of the employee contributions as between the State and the county could be allocated to each county on the basis of the proportion of the salary paid by that county.  If the coverage group were broken down on the basis of individual counties or combination of counties it might be that a judge serving two or more counties would be able to receive credit under the Social Security Act for only a portion of that part of his salary which is received from county funds since he would be credited with only those wages he receives from services performed for the county or counties the employees of which are included in the section 218 (d) (4) coverage group."

            Thus it appears that there are three possible coverage groups for judges who are members of the Washington state judges retirement system: All of the members, including both supreme and superior court judges, can be included as one coverage group and covered as state employees; secondly, all of the thirty-nine counties can constitute one coverage group and all superior court judges can be included within that group; or finally, each county can constitute a separate coverage group and the judges in each county will then make up the coverage group.

            In view of the specific statutory citations, supra, it is our opinion that all of the members of the Washington state judges retirement system can be provided with OASI coverage as state employees if a proposed plan is formulated which is approved by the board of the Washington state judges retirement system.  In the alternative the superior court judges alone can be provided with OASI coverage if a different plan is formulated which is approved by the county commissioners in each county, and the board of the Washington state judges retirement system, and either the thirty-nine counties can form the coverage group or each county individually can constitute a coverage group.  After the formulation of the plan and its approval by the governor of the state of Washington, a referendum must then be held, after ninety days' notice to each member of the judges retirement system, and a majority of the members of the proposed coverage group must vote affirmatively for coverage at that time.

            This opinion specifically overrules the previous opinion of this office dated October 31, 1955, to Governor Langlie [[AGO 55-57 No. 154]], wherein an opposite conclusion was reached.

            We trust this opinion will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General


JANE DOWDLE SMITH
Assistant Attorney General

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