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AGO 1960 No. 118 - May 24, 1960
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John J. O'Connell | 1957-1968 | Attorney General of Washington

COLLEGES OF EDUCATION - RETIREMENT - TRANSFER FROM TEACHERS' RETIREMENT SYSTEM TO TEACHERS' INSURANCE AND ANNUITY ASSOCIATION (T.I.A.A.)

(1) A faculty member of one of the colleges of education who voluntarily elected to become a member of the retirement program of Teachers' Insurance and Annuity Association (T.I.A.A.) after that program was adopted by the college, may not, at will, re establish [[reestablish]]or return to active membership in the retirement system.  (2) A faculty member who can clearly and definitely establish that he was denied the right to continue in active membership in the Teachers' Retirement System because of a mistake of law on the part of the college, should be allowed to rectify the mistake by paying into the system all back contributions which would have been paid by an active member during the period.

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

                                                                   May 24, 1960

Mr. E. B. Rogel
Secretary-Manager
Teachers' Retirement System
P.O. Box 778
Olympia, Washington                                                                                        Cite as:  AGO 59-60 No. 118

Dear Sir:

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

            (1) May the board of trustees of a college of education adopt a regulation which will permit any faculty member who has previously been a member of Washington State Teachers' Retirement System to leave membership in their new retirement program under T.I.A.A. and return to active membership in the Teachers' Retirement System for either a limited period of time or an indefinite period of time?

            (2) May individual members of the faculty who, at the inception of the T.I.A.A. program, were denied the  [[Orig. Op. Page 2]] choice of continuing as active members of the Teachers' Retirement System, and who thus involuntarily became members of T.I.A.A., be permitted to return to active membership in the Washington State Teachers' Retirement System upon approval of the board of trustees of the college and the approval of the Teachers' Retirement System?

            We answer your questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            You have advised us of the following facts giving rise to your request for our opinion: That under the provisions of chapter 76, Laws of 1957 (RCW 28.81.140 et seq.), Washington's three state colleges of education establishednew retirement programs for their faculty members; that prior to the autumn term of 1957 the faculty members of these colleges were contributing members of the Washington State Teachers' Retirement System; that beginning with the autumn term of 1957 each of these colleges adopted the retirement program of Teachers' Insurance and Annuity Association (T.I.A.A.).

            In your letter you outline the programs adopted by the respective colleges as follows:

            A separate set of regulations governing the participation of faculty members in this new program was adopted by the board of trustees of each of the three colleges.  At Central Washington College of Education and at Eastern Washington College of Education, the regulations permitted those who were members of the faculty at the inception of the new program to either continue as active contributing members of the Washington State Teachers' Retirement System or "freeze" their benefits under this System and become members of T.I.A.A.  (See items (4) and (5), page 4, AGO 57-58, No. 112 [[to Eastern Washington College of Education on August 20, 1957]]).

            At Western Washington College of Education, participation in the new program (T.I.A.A.) was mandatory.  If there were members of the faculty who preferred to continue as active members of the Washington State Teachers' Retirement System, the regulations of Western Washington College of Education did not permit this.

             [[Orig. Op. Page 3]]

            In August, 1959, the board of trustees at Western Washington College of Education amended its regulations for mandatory participation in T.I.A.A. by making the following exception:

            "Except that any faculty member who has previously been a member of Washington State Teachers Retirement System may elect to remain in or return to Washington State Teachers Retirement System for the period of time necessary to accumulate either ten (10) years of Washington state service credit or the number of years of Washington state service credit necessary to equal his out-of-state prior service credit, whichever is greater."

            As a result of this amendment, two members of the faculty were granted permission by Western Washington College of Education to terminate active membership in T.I.A.A. and return to active membership in Washington State Teachers' Retirement System for the purpose of completing ten years of Washington state service credit, and then return to membership in T.I.A.A.

            Question (1):

            Under RCW 28.81.140 the board of trustees of each of the state colleges of education are authorized and empowered:

            "(1) To assist the faculties of their respective institutions in the purchase of old age annuities or retirement income plans under such rules and regulations as the trustees of said institutions may prescribe."

            In a letter written to Mr. L. D. Burrus, Secretary-Manager, Teachers' Retirement System, dated October 30, 1957, this office had an opportunity to discuss the various programs which the trustees could adopt under the above statute. We stated therein:

            "We could conceive of a program which provided that any members of the faculty, now or hereafter employed, who are, or at the time of their employment were, members of the teachers' retirement system, shall continue thereunder unless electing to come under T.I.A.A.; or that all members of the faculty who are under the teachers' retirement system at the time of  [[Orig. Op. Page 4]] their employment may continue under the teachers' retirement system, but after two years' employment, must become members of T.I.A.A.; or that members of the faculty not covered by the teachers' retirement system and not members of T.I.A.A. at the time of their employment shall have no coverage during such two-year period."

            As previously stated, the trustees of Western Washington College of Education adopted the retirement program of T.I.A.A. and made the participation of its faculty members therein mandatory.  In this connection the following provisions of RCW 28.81.170 are pertinent:

            "(1) A faculty member designated by the trustees of his respective state college of education as being subject to such annuity plan and who, at the time of such designation, is a member of the Washington state teachers' retirement system shall retain credit for such service in the Washington state teachers' retirement system and shall leave his accumulated contributions in the teachers' retirement fund (except as provided in subsection 2), and upon his attaining eligibility for retirement under the Washington state teachers' retirement system, such faculty member shall receive from the Washington state teachers' retirement system a retirement allowance . . .

            "(2) A faculty member designated by the trustees of his respective state college of education as being subject to the annuity plan and who, at the time of such designation, is a member of the Washington state teachers' retirement system may, at his election and at any time on and after the effective date of this amendatory act, terminate his membership in the Washington state teachers' retirement system and withdraw his accumulated contributions and interest in the teachers' retirement fund upon written application to the board of trustees of the Washington state teachers' retirement system.  Faculty members who withdraw their accumulated contributions, on and after the date of withdrawal of contributions, shall no longer be members of the Washington state teachers' retirement system and shall forfeit all rights of membership, including pension benefits, theretofore acquired under the Washington state teachers' retirement system."

             [[Orig. Op. Page 5]]

            It is an oft-quoted rule of statutory construction that in arriving at legislative intent, the first resort of the court is to the content and subject matter of the legislation because the intention of the lawmakers is to be deduced from the words used.  Hatzenbuhler v. Harrison, 49 Wn. (2d) 691, 306 P. (2d) 745 (1956); Guinness v. State, 40 Wn. (2d) 677, 246 P. (2d) 433 (1952).  Where a statute is plain and unambiguous, obviously it furnishes a rule of construction beyond which the court cannot go.  See Parkhurst v. Everett, 51 Wn. (2d) 292, 318 P. (2d) 327 (1957); In re Baker's Estate, 49 Wn. (2d) 609, 304 P. (2d) 1051 (1956).

            Furthermore, our court has held that the express mention of one thing in a statute implies the exclusion of another under the rule expressio unius est exclusio alterius.  Bradley v. Dept. of Labor and Industries, 52 Wn. (2d) 780, 329 P. (2d) 196 (1958); State v. Thompson, 38 Wn. (2d) 774, 232 P. (2d) 87 (1951).

            Applying these rules, it appears that under RCW 28.81.170 a member of the teachers' retirement system who elected to be covered by T.I.A.A. had or has the right: (1) to leave his accumulated contribution in the system; or, (2) to terminate his membership in teachers' retirement and withdraw his accumulated contribution and interest.  There is no statutory provision or authority whereby a teacher who has elected to be subject to T.I.A.A. or any other retirement system may thereafter, at will, reestablish or return to active membership in the retirement system.

            Accordingly, it is our opinion that once a member has made the election to be covered by another retirement plan, he cannot return to active membership in the Teachers' Retirement System, at least, during the period he is employed by the same employer.

            Question (2):

            In an opinion written to the Honorable Don S. Patterson, President, Eastern Washington College of Education, dated August 20, 1957, (AGO 57-58 No. 112) a copy of which is enclosed for your information, we discussed at length the problem of a member continuing in the teachers' retirement system after the college adopted another plan.  Therein we said:

            "The general procedure applicable to these retirement systems in the State of Washington is to allow the governing authority to make available a particular retirement or annuity plan for its employees.  Upon providing such a plan, all employees of the eligible coverage group are then mandatorily covered under the program.  This was the procedure followed in the plan adopted by their boards of regents for the  [[Orig. Op. Page 6]] faculties of the University of Washington and the State College of Washington.  There was no individual option accorded members of the faculty with respect to the coverage.  But as pointed out, there was no previous plan affording coverage.

            "On the other hand, in the cases of the colleges of education, we have a plan presently according the faculties coverage under the state teachers' retirement system.  This presents the question of the extent to which any new plan adopted by their boards of trustees may apply to their faculties and to what extent it can affect those under an existing system.

            "In Bakenhus v. Seattle, 48 Wn. (2d) 695, our supreme court stated (p. 698):

            "'In this state, a pension granted to a public employee is not a gratuity but is deferred compensation for services rendered. . . .'

            and quoted with approval from a California case (Bowen v. Los Angeles, 257 P. (2d) 672) the statement that (p. 699):

            "'Pension rights . . . are contractual in nature and they become vested at the time the employee enters the public service.'

            and from a Pennsylvania case (Baker v. Retirement Board of Allegheny County, 374 Pa. 165, 97 A. (2d) 231):

            "'As of the time he joined the fund, his right to continued membership therein, under the same rules and regulations existing at the time of his employment, was complete and vested.  The legislature could not thereafter constitutionally alter the provisions of his rights already existing contract of membership.  His rights in the fund could only be changed by mutual consent . . .'

            "Under the rules announced in the above case, it is apparent that members of the faculties of colleges of education belonging to the teachers' retirement  [[Orig. Op. Page 7]] system have an already existing contract of membership therein which can only be changed by mutual consent.  In this connection, it is to be noted that under any new plan permitted under chapter 76, retirement cannot be earlier than age sixty-five, while under the teachers' retirement system, retirement may be after thirty years of creditable service.  Therefore, the members presently in the teachers' retirement system are entitled to be continued therein, and they can only be excluded from it and included in any new plan with their consent.  (Cf. King County Employees' Assn. v. State Employees' Retirement Board, 150 Wash. Dec. 602 [[50 Wn.2d 869]].)  Any plan adopted should give due consideration to this fact in order to prevent the impairment of contractual rights.

            "Based on the foregoing analysis and in answer to the question under consideration, we conclude that under chapter 76, Laws of 1957, the board of trustees of each college of education is authorized to make provisions for old age annuities or retirement of its faculty; that in so doing it should be cognizant of, and make provisions for those members of its faculty presently under the teachers' system; and that in this situation the following factors must be considered:

            "(1) That any plan or plans which it adopts should include all members of its faculty;

            "(2) That at present the terms and provisions of the state teachers' retirement system apply to those members of its faculty coming under its provisions;

            "(3) That anynew plan which is adopted will be prospective in its application that is, apply only to new members of its faculty or members of its faculty under the teachers' system who elect to come under the new plan;

            "(4) That the present members of the state teachers' retirement system have a right to be continued under such system unless they elect to come under the new plan;

            "(5) That contributions of members of the present teachers' system who elect to come under any new plan will remain in that fund as provided by RCW 41.32.500 and as modified by § 4, chapter 76, Laws of 1957; and

             [[Orig. Op. Page 8]]

            "(6) That the board of trustees is empowered to adopt rules and regulations which will give effect to the foregoing provisions but not in derogation of any pension rights presently enjoyed, except as herein outlined."

            As stated hereinbefore, you have advised us that certain individuals contend that they were denied their right to continue their membership in the teachers' retirement system after the board of trustees of Western Washington College of Education adopted the T.I.A.A. plan in the autumn of 1957.  This, of course, is a question of fact.  We assume that these individuals did not tender any amount during the period to the Teachers' Retirement System and, consequently, no contributions were refused.  It appears that their former contributions were "frozen" in accordance with § 4, chapter 76, Laws of 1957 (cf. RCW 28.81.170).

           It is our opinion that if the individuals in question can clearly and definitely establish that they were denied the right to continue in active membership in the Teachers' Retirement System because of a mistake of law, they should now be allowed to rectify the mistake by paying into the system all back contributions.  In this way, they will not be returning to active membership for which there is no statutory provision, butmerely continuing such membership by paying into the system the amount due and owing for the period.

            We trust that you will work closely with this office in passing upon such applications.  In this manner, through joint efforts, we can weigh and determine the sufficiency of the proof submitted in each instance.

            In the event that you have any further questions concerning this matter, please feel free to contact this office.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. DORAN
Assistant Attorney General

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