Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1975 No. 84 -
Attorney General Slade Gorton


Where a member of the law enforcement officers' and fire fighters' retirement system has applied for disability retirement pursuant to RCW 41.26.120, his subsequent employment resignation, occurring prior to any action on the application by the appropriate disability board, does not render that application for disability retirement inoperative.

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                                                                 October 1, 1975

Honorable Curtis Ludwig
Prosecuting Attorney
Benton County
P.O. Box 510
Prosser, Washington 99350                                                                                                               Cite as:  AGLO 1975 No. 84

Dear Sir:

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

            Where a member of the law enforcement officers' and fire fighters' retirement system has applied for disability retirement pursuant to RCW 41.26.120, does his subsequent employment resignation, occurring prior to any action on the application by the appropriate disability board, render that application for disability retirement inoperative?

            We answer this question in the negative for the reasons set forth in our analysis.


            Among the benefits provided by chapter 41.26 RCW for members of the Washington law enforcement officers' and fire fighters' retirement system is a disability retirement allowance.  See RCW 41.26.120, which provides, in material part, as follows:

            "Any member, regardless of his age or years of service may be retired by the disability board, subject to approval by the retirement board as hereinafter provided, for any disability which has been continuous since his discontinuance of active service and which renders him unable to continue his service, whether incurred in the line of duty or not.  No disability retirement allowance shall be paid until the expiration of a period of six months after the disability is incurred during which period the member, if found to be physically or mentally unfit for duty by the disability board following receipt of his application for disability retirement, shall be granted a disability leave by the disability board and shall receive an allowance equal to  [[Orig. Op. Page 2]] his full monthly salary and shall continue to receive all other benefits provided to active employees from his employer for such period. . . ."

            Although applications filed with a disability board under the provisions of this statute are often referred to, at the outset, as applications for "disability leave", a careful reading of the statute will reveal that they are, in reality, applications for disability retirement at all times.  This is true even though the initial benefit, payable during the first six months of disability, is called a disability leave allowance and is measured on a somewhat different basis than is the disability retirement allowance itself.  Compare, the second sentence of RCW 41.26.120, supra, with the following provisions of RCW 41.26.130(1):

            "(1) Upon retirement for disability a member shall be entitled to receive a monthly retirement allowance computed as follows: (a) A basic amount of fifty percent of final average salary at time of disability retirement, and (b) an additional five percent of final average salary for each child as defined in RCW 41.26.030(7), (c) the combined total of subsections (1)(a) and (1)(b) of this section shall not exceed a maximum of sixty percent of final average salary."

            It would also seem helpful, in placing your question in proper focus, to quote subsection (2) of RCW 41.26.130, supra, as follows:

            "(2) A disabled member shall begin receiving his disability retirement allowance as of the expiration of his six month period of disability leave or, if his application was filed after the sixth month of disability but prior to the one year time limit, the member's disability retirement allowance shall be retroactive to the end of the sixth month."

            Likewise, note the proviso in subsection (1) of RCW 41.26.120 which states that:

            ". . . no such application [for disability retirement] shall be considered unless said member or someone in his behalf, in case of the incapacity of a member, shall have filed the application within a period of one year from and after the discontinuance of service of said member."

             [[Orig. Op. Page 3]]   What all of this means, as we view it, is that a member of the law enforcement officers' and fire fighters' retirement system claiming to be entitled to a disability retirement allowance need not remain in active service during the processing of his application.  He may file his application while still in service and then resign without jeopardizing his eligibility for the benefits provided for in RCW 41.26.120 and 41.26.130,supra; or, he may even resign first and then, at some point in time during the year following his resignation, submit his application for the benefits in question.1/

            The mere fact that a "disability leave" allowance ‑ i.e., the temporary benefit which is payable during the first six months of disability under RCW 41.26.120,supra ‑ is equated to the member's salary at the time of incurrence of the disability upon which he predicates his claim does not affect our thinking with respect to your question. Under that statute, one of the findings which a disability board must make before allowing any benefits is that the disability in question has been ". . . continuous since the discontinuance of active service."  This requirement clearly contemplates that active service has been terminated prior to the making of such a finding by the disability board.  Or, as we advised your immediate predecessor by an opinion dated September 9, 1971 [[to Herbert H. Davis, Prosecuting Attorney, Benton County an Informal Opinion, AIR-71668]], copy enclosed:

            "The critical point to be noted with respect to the foregoing two statutes is that a 'disability leave allowance' constitutes a benefit which is paid to a disabled law enforcement officer or fire fighter in lieu of salary; in other words, disability leave connotes a separation from an employer's payroll because of disability ‑ followed by payment to the separated member of a disability leave allowance equal to the full salary which was payable to the member at the time of incurrence of his disability."

             [[Orig. Op. Page 4]]   Finally, we note that although somewhat less supported by specific statutory provisions than in the instant case, a conclusion similar to that which we here reach was arrived at by our state supreme court inState ex rel. Johnson v. Funkhouser, 52 Wn.2d 370, 325 P.2d 297 (1958).  That case involved the ability of a city policeman to receive disability benefits under chapter 41.20 RCW2/ even though his employment had been terminated by the city civil service commission on the same day that he filed his application for a permanent disability pension.  The supreme court concluded that he was entitled to receive a disability pension even though chapter 41.20 RCW did not contain language which specifically recognized the possibility that an individual would be separated from service during the time his application for a disability retirement allowance was pending ‑ unlike chapter 41.26 RCW, supra.

            For all the foregoing reasons, therefore, we answer your question, as parphrased, in the negative.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/On the other hand, if upon separating from service the law enforcement officer or fire fighter should withdraw his monetary contributions to the retirement fund under RCW 41.26.170, he will thereby forfeit all rights to any benefits as a member of the system.   See so much of subsection (1) of RCW 41.26.170 as expressly so provides.

2/The then existing statutory pension system for first class city police officers.