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Bob Ferguson

AGO 1953 No. 143 - Oct 5 1953
Attorney General Don Eastvold


Persons holding elective offices who are seventy years of age or over are not eligible to be accepted into membership in state employees retirement system. 

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                                                                 October 5, 1953 

Honorable Samuel P. Totten
Executive Secretary
Employees Retirement System
215 East Fifth Avenue
Olympia, Washington                                                                                                              Cite as:  AGO 53-55 No. 143 

Dear Sir:

            By your request of September 11, 1953, we are asked to advise whether Mr. Otto A. Case, Commissioner of Public Lands, may be reinstated into membership in the state employees retirement system. 

            We conclude that he may not. 


            Mr. Case is eighty-two years of age and holds office by virtue of his election by the people in November, 1952.  In AGO 53-55 No. 49, issued May 20, 1953 [[to Cliff Yelle, State Auditor]], we held that the compulsory retirement provisions of the state employees retirement act do not apply to elective officials.  Consequently, for retirement purposes, Mr. Case is in that class of public officials which may elect whether or not they wish to become members of the system.  (RCW 41.40.120 (3) as amended by section 5 (3), chapter 200, Laws of 1953).  The sole question is whether the fact that he is over seventy years of age prohibits his reinstatement as a member. 

             [[Orig. Op. Page 2]]

            Section 21, chapter 200, Laws of 1953, provides, in part, as follows: 

            "* * * No person age seventy or more shall be employed in a position the occupancy of which would restore him to membership." 

            The purpose of this provision is twofold: 

            1. A prohibition against employment of persons over seventy years of age in eligible positions. 

            2. A prohibition against restoration to membership of persons over seventy years of age. 

            This language, on its face, seems decisive of the matter.  But we are asked to consider whether the legislature intended to prohibit the reinstatement ofelective officials as distinguished from appointive officials.  The words "no person" are, of course, broad enough to cover everyone whether elective or appointive.  It is the term "employed" which gives rise to the doubt.  Did the legislature intend to prohibit, by the use of this term, the reinstatement of persons over seventy years of age, who were elected to positions which would qualify them for membership? 

            The act itself defines the word "employee."  That term is a derivative of the verb "employ," of which "employed" is the past participle, used here in the future perfect tense.  Being derived from the same root, the words partake of the same meaning.  Therefore, "employed," as used in section 21, refers to the same status and would include the same class of persons as are included in the term "employee" as defined in section 1 (22) as follows: 

            "'Employee' means any person who may become eligible for membership under this chapter, as set forth in RCW 41.40.120."  (Emphasis supplied) 

            RCW 41.40.120 (as amended by section 5, chapter 200, Laws of 1953) provides: 

            "Membership in the retirement system shall consist of all regularly compensated employees and appointive and elective officials * * * with the following exceptions: 

             [[Orig. Op. Page 3]]

            "* * *

            "(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 * * *" (Emphasis supplied) 

            Elective officials are clearly persons who may become eligible for membership under the act.  They fit perfectly within the statutory definition of the term "employee."  Consequently, while holding office, they are "employed" within the meaning of section 21. 

            We have previously indicated that the legislature did not intend, by the passage of this act, to prohibit persons over seventy years of age from beingelected to office.  For this reason, the first purpose of section 21 will never be realized where elective officials are involved.  But the second purpose (prohibition against reinstatement to membership) may and should be carried out. 

            In our opinion, persons who are over seventy years of age when elected to office, may neither originally become, nor be reinstated as, members of the retirement system. 

Very truly yours, 

Attorney General 

Assistant Attorney General