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Bob Ferguson

AGLO 1971 No. 76 -
Attorney General Slade Gorton

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                                                                   May 26, 1971
Honorable Lloyd G. Baker, Director
Law Enforcement Officers' and Fire
Fighters' Retirement System
Post Office Box 2008
Olympia, Washington 98501                                                               Cite as:  AGLO 1971 No. 76 (not official)
Dear Sir:
            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:
            Would a member of the Law Enforcement Officers' and Fire Fighters' Retirement System who separated from service on March 31, 1970, and whose retirement was effective April 1, 1970, be entitled to receive the adjustment contemplated by RCW 41.26.240 on April 1, 1971?
            We answer this question in the affirmative for the reasons set forth below.
            Your question concerns RCW 41.26.240, which provides an annual "cost of living" increase for persons receiving benefits under the Law Enforcement Officers' and Fire Fighters' Retirement System.  The statute, in full, provides as follows:
            "For purposes of this section of this chapter:
            "(1) 'Index' shall mean, for any calendar year, that years's average Consumer Price Index‑-Seattle, Washington area for urban wage earners and clerical workers, all items (1957-1959=100), compiled by the Bureau of Labor Statistics, United States Department of Labor;
            "(2) 'Retirement allowance' shall mean the retirement allowance provided for in RCW 41.26.100 and 41.26.130, and the monthly allowance provided for in RCW 41.26.160.
            "Effective April 1 of 1971, and of each succeeding year, every retirement allowance which has been in effect for more than one year shall be adjusted to  [[Orig. Op. Page 2]] that dollar amount which exceeds its original dollar amount by the percentage difference which the board finds to exist between the index for the previous calendar year and the index for the calendar year prior to the effective retirement date of the person to whom, or on behalf of whom, such retirement allowance is being paid:  PROVIDED, That no retirement allowance shall in any event be reduced to a dollar amount less than its original dollar amount.
            "Whenever the amount of a benefit is to be recalculated because of a change in the number of children, the amount shall be calculated as if the new number of children had always been in existence."
            Your question would turn on the meaning that is given the simple phrases "more than one year" and "effective retirement date".  The latter phrase, as your question envisions, has a ready definition.  RCW 41.26.090(1) provides as follows:
            "Retirement of a member for service shall be made by the board as follows:
            "(1) Any member having five or more years of service and having attained the age of fifty years shall be eligible for a service retirement allowance and shall be retired upon his written request effective the first day following the date upon which the member is separated from service.
            ". . ."  (Emphasis supplied.)
            Therefore, the effective date of retirement, and the first day for which benefits are provided, for a member who separated from service on March 31, 1970, would be April 1, 1970.1/   Equally clear is the fact that words in a statute are to be given their usual and ordinary meaning, unless otherwise defined.  Foremost Dairies, Inc. v. Tax Commission, 75 Wn.2d 758, 453 P.2d 870 (1969).  "Year" is defined as "a period of 365 days (in leap year 366 days).  . . ."  Webster's New World Dictionary of the American Language, p. 1693 (1966).  Of course, the phrase "more than one year" means a period of time of greater duration than a year.
            Yet, having defined the crucial terms involved, we have still to resolve all the difficulties present.  The terms are simple to define and difficult to apply.  A question remains.  In counting  [[Orig. Op. Page 3]] forward 365 days, do we include or exclude the first day, April 1?  If we include that day the answer to your question will be in the affirmative.  If we exclude it, the answer will be in the negative.  Judicial authority can be cited for both choices.  In the absence of statutory direction, the common law rule is to exclude the first day.  Watkins v. Metropolitan Life Insurance Company, 56 Kan. 27, 131 P.2d 722 (1942); Allen v. Baird, 208 Ark. 975, 188 S.W.2d 505 (1945).  This rule, in turn, is subject to a well-entrenched exception to include the first day in calculating the age of an individual.  Toder v. Sansam, 1 Bro. P.C. 468, 1 Eng. Reprint.  695 (1775); Thomas v. Couch, 171 Ga. 602, 156 S.E. 206 (1930); United States v. Wright, 197 Fed. 297 (C.C.A. 8th Okla., 1912); Russ v. Morrow, 85 Tex. 172, 19 S.W. 1090 (1892).  Accord, our letter to Honorable Avery Garrett, then state representative, 47th District, dated September 7, 1966.
            Two statutes which seem to offer guidance must be mentioned and dismissed at this point.  The first is RCW 1.12.040, which provides as follows:
            "The time within which an act is to be done, as herein provided, shall be computed by excluding the first day, and including the last, unless the last day is a holiday or Sunday, and then it is also excluded."
            This is a statute of general application to all parts of the RCW and merely statutorily enacts what would be the rule in the absence of statute.  State ex rel. Early v. Batchelor, 15 Wn.2d 149, 130 P.2d 72 (1942); Van Duyn v. Van Duyn, 27 Wash. 145, 67 Pac. 590 (1902).  However, in this particular instance we are not concerned with the "time within which an act is to be done".  No action is required.  Uhlman v. Melton, 66 Wn.2d 157, 163, 401 P.2d 631 (1965).  We are concerned merely with measuring the passage of time.  This brings us to the second statute, RCW 4.04.010, which provides as follows:
            "The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state."  (Emphasis supplied.)
            As we have noted above, the common law would dictate that we exclude the first day (April 1, 1970) from our calculations.  This would seem to supply the answer.  Yet, we are prohibited from applying the common law rule by the underlined portion of the statute above and by reading the Law Enforcement Officers' and Fire Fighters' Retirement Act as a whole, as we must.  State ex rel. Port of Seattle v. Department of Public Service, 1 Wn.2d 102, 95 P.2d 1007 (1939).  As noted above, RCW 41.26.090 (1) establishes the effective date of a retirement allowance as the day following separation from service.   [[Orig. Op. Page 4]] This, in effect, excludes what would normally be considered the first day of retirement.  RCW 41.26.240 incorporates this language by basing the calculations contained therein on the "effective retirement date" of the member.  We can hardly ignore this plain expression of legislative intent and, in effect, delete two days to apply the inconsistent common law rule.  Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948); Guinness v. State, 40 Wn.2d 677, 246 P.2d 433 (1952).
            Clearly, in the situation described by your question, a member's retirement allowance is in effect on April 1, 1970.  Using that date as the first day and counting forward 365 days, we see that March 31, 1971, is the 365th day.  Necessarily, April 1, 1971, is the 366th day and is "more than one year" in the future from April 1, 1970.  This result is consistent with and gains weight from the rule that:
            ". . . in cases involving pensions when there is statutory ambiguity, doubt should be resolved in favor of the party for whose benefit the pension statute was intended.  . . ."  Bowen v. Statewide Retirement System, 72 Wn.2d 397, 402, 433 P.2d 150 (1967).

            Therefore, we conclude that a member of the Law Enforcement Officers' and Fire Fighters' Retirement System who retired for service on April 1, 1970, is entitled to the retirement allowance adjustment provided by RCW
            Very truly yours,
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/RCW 41.26.090 (1) deals only with service retirement.  A member receiving an allowance for disability begins to receive the allowance "as of the expiration of his six-month period of disability leave" (RCW 41.26.130 (2)).  No specific date is established for the receipt of death benefits (RCW 41.26.160).
2/Those who find such a complicated answer to what appears to be a simple question unsettling may find some solace in the following language:
            "It seems a fair observation that in developing rules for dealing with the illusive concepts of time and its measurement in a pragmatic world, the law has, usually with good results, placated certainty and outraged logic."  5 A.L.R.2d 1144.