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AGLO 1971 No. 88 - Jul 2 1971
Attorney General Slade Gorton

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                                                                     July 2, 1971
Honorable Lloyd G. Baker
Director, Public Employees Retirement System
General Administration Building
Olympia, Washington 98504                                                        Cite as:  AGLO 1971 No. 88 (not official)
Dear Sir:
            This is written in response to the remaining question which was set forth in your recent letter requesting our opinion on several questions relating to certain amendments to the laws governing the public employees' retirement system which were enacted by chapter 271, Laws of 1971, Ex. Sess.  See our previous letter to you dated June 22, 1971, for the answers to the other questions contained in this request.  Your present question relates to the provisions of RCW 41.40.190 (5), which was added to this statute by virtue of § 5 of the subject act.
            As described in our earlier opinion, RCW 41.40.190 deals, basically, with the computation of service retirement allowances for members of the public employees' retirement system who become eligible, by reason of qualifying periods of service, for retirement based upon service rather than upon disability.  The first four subsections describe the basic components of a service retirement allowance in terms of an "annuity," funded by employee contributions, and a pension (consisting of one or more of the following subparts):  a "basic service pension," a "membership service pension," and a "prior service pension") which is funded by employer contributions.  By its enactment of new subsection (5), the legislature added thereto the following:
            "(5) Notwithstanding the provisions of subsections (1) through (4) of this section, the retirement allowance payable for service where a member was elected or appointed pursuant to Articles II or III of the Constitution of the state of Washington or RCW 48.02.010 and the implementing statutes shall be a combined pension and annuity.  Said retirement allowance shall be equal to three percent of the average final compensation for each year of such service.
             [[Orig. Op. Page 2]]
            Any member covered by this subsection who upon retirement has served ten or more years shall receive a retirement allowance of at least one thousand two hundred dollars per annum; such member who has served fifteen or more years shall receive a retirement allowance of at least one thousand eight hundred dollars per annum; and such member who has served twenty or more years shall receive a retirement allowance of at least two thousand four hundred dollars per annum: PROVIDED, That the initial retirement allowance of a member retiring only under the provisions of this subsection shall not exceed the average final compensation upon which the retirement allowance is based.  The minimum benefits provided in this subsection shall apply to all retired members or to the surviving spouse of deceased members who were elected under the provisions of Article II of the Washington State Constitution."  (Emphasis supplied.)
            The question to be considered in this opinion, with regard to the foregoing provision, pertains to the status of certain "elected" officials of the state senate (i.e., the secretary of the senate and the sergeant at arms) and of the house of representatives (the chief clerk, assistant chief clerk and sergeant at arms).  The issue raised by your inquiry is whether an individual serving in one of these positions thereby becomes ". . . a member [who] was elected . . . pursuant to Article[s] II . . . of the Constitution of the state of Washington and the implementing statutes . . .", within the meaning of the foregoing new subsection.
            In responding to this question we start by noting the manner in which the various officers and employees of the legislature become members of the public employees' retirement system.  RCW 41.40.120, governing membership, provides in pertinent part as follows:
            "Membership in the retirement system shall consist of all regularly compensated employees and appointive and elective officials of employers as defined in this chapter who have served at least six months without interruption or who are employed, appointed or  [[Orig. Op. Page 3]] elected on or after July 1, 1965, with the following exceptions:
            ". . .
            "(2) Employees of the legislature except the officers thereof elected by the members of the senate and the house and legislative committees, unless membership of such employees be authorized by the said committee;
            ". . ."
            We are advised that you have regarded the secretary and sergeant at arms of the senate, and the chief clerk, assistant chief clerk and sergeant at arms of the house of representatives, as being "officers thereof elected" by the members of the respective houses for the purpose of determining membership eligibility under the foregoing provision.  And clearly, the individuals serving in these positions are, in fact, "elected" to their offices by the members of each of the two houses at the commencement of each session of the legislature.  See, e.g., House Journal 1969, pp. 8-11; and Senate Journal 1969, pp. 7-9.  However, the critical question remains as to whether this procedure qualifies as an election ". . . pursuant to Article[s] II . . . of the Constitution of the state of Washington . . . and the emplementing statutes . . .,"1/ for if it does not, the members in question may not be deemed to be governed by the provisions of RCW 41.40.190 (5), supra.
            Unquestionably, the members of the senate and the house of representatives themselves are "elected . . . pursuant to Article[s] II . . .," the legislative article of the constitution, for their election is specifically provided for under the express provisions of §§ 4-6 thereof.  However, on the other hand, there is no such specific provision in this article of the constitution for the election of any list of constitutionally designated officers of the two houses such as those to which your question  [[Orig. Op. Page 4]] refers.  It has been suggested, nevertheless, that these personnel should be deemed to be elected pursuant to Article II of the constitution because of the following provisions of §§ 9 and 10 thereof:
            "Each house may determine the rules of its own proceedings, punish for contempt and disorderly behavior, and, with the concurrence of two-thirds of all the members elected, expel a member, but no member shall be expelled a second time for the same offense,"  Article II, § 9.
            "Each house shall elect its own officers; and when the lieutenant governor shall not attend as president, or shall act as governor, the senate shall choose a temporary president.  When presiding, the lieutenant governor shall have the deciding vote in case of an equal division of the senate."  Article II, § 10.
            Consistent with these two provisions, each house has promulgated a set of rules providing for the election of its officers.  In the case of the Senate, these elections are provided for under Senate Rule 4, reading as follows:
            "The senate shall elect a secretary, and a sergeant at arms, who shall perform the usual duties pertaining to their offices, and they shall hold office during the regular session and until their successor has been elected.  . . ."
            The House of Representatives' counterpart to this is House Rule 2, providing as follows:
            "The house shall elect the following officers at the commencement of each regular session:  Its presiding officer, who shall be styled speaker of the house, a speaker pro tempore, who shall serve in absence or in case of the inability of the speaker, a chief clerk of the house, and a sergeant at arms.  An assistant chief clerk may be elected on any legislative day.  Such officers shall hold office during all sessions until the convening of the succeeding regular session.

             [[Orig. Op. Page 5]]
            "In all elections by the legislature the members shall vote viva voce and their vote shall be entered on the journal."
            Again, the critical language of RCW 41.40.190 (5), supra, is ". . . elected or appointed pursuant to Articles II or III of the Constitution of the state of Washington or RCW 48.02.010 and the implementing statutes . . ."  (Emphasis supplied.) Notably, this last phrase reads "implementing statutes" and not "implementing rules."  In the case of all state elected officials, these statutes will be found in Title 29 of the Revised Code of Washington ‑ the state election code [[Title 29 RCW]].  See, also, in the case of legislators elected pursuant to Article II, §§ 4-6, supra, chapter 44.07 RCW (codifying chapter 6, Laws of 1965), our current legislative redistricting act.
            Because of the absence of any specific reference to the legislative "officers" to whom you have referred within the body of Article II of the constitution, it seems highly doubtful to us that the persons serving therein would be regarded by a court as being elected under this constitutional article at all.  However, even if these individuals should be deemed to have been elected pursuant thereto, they are not in any event elected pursuant to "Article[s] II . . . of the Constitution . . . and the implementing statutes . . ." which is the total phrase describing the class of members covered by the subject statutory provisions.
            For these reasons, we conclude, in direct answer to your question, that the persons holding the positions to which you have referred, even though members of the retirement system, do not qualify for the special benefits which the legislature has afforded to those members of the retirement system who are described in new subsection (5) to RCW 41.40.190, supra,.  At least, this is our best judgment with respect to this matter on the basis of the law as it presently reads.  Of course, if the legislature desires a different result, it is free to further specify its intent in this regard.
             [[Orig. Op. Page 6]]
            We trust that the foregoing will be of assistance to you.
Very truly yours,
Philip H. Austin
Deputy Attorney General
Wayne L. Williams
Assistant Attorney General
                                                         ***   FOOTNOTES   ***

1/Article III, to which reference is also made in the subject amendment, relates to the election of officers of the executive branch of government, and RCW 48.02.010 to the election of the state insurance commissioner.