AGO 1971 No. 34 - Nov 4 1971
PENSIONS ‑- RETIREMENT ‑- FIREMEN ‑- LAW ENFORCEMENT OFFICERS' AND FIRE FIGHTERS' RETIREMENT SYSTEM
(1) It is not necessary that a fire dispatcher pass a civil service examination for firemen or fire fighters in order to be considered a "fire fighter" as that term is used in chapter 41.26 RCW, the law enforcement officers' and fire fighters' retirement system; instead, it is sufficient that a person has been serving on a full-time, fully compensated basis as a fire dispatcher in a city, town or other municipal fire department which, on March 1, 1970, required its dispatchers to have passed a civil service examination for fireman or fire fighter ‑ without regard to whether the particular individual has, himself, taken or passed such an examination.
(2) Any person who, on March 1, 1970, was employed in a fulltime, fully compensated basis by an employer covered by the law enforcement officers' and fire fighters' retirement system, and who, on May 21, 1971, was making contributions under the provisions of chapters 41.16 or 41.18 RCW, is also now to be considered a "fire fighter" for the purposes of chapter 41.26 RCW, whether or not he has taken or passed a civil service examination for fire fighters or firemen.
(3) A retired fireman is entitled to the increased benefits provided by RCW 41.16.145 or RCW 41.18.104, as clarified by §§ 17 and 18 of chapter 257, Laws of 1971, 1st Ex. Sess., if he was retired for disability under either of those two chapters and was so retired prior to June 8, 1961.
(4) A fire fighter who has vested under RCW 41.18.130 is not required to have attained the age of 50 years before being entitled to receive an allowance under that statute.
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November 4, 1971
Honorable A. A. Adams
State Representative, 25th District
3418 Shore Cliff Drive N.E.
Tacoma, Washington 98422
Cite as: AGO 1971 No. 34
By letter previously acknowledged you have requested an [[Orig. Op. Page 2]] opinion of this office on several questions relating to firemen's pensions which we paraphrase as follows
(1) Is it necessary that a fire dispatcher pass a civil service examination for firemen or fire fighters in order to be considered a "fire fighter" as that term is used in chapter 41.26 RCW?
(2) Does the term "fire fighter" as used in chapter 41.26 RCW include a person who, on March 1, 1970, was employed on a full-time, fully compensated basis by an employer, and who on the effective date of chapter 257, Laws of 1971, 1st Ex. Sess., was making contributions under the provisions of chapters 41.16 or 41.18 RCW, but had not passed a civil service examination for fire fighter or fireman?
(3) Is a retired fireman entitled to the increased benefits provided by RCW 41.16.145 or RCW 41.18.104, as clarified by §§ 17 and 18 of chapter 257, Laws of 1971, 1st Ex. Sess., if he was retired for a disability under either of those chapters and was so retired prior to June 8, 1961?
(4) Is a fire fighter who has vested under RCW 41.18.130 required to have attained the age of 50 years before being entitled to receive an allowance under that statute?
We answer questions (1) and (4) in the negative and questions (2) and (3) in the affirmative for the reasons set forth in our analysis.
Questions (1) and (2):
The word "fire fighter" is a defined term as used in chapter 41.26 RCW which outlines the law enforcement officers' and fire fighters' retirement system. The definition of fire fighter is contained in RCW 41.26.030 (4) and was amended by § 6, chapter 257, Laws of 1971, 1st Ex. Sess., by the addition of the following language:
"The term 'fire fighter' also includes any person who is serving on a full time, fully compensated basis for an employer, as a fire dispatcher, in a department in which, on March 1, 1970, a dispatcher was required to be or to have passed a civil [[Orig. Op. Page 3]] service examination for fireman or fire fighter. The term 'fire fighter'also includes any person who on March 1, 1970, was employed on a full time, fully compensated basis by an employer, and who on the date this 1971 amendatory act takes effect is making retirement contributions under the provisions of chapter 41.16 or 41.18 RCW.
". . ." (Emphasis supplied.)
Each of the two sentences of this new provision creates a separate class of persons who are to be considered "fire fighters" within the meaning of chapter 41.26 RCW. The first class includes any person serving on a full-time, fully compensated basis as a fire dispatcher in a department which, on March 1, 1970, required a dispatcher to have passed a civil service examination for firemen or fire fighters. You will note that no requirement is to be found that the dispatcher himself have passed the civil service examination. All that is required is that he be employed as a fire dispatcher in a department which required its dispatchers to have passed a civil service examination for firemen or fire fighters on a certain date ‑ March 1, 1970. Therefore, a person who was employed as a dispatcher prior to March 1, 1970, and who hadnot passed a civil service examination for fireman or fire fighter, would still be considered a fire fighter within the meaning of this term if he was serving in a department which required the successful completion of such an examination on March 1, 1970.
The second class of persons who are now considered "fire fighters" are those who, on the effective date of chapter 257, Laws of 1971, 1st Ex. Sess., (May 21, 1971) were making retirement contributions under the provisions of either chapter 41.16 or chapter 41.18 RCW.1/ The use of the term "also" in the second sentence of the amendatory language indicates that this qualification is one distinct and separate from the qualification involving the civil service examination as described in the previous sentence of the amendment. Therefore, a person who on the specified date was making the required contributions to the pension system would be considered a "fire fighter" whether or not he had taken or passed a civil service examination for fireman or fire fighter.
[[Orig. Op. Page 4]]
Thus, in summary with respect to your first two questions:
(1) A person serving on a full-time, fully compensated basis for an employer,2/ as a fire dispatcher in a department, which on March 1, 1970, required a dispatcher to have passed a civil service examination for fireman or fire fighter, is to be considered to be a "fire fighter" within the meaning of chapter 41.26 RCW whether or not he has taken or passed such an examination. (2) Likewise, any person who on March 1, 1970, was employed in a full-time, fully compensated basis by an employer and who on May 21, 1971, was making retirement contributions under the provisions of chapters 41.16 or 41.18 RCW is also considered a "fire fighter" whether or not he has taken or passed a civil service examination for fire fighter or fireman.
RCW 41.16.145 and RCW 41.18.104 provide an annual two percent increase in retirement benefits for certain persons retired under the provisions of chapter 41.16 and 41.18 RCW, the prior paid firemen's pension systems. The scope of application and method for calculation of the annual increase in benefits provided by the above‑mentioned sections are clarified by §§ 17 and 18 of chapter 257, Laws of 1971, 1st Ex. Sess. Section 17 provides as follows:
"The increased benefits provided by this chapter are hereby declared applicable to all retired firemenwho were retired prior to June 8, 1961, for disability whether incurred in the line of duty or otherwise, or their widows, effective July 1st of the first year when such benefits have heretofore or shall hereafter become payable and shall be payable commencing July 1, 1970. The manner of calculating the retroactive benefits payable to individual beneficiaries under chapter 37, Laws of 1970, ex. sess. and this 1971 amendatory act shall be to calculate the amount of benefit being received by such individual beneficiary on [[Orig. Op. Page 5]] July 1, 1969; then to multiply that result times two percent times the number of full years that have elapsed following the retirement of the employee; then to add the result so reached to the said amount being received on July 1, 1969, prior to the statutory increase of that date, which total amount is to be paid each month for the next ensuing year until July 1, at which time an additional two percent shall be added and the process shall be repeated as provided in RCW 41.18.104." (Emphasis supplied.)
As you will see from the underlined portion of this statute its plain language requires that the increased benefits be provided to all retired firemen who were retired prior to June 8, 1961, for disability. Therefore, the answer to your third question is clearly in the affirmative.3/
Like question (3), your final question also deals with an aspect of the pre‑March, 1970, firemen's pension statutes ‑ by which many of the municipal fire fighters who became members of the new LEFF SYSTEM (chapter 41.26 RCW) on that date remain covered solely to the extent of any differentials in benefits. See, AGO 1970 No. 17 [[to Walter B. Williams, State Senator on June 30, 1970]], copy enclosed, for a further explanation of this relationship.
Your question deals with the proper interpretation to be [[Orig. Op. Page 6]] given to RCW 41.18.130 which, as last amended by § 31, chapter 209, Laws of 1969, 1st Ex. Sess., provides as follows:
"Any fireman who shall have served for a period of less than twenty-five years, or who shall be less than fifty years of age, and shall resign, or be dismissed from the fire department for a reason other than conviction for a felony, shall be paid the amount of his contributions to the fund plus earned interest: Provided, That in the case of any firemen who has completed twenty years of service, such fireman, upon termination for any cause except for a conviction of a felony, shall have the option of electing, in lieu of recovery of his contributions as herein provided, to be classified as a vested fireman in accordance with the following provisions:
". . .
"(3) Any fireman electing to become a vested fireman shall be entitledat such time as he otherwise would have completed twenty-five years of service had he not terminated to receive a service retirement allowance computed on the following basis: Two percent of the amount of salary attached to the position held by the vested fireman for the year preceding the date of his termination for each year of service rendered prior to the date of his termination." (Emphasis supplied.)
Also to be noted is RCW 41.18.040, last amended by § 29 of chapter 209,supra, which provides as follows:
"Whenever any fireman, at the time of taking effect of this act or thereafter, shall have been appointed under civil service rules and have served for a period of twenty-five years or more as a member in any capacity of the regularly constituted fire department of any city, town or fire protection district which may be subject to the provisions of this chapter, and shall [[Orig. Op. Page 7]] have attained the age of fifty years, he shall be eligible for retirement and shall be retired by the board upon his written request. Upon his retirement such fireman shall be paid a monthly pension which shall be equal to fifty percent of the basic salary now or hereafter attached to the same rank and status held by the said fireman at the date of his retirement. . ." (Emphasis supplied.)
Your question is whether a fireman who has separated and vested under the first of these two statutes is required to have attained the age of fifty years before being entitled to receive an allowance under subsection (3) thereof, as in the case of a fireman retiring for service under the second statute.
In order to place this question in sharper focus, let us assume the case of two firemen employed in the same department ‑ both of whom were initially employed at age twenty-one. Upon completing twenty-four years of service, fireman "A" is separated ‑ perhaps even involuntarily ‑ while fireman "B" remains in the performance of faithful service until he reaches age fifty and then retires. If the attainment of this age, which is clearly a requirement for service retirement under RCW 41.18.040, is not required for the receipt of benefits under RCW 41.18.130 (3), then fireman "A" will begin receiving an allowance equal to 48% of his final salary at age forty-six (one year after his separation) while fireman "B" will not receive his initial monthly retirement benefit until four years later. Query: Is this the result which the 1969 legislature intended when it enacted the current versions of RCW 41.18.040 and 41.18.130? Based upon the applicable rules of statutory construction, we feel constrained to say that it was, thereby answering your final question in the negative.
Here, as in the case of any legislative enactment, the intent of the legislature must be ascertained through application of those rules of construction which the courts have laid down over the years. First among these rules is the principle which was enunciated by our court in Schneider v. Forcier, 67 Wn.2d 161, 163, 406 P.2d 935 (1965), as follow:
"Our first resort is to the context and subject matter of the legislation, consistent with the recognized canon of [[Orig. Op. Page 8]] statutory construction and interpretation that the legislative intent is first to be deduced, if possible, from what it said. Martin v. Aleinikoff, 63 Wn.2d 842, 844, 389 P.2d 422 (1964). . . ."
Consistent with this rule, in cases where it has been argued that the legislatureunintentionally left something out of a statute ‑ e.g., an age requirement in RCW 41.18.130 (3), supra ‑ the court has responded, as in Island County v. Calvin Philips & Co., 195 Wash. 265, 271, 80 P.2d 840 (1938), as follows:
"'The legislature must be understood to mean what it has plainly expressed, and this excludes construction. The legislative intent being plainly expressed, so that the act read by itself, or in connection with other statutes pertaining to the same subject, is clear, certain and unambiguous,the courts have only the simple and obvious duty to enforce the law according to its terms. Cases cannot be included or excluded merely because there is intrinsically no reason against it. Even when a court is convinced that the legislature really meant and intended something not expressed by the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of language which is free from ambiguity.' 2 Lewis' Sutherland Statutory Construction (2d ed.), 701, § 366." (Emphasis supplied.)
Or, as stated by our court in Labor and Industries v. Cook, 44 Wn.2d 671, 677, 269 P.2d 962 (1954),
". . . The court cannot read into a statute anything which it may conceive that the legislature has unintentionally left out. Seattle Ass'n of Credit Men v. General Motors Acceptance Corp., 188 Wash. 635, 63 P. (2d) 359;Maryland Cas. Co. v. Tacoma, 199 Wash. 384, 92 P. (2d) 203."
Further inhibiting our ability to find an age qualification [[Orig. Op. Page 9]] in RCW 41.18.030 (3), supra, is the well-settled principle that statutes relating to public employees' pensions are to be liberally construed in favor of the beneficiaries of the pension system and against their public employer. See, e.g.,Jordan v. O'Brien, 79 W.D.2d 406 [[79 Wn.2d 406]], 486 P.2d 290 (1971). To read into this statute an age qualification not expressed therein would, quite apparently, violate this rule for such a construction would mean that the employer would not have to pay a pension to its vested former employees until they reached that age ‑ irrespective of their having met those "years of service" qualifications which are expressly stated.
Because of each of these rules of construction, we must conclude, therefore, that while RCW 41.18.040, supra, does require that a fireman have reached the age of fifty years in order to be eligible for a normal service retirement, RCW 41.18.130 (3),supra, does not require the attainment of such an age before the commencement of retirement benefits thereunder. However, it should be noted and understood with respect to this conclusion that the respective pension benefits provided by these two statutes are by no means identical. The service retirement allowance provided by RCW 41.18.040 represents a percentage of the basic salary now orhereafter attached to the rank and status of the retired fireman. This type of provision is called an "escalator clause" and allows the pension of a retired fireman to increase in direct relation to the salary increases of active fire fighters. By way of contrast, RCW 41.18.130 (3) does not provide such an escalator clause. The pension provided in that section for vested firemen is based upon a percentage of the amount of salary attached to the position held by the vested fireman "for the year preceding the date of his termination."
Thus, while the construction which we believe must be given RCW 41.18.130 (3) will (in a case such as above posited) permit a fireman whose employment may even have been involuntarily terminated to begin receiving a retirement benefit several years before his companion remaining in service in the same department, the allowance payable to the first of these two firemen will forever remain fixed ‑ regardless of any postretirement salary adjustments. On the other hand, the retirement allowance payable to the second retiree may well be increased from time to time, by reason of these same postretirement salary adjustments.
[[Orig. Op. Page 10]]
It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
WAYNE L. WILLIAMS
Assistant Attorney General
*** FOOTNOTES ***
1/The prior firemen's retirement systems created in 1947 and 1955, respectively. See, chapter 91, Laws of 1947, and chapter 382, Laws of 1955.
2/"Employer" is defined in RCW 41.26.030 (2) as meaning: ". . . the legislative authority of any city, town, county or district or the elected officials of any municipal corporation that employs any law enforcement officer and/or fire fighter and shall include any authorized association of such municipalities."
3/Section 17 was added to chapter 41.16 RCW. Section 18, which contains exactly the same language was added to chapter 41.18 RCW. Of course, this blanket application is subject to the exception provided in RCW 41.18.104 in the following language:
". . . The increased benefits authorized by this section shall not affect any benefit payable under the provisions of chapter 41.18 RCW in which the benefit payment is attached to a current salary of the rank held at time of retirement."