AGLO 1975 No. 40 - Apr 9 1975
PENSIONS ‑- RETIREMENT ‑- MUNICIPAL FIREMEN ‑- POST-RETIREMENT INCREASES
Municipal firemen retired under a pension law predating chapter 91, Laws of 1947, are not entitled to receive a post-retirement increase under the provisions of chapter 190, Laws of 1974, 1st Ex. Sess.
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April 9, 1975
Honorable Frank J. Warnke
State Representative, 30th District
Olympia, Washington 98504 Cite as: AGLO 1975 No. 40
This is written in further response to your letter dated April 1, 1975, previously acknowledged, requesting our opinion on several questions involving the payment of post-retirement pension increases to certain retired firemen and to the widows of other firemen. We will indicate the essence of your questions, together with our responses thereto, in the following analysis.
Your first question involves the right of a municipal fireman retired under a pension law pre‑dating chapter 91, Laws of 1947, to receive a post-retirement pension increase under the provisions of chapter 190, Laws of 1974, 1st Ex. Sess. (Senate Bill No. 3194). In posing this question you have advised us that the Spokane city attorney's office has ruled that such an individual isnot entitled to a post-retirement pension increase under the 1974 enactment and it is our opinion that this ruling is correct.
As explained in AGO 61-62 No. 45 [[to Mark Litchman, Jr., State Representative on July 5, 1961]], copy enclosed, chapter 91, Laws of 1947, established a new pension system for full time, regularly compensated city firemen employed on and after the effective date of that act. The previously existing laws (chapter 50, Laws of 1909; chapter 196, Laws of 1919; chapter 86, Laws of 1929; and chapter 39, Laws of 1935) which provided for firemen's pensions were repealed. However, by § 12 of this 1947 act, the rights of firemen covered by the prior laws were expressly saved. See,Jolly v. Bremerton, 31 Wn.2d 873, 199 P.2d 587 (1948).
Chapter 91,supra, together with subsequent amendments thereto, is now codified as chapter 41.16 RCW and § 12 thereof, by which the rights of prior firemen were preserved, is codified as RCW 41.16.230. The significance of all of this is that the post-retirement pension increases provided for by chapter 190, Laws of 1974, 1st Ex. Sess., supra, are only payable to persons receiving pension benefits
[[Orig. Op. Page 2]] ". . . under the provisions of RCW 41.16.080, 41.16.120, 41.16.130 and RCW 41.16.140 . . ."
along with others receiving benefits under a later pension law for municipal firemen (chapter 382, Laws of 1955, as amended, now codified as chapter 41.18 RCW) and certain retired first class city police officers or their survivors under chapter 41.20 RCW. Therefore, as it presently reads, that 1974 amendatory act simply has no applicability to any municipal fireman who retired under one of the pre‑1947 laws which were qualifiedly repealed by chapter 91, Laws of 1947,supra; i.e., laws which were repealed by that act except to the extent provided for in § 12 (RCW 41.16.230).
We note, however, that there are currently pending before the legislature two bills which are designed to change this situation by expressly providing for postretirement pension increases for those persons now receiving pension benefits in accordance with RCW 41.16.230 ‑ meaning, as above explained, those persons to whom your first question refers. These bills are Senate Bill No. 2146 and House Bill No. 260, each of which would expressly amend RCW 41.16.145 (codifying § 1, chapter 190, Laws of 1974, Ex. Sess.) so as to cause it to read, in material part, as follows:
"The amount of all benefits payable under the provisions of RCW 41.16.080, 41.16.120, 41.16.130 ((and)), 41.16.140 and 41.16.230 as now or hereafter amended, shall be increased annually as hereafter in this section provided. The local pension board shall meet subsequent to March 31st but prior to June 30th of each year for the purposes of adjusting benefit allowances payable pursuant to the aforementioned sections. . . ."
Your second question involves an apparent conflict between RCW 41.18.100 and RCW 41.18.104. Both of these statutes provide, among other things, for the payment of post-retirement pension increases to certain widows of deceased municipal firemen who, at the time of their death, were covered by or had retired under the provisions of chapter 382, Laws of 1955, supra, as amended (chapter 41.18 RCW). The problem is that RCW 41.18.100 states that the pension increases provided for thereunder ". . . shall [[Orig. Op. Page 3]] be effective and be paid starting with the January payment of each succeeding year" whereas RCW 41.18.104 reflects a legislative intent to provide for post-retirement pension adjustments as of July 1 of each year.
The solution to this apparent inconsistency, however, has previously been spelled out by this office in AGO 1969 No. 22 [[to R. Ted Bottiger, State Representative on November 25, 1969]]which was written to then State Representative R. Ted Bottiger shortly after the passage of the law (chapter 209, Laws of 1969, Ex. Sess.) which created the problem. In that opinion, a copy of which we are enclosing, we concluded that the two statutes in question actually covered different classes of persons. Specifically, we concluded that RCW 41.18.100 is only applicable to the widow of a municipal fireman covered under the provisions of chapter 41.18 RCW at the time of his death in line of duty or following retirement for service connected disability,but who was still living and in service on July 1, 1969, when chapter 209,supra, became effective. Such a widow's pension, we said,
". . . will be governed by the provisions of § 28 of that act, [cf., RCW 41.18.100] to the end that her annual two percent pension increases will be effective with each January pension payment she receives under that section."
On the other hand, we said that the widow of a municipal fireman covered under the provisions of chapter 41.18 RCW at the time of his death whose death occurred in line of duty or whose retirement for service connected disability occurredprior to July 1, 1969,
". . . is covered by § 33, chapter 209, Laws of 1969, Ex. Sess., [cf., RCW 41.18.104]"
". . . such a widow is entitled to have her monthly pension payable under RCW 41.18.100 annually increased by two percent, with the first increase becoming effective on July 1, 1969, or one year after commencement of payments, whichever is later."1/
[[Orig. Op. Page 4]]Question (3):
Finally, you have asked to be advised as to the meaning of the words "Consumer Price Index" which appear at various points in chapter 190,supra. See, e.g., § 1, chapter 190, which provides, in material part, that:
". . . The local pension board shall meet subsequent to March 31st but prior to June 30th of each year for the purposes of adjusting benefit allowances payable pursuant to the aforementioned sections. The local board shall determine the percentage increase in the consumer price index between January 1st and December 31st of the previous year and increase in dollar amount the benefits payable subsequent to July 1st of the year in which said board makes such determination by a dollar amount proportionate to the increase in the consumer price index: Provided, That regardless of the change in the consumer price index, such increase shall be at least two percent each year such adjustment is made." (Emphasis supplied.)
We are however, somewhat puzzled by your question in view of the fact that the underscored term is expressly defined in the concluding paragraph of the foregoing section, and in each of the other sections of chapter 190,supra, in which it appears, as follows:
[[Orig. Op. Page 5]] "'Consumer price index' shall mean, for any calendar year, the average consumer price index for the Seattle, Washington area as compiled by the bureau of labor statistics of the United States department of labor."
To the extent that the word "average" in this definition poses a practical problem for actuaries or others concerned with its implementation, as indicated in your letter, we note that both Senate Bill No. 2146 and House Bill No. 260,supra, also contain amendments designed to remove that word from the definition.
This completes our consideration of your several questions, and we trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/In thus concluding we acknowledge that this legislative treatment of the question means that those widows covered exclusively by RCW 41.18.100 receive only a noncumulative two percent increase in their pensions in January of each year while those covered by RCW 41.18.104 now receive cumulative increases each year calculated on the basis of the "consumer price index" noted in our response to question (3), below. Accord, RCW 41.18.104,as amended by § 2, chapter 190, Laws of 1974, 1st Ex. Sess.,supra. Both Senate Bill No. 2146 and House Bill No. 260, supra, also address this problem, however, in that § 5 of each of them would amend RCW 41.18.100 to delete the annual two percent increases now provided for by that statute ‑ thereby putting all of the widows involved exclusively under RCW 41.18.104.