Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1953 No. 136 -
Attorney General Don Eastvold


 Where employees of a political subdivision have, by agreement, placed themselves under OASI, they may not become members in State Employees' Retirement System. 

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                                                              September 21, 1953


Honorable Samuel P. Totten
Executive Secretary
Employees Retirement System
215 East Fifth Avenue
Olympia, Washington                                                                                                              Cite as:  AGO 53-55 No. 136


Dear Sir: 

            We acknowledge receipt of your letter of August 19, 1953, requesting our opinion upon the following: 

            "May a political subdivision that is able to qualify under the Retirement Act authorize the participation of its eligible employees in membership in the State Employees' Retirement System if said political subdivision has entered into an agreement placing such employees under OASI coverage?" 

            It is our conclusion that employees of a political subdivision may not become members of the employees retirement system if such political subdivision, by agreement, has previously placed its employees under OASI coverage. 

             [[Orig. Op. Page 2]]


            The question is whether or not the legislature intended to allow a political subdivision, which by agreement placed its employees under OASI coverage, to supplement the benefits provided therein, by allowing its members entry into state employees retirement system. 

            It is clear from the purpose and construction of the Federal social security act that members of a political subdivision may not apply for or receive benefits under OASI if such members are presently covered by an existing pension or retirement system.  Such exclusion is provided for by RCW 41.48.010, which reads as follows: 

            "* * * Nothing in this chapter shall be construed to in any way affect any existing pension or retirement system or plan for * * * the employees of any political subdivision * * * or to put under the federal social security act any persons now members or protected by any state or local pension or retirement plan or system."  (Emphasis supplied) 

            The legislature further provided a right of election by employees of a political subdivision either to take benefits provided under OASI or under a state or municipal retirement system.  Such right of election is provided for in RCW 41.48.070, which reads as follows: 

            "The governing body of any political subdivision having any coverage group, as the term is defined in title II of the social security act, not covered by a state or municipal retirement system may submit for an advisory vote to the members of such coverage group the question of whether they prefer coverage by federal old-age and survivors insurance or coverage by a state or municipal retirement system." 

            These sections clearly express the intent of the legislature to prohibit a political subdivision from applying for and receiving OASI coverage when such political subdivision has a present pension or retirement system. 

            Our attention is directed to the qualifications for membership in the state employees retirement system.  The legislature, in section 5, chapter 200, Laws of 1953, amended RCW 41.40.120, as derived from section 2, chapter 50, Laws of 1951, to read as follows: 

             [[Orig. Op. Page 3]]

            "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, with the following exceptions:

            "* * *

            "(4) Employees holding membership in, or receiving pension benefits under, any retirement plan operated wholly or in part by an agency of the state or political subdivision thereof, or who are by reason of their current employment contributing to or otherwise establishing the right to receive benefits from any such retirement plan:  * * *" (Emphasis supplied) 

            The legislature, in this section, intended a similar prohibition against supplemental benefits provided by another pension or retirement system.  It may be pointed out that, after reaching a stated age under OASI, the employee will receive pension benefits.  If OASI were construed to be a pension or retirement plan such coverage would be excluded under RCW 41.40.120 as amended, after one employee was covered under the state employees retirement system. 

            The law does not specifically exclude employees of a political subdivision, who are covered under OASI, from applying for or obtaining state employees retirement coverage if they could qualify therein.  However, when the act is considered in its entirety, we feel that the legislature intended to prohibit the use of state employees retirement as a supplement to OASI. 

            To allow employees of a political subdivision, who first obtained OASI coverage, to then avail themselves, if qualified, to membership in the state employees retirement system, would discriminate against those employees who first obtained coverage under the retirement system, but are specifically excluded from obtaining supplemental benefits under OASI by RCW 41.48.010. 

            We are convinced that the legislature did not intend such a result.  If the legislature desired to reach this result it would have expressly so provided.  See section 9, chapter 228, Laws of 1953, wherein the legislature expressly provided for dual coverage under the statewide city employees retirement system and  [[Orig. Op. Page 4]] OASI.  The states of Oregon and Virginia have also provided for such dual coverage by express legislation.  Notwithstanding these precedents, of which our legislature obviously had knowledge, (one of them being its own act), it has failed to make any express provision for such dual coverage.  The inference is that it intended to accomplish no such result. 

            In our opinion, the employees of a political subdivision which has, by agreement, placed its employees under OASI coverage, may not become members of the state employees retirement system. 

Very truly yours, 

Attorney General 

Assistant Attorney General