STATUS OF EMPLOYEES SEPARATED FROM SERVICE AFTER ATTAINING THE AGE OF 60 YEARS

STATUS OF EMPLOYEES SEPARATED FROM SERVICE AFTER ATTAINING THE AGE OF 60 YEARS

A member who has attained the age of 60 years, who is separated from service and is eligible for retirement has a vested right in a retirement allowance and continues to be a member until he makes application to retire.  He may retire at any time after that by giving at least 30 days' notice of his intentions.

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                                                                   May 21, 1952

Mr. Samuel P. Totten
Executive Secretary
State Employees' Retirement System
215 East Fifth Avenue
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 311

Dear Sir:

            You have requested the opinion of this office on the following question:

            "What is the membership status of a member who, after attaining the age of 60 years, is separated from service, if he is eligible for retirement and does not apply for retirement within 90 days after being separated?"

            It is our conclusion that a member who has attained the age of 60 years, who is separated from service and is eligible for retirement has a vested right in a retirement allowance and continues to be a member until he makes application to retire.  He may retire at any time after that by giving at least 30 days' notice of his intentions.  There is no requirement that he must make application within 90 days after being separated from service.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            In arriving at our conclusions herein we have made a review of the provisions in the Retirement Act pertaining to the requirements of membership, to the termination of membership, to the vested rights of members and other provisions concerning limited membership.  For the purpose of answering your question we are setting forth these several provisions which have a relation to the subject.

            RCW 41.40.150 relates to the termination of membership and is as follows:

            "Should any member become a beneficiary, or die, or should he separate or be separated from service without leave of absence before attaining age sixty years, he shall thereupon cease to be a member: * * *" (Emphasis supplied.)

            It should be noted that this section makes no reference to the termination of membership after a member attains age 60 years.  There are several exceptions to this provision which should be considered in determining the status of membership.  They are found in RCW 41.40.150 (3) and are as follows:

            "A member separated for reasons beyond his control, who has completed at least fifteen years of service, or who has completed at least ten years of service and is age fifty or older shall remain a member during the period of his absence from service for the exclusive purpose only of receiving a retirement allowance to begin at attainment of age sixty-five, however, such a membermay upon thirty days written notice to the board elect to receive a reduced retirement allowance on or after age sixty which allowance shall be the actuarial equivalent of the sum necessary to pay regular retirement benefits as of age sixty-five:Provided, That if such member should withdraw all or part of his accumulated contributions he shall thereupon cease to be a member unless the amounts so withdrawn be restored before his retirement age is reached."  (Emphasis supplied.)

             [[Orig. Op. Page 3]]

            RCW 41.40.180 relates to the type of retirement and is as follows:

            "(1) On and after April 1, 1949, any member who has attained age sixty or overmay retire upon his written application to the retirement board, setting forth at what time, not less than thirty days, nor more than ninety days subsequent to the execution and filing thereof, he desires to be retired:  * * *

            "(2) On and after April 1, 1949, any member who has attained age seventyshall be retired forthwith or on the first day of the calendar month next succeeding that in which the said member shall have attained the age of seventy:  * * *

            "(3) On and after April 1, 1949, any member who has completed thirty-five years of servicemay retire on his written application to the retirement board, if he so desires, subject to war measures."  (Emphasis supplied.)

            The withdrawal from the System and the refunds of contributions are provided for in RCW 41.40.260.  It entitles members under age 60 who cease to be employees, and members over age 60 but before becoming eligible for benefits, to a refund of their contributions to the Employees' Savings Fund.

            Retirement is permitted only after reaching age 60 years except for those members with 35 years of service and those retiring for disabilities.

            Members over age 60 years and under 70 years and eligible to retiremay retire with not less than 30 days' nor more than 90 days' notice.  Certain members with vested rights, such as those with 15 years of service or age 50 years with 10 years of service, are eligible to retire at age 65, but may retire under certain conditions at age 60 years.  Likewise, those members with 35 years of service may retire then, but the law provides that members over age 70, with certain exceptions, shall be retired forthwith.  We find no specific provision for terminating the membership of members over 60 years of age and under 70 and otherwise eligible to receive benefits.  The term "may," in its common meaning, is permissive and not mandatory.  The term "shall" is generally construed to be mandatory.

             [[Orig. Op. Page 4]]

            It is our conclusion that a member who has attained the age of 60 years, who is separated from service and is eligible for retirement has a vested right in a retirement allowance and continues to be a member until he makes application to retire.  He may retire at any time after that by giving at least 30 days' notice of his intentions.  There is no requirement that he must make application within 90 days after being separated from service.  The provisions for compulsory retirement naturally will apply when such a member reaches the age of 70 years.  Certain members with vested rights who have withdrawn their contributions from the Employees' Savings Fund cease to have membership unless the amount so withdrawn is restored before his retirement age is reached.

            There are other provisions in the law relating to retirement for disability.  These need not be considered at this time.

Very truly yours,

SMITH TROY
Attorney General

PHIL H. GALLAGHER
Assistant Attorney General