AMENDMENT

LEOFF ‑- RETIREMENT ‑- PENSIONS ‑- CITIES AND TOWNS ‑- DISQUALIFICATION FOR PRESENT MEMBERSHIP ‑- AMENDMENT

The amended definition of "law enforcement officer" in § 1, chapter 120, Laws of 1974, 1st Ex. Sess., may not constitutionally be applied so as to disqualify for continuing membership in the LEFF system a person who obtained membership in the system on the basis of the legislature's prior definition of "law enforcement officer."

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                                                                   April 29, 1975

Honorable Robert L. Charette
State Representative, 19th District
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 46

Dear Sir:

            By recent letter you have directed our attention to § 1, chapter 120, Laws of 1974, 1st Ex. Sess., which amended the definition of "law enforcement officer" for the purposes of the state law enforcement officers' and fire fighters' retirement system (LEFF), chapter 41.26 RCW.

            You have first asked for our opinion as to whether this amendment may, constitutionally, be applied so as to disqualify for present membership in that pension system a city police officer not holding a commissioned status either prior to or after the effective date of the amendment in question who obtained membership prior to its enactment on the basis of the then existing definition of the term "law enforcement officer."

            Secondly, you have asked the same question with respect to a city police officer who held a commissioned status and was a member of the LEFF system at the time the subject amendment became effective but who since has been decommissioned as a part of a reorganization of the city police department in which he still serves as a "law enforcement officer" under the prior definition of that term.

            We answer both of these questions in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Membership in the law enforcement officers' and fire fighters' retirement system is provided for by RCW 41.26.040 in the case of ". . .  All fire fighters and law enforcement officers employed as such on or after March 1, 1970, on a full time fully compensated basis. . ." who are able to meet the minimum medical and health standards established under RCW 41.26.045 ‑ 41.26.047.  Prior to its amendment by § 1, chapter 120, Laws of 1974, 1st Ex. Sess., RCW 41.26.030(3) defined the term "law enforcement officer" to mean:

             [[Orig. Op. Page 2]] ". . . any person who is serving on a full time, fully compensated basis as a . . . city police officer, . . . provided that the term `city police officer' shall only include such regular, full time personnel of a city police department as have been appointed to offices, positions or ranks in the department which have been specifically created or otherwise expressly provided for and designated by city charter provision or by ordinances enacted by the legislative body of the city; . . ."

            The 1974 amendment to which you have referred, however, changed this definition by adding to it, among others, the following qualification:

            ". . .

            "(c) Only such full time commissioned law enforcement personnel as have been appointed to offices, positions, or ranks in the police department which have been specifically created or otherwise expressly provided for and designated by city charter provision or by ordinance enacted by the legislative body of the city shall be considered city police officers; . . ."  (Emphasis supplied.)

            Question (1):

            Subsequent to the enactment of this amendatory language we understand that, in certain instances, persons previously covered by the LEFF retirement system because they met the prior definition of "law enforcement officer" may have had their memberships cancelled by reason of the fact that they are not serving as "commissioned" police officers in the municipal police department by which they are employed.  The essence of your first question is whether this reported treatment of such persons is, constitutionally, correct.

            Our negative answer to the question thus posed is based upon the reasoning employed by this office in a previous opinion, AGLO 1974 No. 27 [[to Lloyd G. Baker, Director, Washington State Public Employees Retirement System on March 4, 1974, an Informal Opinion, AIR-74527]], copy enclosed.  In that opinion we were concerned with so much of § 3, chapter 120, Laws of 1974, 1st Ex. Sess., as imposed a "sixty percent of final average salary" maximum limitation upon the amount which can be paid to a law enforcement officer or fire fighter retiring for service under RCW 41.26.100.  The question which we were asked was whether  [[Orig. Op. Page 3]] this amendment could, constitutionally, be applied to those persons who were already members of the LEFF retirement system prior to its enactment by the 1974 legislature.

            In answering that question in the negative we noted and discussed the principles governing the modification of public employees' pension rights in this state which have been developed by our supreme court in such cases asBakenhus v. Seattle, 48 Wn.2d 695, 296 P.2d 536 (1956).  In essence, the court in those cases has held that such rights are contractual in nature and cannot be impaired without violating Article I, § 23 of the state constitution which provides that:

            "No bill of attainder, ex post facto law, or law impairing the obligations of contracts shall ever be passed."  (Emphasis supplied.)

            In order to avoid impairing the pension rights of existing members of a public retirement system it is necessary that any change in pension coverage, if detrimental, be accompanied by a correlative beneficial modification in the pension system to which the acquiescence of the members can, in effect, be implied.  Bakenhus v. Seattle,supra.  In the case of the sixty percent maximum which was provided for by § 3, chapter 120, Laws of 1974, 1st Ex. Sess., however ‑ clearly a detrimental change insofar as existing members were concerned ‑ we found no correlative benefit from which an implied consent argument could arise; and, moreover, we found no provision in the law purporting to limit the change to those members expressly consenting thereto.

            In the instant case, we are likewise dealing with another detrimental change in pension benefits provided for by the same 1974 law, chapter 120,supra.  The impact of the amendment to RCW 41.26.030(3) which was contained in § 1, chapter 120,supra, if applied to persons such as those described in your letter, would be to eliminate them totally from membership in the LEFF retirement system and, hence, from any possibility of ultimately obtaining either a service or disability retirement allowance thereunder.  And just as chapter 120,supra, contained no correlative benefits sufficient to justify an application of the sixty percent maximum limitation upon pension benefits in the case of preexisting members of the pension system, it also contains nothing which  [[Orig. Op. Page 4]] can be said, constitutionally, to justify an application of the modified definition of "law enforcement officer" to such individuals.  In fact, obviously, even if the 1974 law did contain correlative beneficial provisions for those who remain members of the retirement system after its effective date, those benefits would not be available to the persons involved in your question if the new definition were applied to them because the result would be a termination of their membership.

            In summary, therefore, it is our opinion in response to your first question that this 1974 amendment to the definition of "law enforcement officer" may not, constitutionally, be applied to those city police officers not holding a commissioned status either prior to or after the effective date of the amendment who had already obtained membership in the LEFF retirement system before its effective date on the basis of the prior definition of the term as it appeared in the previous provisions of RCW 41.26.030(3).  Accord, AGLO 1974 No. 27, supra.

            Question (2):

            Having thus answered your first question in the negative we turn to your second ‑ the essence of which is whether a different answer is called for with respect to a city police officer who held a commissioned status and was a member of the LEFF system at the time the subject amendment became effective but who hassince been decommissioned as a part of a reorganization of the city police department in which he or she still serves as a "law enforcement officer" under the prior definition of that term.

            Our answer to this question must be the same.  Under the law as it existed when an individual such as you have here described became a member of the retirement system it was not necessary for him or her to hold a commissioned status in order to be a member of the system.  Thus, the mere fact that this individual was a commissioned police officer at that time was irrelevant.  He or she had a right to be a member of the retirement system even without that commission.  In accordance with our answer to your first question, that right cannot be taken away by the legislature without some correlative benefit being provided ‑ a situation not here present.

             [[Orig. Op. Page 5]]   We conclude, then, that your second question must also be answered in the negative.  In summary, the definitional amendment to RCW 41.26.030(3) contained in § 1, chapter 120, Laws of 1974, 1st Ex. Sess., may not constitutionally be applied to those persons who were already members of the LEFF system on the basis of the prior definition at the time of its adoption.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

WAYNE L. WILLIAMS
Assistant Attorney General