AUTHORITY OF BOARD OF TRUSTEES TO ESTABLISH RETIREMENT SYSTEM FOR ITS EMPLOYEES

MUNICIPAL CORPORATIONS ‑- RURAL COUNTY LIBRARY DISTRICT ‑- AUTHORITY OF BOARD OF TRUSTEES TO ESTABLISH RETIREMENT SYSTEM FOR ITS EMPLOYEES.

(1) The board of trustees of a rural county library district is authorized to join the state retirement system.  (2) The board of trustees of a rural county library district does not have the power to set up a pension program other than the state employees' retirement system.

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                                                                October 28, 1958

Honorable John J. Lally
Prosecuting Attorney
Spokane County
Spokane, Washington                                                                                          Cite as:  AGO 57-58 No. 223

Attention:  !ttMr. Donald N. Olson, Chief Deputy

Dear Sir:

            By letter, previously acknowledged, you have requested an opinion of this office on two questions which we paraphrase as follows:

            (1) May a rural county library district join the state employees retirement system?

            (2) Does a rural county library district have the power to provide for a pension program other than the state employees retirement system's program?

            We answer question one in the affirmative and question two as set forth in the analysis.

                                                                     ANALYSIS

            Question I.  Pertinent parts of the session Laws relating to the state employees retirement system are as follows:

            "Membership in the retirement system shall consist of all regularly compensated employees and appointive and elective officials of employers as defined in this  [[Orig. Op. Page 2]]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 or 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.)  [§ 2, chapter 231, Laws of 1957 (cf. RCW 41.40.120)]

            "As used in this chapter, unless a different meaning is plainly required by the context:

            "(4)  'Employer' means every branch, department, agency, commission, board, and office of the state and any political subdivision of the state admitted into the retirement system."  (Emphasis supplied.) [§ 1, chapter 231, Laws of 1957 (cf. RCW 41.40.010 (4))]

            "The employees and appointive and elective officials of any political subdivision of the state may become members of the retirement system by the approval of the local legislative authority. . . ." [§ 19, chapter 200, Laws of 1953, last amending § 43, chapter 274, Laws of 1947 (cf. RCW 41.40.410)]

            From the foregoing, it is apparent that employees of a political subdivision who are not presently receiving benefits or contributing to a retirement plan operated wholly or in part by an agency of the state or political subdivision may, upon approval of the local legislative authority, join the state employees retirement system.

            In an opinion issued on August 20, 1947, to the Chairman of the Washington State Employees' Retirement System (47 OAG 59 (a)) [[1947-48 OAG 59a]]a copy of which is enclosed, we construed RCW 41.40.410, supra, as follows:

            "In adopting section 43, chapter 274, Laws of 1947, we believe that the legislature intended that every unit or municipal corporation exercising governmental power and sovereignty by sanction of the state legislature, if only for a restricted purpose, was to have the option of participating under the retirement system."

             [[Orig. Op. Page 3]]

            We believe the above interpretation of § 43 is equally applicable to § 19, inasmuch as the 1953 amendment did not change the basic coverage.

            We must determine then, if a rural county library district is a "unit or municipal corporation exercising governmental power and sovereignty by sanction of the state legislature," so as to come within the purview of § 19.

            Pertinent parts of the session Laws relating to rural county library districts are as follows:

            "It is hereby declared to be the policy of the state, as a part of its provision for public education, to promote the establishment and development of public library service throughout its various subdivisions."  [§ 1, chapter 119, Laws of 1935 (cf. RCW 27.12.020)]

            "Any governmental unit has power to establish and maintain a library, either by itself or in cooperation with one or more other governmental units."  (Emphasis supplied.)  [§ 2, chapter 65, Laws of 1941 (cf. RCW 27.12.020)]

            "As used in this act, unless the context requires a different meaning (1) 'governmental unit' means any county, city, town, rural county library district, inter-county rural library district, or school district, except a union high school district; . . ." (Emphasis supplied.) [§ 10, chapter 75, Laws of 1947 (cf. RCW 27.12.010 (1))]

            "A rural county library district shall be a public corporation with such powers as are necessary to carry out its functions and for taxation purposes shall have the power vested in municipal corporations for such purposes."  (Emphasis supplied.)  [§ 6, chapter 59, Laws of 1955 (cf. RCW 27.12.060)]

            By defining and classifying a rural county library district as a governmental unit with such powers necessary to carry out its functions, it is certain that the legislature has created a unit to exercise governmental powers and sovereignty.  See Board of Directors v. Peterson, 4 Wash. 147 (1892); People v. McAdams, 82 Ill. 356 (1876);  People ex rel. Rogers, Atty. Gen., v. Letford, 102 Colo. 284, 79 P. (2d) 274 (1938); 1 Fletcher, Cyclopedia Corporations 173, §§ 57-62.  Moreover, it  [[Orig. Op. Page 4]] appears that the legislature has used the term governmental unit in § 10, chapter 75, Laws of 1947, (cf. RCW 27.12.010 (1)), above, as synonymous with the term political subdivision.  See the opinion issued on March 19, 1954, to the commissioner of the employment security department (AGO 53-55 No. 226), a copy of which is enclosed.

            We conclude, therefore, that a rural county library district may join the state employees retirement system upon approval of the local legislative authority.

            In addition, we invite your attention to the enclosed opinion of March 19, 1954, cited above, which is authority for a rural library district to elect OASI coverage for its employees.

            Question II.  In regard to question two, it should be determined, first, whether or not it was the intent of the legislature, by enacting the state employees' retirement system, to pre‑empt the field, in so far as political subdivisions which have no existing retirement plan are concerned, thereby revoking the right or power, if such otherwise exists, to provide for some other retirement program.

            The title to the original act, chapter 274, Laws of 1947, establishing the state employees retirement system is expressed as follows:

            "AN ACT providing for a State Employees' Retirement System; creating a State Employees' Retirement Board, and prescribing its powers and duties; making an appropriation therefor; establishing certain funds in connection therewith; requiring contributions thereto by state employees and by the state; incorporating an enabling clause providing for the participation in the Retirement System of all political subdivisions of the state; and declaring penalties for violations of the act."  (Emphasis supplied.)

            Section 43 of said chapter 274 provided the enabling clause referenced in the title set forth above; § 19, chapter 210, Laws of 1953, (cf. RCW 41.40.410), above, is the second amendment of said § 43, and still provides, in effect, an enabling rather than a mandatory clause.  Section 2, chapter 231, Laws of 1957, (cf. RCW 41.40.120 (4)), above, expressly excludes from membership employees holding membership in or receiving pension benefits under a retirement system operated wholly or in part by a political subdivision.

            We conclude that these provisions manifest an intent by the legislature to permit rather than require the various subdivisions of the state to join  [[Orig. Op. Page 5]] the state employees' retirement system and an intent not to repeal by implication power otherwise existing to establish some other retirement system.  Cf. Ayers v. Tacoma, 6 Wn. (2d) 545, 108 P. (2d) 348 (1940).  Therefore it is our opinion that the state employees' retirement system act did not pre‑empt the pension field so as to preclude a political subdivision otherwise empowered to establish a retirement program from so doing.

            The question then remains whether a rural county library district is legally empowered to provide for a retirement plan other than the state employees' retirement system.

            Section 8, chapter 65, Laws of 1941, (cf. RCW 27.12.210) provides in part:

            "The trustees, immediately after their appointment or election, shall meet and organize by the election of such officers as they deem necessary.  They shall . . . (3)  employ a librarian, and upon his recommendation employ such other assistants as may be necessary, all in accordance with the provisions of section 11 of this act, prescribe their duties, fix their compensation, and remove them for cause;. . . (10)   do all other acts necessary for the orderly and efficient management and control of the library."  (Emphasis supplied.)

            Section 6, chapter 59, Laws of 1955, (cf. RCW 27.12.060), above, provides that the rural county library district shall have such powers as are necessary to carry out its functions.

            Obviously there is no express power in the above provisions to provide for a retirement plan, nor do we find such elsewhere.  However, municipal corporations and other governmental units have not only those powers expressly granted but also those essential and indispensable, not simply convenient, to execution of the purposes for which such are created and those necessarily or fairly implied in or incidental to the powers expressly granted.  State ex rel. Wauconda Investment Co. v. Superior Court, 68 Wash. 660, 124 Pac. 127 (1912); State ex rel. McMannis v. Superior Court, 92 Wash. 360, 159 Pac. 383 (1916); State ex rel. Port of Seattle v. Superior Court, 93 Wash. 267, 160 Pac. 755 (1916); Carpenter v. Okanogan County, 163 Wash. 18, 299 Pac. 400 (1931); 3 Sutherland, Statutory Construction, 19 § 5402.  See also Board of Directors v. Peterson, 4 Wash. 147 (1892);  Beasley v. Assets Conservation Co., 131 Wash. 439, 230 Pac. 411 (1924); In re Riverside Irrigation District, 131 Wash. 532, 230 Pac. 649 (1924).

             [[Orig. Op. Page 6]]

            We must determine whether or not the broad power to employ and compensate personnel and to do all acts necessary for efficient management and control of the district impliedly or incidentally empowers the district to provide for a retirement plan other than the state program.

            Our court has set forth and approved the basic rule that when there is a reasonable doubt as to the implied power of a municipal corporation, political subdivision, or similar governmental unit except in the case of first class cities, the doubt is resolved against the governmental unit and the power is denied.  See State ex rel. Port of Seattle v. Superior Court, supra; Ayers v. Tacoma, supra.

            We think it at least reasonably doubtful, if not certain, that a pension program, although desirable, is actually necessary for efficient management and control of the district library; and we think it likewise doubtful, if not certain, that the power to employ and compensate personnel impliedly or incidentally empowers the district to establish its own retirement system.

            Consequently, it is our opinion that, under present conditions and existing statutes, a court would deny a rural county library district power to establish its own separate retirement plan.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP R. MEADE
Assistant Attorney General