CITIES AND TOWNS ‑- FIREMEN'S PENSIONS ‑- ACT APPLICABLE

CITIES AND TOWNS ‑- FIREMEN'S PENSIONS ‑- ACT APPLICABLE

A fireman entering the fire service in 1938 is governed by the provisions of the 1935 Firemen's Pension Act (chapter 39, Laws of 1935, RRS Supp. 9559 ‑ 9578) limiting his contributions to a maximum of 4 per cent or not to exceed $250 of his monthly salary, especially where he has exercised an election to remain governed by that act.

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                                                                   June 12, 1957

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                                Cite as:  AGO 57-58 No. 81

Attention:  !ttMr. A. E. Hankins, Chief Examiner

            Division of Municipal Corporations

Dear Sir:

            We acknowledge receipt of your request for an opinion on the following question:

            Should there be deducted from the salary of a fireman, who entered the fire service in 1938, 5 per cent of the total amount thereof in accordance with chapter 91, Laws of 1947, which amended chapter 39, Laws of 1935, providing for a maximum contribution of 4 per cent of the first $250 of his salary?

            We answer your question in the negative.

                                                                     ANALYSIS

            The fireman, having joined the department in 1938, is governed by the law applicable to retirement pensions in force at the time he entered the fire service, to-wit: Chapter 39, Laws of 1935 (RRS Supp. 9562 and 9572).  Bakenhus v. Seattle, 48 Wn. (2d) 695.

             [[Orig. Op. Page 2]]

            That law (RRS Supp. 9562) provided that upon qualifying for retirement, the fireman should receive a monthly pension of 50 per cent of the salary attached to his rank at date of his retirement, not to exceed $125.  By its terms, his contributions are limited to that part of his salary on which his pension is based (§ 2, chapter 39, Laws of 1935, RRS Supp. 9562) at the rate of from 2 to 4 per cent, depending on the amount of the city's levy for the fund (§ 7, chapter 39, Laws of 1935, RRS Supp. 9572).

            These sections have been twice amended since 1935.  (Sections 7 and 8, chapter 91, Laws of 1947, RCW 41.16.070 and 41.16.080, and §§ 3 and 4, chapter 382, Laws of 1955, RCW 41.18.030 and 41.18.040.)  We call attention to the fact that RCW 41.18.160, prescribing an election of acts, is not here involved since the fireman gave timely notice of his election to remain under the 1935 act.  In considering this act, together with the effect of later amendments, we direct attention to the following statement in the Bakenhus case,supra, at page 699:

            "City firemen and policemen who were appointed before the effective date of a statutory amendment changing pension rates and terms, were held to be unaffected by that amendment inBowen v. Los Angeles, 118 Cal.App. (2d) 297, 257 P. (2d) 672, the court saying:

            "'Pension rights, such as those here involved, are contractual in nature and they become vested at the time the employee enters the public service.'"

            And at page 700:

            ". . . The promise on which the employee relies is that which is made at the time he enters employment; and the obligation of the employer is based upon this promise."

            This seems clearly to indicate that the law governing retirement pensions in effect at the time a fireman enters the fire service constitutes the terms of his contract with the city, and in so far as he is concerned,  [[Orig. Op. Page 3]] governs the obligations of the city on the one hand, and the fireman on the other.  We reached this same conclusion under the Police Pension Acts (AGO 55-57 No. 310) [[to Cliff Yelle, State Auditor on August 7, 1956]].

            We conclude that a fireman who enters the fire service in 1938 is governed by the provisions of the 1935 act (chapter 39, Laws of 1935, RRS Supp. 9559 ‑ 9578) limiting his contributions to a maximum of 4 per cent on not to exceed $250 of his monthly salary, especially where he has exercised an election to remain governed by that act.  It must be recognized that firemen joining the service while a particular act is in effect may, under circumstances not here pertinent, properly come under a later enactment as pointed out in the Bakenhus case and our opinion above mentioned.

            We trust that the foregoing analysis will be helpful.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MITCHELL DOUMIT
Assistant Attorney General