CITIES AND TOWNS - PENSIONS - RETIREMENT - ELIGIBILITY OF POLICE OFFICERS FOR INCREASED RETIREMENT ALLOWANCE

CITIES AND TOWNS - PENSIONS - RETIREMENT - ELIGIBILITY OF POLICE OFFICERS FOR INCREASED RETIREMENT ALLOWANCE.

(1) In order to qualify for retirement in a position higher than the rank of captain, in accordance with RCW 41.20.050, as amended by § 36, chapter 209, Laws of 1969, Ex. Sess., it is not necessary that the retiree has served in such a position for three consecutive years immediately prior to the date of his retirement; it is sufficient that he has served in such a position for a minimum of three years at sometime during his period of covered service.

(2) Under § 36, chapter 209, Laws of 1969, Ex. Sess., a person seeking to qualify for retirement in a position higher than the rank of captain must pay into the first-class city relief and pension fund, in addition to his normal contributions, an amount equal to six percent of that portion of all monthly salaries previously received without limitation as to time of receipt upon which a sum equal to six percent has not heretofore been deducted.

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                                                                 August 25, 1969

Honorable Ernest H. Campbell
Associate Director
Bureau of Governmental Research and Services
3935 University Way N.E.
Seattle, Washington 98105

                                                                                                                 Cite as:  AGO 1969 No. 13

Dear Sir:

            By letter previously acknowledged, you have requested our opinion with regard to the conditions which must be met in order for a first-class city police officer to qualify for retirement in a position higher than the rank of captain, as authorized by certain amendments to RCW 41.20.050 which were enacted by the 1969 legislature.  We paraphrase your questions as follows:

            (1) In order to qualify for retirement in a position higher than the rank of captain, in accordance with RCW 41.20.050, as amended by § 36, chapter 209, Laws of 1969, Ex. Sess., is it necessary that the retiree have served in such a position for three consecutive years immediately prior to the date of his retirement?

             [[Orig. Op. Page 2]]

            (2) Is there any limitation as to the time of receipt involved in the requirement of § 36, chapter 209, Laws of 1969, Ex. Sess., that in order to qualify for retirement in a position higher than the rank of captain, a retiree must pay into the first-class city relief and pension fund, in addition to his normal contributions required by RCW 41.20.130, an amount equal to six percent of that portion of all monthly salaries previously received upon which a sum equal to six percent has not heretofore been deducted?

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

                                                                     ANALYSIS

            RCW 41.20.050, as amended by § 36, chapter 209, Laws of 1969, Ex. Sess., reads as follows:

            "Whenever a person has been duly appointed, and has served honorably for a period of twenty-five years, as a member, in any capacity, of the regularly constituted police department of a city subject to the provisions of this chapter, the board, after hearing, if one is requested in writing, may order and direct that such person be retired, and the board shall retire any member so entitled, upon his written request therefor.  The member so retired hereafter shall be paid from the fund during his lifetime a pension equal to fifty percent of the amount of salary at any time hereafter attached to the position held by the retired member for the year preceding the date of his retirement:  PROVIDED, That,except as to a position higher than that of captain held for at least three calendar years prior to date of retirement, no such pension shall exceed the amount equivalent to fifty percent of the salary of captain, and all existing pensions shall be increased to not less than one hundred fifty dollars per month as of July 1, 1957: PROVIDED FURTHER, That a person hereafter retiring who has served as a member for more than twenty-five years, shall have his pension payable under this section increased by two percentof his salary per year for each full year of such additional service to a maximum of five additional years.

            "Any person who has served in a position higher  [[Orig. Op. Page 3]]than the rank of captain for a minimum of three years may elect to retire at such higher position and receive for his lifetime a pension equal to fifty percent of the amount of the salary attached to the position held by such retired member for the year preceding his date of retirement:  PROVIDED, That such person make the said election to retire at a higher position by September 1, 1969 and at the time of making the said election, pay into the relief and pension fund in addition to the contribution required by RCW 41.20.130; (1) an amount equal to six percent of that portion of all monthly salaries previously received upon which a sum equal to six percent has not been previously deducted and paid into the police relief and pension fund; (2) and such person agrees to continue paying into the police relief and pension fund until the date of retirement, in addition to the contributions required by RCW 41.20.130, an amount equal to six percent of that portion of monthly salary upon which a six percent contribution is not currently deducted pursuant to RCW 41.20.130.

            "Any person affected by this chapter who at the time of entering the armed services was a member of such police department and has honorably served in the armed services of the United States in the time of war, shall have added to his period of employment as computed under this chapter, his period of war service in the armed forces, but such credited service shall not exceed five years and such period of service shall be automatically added to each member's service upon payment by him of his contribution for the period of his absence at the rate provided in RCW 41.20.130."1/   (New language underscored.)

             [[Orig. Op. Page 4]]

            In answering your two questions with regard to this amendment, our basic task is to discover and articulate the intent of the legislature.  In doing so, we must be guided by the applicable rules of statutory construction which have been laid down by the courts to govern in such cases as this.2/

             A fundamental rule of construction is the one which was most recently stated by the court inSchneider v. Forcier, 67 Wn.2d 161, 163, 406 P.2d 935 (1965), as follows:

            "Our first resort is to the context and subject matter of the legislation, consistent with the recognized canon of statutory construction and interpretation that the legislative intent is first to be deduced, if possible, from what it said.  Martin v. Aleinikoff, 63 Wn.2d 842, 844, 389 P.2d 422 (1964). . . ."

            Furthermore, as was said by the court in Island County v. Calvin Philips & Co., 195 Wash. 265, 271, 80 P.2d 840 (1938), quoting from 2 Sutherland Statutory Construction 701 (Lewis ed. 1904):

            "'The legislature must be understood to mean what it has plainly expressed, and this excludes construction.  The legislative intent being plainly expressed, so that the act read by itself, or in connection with other statutes pertaining to the same subject, is clear, certain and unambiguous, the courts have only the simple and obvious duty to enforce the law according to its terms.  Cases cannot be included or excluded merely because there is intrinsically no reason against it.  Even when a court is convinced that the legislature really meant and intended something not expressed by the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of language which is free from ambiguity.' . . ."  (Emphasis supplied.)

             [[Orig. Op. Page 5]]

            In much the same vein, the court, in Labor and Industries v. Cook, 44 Wn.2d 671, 677, 269 P.2d 962 (1954), said:

            ". . . The court cannot read into a statute anything which it may conceive that the legislature has unintentionally left out.  Seattle Ass'n of Credit Men v. General Motors Acceptance Corp., 188 Wash. 635, 63 P. (2d) 359;Maryland Cas. Co. v. Tacoma, 199 Wash. 384, 92 P. (2d) 203."

            In other words, legislative intent not expressed in some appropriate way has no legal existence.  State ex rel. Gebhardt v. Superior Court, supra.  With this principle firmly in mind, we turn now to your questions.

            Question (1):

            Repeated for ease of reference, your first question (as paraphrased) is as follows:

            "In order to qualify for retirement in a position higher than the rank of captain, in accordance with RCW 41.20.050, as amended by § 36, chapter 209, Laws of 1969, Ex. Sess., is it necessary that the retiree have served in such a position for three consecutive years immediately prior to the date of his retirement?"

            In order to answer in the affirmative, it would be necessary to find that when the legislature provided that ". . . except as to a position higher than that of captain held for at least three calendar years prior to date of retirement, no pension shall exceed the amount equivalent to fifty percent of the salary of captain, . . ." it meant to say ". . . at least three calendar years immediately prior to date of retirement . . ."  However, the word "immediately" does not appear in the amendatory proviso nor is it (or its equivalent) anywhere to be found in the opening clause of the second paragraph of the amendment, which reads as follows:

            "Any person who has served in a position higher than the rank of captain for a minimum of three years may elect to retire at such higher position and receive for his lifetime a pension equal to fifty percent of the amount of the salary  [[Orig. Op. Page 6]] attached to the position held by such retired member for the year preceding his date of retirement: . . ."

            The condition which must be met under this provision is merely that the retiree have served in a position higher than the rank of captain for a minimum of three years at sometime during his period of covered service but with no specification as to when, or that the three years' service must have been consecutive.  If he has so served, and he makes payment of the additional contributions required by the next clause of the amendment (as further discussed in answering your second question), the retiree is entitled to receive a pension equal to fifty percent of the salary attached to the position which he held for the year preceding his retirement meaning, of course, that he must have served in a position higher than the rank of captain for the one year prior to his retirement in order for there to be any advantage to him in making the election.

            However, consistent with the rule that legislative intent not expressed in some appropriate manner has no legal existence, we must conclude that in the absence of any indication in the amendment to the contrary, it is not necessary that the retiree have served in a position higher than the rank of captain for three consecutive years immediately prior to the date of his retirement in order to qualify for retirement in such a position.

            Question (2):

            Your second question has to do with the meaning of the requirement in the amendment that a person making the election authorized thereby

            ". . . pay into the first-class city relief and pension fund, in addition to his normal contributions required by RCW 41.20.130, an amount equal to six percent of that portion of all monthly salaries previously received upon which a sum equal to six percent has not heretofore been deducted?"

            You ask whether there is any limitation as to the time that ". . . monthly salaries [were] previously received . . ." in order for this requirement to operate pointing out that the six percent rate of a member's contribution to the police  [[Orig. Op. Page 7]] retirement fund which is currently required by RCW 41.20.1303/ has only been in effect since June 10, 1959, when § 8, chapter 78, Laws of 1959, became operative.  Previous to that time, the statutory rates of members' contributions to the fund were, during given periods, described by you to have been as follows:

            "(a) 1 1/2% of each police officer's compensation under Ch. 39, Laws of 1909, Sec. 3 (effective March 11, 1909); Ch. 40, Laws of 1915, Sec. 1; Ch. 54, Laws of 1923, Sec. 1.

            "(b) Increased to 2% of each police officer's compensation under Ch. 101, Laws of 1929, Sec. 1, 6.  (effective June 12, 1929); Ch. 30, Laws of 1933, Sec. 1, 3.

            "(c) Increased to 4 1/2% of each police officer's salary, but not to exceed 4 1/2% of the basic monthly salary of an officer holding the rank of captain under Ch. 69, Laws of 1955, Sec. 8 (effective June 8, 1955)."

            However, no time limitation whether in terms of a three year period, a six-year period, a period coincident with the applicability of the current six percent rate, or otherwise is to be found in the language used by the legislature.  Again, to refer to the language employed by the court in Island County v. Calvin Philips & Co., supra, at page 271:

            "' The legislature must be understood to mean what it has plainly expressed, and this excludes construction . . .'"

            and further

            "'. . . the courts have only the simple and obvious duty to enforce the law according to its terms. . . . Even when a court is convinced that the legislature really meant and intended something not  [[Orig. Op. Page 8]] expressed by the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of language which is free from ambiguity.' . . ."

            In giving full effect to the language used by the legislature in this instance, it should be understood that even during those periods when the statutory rate of a member's contribution to the pension fund was less than six percent of total salary, the amount contributed at the then prescribed rate did amount to six percent of something.  For example, during the period between June 12, 1929, and June 8, 1955, when the statutory rate of contribution was two percent of each police officer's compensation,4/ a police officer contributing two percent of a monthly salary of $300 i.e., $6, was, at the same time, contributing an amount equal to six percent of $100.  Therefore, the only portion of his salary for such a month with respect to which ". . . a sum equal to six percent has not been previously deducted and paid into the police relief and pension fund . . ." would be the remainder $200.

            With this in mind, however, we must (for the reasons hereinbefore indicated) answer your second question, as paraphrased, by saying that there is no limitation as to time of receipt with respect to the requirement that a police officer exercising his option to retire in a position higher than the rank of captain make additional contributions to the pension fund, at the time of exercising his option, in an amount equal to six percent of that portion of all monthly salaries previously received upon which a sum equal to six percent has not previously been contributed.5/

             [[Orig. Op. Page 9]]

            This (together with an agreement to continue contributing at the six percent rate) is the "price" which the legislature has said that a police officer must pay in exchange for the receipt by him of the increased pension benefits which are provided for in § 36, chapter 209, Laws of 1969, Ex. Sess.,supra.6/   However, of course, each officer involved has a full opportunity to decide for himself whether to make the election afforded by the statute whether the increased pension to be obtained is worth the price to be paid for the statute is totally permissive and in no way imposes any obligation on any police officer to make any additional payment to his police pension fund.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General