ELIGIBILITY OF PERSONS OVER 70 FOR EMPLOYMENT, UNDER STATE EMPLOYEES' RETIREMENT ACT.

STATE PERSONNEL --STATE OFFICERS --STATE AUDITOR -- ELIGIBILITY OF PERSONS OVER 70 FOR EMPLOYMENT, UNDER STATE EMPLOYEES' RETIREMENT ACT.

1. Persons over 70 are ineligible for state employment in positions which could qualify them as members of the retirement system.
2. Persons over 70 are not rendered ineligible for elective state office by the retirement act.
3. State Auditor should issue warrants in payment of salary of persons over 70 affected by this opinion to the end of May, 1953.

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                                                                   May 20, 1953

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                                Cite as:  AGO 53-55 No. 49

Attention:  Mr. F. D. Keister

Dear Sir:

            We acknowledge receipt of your letter of April 29, 1953, asking our opinion upon the following questions:

            1. Are persons over seventy years of age ineligible for state employment under the mandatory retirement provisions of the State Employees' Retirement Act?

            2. Are persons over seventy years of age ineligible to hold an elective position in the state government under the provisions of that act?

            3. Is it the duty of the state auditor to withhold payment of the salaries of persons now on the payroll who are over seventy years of age?

             [[Orig. Op. Page 2]]

            Our conclusions may be stated as follows:

            1. Persons over seventy years of age are ineligible for state employment in a position which could qualify them as members of the retirement system.

            2. The mandatory retirement provisions of the State Employees' Retirement Act do not apply to elective officials.

            3. It is not the duty of the state auditor to withhold payment of the salaries of persons over seventy years of age.

                                                                     ANALYSIS

            Compulsory retirement of state employees is required by RCW 41.40.180 (2) as amended by § 10, chapter 200, Laws of 1953, as follows:

            "(2) On and after April 1, 1949, any member who has attained age seventy shall be retired forthwith on the first day of the calendar month next succeeding that in which the said member shall have attained the age of seventy:  Provided, That a member who has attained the age of seventy is possessed of special skill in the performance of particular duties, the retirement board shall continue such member in service for such period or periods as may be applied for by the governing body of the political subdivision where the member is employed or the head of the department, agency, commission, board and offices of the state."

            In addition to the language quoted above, a new section was added by the 1953 legislature (section 21, chapter 200, Laws of 1953) expressly prohibiting the employment of a person seventy years of age or over where he might become a member of the retirement system.  The 1953 act became effective April 1, 1953.  This provision is decisive of the first question with respect to any situation arising after April 1st, but we consider it to be inapplicable to those persons who were employed prior to that date.

            Under the quoted language of § 10 (2), any member must be retired no later than the first day of the month following his seventieth birthday unless he comes within the terms of the exception set forth in the proviso.  "Member" is defined in section 5 as any regularly compensated employee who has served  [[Orig. Op. Page 3]] at least six months without interruption, with certain exceptions.  Section 7 (4) adds to the membership definition a person who, having been previously retired, is again employed in an eligible position.  He is reinstated immediately upon reemployment.  But the section applies only to persons under seventy years of age.

            Construing these sections together, we find that regularly compensated employees (with certain exceptions) must become members of the system.  But previously retired members can only be reinstated if they are under seventy years of age.  The result is that active members must be retired at seventy, and persons over seventy who have been previously retired cannot be reinstated.  The only class left is those who have never been members of the system and are hired for the first time after their seventieth birthday.  The time having already passed when he would have to be retired if he were a "member," it necessarily follows that he would have to be retired simultaneously with his becoming qualified for membership.

            We are requested to consider whether a previously retired employee over seventy years of age may come back on the payroll and, before the six month period has expired, have his membership extended at the request of his employer under the proviso to section 10 (2).  The answer is no.  There is no period of time wherein the employer's application may take effect.  The proviso is applicable only to extend the service of a member.  Until the employee again acquires the status of membership, the application cannot be made.  At the very instant he acquires that status, he must be retired because the latest date for his retirement has already passed.  The proviso to section 10 (2) was never designed to authorize such procedure.

            The answer to your first question is that a person over seventy years of age is ineligible for employment in any position which would qualify him as a member of the retirement system.

            Does the mandatory retirement provision apply to elective officials?  Certain qualifications for the eight elective state offices are set forth in Constitution, Article III, § 25.  There is no maximum age limitation.  There is some doubt whether the constitutional provision was designed to set up the exclusive qualifications for these offices, but our interpretation of the act itself renders unnecessary any decision upon the effect of this provision.

             [[Orig. Op. Page 4]]

            As pointed out above, the mandatory retirement feature applies only tomembers of the system as defined by RCW 41.40.120.  Elective officials and persons appointed directly by the Governor are not required to become members but may do so at their option.  There are also certain ineligible persons, the most important class being those employed in positions requiring normally less than five months of uninterrupted service a year.

            We conclude that the mandatory retirement provision, by its own language, applies only to employees who are members of the retirement system.  This does not include elective officials for they are not required to be members.  If they have previously exercised their option, they could terminate their membership upon reaching their seventieth birthday.  They could not, however, hold both the elective office and membership at the same time.

            Your second question is answered in the negative.

            Finally, we are asked to advise whether or not it is the duty of the state auditor to withhold the salaries of persons over the age of seventy.  RCW 43.09.070 provides that the auditor shall draw warrants upon the treasury for the payment of salaries "ascertained and allowed by law."  RCW 43.09.080 prohibits the issuance of a warrant unless there is a law authorizing it.

            It has been held to be the duty of the auditor to issue warrants for salaries fixed by law even though the salary was not presently payable because of some legal defect.  SeeState ex rel. Helander v. Clausen, 98 Wash. 253;State ex rel. Van Orsdel v. Yelle, (1942) 15 Wn. (2d) 320.  (Lack of appropriation) Also on issuance of non-salary warrants where there are no funds available for payment, see State ex rel. Decker v. Yelle, (1937) 191 Wash. 397; State ex rel. Peel v. Clausen, 94 Wash. 166; State ex rel. Pacific Bridge Co. v. Washington Toll Bridge Authority, (1941) 8 Wn. (2d) 337.

            It seems to be conceded that the salaries here involved are fixed and ascertainable by law.  The question is whether the personal disqualification of the employees imposes a duty upon the auditor to withhold the warrants.  We think it does not.  Under the circumstances of this case, the right of these employees to draw their salaries was dependent upon the legal interpretation of a very complicated statute.  That interpretation is the duty of the Attorney General or the courts of the state.  Until there has been a ruling upon their eligibility, the warrants for the salaries authorized by law should be issued.  The question of the possible liability for repayment of the salaries is also a legal question and the responsibility of the Attorney General.

             [[Orig. Op. Page 5]]

            To prevent the necessity of another request upon the question last mentioned, we will set forth briefly the present views of this office upon that matter.  The rule is that a person who is at least a de facto officer, though the statutory method of employment may not have been followed, is nevertheless entitled to the salary provided by law where he has been tacitly recognized as the official he purports to be.  This is particularly true where no one else claims the office or emoluments.  SeeBoard of County Commissioners of Douglas Co. v. Madam, 5 P. (2d) 866; Bd. of Co. Comm'rs. v. Wharton, 261 Pac. 4.  This proposition is, of course, subject to the limitation that the employment must have been entered into in good faith and steps taken to remedy the defect within a reasonable time after it is called to the attention of the employer.

            It is the opinion of this office that the erroneous employment of those persons over seventy years of age was done in good faith, in view of the conflicting interpretations which had been given the retirement act prior to the issuance of this opinion.  We further believe that the close of the business day of May 31, 1953, is a reasonable time in which to remedy the situation.  Payments after that date will be considered unlawful payments by this office.

            You are advised that we believe it to be the duty of the state auditor to issue warrants in payment of the salaries of those individuals affected by this opinion to the end of the business day on May 31, 1953.

Very truly yours,

DON EASTVOLD
Attorney General

RALPH M. DAVIS
Assistant Attorney General