FIREMEN ‑- LONGEVITY PAY ‑- CONTRIBUTIONS TO FIREMEN'S PENSION FUND ‑- PENSIONS AND BENEFITS

FIREMEN ‑- LONGEVITY PAY ‑- CONTRIBUTIONS TO FIREMEN'S PENSION FUND ‑- PENSIONS AND BENEFITS.

Under the 1955 paid firemen's pension act (chapter 41.18 RCW) a fireman's longevity pay should be included as a factor in determining the amount of his contributions to the firemen's pension fund, and the disability and pension allowances payable to disabled and retiring firemen without regard to whether or not such longevity pay is attached to a rank.

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                                                                    May 2, 1966

Honorable Daniel G. Marsh
State Representative, 49th District
400 E. 19th Street
Vancouver, Washington

                                                                                                                Cite as:  AGO 65-66 No. 85

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on several related questions involving the interpretation of the 1955 firemen's pension act, chapter 41.18 RCW.  We paraphrase your question as follows:

            Should a fireman's longevity pay be included as a factor in determining the amount of his contributions to the firemen's pension fund, and the disability and pension allowances payable to disabled and retiring firemen under chapter 41.18 RCW, without regard to whether or not such longevity pay is attached to a rank?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            Since your question necessarily involves a construction of statutory provisions, we begin with the fundamental principle that the object of such construction is solely to ascertain the intention of the legislature.  Cory v. Nethery, 19 Wn.2d 326, 142 P.2d 488 (1943).  Of course, legislative intent is to be deduced wherever possible from what the legislature has said in the words of the statute.  Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948).  It is a rule, applicable in this case, that words used by the legislature in the  [[Orig. Op. Page 2]] absence of any contrary apparent intent are to be taken in their usual and ordinary sense.  Featherstone v. Dessert, 173 Wash. 264, 22 P.2d 1050 (1933).  Finally, in construing the meaning of a doubtful statute, it is helpful and legally permissible to resort to the legislative history of the act.  Ayers v. Tacoma, 6 Wn.2d 545, 108 P.2d 348 (1940).

            The chapter we are construing, chapter 41.18 RCW, is sometimes referred to as the paid firemen's pension act of 1955 (chapter 382, Laws of 1955).

            With regard to contributions by participating firemen, RCW 41.18.030 provides as follows:

            "Every fireman to whom this chapter applies shall contribute to the firemen's pension fund a sum equal to six percent of his basic salary which shall be deducted therefrom and placed in the fund."  (Emphasis supplied.)

            RCW 41.18.040, authorizing retirement for service, provides in pertinent part that:

            ". . . Upon his retirement such fireman shall be paid a monthly pension which shall be equal to fifty percent of his basic salary."  (Emphasis supplied.)

            When a fireman is disabled in the line of duty, he may receive for a six months' period ". . . a disability allowance equal to his basic monthly salary. . ." together with certain other benefits.  After such period, if he is unable to return to and perform his duties, ". . . he shall be retired at a monthly sum equal to fifty percent of the amount of hisbasic salary at any time thereafter attached to the rank which he held at the date of his retirement."  (Emphasis supplied.) RCW 41.18.060.

            Similar benefits are provided to firemen disabled other than in the line of duty.  RCW 41.18.080 provides in pertinent part as follows:

            ". . . Upon retirement he shall receive a pension equal to fifty percent of hisbasic salary.  For a period of ninety days following such disability the fireman shall receive  [[Orig. Op. Page 3]] an allowance from the fund equal to hisbasic salary. . . ."  (Emphasis supplied.)

            The key term "basic salary" which the legislature used as a measuring factor for determining both contributions and benefits under the act, was originally defined in § 1 (4), chapter 382, Laws of 1955, as follows:

            "'Basic salary' means the basic monthly salary attached to the rank held by the retired fireman for the year preceding the date of his retirement or disability, as the case may be, without regard to extra compensation which such fireman may have received for special duties or services:  Provided, That such basic salary shall not be deemed to exceed the salary of a Battalion Chief."

            Section 4 of this original act treated longevity as a separate factor in the computation of firemen's benefits.  That section read in pertinent part as follows:

            "Every fireman to whom this act applies, who shall have served twenty-five or more years as a member of the fire department, and having attained the age of fifty-five years, shall be eligible for retirement and shall be retired by the board upon his written request.  Upon his retirement such fireman shall be paid a monthly pension based upon his basic salary, the number of years of his service and a salary percentage factor based upon his age on entering service as follows:

                                    "Entrance age at                        Salary percentage
                                   last birthday                                          factor
                                   "20 and under                                              1.50%
                                   "21                                                                   1.54%
                                   "22                                                                   1.58%
                                   "23                                                                   1.62%
                                   "24                                                                   1.66%
                                   "25                                                                   1.71%
                                    "26                                                                   1.76%
                                   "27                                                                   1.81%
                                    "28                                                                   1.87%
                                   "29                                                                   1.93%
                                   "30 and over                                                 2.00%

             [[Orig. Op. Page 4]]

            "Unless the retired fireman otherwise elects, as hereinafter provided, his regular monthly pension shall be an amount computed by multiplying the monthly basic salary of such fireman by the number of years of his service and by multiplying the result by the applicable salary percentage factor. . . ."

            However, this section was amended in 1961 (by § 3, chapter 255, Laws of 1961)‑-see RCW 41.18.040,supra.  Clearly, this amended version of § 4, chapter 382, Laws of 1955, supra, represents a great simplification of the statute.  Most significantly, the amendment deleted all express reference to longevity as a separate factor in the computation of a retirement allowance.  Section 1 (4), chapter 382, Laws of 1955, supra, was correspondingly amended by § 1, chapter 255, Laws of 1961, toinclude longevity pay.  The amended statute reads as follows:

            "(4) 'Basic salary' means the basic monthly salary, including longevity pay, attached to the rank held by the retired fireman at the date of his retirement, without regard to extra compensation which such fireman may have received for special duties assignments not acquired through civil service examination:  Provided, That such basic salary shall not be deemed to exceed the salary of a battalion chief."  (Emphasis supplied.)

            Therefore, in each section of chapter 41.18 RCW, supra, in which the term "basic salary" is employed, it must now be taken to include the factor of longevity pay.  The difficulty which results in your question springs from so much of the present wording of § 1 (4), chapter 255, Laws of 1961,supra, as reads ". . . basic monthly salary, including longevity pay, attached to the rank held by the retired fireman . . ."

            On first impression, because of the grammatical structure of the clause, this provision would appear to include longevity pay only when longevity pay is in some manner attached to rank.  This, however, was not the intention of the legislature, in our opinion.

            As we pointed out at the outset of this opinion, it is a  [[Orig. Op. Page 5]] fundamental rule of statutory construction that the legislature is presumed to have used words according to their ordinary meaning, unless there is a clear intention to the contrary evidenced in the statute.  Longevity pay is usually defined as extra compensation for longevity in actual service.  See, Black's Law Dictionary, 4th ed.  On the other hand, according to our understanding of terms, the pay attached to rank held by a fireman is properly called "salary," and any other pay which would be automatically attached to rank would logically be considered "salary" as well.

            Therefore, without some very good reason, we would not conclude that the legislature intended to give to the term "longevity pay" some strained or unusual meaning which would make it a significant factor only when somehow connected with a particular rank.  Rather, we think the legislature intended to give the term its ordinary and usual meaning; that of additional compensation based upon years of service, as opposed to salary which is a form of compensation attached to rank.  Accordingly, we construe the phrase ". . . monthly salary, including longevity pay, attached to the rank held by the retired fireman . . ." as simply meaning ". . . the basic monthly salary attached to the rank held by the retired fireman, including longevity pay . . ."  We might add that due to the manner in which the phrase has been set out grammatically in commas, the legislature arguably meant to emphasize that intent, and the actual positioning of the phrase in the sentence was merely for ease of reading.

            The term "basic salary," which is defined in the act to include salary attached to the rank plus longevity pay, is used in several statutes relating to benefits payable under the act. In every instance of course it must be construed with the same meaning.  We should make note of one variance in the language found in RCW 41.18.060, relating to disability allowance for disablement in line of duty.  That statute uses the phrase "basic monthly salary" rather than merely "basic salary."  However, it appears that the legislature meant exactly the same thing by the use of that term, in the absence of anything in the act to indicate otherwise.  The phrase "basic monthly salary" is nowhere defined separately, and it is evident from a comparison of RCW 41.18.060,supra, together with RCW 41.18.080, supra, (payment upon disablement not in line of duty) that to attach a different meaning to the phrase "basic monthly salary" would result in both an absurd and unintended result.

             [[Orig. Op. Page 6]]

            To avoid confusion, we expressly note and affirm our previous opinion, AGO 61-62 No. 82 [[to James Keefe, State Senator on December 7, 1961]], relating to a similar question regarding police pensions under chapter 41.20 RCW.  We concluded in that opinion that where members of the police force of a first class city were paid a basic salary by virtue of the position held, plus an amount based upon longevity, such longevity pay wasnot to be considered in establishing the amount of pensions to be paid upon retirement.  That opinion, however, was based upon a different statute, RCW 41.20.050, which provides in pertinent part as follows:

            ". . .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 no pension shall exceed an amount equivalent to one‑half 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."  (Emphasis supplied.)

            Significantly absent from that statute is the phrase "including longevity pay."  Therefore, the present opinion relating to firemen's pensions under chapter 41.18 RCW is not in any way in conflict with the previous opinion, AGO 61-62 No. 82, supra, which we continue to consider as a correct interpretation of RCW 41.20.050.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General