Letter Opinion 1970 No. 043

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                                                                  March 25, 1970
 
 
 
Honorable R. Ted Bottiger
State Representative, 29th District
8849 Pacific Avenue
Tacoma, Washington 98444
                                                                                                               Cite as:  AGLO 1970 No. 43
 
 
Dear Sir:
 
            This is written in response to your recent request for our opinion as to the retroactive applicability of the annual two percent pension increases for certain law enforcement officers, fire fighters, and their survivors which were provided for by the 1970 legislature through its enactment of chapter 37, Laws of 1970 (Senate Bill No. 145).
 
                                                                     ANALYSIS
 
            The act in question contained three amendatory sections ‑ pertaining, respectively, to the provisions of §§ 33, 34 and 38 of chapter 209, Laws of 1969, Ex. Sess.1/   However, the essence of each of these three amendatory sections was the same ‑ and can be illustrated by referring to the first of them, § 1 (amending § 33 of the 1969 act) alone.  This section reads as follows:
 
            "The amount of all benefits payable under the provisions of RCW 41.18.040, 41.18.080 and 41.18.100 as now or hereafter amended, shall be increased annually as hereafter in this section provided.  The present benefits payable under RCW 41.18.040, 41.18.080 and 41.18.100 on July 1, 1969 shall be increased two percent each year using as a basis for such two percent increase, the amount of the present benefit payable and not the amount of the future benefit payable which will hereafter be increased by the provisions of this section.
 
            "((Said increases shall become effective July 1, 1969 or one year after the date when the said benefits are payable, whichever is later.)) As to each person receiving such benefits on  [[Orig. Op. Page 2]] or after July 1, 1969, said increases shall take effect as of July 1st, of the first year when such benefits have heretofore or shall hereafter become payable.  Each year effective with the July payment all benefits specified herein, shall be increased two percent as authorized by this section.  This benefit increase shall be paid monthly as part of the regular pension payment and shall be cumulative but shall not be compounded.  The increased benefits authorized by this section shall not affect any benefit payable under the provisions of chapter 41.18 RCW in which the benefit payment is attached to a current salary of the rank held at time of retirement."
 
            The basic question which you have posed involves an interpretation of the legislative intent expressed in the sentence, above underscored, which reads:
 
            ". . .  As to each person receiving such benefits on or after July 1, 1969, said increases shall take effect as of July 1st, of the first year when such benefits have heretofore or shall hereafter become payable.  . . ."
 
            This provision was drafted in this office, at the request of the public pension commission, for the avowed purpose of making the annual two percent pension increases which had been provided for by the provisions of the 1969 act retroactive to the first year that the benefits to which the two percent increases were to be added had become payable.  Accordingly, we may unofficially state it to be our opinion that this is what was intended and accomplished by the 1970 legislature through its enactment of the act in question.
 
            However, from an official standpoint, reasons of long-standing office policy preclude us from providing you with an attorney general's opinion on your question.  We are advised that the office of the Tacoma city attorney has just issued its opinion2/ expressing a diametrically contrary view with respect to the matter of retroactive applicability of the pension increases which are provided for by the 1969 and 1970 acts.  In addition to expressing this opinion, the Tacoma city attorney has emphatically indicated that he will not recede from his view of the matter except on the basis of a judicial determination to the contrary.  In response to this  [[Orig. Op. Page 3]] expression of opinion and position, we are advised that a test case of the matter is currently being considered.
 
            The office policy which, in view of the foregoing, renders it inappropriate for us to express an official attorney general's opinion on the question presented at this time was most recently expressed in our letter dated October 2, 1969, to the chairman of the state board of medical examiners, copy enclosed, in which we said:
 
            ". . .  It has long been the policy of the attorney general not to pass upon questions which are in litigation before the courts.  In addition, we have ordinarily declined to issue an opinion on a question where litigation is imminent, in the absence of some reasonable likelihood that our opinion will preclude the litigation and settle the matter."
 
            When a test case of the question is initiated, we would believe it appropriate for us to give every consideration as to the possibility of filing an amicus curiae brief ‑ either on our own behalf or on behalf of the public pension commission.  In the meantime, however, we trust that the foregoing will be of some assistance to you at this time, and that you will understand the reasons which underlie our present inability to provide you with an official opinion on the question presented.

 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/See, AGO 1969 No. 22 [[to R. Ted Bottiger, State Representative on November 25, 1969]], copy enclosed, with respect to the scope of the first of these three sections of the 1969 act.
 
2/See, City of Tacoma Interdepartmental Communication dated March 18, 1970, copy enclosed.