OFFICERS ‑- PUBLIC EMPLOYEES ‑- RETIREMENT ‑- EXTENSION OF TIME BEYOND SEVENTIETH BIRTHDAY ‑- EFFECT

OFFICERS ‑-PUBLIC EMPLOYEES ‑- RETIREMENT ‑- EXTENSION OF TIME BEYOND SEVENTIETH BIRTHDAY ‑- EFFECT

1. State employees retirement.  Extension of service of an employee passed 70 years of age is effective beyond April 1, 1953, not withstanding the passage of chapter 200, Laws of 1953.

2. Such extension entitles the employee to continue to be a fully contributing member and qualify for further benefits under the retirement act.

3. Section 21, chapter 200, Laws of 1953 has no effect upon the rights of such employee to continue in service and to continue to be a fully contributing member of the retirement system.

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                                                                   June 24, 1953

Honorable Norman A. Ericson
Prosecuting Attorney
Pend Oreille County
Newport, Washington                                                                                                                Cite as:  AGO 53-55 No. 72

Dear Sir:

            Your request for advice upon certain questions arising out of the provisions of the State Employees Retirement Act was received by this office on June 18, 1953.  The facts are as follows:  Employee X, upon reaching age 70, made application under RCW 41.40.180 (2) to continue in service.  The request was granted by the retirement board March 30, 1953, extending said employment for the remainder of the year.  You request our advice upon the following questions:

            1.         Did approval by the board as indicated above fix the status of the employee, or will a redetermination thereof be necessary in view of the provisions of section 10 (2), chapter 200, Laws of 1953?

             [[Orig. Op. Page 2]]

            2.         Assuming that the status of employee X was fixed by the board's action, is he entitled to continue to be a fully contributing member and thus qualify for further benefits under the act?

            3.         What effect, if any, does section 21, chapter 200, Laws of 1953, have upon the employee's status, both as to his right to continue in service and the right to continue to be a fully contributing member of the retirement system?

            Our conclusions are as follows:

            1. Approval of the extension application by the board fixed the status of employee X.

            2. Such employee is entitled to continue to be a fully contributing member of the retirement system.

            3. Section 21, chapter 200, Laws of 1953, has no effect upon his status.

                                                                     ANALYSIS

            1. Chapter 200, Laws of 1953, became effective April 1, 1953.  Prior to that date RCW 41.40.180 (2) provided for the continuation in service of employees who had reached age 70 upon application by his employer and approval by the retirement board.  The 1953 act has no retroactive effect and the action taken by the retirement board to and including March 30, 1953, fixes the status of all employees so affected.  Even under the 1953 act, employees reaching the age 70 may be extended in service, but the application must be made by thegoverning body of the political subdivision where the member is employed.  In the case of county employees, this would be the board of county commissioners.

            The 1953 act modifies the prior law in that the retirement board no longer exercises any discretion in the extension of service of members possessed of particular skills in the performance of particular duties.  Under the new act, extension of time to those employees is mandatory upon the retirement board in the event the application is made by the governing body of the political subdivision.

            2. Section 10 (2), chapter 200, Laws of 1953, is the so-called compulsory retirement provision of the State Employees Retirement Act.  It is there provided that  [[Orig. Op. Page 3]] members who have attained age 70 shall be retired forthwith on the first day of the calendar month next succeeding that in which he has attained the age of 70, but this language is followed by a proviso setting forth a special exception thereto.  That exception is the one referred to above.  In other words, where a member is possessed of special skill in the performance of particular duties, and his service has been extended beyond his seventieth birthday upon application of the governing body of the political subdivision where he is employed (or in the case of applications processed prior to April 1, 1953, upon application of his employer) the mandatory retirement age has no effect.  It follows then that the employee is entitled to all the benefits set forth in the remainder of the act.  Such employee is therefore entitled to continue as a fully contributing member and to be qualified for increased pension benefits by virtue of his further contributions and extended service.

            3. Section 21, chapter 200, Laws of 1953, is a new section in the retirement act.  In the case presented by you, section 21, having become effective on April 1, 1953, could have no effect whatever.  But in view of the importance of this section, we will set forth very briefly our views upon the effect thereof.

            That section provides as follows:

            "No person age seventy or more shall be employed in a position that would cause the occupant thereof to be eligible to first become a member, except as provided by RCW 41.40.410.  No person age seventy or more shall be employed in a position the occupancy of which would restore him to membership."

            We construe this section to mean that, after April 1, 1953, no person over the age of seventy will be qualified to be originally employed in any position in which he would, (except for the age requirement) become eligible to come under the provisions of the State Employees Retirement Act.  This would include only those individuals who were being employed by the state or its political subdivisions in "eligible positions" for the first time.

            The second sentence of that section refers to a person seventy years of age or more who has, at some prior time, been a member of the retirement system.  Under other provisions of the act. such prior members would be eligible to be reinstated immediately upon reemployment.  Under section 21, persons over 70 years of age are no longer eligible for employment in any position in which they  [[Orig. Op. Page 4]] would (except for age) be eligible to be reinstated as a member of the system.

            Copies of AGO 53-55 Nos. 35 and 49 [[AGO 53-55-49)]]answering other questions involving the construction of the sections referred to herein, are enclosed.

Very truly yours,

DON EASTVOLD
Attorney General

RALPH M. DAVIS
Assistant Attorney General