OFFICERS ‑- RETIREMENT ‑- LEGALITY OF ELECTIVE OFFICIALS DRAWING SALARY AND RETIREMENT BENEFITS ‑- STATE EMPLOYEES ‑- RETIREMENT ‑- LEGALITY OF STATE EMPLOYEES DRAWING SALARY AND RETIREMENT BENEFITS

OFFICERS ‑- RETIREMENT ‑- LEGALITY OF ELECTIVE OFFICIALS DRAWING SALARY AND RETIREMENT BENEFITS ‑-STATE EMPLOYEES ‑- RETIREMENT ‑- LEGALITY OF STATE EMPLOYEES DRAWING SALARY AND RETIREMENT BENEFITS.

Receipt of both salary from public employment and retirement benefits under the State Employees Retirement Act is not legally permissible. either in the case of elective officials or appointive officials.

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                                                                    May 8, 1953

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                                Cite as:  AGO 53-55 No. 35

 Attention:  !ttMr. F. D. Keister,Assistant State Auditor

 Dear Sir:

             We acknowledge receipt of your letter of April 6, 1953, requesting our advice regarding the legality of the practice of elective and appointive state officials who are seventy years of age or over, and retired under the State Employees Retirement Act, receiving both their salary and retirement pensions.

             It is our conclusion that the receipt of both the salary and retirement benefits is not legally permissible either in the case of elective officials or appointive officials.

                                                                      ANALYSIS

             The question is whether or not the legislature intended to authorize payment of a retirement pension to a person who is also drawing a salary from the state.  Both optional and compulsory retirement are provided for by RCW 41.40.180 and the allowances to be paid upon retirement by RCW 41.40.190.  The latter statute commences as follows:

             "Upon retirement from service, as provided for in RCW 41.40.180, a member shall receive a service retirement allowance * * *" (Emphasis supplied)

              [[Orig. Op. Page 2]]

            The word "retirement" is not defined in the act, consequently we assume that it is to be given its ordinary and usual meaning.  It is defined in Webster's New International Dictionary as follows:

             "Act of retiring, or state of being retired, * * * withdrawal from office, active service or the like.  * * *"

             The legal definition is the same.  SeeState v. Love, 145 N.W. 1010; State ex rel. Weber v. Board of Trustees, 101 N.W. 373.

             Retirement pay is adjusted compensation, presently earned, which is payable in the future, provided the employee possesses certain qualifications required by statute, and complies with all the terms and conditions imposed by law.  The employee's right to retirement pay is fixed as of the time he attains eligibility, whether he chooses to retire immediately or to continue in active service.  It is a vested right which cannot be disturbed either by administrative rule or by legislation.  McBride v. Allegheny Co. Retirement Board, 330 Pa. 402, 199 Atl. 130; Central of Georgia Ry. Co. V. Wight, 248 U.S. 525;Fisk v. Jefferson Police Jury, 116 U.S. 131.

             The basic prerequisite to qualification for retirement pay under our statute is "retirement from service."  Until that occurs, no benefits are payable.  While that status continues, the employee cannot be deprived of his vested right to retirement benefits.  The question is whether or not the retired status is a continuing condition which must be maintained at all times in order to meet the conditions of the act.

             The retirement act must be equitably construed in the interests of both the state and the employee.  The purpose sought to be achieved must not be circumvented.

             The purpose of the act is twofold.  First, because of a supposed benefit to the state, the legislature fixed an arbitrary age at which its employees must retire in order to make way for younger men.  Second, in recognition of their long and faithful service, monetary benefits to such retired employees to compensate, in part, for loss of the income they must give up.

             RCW 41.40.150 (4) expressly prohibits a recipient of such allowance who has not reached compulsory retirement age of seventy, from receiving such benefits when he is again employed in an eligible position.  The failure to make the same prohibition applicable to those over seventy evidences no intent to create a special benefit for them.  On the contrary, it indicates that no such employed class was anticipated.

             An employee cannot be considered "retired" where he has qualified for retirement by reason of termination of service to an employer and is then reemployed by the same unit of government.  McBride v. Allegheny Co. Retirement Board, supra.

              [[Orig. Op. Page 3]]

            We are convinced that the legislature intended no different result in this state.  In fact, after this possibility came to the attention of the legislature, it added a new section to the retirement act (section 21, chapter 200, Laws of 1953) expressly prohibiting the employment of a person seventy years of age or over where he might again become a member of the retirement system.  This section is not applicable to those employed prior to April 1, 1953, but it is evidence of the fact that the legislature of this state intended the usual result.

             Our attention is directed to the fact that membership in the system is optional in the case of elective officials and for this reason their status may differ from that of ordinary employees.  But the distinction is merely the procedure by which they come into the system.  Having chosen to be covered by the act, they accept that status with all of the conditions and limitations upon the expected benefits which are applicable to all members.  Upon retirement, they are entitled to the same benefits but no more.  Being again elected to a position which is an eligible one under the act, his retired status is terminated just as effectively as if he were appointed.  We believe that the elective position is no less eligible because of the lack of the mandatory feature.

             You are advised that, in our opinion, a person who is retired under the provisions of the state employees' retirement act and is then reemployed in a position which could qualify him as a member of the system, may not legally draw both his salary and retirement pension.  We believe that the rule applies equally to elective and appointive officials.

 Very truly yours,
DON EASTVOLD
Attorney General

RALPH M. DAVIS
Assistant Attorney General