PENSIONS ‑- FIREMEN ‑- COVERAGE UNDER CHAPTER 255, LAWS OF 1961

AGO 1961 No. 45 - Jul 5 1961

Attorney General John J. O'Connell

PENSIONS ‑- FIREMEN ‑- COVERAGE UNDER CHAPTER 255, LAWS OF 1961

(1) A fireman who has made contributions under prior act and desires to avail himself of the benefits of chapter 255, Laws of 1961, must manifest his election by filing a written notice with the board within sixty days from June 8, 1961.

(2) Such a fireman must return any refunds previously received by reason of selecting the benefits of prior acts before becoming entitled to the benefits provided by chapter 255, Laws of 1961, but such return of refunds need not be accomplished within sixty days after June 8, 1961.

(3) A fireman who has received prior refunds cannot elect to come under the 1961 act without returning in full the amount of such refunds.

(4) The return of refunds above described is to be made to the appropriate local firemen's pension board and a contract can be made between the fireman and the board for the payment of required refunds over a period of time; but until a complete return of such refunds is accomplished, the fireman in question will not be covered by the new act.

(5) With the exception of those pre‑1947 (i.e., "prior") firemen who affirmatively elected, pursuant to chapter 382, Laws of 1955, to remain under the pre‑1947 pension system, firemen whose employment commenced prior to January 1, 1947, should be treated as being covered by chapter 382, Laws of 1955, and thereby required to contribute to the firemen's pension fund the salary percentages called for by that 1955 act rather than the lesser percentage called for by § 4, chapter 39, Laws of 1935.

(6) A claim for refund of the overcontributions resulting from a mistake of law as to the applicability of chapter 91, Laws of 1947, would come within the three‑year statute of limitations.

(7) Where a pre‑1947 (i.e., "prior") fireman pursuant to § 17, chapter 382, Laws of 1955, has elected to remain a member of the pre‑1947 pension system, his recovery of overcontributions due to a mistake of law is a refund by reason of selection of the benefits of prior acts and consequently, such overcontributions as have been thus recovered are returnable as a condition precedent to coverage under the new 1961 act if an election to be so covered is made.

(8) A fireman whose employment commenced prior to January 1, 1947, is a member of the 1955 pension system in the absence of an affirmative election to the contrary. If an election to come into the 1947 [[Orig. Op. Page 2]]or 1955 system has been made by a particular prior fireman, such fireman cannot now elect to return to the pre‑1947 pension system.

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July 5, 1961

Honorable Mark Litchman, Jr.
State Representative, 45th District
719 Arctic Building
Seattle, Washington

Cite as: AGO 61-62 No. 45

!tp1!tr(As Revised.)
Dear Sir:

By letter previously acknowledged you have directed our attention to chapter 255, Laws of 1961, relating to a relief and pension system for paid firemen of cities, towns and fire protection districts. You have specifically pointed out § 12 of this chapter which reads as follows:

"Any fireman who has made contributions under any prior act may elect to avail himself of the benefits provided by this chapter by filing written notice with the board within sixty days from the effective date of this 1961 amendatory act: PROVIDED, That any fireman who has received refunds by reason of selecting the benefits of prior acts shall return the amount of such refunds as a condition to coverage under this 1961 amendatory act."

With regard to this section you have asked for our opinion on a number of questions which we paraphrase as follows:

(1) Is it necessary for a fireman (who has made contributions under a prior act) desiring "to avail himself of the benefits provided by this chapter" to manifest his election (by filing written notice with the board) "within sixty days from the effective date of this 1961 amendatory act:" i.e., is the time limit prescribed in the above quoted section mandatory?

(2) Is it necessary that such a fireman actually return any refunds received "by reason of selecting the benefits of prior acts" before becoming entitled to "the benefits provided by this chapter" and if so, must such return of refunds also be accomplished within the above noted 60-day time limit?

(3) Is it possible for a fireman who has received prior refunds to elect to come under the 1961 act without returning in full the amount of such refunds?

(4) Assuming that a return of refunds as above described is necessary, (a) to whom is the payment to be made and (b) can a contract be made [[Orig. Op. Page 3]] between the fireman and the board for repayment over a period of time?

In addition you have posed the situation of certain firemen whose employment commenced prior to January 1, 1947, at a time when (pursuant to § 4, chapter 39, Laws of 1935) a fireman's monthly contribution to the municipal firemen's relief and pension fund was not to exceed 4% of the first $250.00 of his monthly salary. You have indicated that since April 1, 1947 (the effective date of chapter 91, Laws of 1947, repealing prior laws relative to municipal firemen's pensions and creating a new pension system) these firemen have been treated by their local firemen's pension board as being covered by this 1947 act, supra, (cf. chapter 41.16 RCW), and thereby have been compelled to contribute to the firemen's pension fund from 5% to 7.92% of their entire monthly salaries pursuant to § 7 of the 1947 act (cf. RCW 41.16.070). With regard to this situation you have asked several further questions, which we paraphrase (and number in continuing sequence) as follows:

(5) Was it proper for these firemen to have been treated by the board as being covered by chapter 91, Laws of 1947, supra, as aforesaid, and thereby to have been compelled to contribute to the firemen's pension fund the salary percentages called for by RCW 41.16.070,supra, rather than the lesser percentage called for by § 4, chapter 39, Laws of 1935?

(6) Assuming a negative answer to the preceding question, what, if any, statute of limitations applies to a claim for refund of such overcontributions?

(7) Referring again to § 12, chapter 255, Laws of 1961, supra, does the term "refunds" appearing therein (which must be returned by a fireman desiring to avail himself of the benefits of the 1961 act) include such overpayments of contributions as may have been made by a fireman and returned to him by his board?

(8) Is it now possible for a fireman whose employment commenced prior to January 1, 1947, to elect to come under the provisions of the 1935 act (chapter 39, Laws of 1935,supra) or is such a fireman now barred by a statute of limitations from making such an election?

We answer your questions in the manner set forth in our analysis.

ANALYSIS

With regard to your first four questions, we believe that the language contained in § 12, chapter 255, Laws of 1961, supra, relative to the procedure to be followed by a fireman desiring to "avail himself of the benefits provided by this chapter" is plain, clear, and unambiguous and thus is not susceptible to the application of rules of statutory construction. In re Eaton's Estate, 170 Wash. 280, 16 P. (2d) 433 (1932). For ease of reference, we again set forth the statute in full, as follows:

[[Orig. Op. Page 4]]

In our opinion this statute makes it clear that as a condition precedent to coverage under "this 1961 amendatory act" i.e., chapter 255, Laws of 1961, a fireman who has made contributions under prior acts must (1) file a written notice of intent with his firemen's pension board within sixty days of the effective date of the act (i.e., within sixty days of June 8, 1961, which, because of the absence of an "emergency clause" in the act, is its effective date pursuant to Article II, § 41, Washington State Constitution) and (2) return any refunds previously received by reason of the benefits of prior acts. The filing of notice within the time limit specified is, we believe, mandatory. However, it does not appear to us that the refund proviso is governed by this time limitation, so that, assuming timely notice is filed, any refunds which are due may be made at any time thereafter, with the qualification that until an actual return of the refunds due has been accomplished, the fireman concerned will not be covered by or entitled to the benefits of "this 1961 amendatory act."

From this it follows that (a) an eligible fireman who does not file a notice of intention with his board within sixty days of June 8, 1961, will thereafter be precluded from electing to come under the provisions of the 1961 act, and (b) an eligible fireman who files a timely notice of election but fails for any reason to actually return any refunds received "by reason of selecting the benefits of prior acts" will not be covered by the 1961 act.

As for the manner of making the required refunds, it would appear first that such refunds as are due should be tendered directly to the appropriate local firemen's pension board. With regard to the matter of a contract between the fireman and the board for the payment of required refunds over a period of time, we can see no legal objection to such a contract, but, in accordance with the views expressed above, though return of such refunds need not be accomplished within the sixty-day time limit for the filing of notice, until a complete and actual return of such refunds is accomplished the fireman in question will not be covered by the new act.

What we have said thus far constitutes, we believe, a full and complete answer to your first four questions relating specifically to the meaning of § 12, chapter 255, Laws of 1961, supra.

[[Orig. Op. Page 5]]

We shall turn next to your remaining questions. By way of repetition for the sake of ease of reference, you have posed the situation of certain firemen whose employment commenced prior to January 1, 1947, at a time when (pursuant to § 4, chapter 39, Laws of 1935) a fireman's monthly contributions to the municipal firemen's relief and pension fund were not to exceed 4% of the first $250 of his monthly salary. You have indicated that since April 1, 1947 (the effective date of chapter 91, Laws of 1947,supra, repealing prior laws relative to municipal firemen's pensions and creating a new pension system) these firemen have been treated by their firemen's pension board as being covered by the 1947 act (cf. chapter 41.16 RCW), and thereby have been held to contribute to the firemen's pension fund from 5% to 7.92% of their entire monthly salaries pursuant to § 7 of that act (cf. RCW 41.16.070). With regard to this situation you have asked several questions, which we have paraphrased as follows:

(6) Assuming a negative answer to the preceding question, what, if any, statute of limitations applies to a claim for refund of such overcontributions?

In 1947, by chapter 91, Laws of 1947 (cf. chapter 41.16 RCW), the legislature established a new and comprehensive relief and pension system for paid municipal firemen (hereinafter referred to as the 1947 pension system). Previously existing laws (chapter 50, Laws of 1909; chapter 196, Laws of 1919; chapter 86, Laws of 1929; and chapter 39, Laws of 1935) relative to this subject were repealed. However, by § 12 of this 1947 act, (cf. RCW 41.16.230), the rights of firemen covered by the prior laws were expressly saved. See,Jolly v. Bremerton, 31 Wn. (2d) 873, 199 P. (2d) 587 (1948).

The precise issue in theJolly case was whether a fireman who was employed by the city of Bremerton from May 22, 1944, until his resignation on February 11, 1948, was entitled to a refund of his contributions [[Orig. Op. Page 6]] to the firemen's pension fund pursuant to so much of § 8 (i), chapter 91, Laws of 1947 (cf. RCW 41.16.150) as reads as follows:

"Any fireman who shall have served for a period of less than twenty (20) years, and shall resign or be dismissed, shall be paid the amount of his contributions, plus accrued compounded interest."

In answering this question, the court noted that while, by § 12, chapter 91, Laws of 1947, (cf. RCW 41.16.230) all prior municipal firemen's pension statutes (i.e., chapter 50, Laws of 1909; chapter 196, Laws of 1919; chapter 86, Laws of 1929; and chapter 39, Laws of 1935) were repealed, this section went on to provide:

". . . That the repeal of said laws shall not affect any 'prior firemen', his widow, child or children, any firemen eligible for retirement but not retired, his widow, child or children, or the rights of any retired fireman, his widow, child or children, to receive payments and benefits from the Firemen's Pension Fund created under this act, in the amount, and in the manner provided by said laws which are hereby repealed and as if said laws had not been repealed."

The court then held that a refund of contributions was not due the plaintiff fireman, reasoning as follows:

"It will be noted that, while Laws of 1947, chapter 91, § 12, repealed the prior firemen's pension law, the repealing clause provides that the repeal of the prior laws shall not affect any 'prior fireman' in the manner of his rights to receive payments and benefits from the firemen's pension fund 'created under this act, in the amount and in the manner provided by said laws which are hereby repealed [and] as if said laws had not been repealed.'

"Manifestly, the effect of the foregoing provision is to keep in effect for 'prior firemen' the old pension law; hence, there are now two complete pension laws for firemen.

"It is patent that the legislature intended to continue the old pension law for firemen who were employed prior to January 1, 1947, and who continued employment thereafter, and to make the new [[Orig. Op. Page 7]] pension law applicable to firemen who commenced work in a fire department on or subsequent to January 1, 1947."

In other words, our court, by this 1948 decision, held that notwithstanding the enactment of chapter 91, Laws of 1947 (cf. chapter 41.16 RCW)supra, those firemen whose employment commenced prior to January 1, 1947, (i.e., "prior firemen" as defined by § 1 (11) of the 1947 act) were to continue to be covered by the old pension law which was in effect at the time of commencement of their employment (hereinafter to be referred to as the pre‑1947 pension system).

Then, in 1955, the legislature, by chapter 382, Laws of 1955 (cf. chapter 41.18 RCW) established a second new municipal firemen's relief and pension system (hereinafter referred to as the 1955 system). By § 1 (2) of this 1955 act, the term "fireman" was defined as follows:

"(2) 'Fireman' means any person hereafter regularly or temporarily, or as a substitute newly employed and paid as a member of a fire department, who has passed a civil service examination for fireman and who is actively employed as a fireman; and any person heretofore regularly or temporarily, or as a substitute, employed and paid as a member of a fire department, and who has contributed under and been covered by the provisions of chapter 91, Laws of 1947 (chapter 41.16 RCW) and who has come under the provisions of this act in accordance with section 16 hereof and who is actively engaged as a fireman or as a member of the fire department."

Further, by § 17 of the 1955 act (cf. RCW 41.18.160), the legislature provided that:

"Every fireman as defined in this act heretofore employed as a member of a fire department, whether or not as a prior fireman as defined in chapter 91, Laws of 1947 (chapter 41.16 RCW), who desires to make the contributions and avail himself of the pension and other benefits of said chapter 91, Laws of 1947 (chapter 41.16 RCW), can do so by handing to and leaving with the firemen's pension board of his municipality a written notice of such intention within sixty days of the effective date of this act, or if he was on disability retirement under chapter 91, Laws of 1947 (chapter 41.16 RCW), at the effective date of this act and has been recalled to active duty by the retirement board, shall give such notice within sixty days of his return to active duty, and not otherwise."

[[Orig. Op. Page 8]]

And finally, the 1955 act contained the following significant provision (§ 16, chapter 382, Laws of 1955):

"The provisions of this act governing contributions, pensions, and benefits shall have exclusive application (1) to firemen as defined in this act hereafter becoming members of a fire department, (2) to firemen as defined in this act heretofore employed in a department who have not otherwise elected as provided for in section 17 hereof, and (3) to firemen on disability retirement under chapter 91, Laws of 1947 (chapter 41.16 RCW), at the effective date of this act, who thereafter shall have been returned to active duty by the retirement board, and who have not otherwise elected as provided for in section 17 hereof within sixty days after return to active duty."

Subsequent to the enactment of this 1955 act, this office issued several rather significant opinions relating to the effect of this legislation, as well as chapter 91, Laws of 1947,supra, upon a pre‑1947 (i.e., "prior") fireman. Copies of these opinions are enclosed herein.

First to be noted is AGO 55-57 No. 153, dated October 28, 1955, to State Auditor Cliff Yelle, in which this office took the position that pursuant toJolly v. Bremerton, supra, a "prior" fireman (in the absence of an election to the contrary pursuant to § 17, chapter 382, Laws of 1955, supra) remained a member of the pre‑1947 pension system in so far as receipt of benefits was concerned. Accord, AGO 53-55 No. 262, issued prior to the 1955 enactment.

Thereafter, in AGO 57-58 No. 81, dated June 12, 1957, to State Auditor Cliff Yelle, we further indicated that in the absence of an affirmative election to the contrary (again pursuant to § 17, chapter 382, Laws of 1955, supra) a "prior" fireman remained a member of the pre‑1947 system with regard to the amount of contributions to be made to the firemen's pension fund. This latter opinion relied largely upon the highly significant case of Bakenhus v. Seattle, 48 Wn. (2d) 695, 296 P. (2d) 536 (1956), in which our court held that, in the absence of consent to the contrary on the part of the public employee concerned, the law governing the pension rightsand obligations of a public employee is that law which is in effect at the time of his commencement of his employment.

In other words, it was our opinion that § 17, chapter 382, Laws of 1955,supra, allowed a pre‑1947 fireman to come into the 1947 pension system by taking the affirmative act of filing a notice in the manner and within the time specified in that section. However, in the absence of such act, the pre‑1947 fireman remained a member of the pre‑1947 pension system rather than becoming a member of the 1955 pension [[Orig. Op. Page 9]] system pursuant to § 16, chapter 382, Laws of 1955 (cf. RCW 41.18.170) supra; this for the reason that, as stated in AGO 55-57 No. 153,supra, the term "fireman" as defined in § 1 (2), chapter 382, Laws of 1955, "is not broad enough to include 'prior fireman.'"

However subsequent to issuance of the foregoing opinions, the several sections of chapter 382, Laws of 1955, above quoted (cf. RCW 41.18.010 (2), RCW 41.18.160 and RCW 41.18.170), were interpreted by our state supreme court inLetterman v. Tacoma, 53 Wn. (2d) 294, 333 P. (2d) 650 (1958), as follows (at p. 297):

". . . The 1955 act is an amendment to the 1947 law. It provided that all firemen who commenced employment prior to the effective date of the 1955 act must file a written election with their respective boards if they desire to retain their pension rights under previous acts. Any fireman active on the effective date of the act had sixty days in which to file his written election; any fireman on disability retirement had sixty days after he returned to active duty within which to file his written election. Any fireman who, within the prescribed period, did not file his written election to retain his rights under previous acts automatically elected to come under the provisions of the 1955 act. The 1955 act became effective on June 8, 1955. . . ." (Emphasis supplied.)

Then, because of confusion which the court found to have existed relative to the nature of the election provided for by the 1955 act, the court extended the time for filing a notice of election until "sixty days after this decision is filed." The court's decision inLetterman v. Tacoma, supra, was filed on December 18, 1958. The decision became final on March 2, 1959, the court on that date denying a petition for rehearing. See,Letterman v. Tacoma, supra, at p. 301.

A statute, when interpreted by the court, speaks according to the judicial interpretation given it. Cecchi v. Bosa, 186 Wash. 205, 57 P. (2d) 1064 (1936). Accordingly, bearing in mind the manner in which chapter 382, Laws of 1955, has been interpreted by our court in Letterman v. Tacoma, supra, we answer your fifth and eighth questions as follows:

(1) With regard to question No. 5, concerning contributions to be made to the firemen's pension fund by pre‑1947 (i.e., "prior") firemen ‑-(a) prior to June 8, 1955, (the effective date of chapter 382, Laws of 1955) such firemen are to be deemed as having remained members of the pre‑1947 pension system, the amount of their contributions being governed by appropriate pre‑1947 pension statutes and not by § 7, chapter 91, Laws of 1947 (cf. RCW 41.16.070,supra); (b) from June 8, 1955, until June 8, 1961, (the effective date of chapter 255, Laws of [[Orig. Op. Page 10]] 1961) such firemen are to be deemed as having elected to be covered by chapter 382, Laws of 1955, in the absence of an affirmative election to the contrary pursuant to Letterman v. Tacoma, supra, interpreting said chapter 382, Laws of 1955, so that the proper amount of their contributions during this period is dependent upon whether they elected (by affirmative act) to "retain" their "rights under previous acts," or (by silence) to "come under the provisions of the 1955 act"; and (c) after June 8, 1961, the status of such firemen (and accordingly, the amount of their contributions to the firemen's pension fund) is to be deemed the same as it was from June 8, 1955, until June 8, 1961, unless they now elect (pursuant to § 12, chapter 255, Laws of 1961,supra) "to avail" themselves of the benefits provided by this chapter [i.e., chapter 382, Laws of 1955, as amended by chapter 255, Laws of 1961].

(2) With regard to question No. 8, by which you asked whether a pre‑1947 fireman may now elect to come under the provisions of the 1935 act (chapter 39, Laws of 1935,supra)‑-(a) those pre‑1947 firemen who elected, within sixty days of March 2, 1959, (the date of denial of the petition for rehearing inLetterman v. Tacoma, supra) to retain their rights under any of the pre‑1947 pension laws are to be deemed as having remained members of the pre‑1947 pension system; (b) those pre‑1947 firemen who did not so elect are to be considered members of the pension system created by chapter 382, Laws of 1955, and (with the lapse of sixty days following denial of the petition for rehearing inLetterman v. Tacoma, supra) are now barred from electing to return to coverage by chapter 39, Laws of 1935, or any other pre‑1947 pension law.

Turning next to your question No. 6 (by which you asked whether, in the event that any pre‑1947 firemen have been compelled to contribute to the firemen's pension system an amount greater than was required by the law correctly applicable to such firemen, a statute of limitations applies to a claim for recovery of such overcontributions)‑- this question was recently answered by this office in AGO 61-62 No. 38 [[to Max Wedekind, State Representative on June 14, 1961]], a copy of which is enclosed. In this opinion we concluded that in the event of an overcontribution to the firemen's pension fund under a mistake of law, the three‑year statute of limitations (RCW 4.16.080) applies to a claim for a refund.

Finally, by your seventh question, you have asked whether such overcontributions as may have been recovered by a pre‑1947 fireman because paid under a mistake of law as to the applicability of chapter 91, Laws of 1947, to such firemen are "refunds by reason of selecting the benefits of prior acts," and thus are returnable to the pension fund as a condition precedent to coverage under the new 1961 act (pursuant to § 12, chapter 255, Laws of 1961, supra).

[[Orig. Op. Page 11]]

This in turn raises the question of whether the recovery of these overcontributions was in any way dependent upon the election or "selection" afforded by § 17, chapter 382, Laws of 1955, supra, as interpreted in Letterman v. Tacoma, supra, (i.e., to remain a member of the pre‑1947 pension system, manifested by the affirmative act of filing a notice of intention in the manner and within the time specified in this pertinent section). In other words, is the right to recovery of overcontributions in such a case dependent upon having elected to remain a member of the pre‑1947 pension system?

Where a "prior" fireman, pursuant to § 17, chapter 382, Laws of 1955,supra, has elected to remain a member of the pre‑1947 pension system, his recovery of overcontributions due to a mistake of law as to the applicability of the 1947 act is, in reality, a "refund by reason of the selection of the benefits of prior acts (i.e., the pre‑1947 pension acts which were expressly preserved for pre‑1947 firemen by § 12, chapter 91, Laws of 1947,supra). Consequently such overcontributions as may thus have been recovered are, in our opinion, returnable as a condition precedent to coverage under the new 1961 act if an election to be so covered is made in the manner set forth in § 12, chapter 255, Laws of 1961,supra.

In further support of this conclusion it is a well-established rule of statutory construction that significance and effect, shall, if possible, be accorded every section, clause, word or part of an act. State ex rel. Washington Water Power Co. v. Murray, 181 Wash. 27, 42 P. (2d) 429 (1935), and cases cited therein; 50 Am.Jur., Statutes, § 358. In reviewing the several firemen's pension statutes which have preceded the instant 1961 act, we have discovered no provision for an election between the coverage of various acts with the exception of that appearing in § 17, chapter 382, Laws of 1955 (cf. RCW 41.18.160), supra. Therefore it follows that unless the proviso contained in § 12, chapter 255, Laws of 1961,supra, is to be rendered meaningless, it must be given the meaning which we have attached to it; namely, that a recovery of overcontributions by a pre‑1947 fireman who has elected to remain a member of the pre‑1947 pension system is a "refund . . . by reason of selecting the benefits" of a prior act, and hence returnable as a condition precedent to coverage under the new 1961 act.

We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General