PENSIONS - FIREMEN - REFUND OF CONTRIBUTIONS

PENSIONS - FIREMEN - REFUND OF CONTRIBUTIONS.

A fireman continuously employed by a city from September 1, 1942 until May 31, 1957, is not entitled to a refund of his contributions to the pension fund for the period from October 1, 1942 to March 11, 1947 irrespective of whether or not he filed a written notice under the provisions of RCW 41.18.160.

                                                                  - - - - - - - - - - - - -

                                                                December 6, 1960

Dr. Ernest H. Campbell
Associate Director
Bureau of Governmental Research and Services
University of Washington
226 J. Allen Smith Hall
Seattle 5, Washington                                                                                          Cite as:  AGO 59-60 No. 164

Dear Sir:

            By letter previously acknowledged, you have requested an opinion of this office on the following question:

            Is a person continuously employed by a city as a fireman from September 1, 1942 until May 31, 1957, but who did not file a written notice under RCW 41.18.160, entitled to a refund of his contributions to the pension fund for the period from October 1, 1942 to March 11, 1947?

            In our opinion such a fireman is not entitled to a refund of such contributions as he may have made to the pension fund prior to March 11, 1947 irrespective of whether or not he has filed a written notice under RCW 41.18.160, for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Prior to 1947, the firemen's relief and pension system was covered exclusively by the provisions of chapter 50, Laws of 1909, as amended by chapter 196, Laws of 1919, chapter 86, Laws of 1929, and  [[Orig. Op. Page 2]] chapter 39, Laws of 1935, which contained no provision for the refund of contributions, other than for a fireman who became permanently disabled not in the performance of duty.  This legislation was further amended by chapter 91, Laws of 1947 (cf. chapter 41.16 RCW) which was approved by the Governor on March 11, 1947 and became effective on April 1, 1947.  In section 8 (i) of this 1947 amendatory legislation (cf. RCW 41.16.150) there appeared the following significant provision:

            "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."

            Thereafter, in 1955, by chapter 382, Laws of 1955 (cf. chapter 41.18 RCW), an additional law covering the subject of firemen's pensions was adopted by the legislature.  Section 11 of this 1955 legislation (cf. RCW 41.18.130) also contained a provision for the refund of contributions, as follows:

            "Any fireman who shall have served for a period of less than twenty years, and shall resign, or be dismissed from the fire department for a reason other than conviction for a felony, shall be paid the amount of his contributions to the fund plus earned interest."

            The 1955 Act, in section 17 thereof (cf. RCW 41.18.160), also contained the following provision:

            "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 fireman'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  [[Orig. Op. Page 3]] 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."

            Rephrasing your question in the light of the above cited statutory provisions, as we understand it you are asking whether, upon resignation after less than twenty years service, a fireman whose employment commenced prior to 1947 and who has not filed a written notice under the last above quoted provision of the 1955 Act is entitled to a refund of such relief and pension fund contributions as he may have made prior to March 11, 1947, by virtue of either section 8 (i) of the 1947 Act or section 11 of the 1955 Act, previously above quoted.

            Considering first the refund provision contained in section 8 (i) of the 1947 Act, your question relating to the significance of this provision with regard to contributions made prior to March 11, 1947 appears to have been fully answered by the Washington supreme court in Jolly v. Bremerton, 31 Wn. (2d) 873, 199 P. (2d) 587 (1948).  In that case the court was asked to determine whether a fireman who was employed from May 22, 1944 until his resignation on February 11, 1948 was, by virtue of section 8 (i) of the 1947 Act, entitled to a refund of his contributions.  In answering this question the court first referred to section 12 of the 1947 Act, which reads as follows:

            "Chapter 50, Laws of 1909; chapter 196, Laws of 1919; chapter 86, Laws of 1929, and chapter 39, Laws of 1935 (secs. 9559-9578, incl., Rem. Rev. Stat.; secs. 396-1 to 396-43, incl., PPC) and all other acts or parts of acts in conflict herewith are hereby repealed; Provided, That the repeal of said laws shall not affect any'prior fireman', his widow, child or children, any fireman 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."  (Emphasis supplied.)

            The court next noted that the term "prior fireman" is defined by section 1 of the 1947 Act to mean:

             [[Orig. Op. Page 4]]

            ". . . a fireman who was actively employed as a fireman of a fire department prior to the first day of January, 1947, and who continues such employment thereafter."

            The court then concluded that a "prior fireman" such as appellant Jolly could not avail himself of the refund provision contained in section 8 (i) of the 1947 Act for the reason that:

            "Manifestly, the effect of . . . [the saving clause contained in section 12 of the 1947 Act (cf. RCW 41.16.230)] 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 pension law applicable to firemen who commenced work in a fire department on or subsequent to January 1, 1947."  (31 Wn. (2d) 876)

            Turning next to a consideration of the refund provision contained in section 11 of the 1955 Act, in relation to whether said provision entitles a fireman whose employment commenced before 1947 to a refund of such pension fund contributions as he may have made prior to March 11, 1947, we must first observe that this problem, unlike the problem previously discussed, has not yet been specifically passed upon by the Washington supreme court.

            You have suggested in your letter requesting the instant opinion that the problem has been passed upon, in apparently conflicting terms, by certain earlier opinions issued by this office.  In this connection you have cited the following:

            (1) AGO 55-57 No. 153, dated October 28, 1955, to the Honorable Cliff Yelle, State Auditor, concluding that "a fireman employed prior to January 1, 1947, who is a member of the pension system established by the Laws of 1909 is not entitled to a refund of his contributions [by virtue of section 11 of the 1955 Act] if he resigns or is dismissed."

             [[Orig. Op. Page 5]]

            (2) A letter dated March 15, 1956, to the Honorable Cliff Yelle, State Auditor, concluding that a fireman employed prior to January 1, 1947, who became a member of the pension system established by the 1947 Act and did not elect to remain thereunder after the establishment of the pension system created by the 1955 Act, "is a member of the 1955 system and eligible for a refund of his contributions as provided thereunder upon resignation from the fire service."

            (3) A letter dated July 16, 1956, to the Honorable A. E. Farrar, State Representative, Twenty-Seventh District, in which the writer stated that in his personal opinion, under section 17 of the 1955 Act, "silence or the failure to indicate a different intention" does not have the effect of automatically transferring a fireman "from the 1947 and prior acts to the 1955 act."

            (4) AGO 57-58 No. 81, dated June 12, 1957, to the Honorable Cliff Yelle, State Auditor, concluding that "the law governing retirement pensions in effect at the time a fireman enters the fire service constitutes the terms of his contract with the city, and in so far as he is concerned, governs the obligations of the city on the one hand, and the fireman on the other."

            In addition, you have directed our attention to an Attorney General's Opinion, dated May 27, 1947, to the Honorable Cliff Yelle, State Auditor (AGO 47-48 P. 40) [[1947-48 OAG 40a]], construing the refund provision contained in section 8 (i) of the 1947 Act and concluding that "the only contributions to be returned under subsection (i) of section 8 of the [1947] Act are those made after April 1, 1947."  This latter opinion of course, was issued prior to the decision of the Washington supreme court in Jolly v. Bremerton, supra, and thus any views expressed therein which conflict with the decision rendered by the court in the Jolly case must be taken to have been foreclosed by the court's decision in said case.

            With regard to the other opinions and letters above listed, we do not find in any of them any conclusive statement upon the precise issue which you have here asked us to resolve.  In examining and analyzing the refund provision contained in section 11 of the 1955 Act, it is immediately apparent that the language of the statute basically raises two separate problems; namely (1) who is a "fireman" within the meaning of the phrase "any fireman who shall have  [[Orig. Op. Page 6]] served for a period of less than twenty years," and (2) what "contributions" are included within the scope of the final clause of the statute, which reads "shall be paid the amount of his contributions to the fund plus earned interest."  The previous opinions of this office regarding the 1955 Act, to which you have referred, appear to have been directed at the first or "who" question rather than the second or "what" question.  In other words, the question which has been previously considered by this office in the opinions to which you have referred is whether, and by what means, may a fireman whose employment commenced prior to 1947 become a member of the pension system established by the 1955 Act and thus entitled to a refund, upon resignation or dismissal after less than twenty years service, of such contributions as are made refundable by section 11 of said 1955 Act.  However, that as we understand it, is not your question.  Your question, by its express terms, goes to particular contributions, i.e., those made to the firemen's pension and relief fund prior to March 11, 1947, rather than to whether the person who made the particular contributions and now seeks to have them refunded to him, is a fireman within the meaning and coverage of the 1955 Act.

            Of course, if the claimant does not come within the scope and coverage of the 1955 Act, he cannot avail himself of the refund provision contained in section 11 thereof.  However, we do not believe that even a claimant who does qualify as a "fireman" as that term is defined and used in the 1955 Act is, by virtue of the aforesaid section 11, entitled, upon resignation or dismissal after less than twenty years service, to a refund of such contributions as he may have made prior to March 11, 1947.  In thus concluding we reason as follows:

            (1) Section 1 (1) of the 1955 Act provides in part that the word "contributions" as used in said act "shall have the meaning set forth in section 1, chapter 91, Laws of 1947 (RCW 41.16.010)."

            (2) The noted section 1, chapter 91, Laws of 1947 (RCW 41.16.010) defines the term "contributions" as meaning and including ". . . all sums deducted from the salary of firemen and paid into the fund as hereinafter provided."  (Emphasis supplied.)

             [[Orig. Op. Page 7]]

            (3) Therefore, the contributions made refundable by the 1955 Act would appear clearly not to include such contributions as may have been made prior to March 11, 1947.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP A. AUSTIN
Assistant Attorney General