SCHOOLS ‑- TEACHERS ‑- RETIRED ‑- AFFECT OF EMPLOYMENT IN ANY PUBLIC EDUCATIONAL INSTITUTION ON RETIREMENT ALLOWANCE

SCHOOLS ‑- TEACHERS ‑- RETIRED ‑- AFFECT OF EMPLOYMENT IN ANY PUBLIC EDUCATIONAL INSTITUTION ON RETIREMENT ALLOWANCE.

A member of the Washington teachers' retirement system who retires for service under RCW 41.32.480 and thereafter becomes employed as a teacher in the public schools of the state of Washington or another state remains entitled to receive the annuity portion of his retirement allowance, but the pension portion thereof is suspended during the period of employment; except that service may be rendered up to forty-five days per school year without reduction of the pension.

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                                                                 January 31, 1962

Honorable Clayton Farrington
State Representative, 22nd District
517 East 14th
Olympia, Washington

                                                                                                                Cite as:  AGO 61-62 No. 93

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            Is a member of the Washington state teachers' retirement system, who retires for service under RCW 41.32.480, and thereafter becomes employed as a teacher in the public school system of another state, entitled to receive a retirement allowance while so employed?

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

                                                                     ANALYSIS

            Under RCW 41.32.480, a member of the Washington state teachers' retirement system becomes eligible to retire for service upon attaining the age sixty years, or upon completing thirty years of creditable service at any age.  The retirement allowance payable to a teacher thus retiring for service consists of,

            ". . . anannuity which shall be the actuarial equivalent of his accumulated contributions at his age of retirement and a pension of four dollars per month for each year of creditable service established, not to exceed thirty-five years of creditable service."  (Emphasis supplied.)

             [[Orig. Op. Page 2]]

            On the subject of post-retirement employment, RCW 41.32.570 provides as follows:

            "Any retired teacher who enters service in any public educational institution shall cease to receivepension payments while engaged in such service:  Provided, That service may be rendered up to forty-five days per school year without reduction of pension."  (Emphasis supplied.)

            Also to be noted is RCW 41.32.580, providing that:

            "A retired teacher upon returning to service in the public schools of Washington may elect to again become a member of the retirement system."  (Emphasis supplied.)

            In an opinion dated January 9, 1950 [[Opinion No. 49-51-192]], to the secretary-manager of the teachers' retirement system, a copy of which is herein enclosed, our advice was requested regarding the effect of these two statutory provisions upon the case of a retired teacher returning to service in a Washington public school.  We advised that RCW 41.32.570,supra, operates to suspend only the pension portion of the retirement allowance.  Payment of theannuity portion of the retirement allowance, we further advised, is suspended only where, as provided for in RCW 41.32.580,supra, a retired teacher returns ". . . to service in the public schools of Washington" and elects ". . . to again become a member of the retirement system."

            Obviously RCW 41.32.580, supra, cannot apply to the case of postretirement employment in the public school system of another state.  Consequently, we need only concern ourselves with whether, pursuant to RCW 41.32.570,supra, the pension portion of the retirement allowance is to be suspended in such a case.

            Because the opinion of January 9, 1950, to which we have previously referred, involved a case of post-retirement employment in a Washington public school, the views expressed in that opinion cannot be said to be determinative of the question which you have presented.  Nor has your specific question been answered in any other previous opinion issued by this office.  In other words, the question of whether RCW 41.32.570, supra, applies to post-retirement employment in any public educational institution no matter where located, or merely to post-retirement employment in a public educational institution of the state of Washington, is a question upon which we have not previously formally advised

            Nor, more importantly, has our state supreme court passed upon this question.

             [[Orig. Op. Page 3]]

            However we are advised that the statute here under consideration has consistently been administratively construed (by the administrators of the state teachers' retirement system since the inception of said system in 1947) as suspending pension payments in the case of postretirement employment in any public educational institution regardless of whether or not said public educational institution is located in the state of Washington.  These administrators have looked upon RCW 41.32.570, supra, as being designed to discourage Washington teachers who, by reason of age and/or service are eligible for retirement, from retiring with a full retirement allowance and then proceeding to enter public school teaching service in this state or some other state.

            Since the original enactment of the section of the session laws which RCW 41.32.570,supra, codifies, namely, § 57, chapter 80, Laws of 1947, the statute has been twice amended.  See § 30, chapter 274, Laws of 1955, and § 3, chapter 37, Laws of 1959, each allowing a limited period of post-retirement service without reduction of the retirement allowance (i.e., "up to forty-five days per school year").  However on each occasion the legislature continued to use the broad phrase "any public educational institution," notwithstanding the manner in which this phrase had been administratively construed.

            The existence of such an administrative construction, over a period of years without further amendatory action by the legislature, while not conclusive is at least persuasive that the construction is in accordance with the true intent of the legislature.  State ex rel. Cowles v. Schively, 63 Wash. 103, 114 Pac. 901 (1911); Regan v. School District No. 25, 44 Wash. 523, 87 Pac. 828 (1906).

            If the legislature had intended to limit the applicability of RCW 41.32.570,supra, to cases of post-retirement employment in Washington public educational institutions only, it could easily, either originally or by subsequent amendment in response to the above noted administrative construction, have added the phrase "in Washington" to the phrase "any public educational institution."  Instead, it twice re‑enacted [[reenacted]]the main body of the section and amended the section only by adding thereto provisos allowing a limited amount of postretirement employment.

            Regarding the matter of administrative construction and subsequent legislative re‑enactment [[reenactment)]]of a statute, the United States Supreme Court has gone so far as to say that "any doubt as to the construction of the section should be deemed resolved by the consistent departmental practice existing before its re‑enactment [[reenactment]]."  Cook v. United States, 288 U.S. 102, 77 L.Ed. 641, 53 S.Ct. 305 (1932).

             [[Orig. Op. Page 4]]

            Of course an administrative construction which is plainly erroneous will not be followed even though the statute construed is subsequently re‑enacted [[reenacted]].  New York, New Haven, and Hartford Railroad Co. v. Interstate Commerce Commission, 200 U.S. 361, 50 L.Ed. 515, 26 S.Ct. 272 (1905).  And, even more basically, no rule of statutory construction is applicable to a statute which, by its own terms, is plain, clear, and unambiguous.  State ex rel. Ronald v. Clausen, 114 Wash. 520, 195 Pac. 1018 (1921), and cases cited therein.  In our opinion, however, RCW 41.32.570, supra, is not plainly and clearly limited to cases of post-retirement employment in Washington public educational institutions only.  Nor, by the same token, is the administrative construction which has been placed upon the statute (i.e., that it is applicable to post-retirement employment in any public educational institution either within or without the state of Washington) plainly erroneous.

            Consequently, by way of summary and conclusion, it is our opinion that RCW 41.32.570,supra, operates to suspend payment of the pension portion of the retirement allowance provided for by RCW 41.32.480, supra, in the event a retired teacher ". . . enters service in any public education institution," whether within or without the state of Washington (except for the limited period of service provided for therein).  In other words, until and unless the legislature, by appropriate amendatory legislation, manifests rejection of the construction which has been placed upon the statute by the administrators of the state teachers' retirement system, since the inception of said system in 1947, we are inclined to believe that this administrative construction should be deemed to have been adopted by the legislature.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General