SCHOOLS - TEACHERS - RETIRED - AUTHORITY TO AUTHORIZE DEDUCTION FROM PENSION TO PAY PREMIUM OF A MEDICAL AID PLAN

SCHOOLS - TEACHERS - RETIRED - AUTHORITY TO AUTHORIZE DEDUCTION FROM PENSION TO PAY PREMIUM OF A MEDICAL AID PLAN.

Retired teachers receiving pensions from the teachers' retirement system may not authorize and have deducted from their pension payments a specified monthly amount required to pay the premium of a medical aid plan.

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                                                                  March 18, 1959

Mr. E. B. Rogel, Secretary-Manager
Teachers' Retirement System
P.O. Box 778
Olympia, Washington                                                                                                       Cite as:  AGO 59-60 No. 24

Dear Sir:

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

            Can retired teachers receiving pensions from the teachers' retirement system authorize and have deducted from their pension payments a specified amount monthly to be paid to a person, firm, corporation or association for medical coverage?

            We answer your question in the negative.

                                                                     ANALYSIS

            The statutory provisions governing the establishment, administration and operation of the teachers' retirement system are set forth in chapter 41.32 of the Revised Code of Washington.  Since the officer or agency vested with the authority to pay pensions may make payments only as provided by law (see 70 C.J.S., Pensions, § 10, p. 433), we must determine whether our legislature has expressly or by necessary implication authorized the deduction from pension payments of an amount required to pay the premium of a medical aid plan.

             [[Orig. Op. Page 2]]

            Although provision is made in chapter 41.32 RCW for the deduction of an amount from the salaries of active teachers for the purpose of payinginto the retirement fund (RCW 41.32.430) there is no statute therein authorizing:

            (1) A deduction from the pension payment of a retired teacher regardless of the purpose for which the deduction is sought to be made;

            (2) The payment of any part of the pension allowance to a third party.

            Furthermore, the legislature has indicated its intent that the payments from the fund shall be paid entirely to the retired teachers.  RCW 41.32.590 provides as follows:

            "The right of a person to a pension, an annuity, a retirement allowance, or disability allowance, to the return of contributions, any optional benefit or death benefit, any other right accrued or accruing to any person under the provision of this chapter andthe moneys in the various funds created by this chapter shall be unassignable."  (Emphasis supplied.)

            We recognize that an argument may be advanced that there is a legal distinction between an "assignment" and a "deduction" and that, therefore, RCW 41.32.590 does not prohibit the proposed deduction for medical coverage.

            We have not been able to find any case directly in point which would be controlling in this instance.  However, inShine v. John Hancock Mutual Life Insurance Co. 76 R.I. 71, 68 A. (2d) 379, 14 A.L.R. (2d) 167, rehearing denied 69 A. (2d) 530, the supreme court of Rhode Island was faced with the problem of whether provisions in a collective bargaining agreement whereby the employer was todeduct union dues from the wages of his employee and pay the same to the union, violated that state'sassignment of wages statute and the weekly wage payment law.  In the course of its opinion the court said:

            "It is clear to us that the provisions for the deduction of dues from the complainant's wages and the payment thereof to the union are in substance and effect partialassignments of future wages. . . ." (Emphasis supplied.)

            We must conclude that, in the absence of express statutory authority, no deductions, even for medical coverage, can be made from the pensions of retired teachers.

             [[Orig. Op. Page 3]]

            We have not overlooked the possible application of RCW 41.04.020 which reads as follows:

            "Anyemployee or group of employees of the state of Washington or any of its political subdivisions, or of any institution supported, in whole or in part, by the state or any of its political subdivisions, may authorize the deduction from his or their salaries or wages the amount or amounts of his or their subscription payments or contributions to any person, firm or corporation furnishing or providing medical, surgical and hospital care or either of them, or life insurance or accident and health disability insurance: Provided That such authorization by said employee or group of employees, shall be first approved by the head of the department, division office or institution of the state or any political subdivision thereof,employing such person or group of persons, and filed with the state auditor; or in the case of political subdivisions of the state of Washington, with the auditor of such political subdivision or the person authorized by law to draw warrants against the funds of said political subdivision."  (Emphasis supplied.)

            The rule is well established that statutory words to be construed must be given their usual and ordinary meaning Miller v. City of Pasco 50 Wn. (2d) 229, 310 P. (2d) 863;Pacific Northwest Alloys, Inc. v. State 49 Wn. (2d) 702, 306 P. (2d) 197.

            The word "employee" is defined by Webster's New International Dictionary as follows:

            "One employed by another; a clerk or a workman in the service of an employer,usual disting. from official or officer or one employed in a position of higher authority."

            In Black's Law Dictionary, "employee" is defined:

            ". . . one who works for an employer; a person working for a salary or wages; applied to anyone so working, but usually only to clerks, workmen, laborers, etc., and but rarely to the higher  [[Orig. Op. Page 4]] officers of a corporation or government or to domestic servants.  (Citations omitted.)

            "Generally, when person for whom services are performed has right to control or direct individual who performs services, not only as to the result to be accomplished by the work but also as to the detail and means by which result is accomplished, individual subject to direction is an 'employee.'  (Citation omitted.)"

            Therefore, by giving the word "employee" its usual and ordinary meaning, we must conclude that, as used in the above statute, it does not include retired school teachers.  See also, AGO 57-58 No. 220 [[to Prosecuting Attorney, Spokane County on September 30, 1958]], a copy of which is attached hereto, wherein the term "employee" is discussed.

            Furthermore, it is another well established rule of statutory construction that statutes are to be construed according to their evident intent and purpose, and the legislative intent must be gleaned from a consideration of the whole act.  SeeState v. Rinkes 49 Wn. (2d) 664, 306 P. (2d) 205; DeGrief v. City of Seattle 50 Wn. (2d) 1, 297 P. (2d) 940.

            Applying this rule to the above statute, and in particular considering the underlined portion thereof, we believe it is clear that retired teachers do not come within the purview thereof.

            We have considered that our court has held a pension granted to public employees is not a gratuity but is deferred compensation for services rendered.  Sonnabend v. Spokane 153 Wash. Dec. 309 [[53 Wn.2d 362]]; Aldrich v. State Employees' Retirement System 49 Wn. (2d) 831, 307 P. (2d) 270; Bakenhus v. Seattle 48 Wn. (2d) 695, 296 P. (2d) 536.  However, we cannot see wherein this rule would have any application to the question herein presented.  It certainly does not alone bring retired teachers within the provisions of RCW 41.04.020, supra.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. DORAN
Assistant Attorney General