SURVIVORS' BENEFITS

PENSIONS ‑- RETIREMENT ‑- FIREMEN ‑- MANDATORY RETIREMENT ‑- SURVIVORS' BENEFITS

(1) It is not within the authority of either a local board or the state board for volunteer firemen to require all volunteer firemen who are enrolled under the pension provisions of chapter 41.24 RCW to retire upon attaining age 65; the only volunteer firemen required to retire at such age are those who have been members of the pension system and have served for a period of twenty-five years as active members of a regularly organized volunteer fire department.

(2) A volunteer fireman enrolled under the pension provisions of chapter 41.24 RCW prior to July 1, 1973, may not elect to remain under the prior laws, pay the lesser fees required thereby, and claim the lesser benefits thereunder.

(3) When a widow elects to accept a lump sum settlement under RCW 41.24.160, such settlement also closes the case for any minor child or children on whose behalf she had been receiving the additional benefits therein provided for.

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                                                                    June 6, 1975

Honorable Herbert Faubion
Secretary, State Board forVolunteer Firemen
Temple of Justice
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 58

Dear Sir:

            By letters previously acknowledged you have asked for our opinion on the following questions regarding the volunteer firemen's pension system as provided for in chapter 41.24 RCW:

            "1. Is it within the authority of the local board or state board to require all volunteer firemen who are enrolled under the pension provisions of RCW 41.24 to retire on attaining age 65?

            "2. If your answer to question #1 is in the negative, which firemen are required to retire under RCW 41.24.170 on attaining age 65?

            "3. May a volunteer fireman, enrolled under the pension provisions of RCW 41.24 prior to July 1, 1973 elect to remain under the prior Act, pay the fees required by the prior Act, and claim the lesser benefits provided by the Act prior to July 1, 1973?

            "4. When a widow elects to accept a lump sum settlement of her widow's pension under RCW 41.24.160, does such settlement also close the case for any minor child or children on whose behalf she had been receiving the additional benefits provided?

            "5. If your answer to question #4 is in the negative, what benefits, if any, are payable to the minor child or children and to whom are such benefits paid?"

            We answer your first and third questions in the negative and your fourth question in the affirmative, thereby rendering consideration of your fifth question unnecessary; your second question is answered in the manner set forth in our analysis.

             [[Orig. Op. Page 2]]                       ANALYSIS

            Chapter 41.24 RCW codifies the provisions of chapter 261, Laws of 1945, as amended, establishing a pension system for certain firemen (principally, volunteer firemen) in the service of designated municipal fire departments.  The system is administered, at the local level, by a board of trustees established under RCW 41.24.060 for each municipality participating therein.  In addition, a state board for volunteer firemen is provided for by RCW 41.24.290 to administer the system at the state level and to review certain actions taken by the various local boards.

            Questions (1) and (2):

            Your first two questions, which we will consider together, relate to mandatory retirement at age 65.  The primary statute to be considered in answering them is RCW 41.24.170, which first provides as follows:

            "Whenever any fireman has been a member and served honorably for a period of twenty-five years or more as an active member in any capacity, of any regularly organized volunteer fire department of any municipality in this state, and which municipality and fireman are enrolled under the retirement provisions, and the fireman has reached the age of sixty-five years, the board of trustees shall order and direct that he be retired and be paid a monthly pension as provided in this section."

            Similarly, the next paragraph of this statute provides that:

            "Whenever a fireman has been a member, and served honorably for a period of twenty-five years or more as an active member in any capacity, of any regularly organized volunteer fire department of any municipality in this state, and he has reached the age of sixty-five years, and the annual retirement fee has been paid for a period of twenty-five years, the board of trustees shall order and direct that he be retired and such fireman be paid a monthly pension of one hundred dollars from the fund for the balance of his life."

            Likewise, the third paragraph of the statute also speaks of (a) twenty-five years of service and (b) the attainment of age sixty-five, as follows:

             [[Orig. Op. Page 3]] "Whenever any fireman has been a member, and served honorably for a period of twenty-five years or more as an active member in any capacity, of any regularly organized volunteer fire department of any municipality in this state, and the fireman has reached the age of sixty-five years, and the annual retirement fee has been paid for a period of less than twenty-five years, the board of trustees shall order and direct that he be retired and that such fireman shall receive a minimum monthly pension of twenty-five dollars increased by the sum of three dollars each month for each year the annual fee has been paid, but not to exceed the maximum monthly pension herein provided, for the balance of his life."

            Then, finally, RCW 41.24.170 concludes with the following qualifying language:

            "No pension herein provided shall become payable before the sixty-fifth birthday of the fireman, nor for any service less than twenty-five years:  Provided, however, That:

            "(1) Any fireman, upon completion of twenty-five years' service and attainment of age sixty, may irrevocably elect, in lieu of the pension to which he would be entitled hereunder at age sixty-five, to receive for the balance of his life a monthly pension equal to sixty percent of such pension.

            "(2) Any fireman, upon completion of twenty-five years' service and attainment of age sixty-two, may irrevocably elect, in lieu of the pension to which he would be entitled hereunder at age sixty-five, to receive for the balance of his life a monthly pension equal to seventy-five percent of such pension."

            As you will readily see, the essence of this statute is that those volunteer firemen who have been members of the pension system and have served for a period of twenty-five years as active members of a regularly organized volunteer fire department are required to be retired at age sixty-five.  Conversely, a fireman who has not served for a period of twenty-five years is not required by this statute to be retired even though he also has attained sixty-five years of age.

             [[Orig. Op. Page 4]]   The apparent reason for this distinction, which constitutes our answer to your second question, stems from the concluding portion of RCW 41.24.170, supra, which requires the completion of at least twenty-five years of service for the payment ofany pension benefits.  If a fireman were required to be retired at age sixty-five though he had not yet completed twenty-five years of creditable service, the result therefore would be a non-pensioned retirement.

            Your first question asks, nevertheless, whether either the state board for volunteer firemen or a local board of trustees has the authority to require all firemen participating in the pension system to retire upon attaining age sixty-five regardless of the number of years they have served.  Our answer to this question in unequivocally in the negative.

            Both boards have only those powers which have been expressly granted to them by statute, or which arise by necessary implication from a statutory grant.  State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956);Pacific Etc. Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947).  A review of RCW 41.24.080, which sets forth the powers and duties of a local board of trustees, and of RCW 41.24.290, which does likewise with respect to the state board for volunteer firemen, discloses nothing which can be said to grant either board the authority to establish a mandatory retirement requirement for firemen at age sixty-five or, for that matter, at any other age.

            Question (3):

            Your third question makes note of certain amendments to chapter 41.24 RCW which were enacted by chapter 170, Laws of 1973, 1st Ex. Sess.  You ask, in essence, whether a member of the volunteer firemen's relief and pension system can elect not to be covered by those amendments and, instead, continue to be covered by the provisions of chapter 41.24 RCW as existed before the enactment of the 1973 law.

            Again, we must answer in the negative.  There is simply nothing in either the 1973 act or in any other portion of chapter 41.24 RCW which allows such an election.  Additionally, RCW 41.24.175 provides as follows:

            "Payments to persons who are now receiving, or who may hereafter receive any disability or retirement payments under the provisions of chapter 41.24 RCW shall be computed in accordance with the last act enacted by the legislature relative thereto:  Provided however,  [[Orig. Op. Page 5]] That nothing herein contained shall be construed as reducing the amount of any pension to which any fireman shall have been eligible to receive under the provisions of section 1, chapter 103, Laws of 1951."

            Question (4):

            Your next question involves survivors' benefits under RCW 41.24.160 which comes into operation:

            "Whenever a fireman dies as the result of injuries received, or sickness contracted in consequence or as the result of the performance of his or her duties, . . ."

            First, in such a case, the statute provides that:

            ". . . the board of trustees shall order and direct the payment of the sum of one thousand dollars to his widow or her widower, or if there be no widow or widower, then to his or her dependent child or children, or if there be no dependent child or children, then to his or her parents or either of them, . . ."

            Then, in addition to this immediate, $1,000, death benefit the statute goes on to provide for a monthly pension of

            ". . . one hundred dollars per month to his widow or her widower during his or her life together with the additional monthly sums of twenty-five dollars for the youngest or only child and twenty dollars for each additional child of the member, unemancipated or under eighteen years of age, dependent upon the member for support at the time of his or her death, to a maximum total of two hundred dollars per month: . . ."

            However, if there is no widow or widower, or if the widow or widower dies while there are children unemancipated or under eighteen years of age,

            ". . . then the amount of one hundred dollars per month shall be paid for the youngest or only child together with an  [[Orig. Op. Page 6]] additional twenty dollars per month for each additional of such children to a maximum of two hundred dollars per month until they become emancipated or reach the age of eighteen years; . . ."

            Similarly, if there is no widow or widower, child or children entitled to the pension, then there is to be paid to the decedent's parents or either of them:

            ". . . the sum of one hundred dollars per month for life, if it is proved to the satisfaction of the board that the parents, or either of them, were dependent on the deceased for their support at the time of his or her death: . . ."

            Next, the statute provides that:

            ". . . if the widow or widower, child or children, or the parents, or either of them, marry while receiving such pension the person so marrying shall thereafter receive no further pension from the fund."

            Finally, however, RCW 41.24.160 qualifies all of the foregoing provisions relative to monthly pension payments by stating that:

            "In the case provided for herein, the monthly payment provided may be converted in whole or in part, into a lump sum payment, not in any case to exceed eight thousand five hundred dollars, equal or proportionate, as the case may be, to the value of the annuity then remaining, to be fixed and certified by the state insurance commissioner, in which event the monthly payments shall cease in whole or in part accordingly or proportionately.  Such conversion may be made either upon written application to the state board and shall rest in the discretion of the state board; or the state board is authorized to make, and authority is hereby given it to make, on its own motion, lump sum payments, equal or proportionate, as the case may be, to the value of the annuity then remaining in full satisfaction of claims due to dependents.   [[Orig. Op. Page 7]] Within the rule aforesaid the amount and value of the lump sum payment may be agreed upon between the applicant and the state board.  Any person receiving a monthly payment hereunder at the time of the effective date of this act may elect, within two years, to convert such payments into a lump sum payment as herein provided."

            Your question assumes the existence of a widow and minor children at the time of a fireman's death.  It further assumes an election by that widow to accept a lump sum settlement under this last quoted paragraph of the statute.  In such a case, you ask,

            ". . . does such settlement also close the case for any minor child or children on whose behalf she had been receiving the additional benefits provided?"

            From a reading of RCW 41.24.160, supra, in its entirety it will be seen that any child's right to benefits thereunder is in the nature of an inchoate right.  It is dependent upon two factors.  First, the widow of the deceased fireman must elect to receive the monthly payments provided for in the first paragraph of the statute; and secondly, she must die prior to the child's attainment of the age of eighteen years or emancipation.  Therefore, at the time the widow makes this election her child has no vested right to a monthly pension benefit so as to cause the widow's election to affect such an existing right.

            For this reason our answer to your fourth question is in the affirmative.  When a widow elects to accept a lump sum settlement of her widow's pension under RCW 41.24.160,supra, such settlement also closes the case for any minor child or children on whose behalf she has been receiving the additional benefits provided for therein.

            Question (5):

            The foregoing affirmative answer to your fourth question, of course, renders consideration of your fifth and final question unnecessary.

             [[Orig. Op. Page 8]]   We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

WAYNE L. WILLIAMS
Assistant Attorney General