Tucker v. DEPARTMENT OF RETIREMENT SYSTEMS, 31810-5-II.
Decision Date | 24 May 2005 |
Docket Number | No. 31810-5-II.,31810-5-II. |
Citation | 127 Wash. App. 700,113 P.3d 4 |
Court | Washington Court of Appeals |
Parties | Kenneth R. TUCKER, Appellant, v. DEPARTMENT OF RETIREMENT SYSTEMS OF the STATE of Washington, Respondent. |
Wayne L. Williams, Williams Wyckoff & Ostrander PLLC, Olympia, WA, for Appellant.
Anne Hall, Assistant Atty. General, Olympia, WA, for Respondent.
¶ 1 Kenneth Tucker claims that the Department of Retirement Systems (DRS) and the superior court erroneously denied his request to retroactively transfer his retirement benefits from the Law Enforcement Officers and Fire Fighters (LEOFF) Plan 2 to LEOFF Plan 1. He argues that DRS erred in finding that in 1975:(1) he failed to satisfy the medical and health requirements of former chapter 41.26 RCW; and (2) he was not a fire fighter as defined under former RCW 41.26.030 (1974).1 We disagree and affirm.
¶ 2 In 1975, the Pierce County Fire Marshal (Fire Marshal) hired 15 fire fighter helpers under a federal grant through the Comprehensive Employment and Training Act (CETA).2 The Fire Marshal assigned three people, including Tucker, to be fire fighter helpers at Pierce County Fire Protection District No. 6 (Fire District No. 6). The fire fighter helpers were enrolled in the state Public Employees' Retirement System (PERS) as employees of Pierce County.
¶ 3 The Fire Marshal's office did not have fire fighting equipment or respond to fires; rather its focus was fire prevention and inspection programs on behalf of the county. Fire District No. 6 was a fully operational fire department that responded to fires and other appropriate emergencies. Fire District No. 6 was funded through county property taxes. In 1975, Fire District No. 6 employed six paid fire fighters who were assisted by volunteer fire fighters.
¶ 4 The Fire Marshal applied for and received CETA money to employ and train fire fighter helpers. Before assigning these employees, the Fire Marshal contacted the local office of the fire fighters' union, International Association of Fire Fighters (IAFF), the exclusive bargaining agency for fire district employees covered by LEOFF. The Fire Marshall asked the IAFF for permission to place the CETA-funded fire fighter helpers with various fire districts, including Fire District No. 6. The IAFF agreed to the assignment of the fire fighter helpers; however, the fire fighter helpers were not considered eligible for LEOFF membership and were not offered union membership.
¶ 5 The fire fighter helpers all received their checks from Pierce County through the Fire Marshal, who controlled their payroll and personnel management. The Fire Marshal wrote a letter to LEOFF, with a copy to all of the fire districts, emphasizing his office's control of the fire fighter helpers. In addition, the Fire Marshal wrote a letter to Fire District No. 1 that was copied to the LEOFF administrator that stated: "[I]n the event a C.E.T.A. employee is permanently employed by a fire district, it is expected that the fire chief involved will immediately notify LEFF [sic] of the change in employment status." Admin. Record (AR) at 191.3 The fire districts directly supervised the fire fighter helpers in their daily jobs.
¶ 6 As a CETA fire fighter helper, Tucker worked alongside the fire fighters employed by Fire District No. 6, responding to fire calls and staying current with drills. He wore a uniform and was generally treated as a peer by the fire fighters. But Tucker was paid less than the fire fighters and had a less flexible schedule.
¶ 7 In August 1975, Tucker left his CETA fire fighter helper position and became a dispatcher with Pierce County law enforcement. Then, in January 1979, Fire District No. 6 hired Tucker as a "[p]robationary [f]irefighter [sic]" AR at 6. In the probationary position, Tucker enrolled in LEOFF Plan 2 and completed the medical and health requirements for LEOFF members. Two months later, Tucker became a Deputy Sheriff for Pierce County. He remained a LEOFF Plan 2 member in this law enforcement position.
¶ 8 In 1984, Tucker inquired about transferring his LEOFF membership from Plan 2 to Plan 1 based on his work as a CETA fire fighter helper in 1975. DRS responded that he was properly enrolled in LEOFF Plan 2.
¶ 9 In 2001, with counsel, Tucker again sought to retroactively transfer membership to LEOFF Plan 1. After DRS denied Tucker's request, he appealed to the DRS Director. The DRS Final Order concluded that he was ineligible for LEOFF Plan 1 for two independent reasons: (1) In 1975 he did not meet former chapter 41.26 RCW's minimum medical and health standards; and (2) he did not satisfy former RCW 41.26.030(4)'s definition of a fire fighter because he did not have an employment relationship with a fire department in 1975.
¶ 10 Tucker appealed the DRS Final Order to the superior court, which affirmed DRS. He now appeals to this court.
¶ 11 The LEOFF retirement system was created in 1969 as a method of financing a pension plan that provides death, disability, and retirement benefits for law enforcement and fire fighter personnel. RCW 41.26.020,.030(16). The legislature later amended LEOFF by creating LEOFF Plan 2 for persons establishing membership in the retirement system after October 1, 1977. RCW 41.26.030(28), (29). "LEOFF Plan 2 is a less generous retirement system than LEOFF Plan 1." City of Pasco v. Dep't of Ret. Sys., 110 Wash.App. 582, 587 n. 6, 42 P.3d 992 (2002). The legislature has charged DRS with the authority to decide whether a person is eligible for LEOFF membership. City of Pasco, 110 Wash.App. at 587, 42 P.3d 992.
¶ 12 We review a final agency order under RCW 34.05.570(3). The party challenging an agency's action must prove the decision's invalidity; our review is limited to the record before the agency. RCW 34.05.570(1)(a), .558; Port of Seattle v. Pollution Control Hearings Bd., 151 Wash.2d 568, 587, 90 P.3d 659 (2004). We may grant relief to the petitioner based on an agency's erroneous interpretation of the law or if an agency's decision is arbitrary or capricious. Pub. Util. Dist. No. 1 of Pend Oreille County v. Dep't of Ecology, 146 Wash.2d 778, 790, 51 P.3d 744 (2002). If the appellant does not assign error to the agency's findings of fact in the final order, these facts are verities on appeal.4 Tapper v. Employment Sec. Dep't, 122 Wash.2d 397, 407, 858 P.2d 494 (1993).
¶ 13 We review a challenge to an agency's statutory interpretation and legal conclusions de novo under the error of law standard. Bond v. Dep't of Soc. & Health Servs., 111 Wash.App. 566, 571-72, 45 P.3d 1087 (2002). We "give substantial weight to an agency's interpretation of the law it administers"; however, "the agency's interpretation is not binding." City of Pasco,110 Wash.App. at 587,42 P.3d 992; see also Pub. Util. Dist. No. 1 of Pend Oreille County, 146 Wash.2d at 790, 51 P.3d 744 ().
¶ 14 We evaluate a statute's plain language to determine legislative intent. Campbell v. Dep't of Soc. & Health Servs., 150 Wash.2d 881, 894, 83 P.3d 999 (2004). We examine the statute as a whole; our statutory interpretation must not create an absurd result. Pub. Util. Dist. No. 1 of Pend Oreille County, 146 Wash.2d at 791, 51 P.3d 744; Shurtliff v. Dep't of Ret. Sys., 103 Wash.App. 815, 825, 15 P.3d 164 (2000).
¶ 15 Former RCW 41.26.045 (1974)5 requires satisfaction of minimum medical and health standards by fire fighters. In 1975, the period when Tucker was employed as a fire fighter helper, former RCW 41.26.030(4) defined a fire fighter as:
¶ 16 Former RCW 41.26.030(2)(1974)6 defines an employer as "the legislative authority of any city, town, county, or district or the elected officials of any municipal corporation that employs any law enforcement officer and/or fire fighter, any authorized association of such municipalities."
¶ 17 Thus, in 1975, the requirements for LEOFF Plan 1 membership were: (1) a full time and fully compensated fire fighter; (2) employed as a member of a fire department on or after March 1, 1970; and (3) satisfying minimum medical and health standards.7
¶ 18 Washington case law does not discuss RCW 41.26.030(4)'s elements in detail. But Int'l Ass'n. of Fire Fighters Local 3266, AFL-CIO v. Dep't of Ret. Sys., accurately states some of the elements as "a full-time fire fighter and a member of a fire department." 97 Wash.App. 715, 719, 987 P.2d 115 (1999). In discussing the definition of a fire fighter, the court also relied on DRS' promulgated rules defining fire fighters:
(2) Fire fighters. You are a fire fighter if you are employed in a uniformed fire fighter position by an employer on a fulltime, fully compensated basis, and as a consequence of your employment, you have the legal authority and responsibility to direct or perform fire protection activities that are required for and directly concerned with preventing, controlling or extinguishing fires. WAC 415-104-225.
Int'l Ass'n of Fire Fighters, 97 Wash.App. at 719, 987 P.2d 115 (quoting WAC 415-104-225 (1995)).
¶ 19 The parties do not dispute that Tucker had to satisfy all of the statutory elements to be covered by the LEOFF Plan 1. It is also undisputed that Tucker was not required to take a civil service examination, because former RCW 41.26.030(4)(b) incorporates the elements of former RCW 41.26.030(4)(a). Rather, Tucker...
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