McAllister v. City of Bellevue Firemen's Pension Bd.

180 P.3d 786
CourtCourt of Appeals of Washington
DecidedDecember 17, 2007
Docket57869-3-I
StatusPublished

This text of 180 P.3d 786 (McAllister v. City of Bellevue Firemen's Pension Bd.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McAllister v. City of Bellevue Firemen's Pension Bd., 180 P.3d 786 (Wash. Ct. App. 2007).

Opinion

180 P.3d 786 (2007)
142 Wash.App. 250

David McALLISTER and Ken McAllister, Appellants,
v.
CITY OF BELLEVUE FIREMEN'S PENSION BOARD, Respondent.

No. 57869-3-I.

Court of Appeals of Washington, Division 1.

November 19, 2007.
Publication Ordered December 17, 2007.

Hans Eric Johnson, Bellevue, for Appellants.

Cheryl Ann Zakrzewski, Bellevue, for Respondent.

SCHINDLER, A.C.J.

¶ 1 On March 1, 1970, all firefighters and law enforcement officers became members of the "Law Enforcement Officers' and Fire Fighters' System Pension Plan," chapter 41.26 RCW (LEOFF), to the exclusion of any pension system under a prior act. In recognition of the Washington State Supreme Court decision in Bakenhus v. City of Seattle, 48 Wash.2d 695, 296 P.2d 536 (1956), the *787 LEOFF statute, RCW 41.26.040(2), requires a comparison between the benefits a member would have received under a prior pension plan to determine whether he is entitled to an excess payment to fully compensate for the amount he would have received if LEOFF were not enacted. David McAllister and Ken McAllister challenge the City of Bellevue Firemen's Pension Board (Pension Board) decision to prospectively calculate the benefits they would have received under their prior pension plan, the "Firemen's Relief and Pensions — 1955 Act," chapter 41.18 RCW (1955 Act), using the 1955 Act salary definition instead of the salary definition under LEOFF. Because we conclude the Pension Board did not err, we affirm.

¶ 2 The facts are not in dispute. In January 1965, the City of Bellevue Fire Department hired David McAllister and Ken McAllister. As required by the 1955 Act, the McAllisters and the City each contributed to Firemen's Pension Fund. The 1955 Act required every firefighter to contribute 6 percent of his basic salary to the pension fund. The contribution was capped at the salary of a battalion chief. RCW 41.18.010, defines "basic salary" as:

[T]he basic monthly salary, including longevity pay, attached to the rank held by the retired fireman at the date of his retirement, without regard to extra compensation which such fireman may have received for special duties assignments not acquired through civil service examination: PROVIDED, That such basic salary shall not be deemed to exceed the salary of a battalion chief.

¶ 3 In 1969, the legislature replaced the municipal police and firemen pension plans with LEOFF, a single statewide pension system administered by the Department of Retirement Systems. On March 1, 1970, the McAllisters and all other full time firefighters and law enforcement officers became members of LEOFF, "to the exclusion of any pension system existing under any prior act." RCW 41.26.040(1).

¶ 4 Under LEOFF, the 6 percent contribution rate for firefighters is not capped at the Battalion Chief salary as it was under the 1955 Act. RCW 41.26.030(13) defines "basic salary" as:

[T]he basic monthly rate of salary or wages, including longevity pay but not including overtime earnings or special salary or wages, upon which pension or retirement benefits will be computed and upon which employer contributions and salary deductions will be based.

¶ 5 To make sure that a firefighter or law enforcement officer who made contributions under a previous pension act would suffer no diminution in benefits, RCW 41.26.040(2) provides for an "excess" payment. Under RCW 41.26.040(2), firefighters and law enforcement officers are entitled to an "excess" payment if his pension, as computed under the previous pension act, would have been greater than the pension as computed under LEOFF. If the firefighter is entitled to an excess payment, the City is responsible for payment. RCW 41.26.040.

¶ 6 On February 1, 1975, David McAllister retired from the Bellevue Fire Department on a work-related disability. When David McAllister retired, he was the Chief of the Bellevue Fire Department. On May 6, 1983, Ken McAllister retired from the Bellevue Fire Department on a work-related disability. When Ken McAllister retired, he was the Deputy Chief of the Bellevue Fire Department.

¶ 7 In 1997, the City determined that the excess payments for a number of the retired firefighters, including David and Ken McAllister, were incorrectly calculated. In determining the excess payment for the McAllisters, the City had calculated the benefits they would have received under the 1955 Act by using the Chief and Deputy Fire Chief salary instead of using a battalion chief's salary as required by the 1955 Act. The resulting overpayment to the McAllisters totaled approximately $500,000.

¶ 8 In 2003, the City retained an actuarial firm to conduct an audit of their calculation of the excess payments. As a result of the audit, the City recommended that the Pension Board correctly calculate the excess payments under LEOFF for David and Ken McAllister by using the Battalion Chief salary as required by the 1955 Act.

*788 ¶ 9 On November 26, 2003, the Pension Board voted to correct the error in calculating the McAllister's benefits effective January 1, 2004. The Pension Board concluded the City had miscalculated the McAllisters' pension benefits for determining excess payments by using the definition of "basic salary" from LEOFF instead of the "basic salary" definition from the 1955 Act. The Pension Board decided to correct the error prospectively and to not seek reimbursement from the McAllisters for the overpayments.

¶ 10 The McAllisters appealed the Pension Board's decision to the Hearing Examiner. The Hearing Examiner denied the appeal. The Examiner concluded the Pension Board did not err in deciding to calculate whether the McAllisters were entitled to an excess payment under LEOFF by using the salary of a battalion chief under the 1955 Act. On February 22, 2005, the Pension Board adopted the recommendation of the Hearing Examiner.

¶ 11 On February 24, the McAllisters filed a Writ of Review. The superior court concluded the Firemen's Pension Board did not err and denied the Writ of Review. The McAllisters appeal the order denying the Writ of Review and the decision of the Pension Board.

¶ 12 The McAllisters do not contend that the LEOFF statute is unconstitutional. Instead, the McAllisters argue that because the contributions they made under LEOFF were 6 percent of their actual salary rather than 6 percent of a battalion chief, the Pension Board's decision to calculate the benefits they would have received under the 1955 Act is unlawful. Relying on Bakenhus, 48 Wash.2d 695, 296 P.2d 536, Dailey v. City of Seattle,

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Related

Bakenhus v. City of Seattle
296 P.2d 536 (Washington Supreme Court, 1956)
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Department of Ecology v. Campbell & Gwinn, L.L.C.
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McAllister v. City of Bellevue Firemen's Pension Board
180 P.3d 786 (Court of Appeals of Washington, 2007)
Swoboda v. Town of La Conner
987 P.2d 103 (Court of Appeals of Washington, 1999)

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