Bobby J. Woolley
4007 Southwest 325th Street
Federal Way, Washington 98023
Dear Mr. Woolley:
Pursuant to RCW 34.05.330(3), I have reviewed your appeal of
the Department of Retirement System's (Department) decision to
deny your petition to initiate rule-making proceedings for
amendment of WAC 415-112-015(3). This subsection defines
"contract period" for Teachers' Retirement System (TRS) Plan 1
members as the period from July 1 to June 30 of the following
year.
I appreciate your observation that the current language in the
rule is now inconsistent with an amendment to the governing
statute that was made in 2003. That amendment allows teachers
working for school districts operating on an extended school
year, rather than fiscal year, to use the extended school year
in defining the applicable earnable compensation. Because the
statute specifically allows use of the extended school year
for calculating earnable compensation, the statutory
definition governs the issue rather than the out-of-date WAC.
I also agree that the Department's denial letter did not fully
explain the reasoning against adoption of your suggested
amendment, as compared to simply asserting that there was a
better way to address your underlying concern. Nonetheless, I
believe the Department considered your proposal carefully and
developed an alternative course of action, due to the
unintended and adverse consequences your suggestion would
create.
Your suggested solution was to amend the WAC definition to
require the Department to accept as the contract period the
actual contract period specified in each TRS member's
employment contract. The Department acknowledged the conflict
between the statute and rule and intends to resolve the
conflict in a rule-making process, but denied further
consideration of your proposed remedy. I also am denying your
appeal of the Department's decision for two reasons:
(1) Creating a definition that is based on each teacher's
contract could pose a significant administrative burden
on the Department, which would have to examine each
individual member's contract, rather than relying on the
statutory distinction between fiscal year and extended
school year on a school district-by-school district
basis. This could be necessary because each school
district could, potentially, "tailor make" contracts for
some teachers. The Department does not have the staff to
perform that review, and it would not be an efficient use
of the pension contributions of members or their
employers.
(2) The current law refers to a fiscal year and an
extended school year. The third option of a tailor-made
contract period by member is not specifically authorized
nor required by the statues governing TRS Plan 1. The
Department does not have the authority to create options
not contemplated by the Legislature. Even if the legal
effect was not to create a third option, it could be
confusing for TRS Plan 1 members, who might think there
was a third option.
Although I am denying your petition to have the Department
initiate a rule-making process to consider your specific
solution, I want to thank you for identifying the problem in
the first place. I am asking the Department, by a copy of
this letter, to pursue as quickly as possible a rule-making
process to remove the conflict by eliminating the definition
of "contract period" in WAC 415-112-015(3) and by relying
solely on the statute. This will get the issue on the table
for public discussion, at which time you can offer your input.
In any event, because the statute specifically allows use of
the extended school year for calculating earnable
compensation, this statutory definition governs the issue
rather than the out-of-date WAC.
While I have denied your petition, I must commend you for your
efforts in making sure that the regulations adopted by the
Department are consistent with the underlying statutes. I
encourage you to participate in the upcoming rule-making
process and to continue to offer suggestions to the Department
for its consideration.
Sincerely,
Gary Locke
Governor