December 21st 2024

October 22, 2011

I tried my first LEOFF case in 1973 and, since that time, I have successfully handled more than 3,500 LEOFF-related matters, including many of the Appellate and Supreme Court cases that have shaped our current understanding of the Act. As a result, over the last 38 years, I have aquired what I would consider to be a good understanding of both Plan 1 and Plan 2, and would like to briefly discuss some of my concerns about a potential merger of Plans 1 and 2.

The biggest obstacle to any merger is the dissimilarity of the two plans. In fact, there are few, if any, similarities between the two plans. As you know, LEOFF Plan 1 members enjoy a whole array of benefits which are not presently available to Plan 2 members; not the least of which are the comprehensive healthcare benefits available to Plan 1 members. RCW 41.26.030(19) guarantees Plan 1 members the availability of an extensive variety of medical services. These medical benefits are, quite clearly, contractual in nature, and may not be eliminated or diminished as the result of any merger. In addition, the Act permits local Disability boards through the authority granted to them by RCW 41.26.110 and under the provisions or RCW 41.26.150(1)(b) to make an unlimited assortment of additional medical benefits available to Plan 1 members. A LEOFF Plan 1 member’s right to have his or her local Disability Board continue to designate these additional medical as available to the Plan 1 members under its jurisdiction is similarly contractual in nature and not subject to elimination through merger or any other form of legislation. Bakenhus v. City of Seattle, 48 Wn.2d 695, 296 P.2d 536 (1956).

In the event of a merger of the two Plans, the distinction between Plan 1 and Plan 2 members would have to be maintained, or the expense to the State would be enormous. Since virtually all of the benefits provided for Plan 1 members, including healthcare benefits, are contractual in nature and may neither be eliminated nor diminished, any merger that did away with the distinction between Plan 1 and Plan 2 members would grant present Plan 2 members access to the benefits presently enjoyed solely by Plan 1 members. Since there are many more Plan 2 members than Plan 1 members, this potential expense should be addressed by the OSA in its report concerning the feasibility of any merger.

It is not just healthcare benefits which are so dissimilar between the two plans, but almost every aspect of the two Plans is radically different. Consider, if you will, the disability provisions applicable to Plan 1 members as opposed to those for Plan 2 members.

Since the enactment of Chapter 41.26 RCW, and to the present time, LEOFF I members have had a right to take up to six months of disability leave during periods of incapacity, without respect to whether the disability was the result of a work related incident, or caused by an event entirely unrelated to the member’s work. In the event that the LEOFF Plan 1 member fails to recover from their disability within the six month of allowed disability leave, the member may, in the discretion of the local Disability Board or Prior Act Board, be granted a disability retirement.

Although LEOFF Plan 2 members are allowed to take disability leave, and even disability retirement, it is only for employment related injuries or illness and the benefit itself is very different.

In addition, the standard for what constitutes a disability is quite different for Plan 1 and Plan 2 members. Under the existing caselaw. a Plan 1 member is disabled if he is no longer able to perform all of the duties of his position with at least average efficiency. A Plan 2 member, however, is only disabled if he is no longer capable of any substantial, gainful employment. In other words, the Plan 1 member need only be unable to do his present job with at least average efficiency; while the Plan 2 member must be unable to do any job, anywhere, for anyone. This is a much heavier burden to carry.

There is, however, in my opinion, a contractual right, under Bakenhus, for LEOFF I members to have issues relating their disability or lack thereof decided under the less onerous of the two standards, as they always have been, and by the presently constituted Disability Boards and Prior Act Boards. It seems to me that any merger of the two Plans that failed to retain the distinction between Plan 1 members and Plan 2 members would result in present Plan 2 members acquiring the same disability rights presently enjoyed by Plan 1 members,which would likely result in a significant additional expense to both the State and to employers of the present Plan 2 members.

This brief letter has discussed just two of the areas in which I would forsee a likelihood of serious problems arising in the event of a merger of the two LEOFF Plans. There are certainly many more issues that could be discussed, but these two rather obvious examples should suffice for now.

It is perhaps to obvious to mention, but any form of merger will displease one faction or another, and raise numerous issues that will spark a plethora of litigation that will require years to sort out.

Given the relatively short time frame, I will forward this to you both by first class mail and by email. Let me take this opportunity to thank you, in advance, for taking the time to review this relatively brief analysis. I would ask that it be included in the record and as a attachment to the OSA’s report concerning this matter.

Respectfully Submitted,

J.E. Fischnaller