                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                            March 3, 2020
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 DONALD SLOMA,                                                      No. 53054-6-II

                               Appellant,

        v.

 WASHINGTON STATE DEPARTMENT
 OF RETIREMENT SYSTEMS,                                        PUBLISHED OPINION

                               Respondent.

       WORSWICK, J. — Donald Sloma worked in a Public Employees Retirement System

(PERS)-eligible employment for over 30 years. In 2004, he elected into a program for PERS 1

members with over 30 years of service credit wherein, upon retirement, he would receive a

refund of all employee contributions he made to the Department of Retirement Systems (DRS)

after his election date, and his retirement benefit would be calculated based on only his

compensation earned prior to the election. A few months later, Sloma retired.

       In 2012, Sloma began work for Thurston County, a PERS eligible employer. Sloma

rejoined PERS membership and believed that when he re-retired his retirement benefit would be

recalculated based on his higher Thurston County salary. But when Sloma retired, DRS limited

his retirement benefit to his compensation earned prior to his 2004 election.

       Sloma petitioned DRS to reverse its decision. A presiding officer granted DRS’s motion

for summary judgment, and Sloma sought review by the superior court. The superior court

affirmed. Sloma now appeals the superior court’s order affirming the Department’s final order.
No. 53054-6-II


          Sloma argues that (1) the Department erroneously interpreted RCW 41.40.191 to apply

beyond a member’s first retirement, (2) RCW 41.40.191 unconstitutionally impairs his public

pension contract rights, and (3) equitable and promissory estoppel apply to compel DRS to

calculate his retirement benefits using his higher Thurston County salary. We disagree and

affirm the Department’s final order.

                                               FACTS

          Sloma agrees to the findings of fact contained in the Department’s final order. Therefore,

the findings of fact contained in the final order are verities on appeal.1 Tucker v. Dep’t of Ret.

Sys., 127 Wn. App. 700, 705, 113 P.3d 4 (2005). Accordingly, the following facts are primarily

from the Department’s final order.

                          I. DRS, PERS, PLAN 1, POST 30-YEAR ELECTION

          DRS administers the statewide retirement systems for public employees, including PERS.

PERS comprises three plans—PERS 1, PERS 2, and PERS 3. A PERS member who meets the

statutory conditions for retirement receives a defined retirement benefit that is paid monthly for

life. A PERS 1 member who completes 30 years of creditable service can retire for service with

a full benefit, without regard to his or her age.

          PERS defined retirement benefits are funded in part by contributions to the system from

both the employee-member and the member’s employer. A PERS 1 member must contribute six

percent of his compensation to the system while in PERS-covered employment. An individual

PERS member’s retirement benefit is determined by a statutory formula that takes account of the




1
    Except for finding of fact 10, which we consider a conclusion of law.


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No. 53054-6-II


compensation and service credit the member earned while working for retirement system

employers. One component of the formula is average final compensation (AFC). In PERS 1,

AFC is the annual average of the member’s highest salary during any consecutive two-year

period of PERS service. A PERS 1 retirement benefit is said to be “capped” at 30 years of

service because service beyond 30 years may not be used to increase the member’s benefit above

60 percent of AFC.

       In 1999, the legislature created a new option for members of PERS 1. Those members

who continue working in PERS-covered employment after they attain 30 years of creditable

service can choose to obtain a refund of the PERS contributions they make after that point. DRS

refers to this option as the “post-30-year program.” PERS 1 members wishing to choose this

optional refund of contributions at retirement must notify DRS within six months after they have

earned 30 years of service credit. Beginning the month after a member chooses this option, DRS

must separately account for the member’s employee contributions to PERS and, at retirement,

refund to the member the amount of those contributions, plus interest at the rate of seven and

one-half percent. Upon retirement, the retirement benefit of a member who chooses to enroll in

the post-30-year program “shall be calculated using only the compensation earnable credited

prior to the effective date of the member’s election.” RCW 41.40.191(2). Stated another way,

the statute provides that the member’s AFC calculation does not change after the effective date

of the member’s election into the post-30-year program.

       Following reemployment in an eligible position, a retiree may elect to prospectively

become a member of the retirement system if otherwise eligible. RCW 41.40.023(12). Such a

member may retire again if eligible. RCW 41.40.037(3).



                                                3
No. 53054-6-II


                                    II. SLOMA’S FIRST RETIREMENT

          Sloma became a PERS 1 member in 1973. By the end of September 2003, Sloma had

earned 30 years of service credit in PERS. In January 2004, Sloma began to plan for his

retirement from public service. He reviewed the January 2002 version of the PERS Plan 1

Member Handbook published by DRS, which stated, in response to the question, “Can I obtain a

refund of contributions paid after 30 years of service?”

          If you participate in the [post-30-year] program, your monthly retirement benefits
          will be based on earnings made prior to the date DRS received notice of your
          election to participate. Election to participate is irrevocable and must be made
          within six months after earning 30 service credit years.

Administrative Record (AR) at 4 (alteration in original).

          Sloma submitted his notice of election into the post-30-year program on January 15,

2004. The form stated, “This is an IRREVOCABLE ELECTION. Once you have submitted this

election to DRS, you cannot reverse your decision.” AR at 208. By Sloma’s signature, the form

stated:

          I hereby elect to have my retirement contributions after 30 years of service posted
          to a separate account that is refundable at my retirement. I understand that
          contributions will be posted to the refundable account beginning the month after I
          submit this election form and I have accumulated at least 30 years of service credit.
          Furthermore, I understand that my Average Final Compensation (AFC) will be
          based on earnings prior to DRS receiving this election. (The AFC is used in the
          retirement benefit calculation to determine the amount of your monthly retirement
          benefit.)

AR at 208.

          Sloma retired from the Department of Health effective March 1, 2004, at 54 years of age.

DRS calculated his PERS AFC at $6,492.80 monthly, yielding a gross monthly retirement

benefit of $3,895.68, and began paying his retirement benefit in that amount. DRS refunded to



                                                   4
No. 53054-6-II


him the PERS employee contributions he made after his election into the post-30-year program

became effective, in a lump sum totaling $920.60.

       In 2011, Sloma learned from his personal contacts that Thurston County’s Public Health

and Social Services Department director planned to retire. Sloma considered applying for the

position and how it might affect his PERS retirement benefit. He thought that the director

position might offer him the opportunity to “re-base” his retirement benefit based on the

increased salary of the director position. Sloma applied for the position on January 30, 2012.

       Thurston County offered Sloma the position sometime before April 12, 2012, but Sloma

did not immediately accept. He asked Thurston County personnel staff how his PERS retirement

benefit would be affected if he were to accept the position, and they referred him to DRS for

specific questions.

       Believing that if he accepted employment with Thurston County he could reenter active

PERS membership and retire again from PERS in the future, Sloma accepted the director

position. Thurston County confirmed Sloma’s appointment in a letter to him on April 12, 2012,

and a press release on April 13. Sloma started working for Thurston County on May 1, 2012.

                               III. SLOMA’S SECOND RETIREMENT

       One day after beginning work with Thurston County, Sloma spoke with Katie Sparkles, a

DRS retirement analyst, on the telephone. On May 3, 2012, Sparkles e-mailed Sloma with the

information he wanted “in writing.” Sparkles wrote that her research and consultation with her

team leader and other experienced retirement analysts, had produced answers to two of his

concerns. First, he would have to work a minimum of 24 months in a new PERS-covered




                                                5
No. 53054-6-II


position in order to change the payment (survivor) option for a future retirement benefit.2

Second, “any compensation you earn after returning to membership will be reviewed when

determining your 24-month AFC at time of retirement.” AR at 8.

       Sloma responded with an attempt to further clarify that there was no minimum amount of

time he needed to work in his new job to have his new earnings included in any new AFC.

Sparkles responded,

       [A]fter returning to active membership it doesn’t matter how long you work and
       then re-retire to have the new compensation and service credits counted towards re-
       calculating your new AFC for re-retirement. But if you decide that you want a
       different retirement option when you re-retire you have to work at least 24 months
       before you re-retire.

AR at 9. Within an hour of acknowledging Sparkles’s last e-mail, Sloma e-mailed DRS,

advising that he was employed with a PERS employer in a PERS-eligible position and that he

wanted to start contributing to his PERS 1 retirement again.

       During their 2012 interactions, neither Sloma nor Sparkles considered or discussed the

post-30-year election Sloma made in 2004. Sparkles was not aware that Sloma had made the

election.

       While working for Thurston County, Sloma and his wife were actively looking to

purchase a waterfront home. Around June 2015, they found a property that they could purchase

on favorable terms. After reviewing their finances, including Sloma’s anticipated post-

retirement income, the couple applied for a mortgage to purchase the property. With the



2
 Sparkles explained, “When a member retires they have to choose one of the four retirement
options and this decision is an [i]rrevocable decision. . . . The exception to this [i]rrevocable
decision is, ‘If you go back to work and complete two or more years as a contributing member,
you can retire again and select a new benefit option and/or survivor.’” AR at 153.


                                                 6
No. 53054-6-II


potential major purchase, Sloma sought assurance from DRS that his re-retirement benefit would

be re-based using his County salary. From telephone conversations between Sloma and DRS

during late June or early July 2015, Sloma understood that his Thurston County salary would be

included in the calculation of his new retirement benefit, estimated at $6,110 per month.

       On or about July 9, 2015, Sloma requested a written estimate of his PERS benefit if he

retired from Thurston County in October 2015. DRS staff preparing Sloma’s requested estimate

became aware of his 2004 election into the post-30-year program. The resulting estimate of his

new retirement benefit did not include his Thurston County salary in the AFC factor. Instead,

that factor reverted to the AFC that had been used for his 2004 retirement benefit.

       A DRS Plan Administrator called Sloma to discuss the benefit estimate. Without the

additional monthly benefit, he and his wife felt forced to cancel the purchase of their waterfront

home. The Plan Administrator followed up with his conversation with Sloma by sending him a

letter explaining that Sloma’s enrollment in the post-30-year program limited DRS’s authority to

recalculate Sloma’s AFC to include only earnings prior to Sloma’s election.

       Sloma retired from his position with Thurston County effective October 31, 2015.

                                      IV. REVIEW & APPEAL

       Sloma petitioned for internal review of DRS’s refusal to adjust the calculation of his

PERS retirement benefit with a higher AFC reflecting his salary during his employment with

Thurston County. In a decision issued March 10, 2016, a petitions examiner for DRS concluded

that in calculating Sloma’s 2015 retirement benefit, DRS correctly excluded his Thurston County

salary from his AFC.




                                                 7
No. 53054-6-II


         Sloma filed a notice of appeal with the Department requesting a hearing to pursue his

claim for an adjusted PERS Plan 1 retirement benefit based on an AFC reflecting his higher

earnings from Thurston County. DRS filed a motion for summary judgment. The Presiding

Officer ultimately granted DRS’ motion for summary judgment. The Presiding Officer

concluded,

         Having made an irrevocable election to participate in the PERS plan 1 post-30-year
         program with his first retirement, [Sloma], after re-entering active PERS
         membership in post-retirement PERS-covered employment, and retired again, is
         not entitled to a re-retirement benefit calculated with an AFC component reflecting
         the increased salary earned in his post-retirement employment. In his situation
         equitable estoppel will not sustain his claim for an increased retirement benefit.

AR at 20.

         Sloma filed a petition for judicial review of the final order in superior court. The superior

court affirmed the final order. Sloma now appeals.

                                             ANALYSIS

                                      I. STANDARD OF REVIEW

         We review a final agency order under RCW 34.05.570(3). In reviewing an

administrative action, we sit in the same position as the trial court and apply the Administrative

Procedure Act3 standards directly to the agency’s administrative record. Superior Asphalt &

Concrete Co. v. Dep’t of Labor & Indus., 112 Wn. App. 291, 296, 49 P.3d 135 (2002). We

review summary judgment de novo. Wash. Educ. Ass’n v. Dep’t of Ret. Sys., 181 Wn.2d 233,

241, 332 P.3d 439 (2014). Summary judgment is appropriate only if there is no genuine issue as

to any material fact, and the moving party is entitled to a judgment as a matter of law. CR 56(c).



3
    Ch. 34.05 RCW.


                                                   8
No. 53054-6-II


                                 II. STATUTORY INTERPRETATION

       Sloma argues that RCW 41.40.191 should be interpreted to apply only to a member’s

initial retirement and to have no impact on that member’s subsequent retirement should he return

to PERS membership. We disagree.

       When interpreting a statute, our fundamental objective is to ascertain and give effect to

the legislature’s intent. Lenander v. Dep’t of Ret. Sys., 186 Wn.2d 393, 405, 377 P.3d 199

(2016). Our inquiry begins with the plain meaning of the statute. Lenander, 186 Wn.2d at 405.

“In doing so, we consider the text of the provision in question, the context of the statute in which

the provision is found, related provisions, amendments to the provision, and the statutory scheme

as a whole.” Lenander, 186 Wn.2d at 405. If the meaning of the statute is plain on its face, then

we must give effect to that meaning. Lenander, 186 Wn.2d at 405.

A.     Plain Language Supports the Department’s Final Order

       Sloma contends that we should construe RCW 41.40.191 in his favor. “Courts liberally

construe ambiguous pension legislation to favor beneficiaries.” Hahn v. Dep’t of Ret. Sys., 137

Wn. App. 933, 943-44, 155 P.3d 177 (2007). But if, as here, a statute is unambiguous, its

meaning may be derived from the language of the statute alone. Chancellor v. Dep’t of Ret. Sys.,

103 Wn. App. 336, 342, 12 P.3d 164 (2000).

       RCW 41.40.191 governs the post-30-year program and provides:

       A member may make the irrevocable election under this section no later than six
       months after attaining thirty years of service. The election shall become effective
       at the beginning of the calendar month following department receipt of employee
       notification.
               (1) The sum of member contributions made for periods of service after the
       effective date of the election plus seven and one-half percent interest shall be paid




                                                 9
No. 53054-6-II


       to the member at retirement without a reduction in the member’s monthly
       retirement benefit as determined under RCW 41.40.185.
               (2) Upon retirement, the member’s benefit shall be calculated using only
       the compensation earnable credited prior to the effective date of the member’s
       election. Calculation of the member’s average final compensation shall include
       eligible cash outs of sick and annual leave based on the member’s salary and leave
       accumulations at the time of retirement, except that the amount of a member’s
       average final compensation cannot be higher than if the member had not taken
       advantage of the election offered under this section.

(Emphasis added).

       Sloma argues that RCW 41.40.191 applies only to a member’s first retirement because

the statute is silent about any effect on subsequent retirements. We disagree with his

interpretation.

       The plain language of the statute unambiguously states that an election under RCW

41.40.191 is irrevocable. A PERS 1 member who achieves 30 years of service has one window

of opportunity to elect into the post-30-year program, and if they do so, their retirement benefit

shall be calculated using only the compensation earned prior to the effective date of their

election. RCW 41.40.191. The statute does not limit the effect of the election to a member’s

first retirement. Indeed, the election is not tied to retirement, but becomes available to members

when they achieve a particular service status.

       Interpreting the statute to have no bearing on a future re-retirement would render the

statute’s use of “irrevocable” meaningless as it would allow a member to effectively revoke his

irrevocable election by returning to PERS membership. The plain language of the statute is clear

that the irrevocable election into the post-30-year program applies to any calculation of the

member’s retirement benefit, whether it be his first retirement or a subsequent retirement.




                                                 10
No. 53054-6-II


       Sloma contends that this interpretation of RCW 41.40.191 conflicts with the statutes

governing re-entry into PERS membership and subsequent re-retirement, specifically RCW

41.40.023, RCW 41.40.037(3), and RCW 41.40.010(6)(a). But Sloma fails to identify any such

conflict. Rather, these statutes are complementary, raising no contradictions that require

harmonization.

       RCW 41.40.023 governs eligibility for PERS membership. RCW 41.40.023(12)

specifically addresses PERS retirees and provides, in relevant part, that “following

reemployment in an eligible position, a retiree may elect to prospectively become a member of

the retirement system if otherwise eligible.” RCW 41.40.037(3) governs how membership

benefits are managed in the event a retiree re-establishes membership and provides:

       If the retiree opts to reestablish membership under RCW 41.40.023(12), he or she
       terminates his or her retirement status and becomes a member. Retirement benefits
       shall not accrue during the period of membership and the individual shall make
       contributions and receive membership credit. Such a member shall have the right
       to again retire if eligible in accordance with RCW 41.40.180. However, if the right
       to retire is exercised to become effective before the member has rendered two
       uninterrupted years of service, the retirement formula and survivor options the
       member had at the time of the member’s previous retirement shall be reinstated.

       RCW 41.40.010(6)(a) defines AFC for PERS 1 members to be “the annual average of the

greatest compensation earnable by a member during any consecutive two year period of service

credit months for which service credit is allowed.”

       These statutes govern distinct aspects of PERS 1 retirement, benefit calculation,

reemployment, and re-retirement and do not conflict with RCW 41.40.191, which pertains only

to a member’s opportunity to elect into the post-30-year program and the effects of any such

election. These four statutes apply in harmony to govern the retirement benefits and PERS




                                                11
No. 53054-6-II


membership of a member who achieves 30 years of service, retires, reestablishes membership,

and re-retires.

        For example, because Sloma elected into the post-30-year program, his retirement benefit

was calculated, in part, by using the definition of AFC in RCW 41.40.010(6)(a) and using the

compensation he earned prior to the effective date of the election, as required by RCW

41.40.191. Then, when Sloma returned to a PERS eligible position, RCW 41.40.023 governed

his eligibility for PERS membership. Finally, having chosen to reestablish PERS membership,

Sloma’s subsequent participation in PERS was governed by RCW 41.40.037. Contrary to

Sloma’s contention, these statutes do not conflict.

B.      The Administrative Code Does Not Support Sloma’s Interpretation

        Sloma also contends that the administrative code supports his interpretation of RCW

41.40.191. He contends that WAC 415-108-710(6) requires that his AFC be recalculated at a

higher rate upon re-retirement. But WAC 415-108-710(6)(b) provides simply that “[i]f you

reenter PERS membership and later choose to retire again, DRS will recalculate your retirement

allowance under the applicable statutes and regulations.” (Emphasis added). For a PERS 1

member who elects into the post-30-year program, one of the applicable statutes is RCW

41.40.191.

        Sloma also argues that because no administrative rules or DRS publications address

RCW 41.40.191’s application to re-retirement, the most reasonable interpretation is that the

statute is limited to a first retirement. But we determine the intent of the legislature primarily

from the statutory language. In re Marriage of Schneider, 173 Wn.2d 353, 363, 268 P.3d 215

(2011). And if statutory language is plain on its face, as it is here, we will not reach or consider



                                                 12
No. 53054-6-II


agency interpretation of the statute. See Bostain v. Food Express, Inc., 159 Wn.2d 700, 715-16,

153 P.3d 846 (2007). If anything, the silence of agency rules on RCW 41.40.191’s application

suggests that the legislature’s intent in RCW 41.40.191 is clear on its face.

C.     DRS Advice Is Irrelevant to Our Statutory Interpretation

       Sloma also seems to suggest that Sparkles’s communications with him support his

interpretation of RCW 41.40.191. But, again, we determine the intent of the legislature primarily

from the statutory language. Schneider, 173 Wn.2d at 363. We have “the ultimate authority to

determine the meaning and purpose of a statute.” Lindeman v. Kelso School Dist. No. 458, 162

Wn.2d 196, 201, 172 P.3d 329 (2007). Sparkles’s comments have no bearing on our

determination of the legislative intent behind RCW 41.40.191.4

       Accordingly, we hold that the Department properly interpreted RCW 41.40.191 to apply

to Sloma’s re-retirement.

                             III. CONSTITUTIONAL CONTRACT RIGHTS

       Sloma also argues that applying RCW 41.40.191 to deny him a recalculated AFC is

unconstitutional because it substantially impairs his public pension contract rights. We disagree.

       We review constitutional issues de novo. Lenander, 186 Wn.2d at 403. We presume that

a statute is constitutional and place the burden of showing unconstitutionality on the challenger.

Lenander, 186 Wn.2d at 403.




4
  Sloma also implies that because his re-enrollment form when he rejoined PERS membership had
no area to alert DRS that he had previously elected into the post-30-year program, the election
must be limited to a first retirement. Sloma points to no authority for the premise that an agency
form would govern or even inform our statutory interpretation. Moreover, because the statutory
language of RCW 41.40.191 is plain on its face, our inquiry ends there.


                                                 13
No. 53054-6-II


          Article I, section 23 of the Washington Constitution provides that “[n]o . . . law impairing

the obligations of contracts shall ever be passed.” See also U.S. CONST. art. I, § 10 (“No State

shall . . . pass any . . . law impairing the obligation of contracts.”). We give these provisions of

the federal and state constitutions the same effect in Washington. Wash. Educ. Ass’n, 181 Wn.2d

at 242.

          PERS is a comprehensive system of pension benefits for qualifying state employees.

Wash. Educ. Ass’n v. Dep’t of Ret. Sys., 181 Wn.2d 212, 217, 332 P.3d 428 (2014). “A public

employee’s right to a pension is ‘a vested, contractual right based on a promise made by the State

at the time an employee commences service.’” Bowles v. Dep’t of Ret. Sys., 121 Wn.2d 52, 65,

847 P.2d 440 (1993) (quoting Wash. Fed’n of State Emps. v. State, 98 Wn.2d 677, 683, 658 P.2d

634 (1983)). Although we give some deference to the legislature when a private contract is

impaired, we apply a more stringent review of state action that impairs a public contract. Wash.

Educ. Ass’n, 181 Wn.2d at 242.

          In evaluating the impairment of public contracts, we apply a three-part test. Lenander,

186 Wn.2d at 414. Under this test, we ask: (1) does a contractual relationship exist, (2) does the

legislation substantially impair the contractual relationship, and (3) if there is substantial

impairment, is the impairment reasonable and necessary to serve a legitimate public purpose?

Lenander, 186 Wn.2d at 414. In public pension contract impairment cases, our application of the

three-prong test is guided by the principles set forth in Bakenhus v. City of Seattle, 48 Wn.2d

695, 296 P.2d 536 (1956). There, our Supreme Court held that any modifications to an

employee’s public pension contract terms must be for the sole purpose of ensuring the continued

flexibility and integrity of the pension system, and any modifications that have the effect of



                                                   14
No. 53054-6-II


reducing a pension benefit or have an adverse effect on members must be counterbalanced by a

corresponding increase or additional benefit. Bakenhus, 48 Wn.2d at 701-02.

       Here, Sloma contends that RCW 41.40.191 is unconstitutional because it negatively

modifies his pension rights without offering a corresponding benefit. He claims a vested right to

have his AFC recalculated to include his salary from Thurston County. But RCW 41.40.191

does not remove or impair any benefits from members like Sloma. Rather, it establishes an

option for PERS 1 members to be refunded their employee contributions after 30 years of

service. RCW 41.40.191 does not require members to elect into the program; nor does it prevent

members from reentering PERS membership after retirement. To the extent that RCW

41.40.191(2)’s provision that a member who elects into the post-30-year program shall have his

AFC calculated using only his compensation prior to the election has the effect of reducing what

he otherwise could have received in pension benefits, the refund of the member’s contributions

with interest constitutes a corresponding benefit.

       For some members, electing into the post-30-year program and receiving a refund would

be beneficial, although for others, forgoing a refund of their employee contributions in order to

have their post-30-year salary factor into their AFC at retirement would be more financially

lucrative. During the election period, members must make a rational calculation as to which path

would be best for them.

       Here, it was Sloma’s decision, not RCW 41.40.191 or DRS that deprived Sloma of the

ability to rebase his AFC upon re-retirement. That Sloma’s decision to elect into the post-30-




                                                15
No. 53054-6-II


year program ultimately resulted in a lower retirement benefit than if he had not elected does not

render RCW 41.40.191 unconstitutional.5

                                          IV. ESTOPPEL

       Sloma also argues that “[e]stoppel prevents denying [him] a recalculated AFC.” Br. of

Appellant 41. He intermingles arguments based on equitable estoppel and promissory estoppel,

but the two are different doctrines with different elements and applications. See Klinke v.

Famous Recipe Fried Chicken, Inc., 94 Wn.2d 255, 258-59, 616 P.2d 644 (1980) (“Equitable

estoppel is based upon a representation of existing or past facts, while promissory estoppel

requires the existence of a promise.”). Accordingly, we address the two doctrines separately.

We hold that neither equitable estoppel nor promissory estoppel entitles Sloma to relief.

A.     Equitable Estoppel

       “Equitable estoppel prevents a party from taking a position inconsistent with a previous

one where inequitable consequences would result to a party who has justifiably and in good faith

relied thereon.” Byrd v. Pierce County, 5 Wn. App. 2d 249, 258, 425 P.3d 948 (2018).

       Equitable estoppel against the government is disfavored. Byrd, 5 Wn. App. 2d at 258.

       When equitable estoppel is asserted against the government, the party asserting
       estoppel must establish five elements by clear, cogent, and convincing evidence:
       (1) a statement, admission, or act by the party to be estopped, which is inconsistent
       with its later claims; (2) the asserting party acted in reliance upon the statement or
       action; (3) injury would result to the asserting party if the other party were allowed
       to repudiate its prior statement or action; (4) estoppel is ‘necessary to prevent a
       manifest injustice’; and (5) estoppel will not impair governmental functions.




5
 Sloma dedicates a portion of his brief to arguing that his “pension rights were not waived.” See
Br. of Appellant 38. However, DRS does not contend that Sloma’s pension rights were waived.


                                                16
No. 53054-6-II


Silverstreak, Inc. v. Dep’t of Labor & Indus., 159 Wn.2d 868, 887, 154 P.3d 891 (2007)

(plurality opinion) (quoting Kramarevcky v. Dep’t of Soc. & Health Servs., 122 Wn.2d 738, 743,

863 P.2d 535 (1993)).

       More importantly, equitable estoppel is not available for use as a “sword,” or cause of

action by plaintiffs. Motley-Motley, Inc. v. Pollution Control Hearings Bd., 127 Wn. App. 62,

73, 110 P.3d 812 (2005). Equitable estoppel is properly used as a “shield,” or a defense. Klinke,

94 Wn.2d at 259. Here, Sloma misplaces his reliance on the equitable estoppel doctrine by

attempting to use it as a sword to compel DRS to recalculate his AFC based on the compensation

he earned after he made his irrevocable election under RCW 41.40.191. Because equitable

estoppel cannot be the basis for a cause of action, Sloma cannot invoke it here.

B.     Promissory Estoppel

       Promissory estoppel requires (1) a promise (2) where the promisor reasonably expected

to cause the promisee to change his position, (3) which in fact did cause the promisee to change

his position (4) by justifiably relying on the promise in such a manner (5) that injustice can be

avoided only by enforcement of the promise. Jones v. Best, 134 Wn.2d 232, 239, 950 P.2d 1

(1998). “Promissory estoppel requires the existence of a promise” that is “clear and definite.”

Havens v. C & D Plastics, Inc., 124 Wn.2d 158, 172-73, 876 P.2d 435 (1994). Washington

courts have adopted the Restatement’s definition of “promise”: “A promise is a manifestation of

intention to act or refrain from acting in a specified way, so made as to justify a promisee in

understanding that a commitment has been made.” RESTATEMENT (SECOND) OF CONTRACTS §

2(1) (1981); Wash. Educ. Ass’n, 181 Wn.2d at 225.




                                                 17
No. 53054-6-II


       Here, Sloma’s promissory estoppel claim fails on the first element because Sparkles’s

correspondence with Sloma did not make a clear and definite promise. Sparkles told Sloma “any

compensation you earn after returning to membership will be reviewed when determining your

24-month AFC at time of re-retirement.” AR at 153. Sloma responded to clarify that there was

no minimum number of months he would need to work in order for his new salary to be

considered in his AFC calculations upon re-retirement. Sparkles responded that “after returning

to active membership it doesn’t matter how long you work and then re-retire to have the new

compensation and service credits counted towards recalculating your new AFC for re-

retirement.” AR at 152.

       Sparkles’s statements did not constitute a “manifestation of intention to act . . . in a

specified way,” as required to form a promise. RESTATEMENT (SECOND) OF CONTRACTS § 2(1).

Rather, her comments were general information and guidance as to how later compensation is

considered at re-retirement. Sparkles said that Sloma’s new compensation would be “reviewed”

upon re-retirement but did not promise that the new compensation would necessarily result in a

new AFC.

       Sloma’s claim also fails because he cannot show that he changed his position in reliance

on Sparkles’s comments. The e-mails Sloma relies on occurred on May 4 and 8. But Sloma’s

appointment to the Thurston County position was confirmed on April 12, and his first day of

work was May 1. Although Sloma may have subjectively believed he would be able to rebase




                                                 18
No. 53054-6-II


his AFC upon re-retirement, the record does not support his claim that his decision to accept the

Thurston County position turned on DRS’s communications with him.6

       Accordingly, we hold that neither equitable estoppel nor promissory estoppel entitle

Sloma to the relief he seeks.

                                       V. ATTORNEY FEES

       Sloma seeks an award of statutory attorney fees and costs under RAP 18.1 and RCW

4.84.010. RCW 4.84.010(6) permits statutory attorney fees to the prevailing party upon

judgment. Because we affirm, Sloma is not the prevailing party and, therefore, not entitled to

statutory attorney fees and costs.

                                        VI. CONCLUSION

       In conclusion, we hold that (1) under the plain language of RCW 41.40.191, Sloma’s re-

retirement benefit was properly calculated using only the compensation he earned prior to the

effective date of his irrevocable election; (2) RCW 41.40.191 did not unconstitutionally impair

Sloma’s pension rights; (3) equitable estoppel is not available to Sloma as a means to compel

DRS to re-calculate his retirement benefit based on his Thurston County salary; (4) Sloma fails

to prove the existence of a promise or reliance for the purposes of promissory estoppel; and (5)




6
  Although Sloma mentions that he attempted to purchase a house because he relied on the State’s
representations, he does not specifically argue that this purchase and sale agreement was a change
in position for purposes of promissory estoppel.




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No. 53054-6-II


Sloma is not entitled to attorney fees.7 Accordingly, we affirm the decision of the superior court

affirming the Department’s final order.




                                                                     Worswick, J.
    We concur:



    Lee, A.C.J.




    Cruser, J.




7
  Sloma noted two additional assignments of error—that the DRS order was not supported by
substantial evidence and that the DRS order was arbitrary and capricious. But Sloma does not
support his assignments of error with argument or authority; thus, they are waived. State v.
Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).


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