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AGO 1970 No. 16 - June 29, 1970
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Slade Gorton | 1969-1980 | Attorney General of Washington

PENSIONS - LAW ENFORCEMENT OFFICERS AND FIREFIGHTERS - COSTS OF OPERATION OF COUNTY DISABILITY BOARD - MEDICAL COVERAGE - COUNTY CURRENT EXPENSE FUND

(1) The costs of operation of a county disability board established pursuant to RCW 41.26.110 (2), including the costs of medical examinations of applicants for disability retirement allowances under RCW 41.26.120 (1), are to be paid out of the county current expense fund.

(2) A board of county commissioners may authorize the expenditure of monies in its current expense fund to meet the costs of operation of a county disability board during the current fiscal year on the basis of the procedures set forth in RCW 36.40.180 relating to nondebatable emergencies.

(3) A county disability board is not authorized or required under RCW 41.26.150 (1) to determine what medical insurance coverage should be provided by each employer under its jurisdiction with respect to the law enforcement officers and firefighters employed by each such employer.

(4) A county disability board is required to designate the hospital and medical services which are to be available to a sick or disabled law enforcement officer or firefighter under its jurisdiction; and it is authorized to determine his physical condition for the purpose of ascertaining the nature and extent of his sickness or disability.

 

                                                              - - - - - - - - - - - - -

                                                                   June 29, 1970

 

Honorable Paul Klasen
Prosecuting Attorney
Grant County
Ephrata, Washington 98823

                                                                                                                 Cite as:  AGO 1970 No. 16

Dear Sir:

            By letter previously acknowledged, you requested our opinion on several questions pertaining to the operations of county disability boards under the provisions of chapter 41.26 RCW.  We have paraphrased your questions as follows:

             [[Orig. Op. Page 2]]

            (1) Are the costs of operation of a county disability board established pursuant to RCW 41.26.110 (2), including the costs of medical examinations of applicants for disability retirement allowances under RCW 41.26.120 (1), to be paid out of the county current expense fund?

            (2) If so, may the board of county commissioners authorize the expenditure of monies in the current expense fund to meet these costs during the current fiscal year on the basis of the procedures set forth in RCW 36.40.180 relating to nondebatable emergencies?

            (3) Is a county disability board authorized or required under RCW 41.26.150 (1), to determine what medical insurance coverage should be provided by each employer under its jurisdiction with respect to the law enforcement officers and firefighters employed by each such employer?

            (4) Is a county disability board required to designate the hospital and medical services which are to be available under RCW 41.26.150 (1) to a sick or disabled law enforcement officer or firefighter under its jurisdiction; and is it authorized to determine his physical condition for the purpose of ascertaining the nature and extent of the sickness or disability?

            We answer questions (1), (2) and (4) in the affirmative, and question (3) in the negative, as explained in the following analysis.

                                                                     ANALYSIS

            The 1969 session of the state legislature, by its enactment of chapter 209, Laws of 1969, Ex. Sess., established a comprehensive, new, state wide [[statewide]]pension system for all full time, regularly compensated county and municipal law enforcement officers and firefighters.  In accordance with the provisions of § 4 of this act, the system came into operative effect on March 1, 1970, prior to which the legislature, during its 1970 special session, enacted a number of technical amendments to the original 1969 act which were designed to facilitate the administration of the system.  See chapter 6, Laws of 1970.  These two acts are now codified as chapter 41.26 RCW, and the pertinent provisions thereof will hereinafter be cited as thus codified.

            Basically speaking, the system provides for two distinct kinds of benefits; those based upon service, and those based upon  [[Orig. Op. Page 3]] disability together with survivor's benefits in each case.1/   While those benefits based upon service are totally administered by a single state board the Washington law enforcement officers' and firefighters' retirement board as provided for in RCW 41.26.050 the administrative responsibility for disability benefits is divided between this state board and a number of county and city disability boards.

            The specific disability pensions or other benefits which are handled in this manner under the act are (1) disability leave under which a totally disabled member of the system is to receive an allowance from his employer in an amount equal to his full salary for a period of not more than six months following his separation from service by reason of disability;2/ (2) disability retirement an allowance of between 50 and 60 percent of salary, which is payable to a totally disabled member out of the Washington state law enforcement officers' and firefighters' retirement fund3/ following the completion of his six-month period of disability leave, where the disability continues;4/ and (3) medical benefits payable by the member's, or retired former member's employer (subject to an insurance offset as explained in more detail below) for necessary hospital, care, and nursing expenses.5/

             Procedurally, the statutes require all applications for each of these types of disability benefits to be initially submitted to the particular county or city disability board having jurisdiction.  If the application is for disability leave or for medical benefits, it may be granted by the local board without review by the state board; however, if it is for disability retirement, and is granted, the order of the local board is subject to automatic review by the state board under RCW 41.26.130.  In addition, the state board's jurisdiction to review may be invoked by the applicant, in those instances where an application for either disability leave or disability retirement is denied by the local board.  See, RCW 41.26.200.

             [[Orig. Op. Page 4]]

            Question (1):  Costs of Operation of a County Disability Board:

            The statute governing the establishment and operation of the various county and city disability boards is RCW 41.26.110.  With emphasis on the portions thereof which are particularly germane to your opinion request, this statute reads as follows:

            "(1) All claims for disability shall be acted upon and either approved or disapproved by either type of disability board hereafter authorized to be created.

            "(a) Each city having a population of twenty thousand or more shall establish a disability board having jurisdiction over all members employed by said cities and composed of the following five members:  Two members of the city legislative body to be appointed by the mayor, one fire fighter to be elected by the fire fighters employed by the city, one law enforcement officer to be elected by the law enforcement officers employed by the city and one member from the public at large who resides within the city to be appointed by the other four appointed members heretofore designated in this subsection.  All members appointed or elected pursuant to this subsection shall serve for two year terms:  PROVIDED, That cities of the first class only, shall retain existing firemen's pension boards established pursuant to RCW 41.16.020 and existing boards of trustees of the relief and pension fund of the police department as established pursuant to RCW 41.20.010 which such boards shall have authority to act upon and approve or disapprove claims for disability by fire fighters' or law enforcement officers' as provided under the Washington law enforcement officers' and fire fighters' retirement system act.

            "(b)Each county shall establish a disability board having jurisdiction over all members residing in the county and not employed by a city in which a disability board is established.  Thecounty disability board so created shall be composed of five members to be chosen as  [[Orig. Op. Page 5]] follows:  One member of the legislative body of the county to be appointed by the county legislative body, one member of a city or town legislative body located within the county which does not contain a city disability board established pursuant to subsection (1) (a) of this section to be chosen by a majority of the mayors of such cities and towns within the county which does not contain a city disability board, one fire fighter to be elected by the fire fighters subject to the jurisdiction of the county disability board, one law enforcement officer to be elected by the law enforcement officers subject to the jurisdiction of the county disability board, and one member from the public at large who resides within the county but does not reside within a city in which a city disability board is established, to be appointed by the other four appointed members heretofore designated in this subsection.  All members appointed or elected pursuant to this subsection shall serve for two year terms.

            "(2) Themembers of both the county and citydisability board shall not receive compensation for their service upon the boards but said members shall be reimbursed by their respective county or city for all expenses incidental to such service as to the amount authorized by law.

            "(3) The disability boards authorized for establishment by this section shall perform all functions, exercise all powers, and make all such determinations as specified in this chapter."  (Emphasis supplied.)

            RCW 41.26.120 (1) which is also referred to in your first question, deals specifically with the medical examination of applicants for disability retirement and provides that:

            "Any member who believes he is or is believed to be physically or mentally disabled shall be examined by such medical authority as the disability board shall employ, upon application of said member, or a person acting  [[Orig. Op. Page 6]] in his behalf, stating that said member is disabled, either physically or mentally: . . ."

            Your question is whether the costs of operation of the county disability board, including the costs of medical examination as aforesaid, are to be regarded as county expenses payable out of the county current expense fund.  We answer in the affirmative.

            Under the provisions of RCW 41.26.110-41.26.120, supra, it seems apparent to us that the legislature intended the function of initially receiving, processing and passing upon applications for disability benefits6/ for law enforcement officers and firefighters who are members of the retirement system and are employed by a county, or a district, or a city or town located therein not having its own disability board to be a function of the county government performed by the disability board which the legislature, in RCW 41.26.110 (1) required each county to establish.  Notably, we would emphasize that the legislature did not itself establish these boards; instead, it provided that "each county shall establish a disability board. . . ."  Additional evidence of this intent is to be found in subsection (2) of this same statute, where the legislature expressly stated that the members of the county disability board ". . . shall be reimbursed by their respective county . . . for all expenses incidental . . ." to their services upon the board.

            With this proposition in mind, the next point to be noted is that, as was recently indicated by this office in AGO 1968 No. 17, the governing rule with respect to the funding of county expenses is

            ". . . that the ordinary expenses and lawful obligations of county government are payable from the current expense fund (originally called the general fund)unless some other legislative provision has been made.  State ex rel. Adams v. Irwin, 74 Wash. 589, 134 Pac. 484, 135 Pac. 472 (1913); AGO 63-64 No. 76; 15 McQuillin, Municipal Corporations, 3rd ed., § 39.45. . . ."

            Our search of the provisions of both chapter 209, Laws of 1969, Ex. Sess., and chapter 6, Laws of 1970,  [[Orig. Op. Page 7]] reveals no other legislative provision for payment of the operating expenses of a county disability board other than by means of payment out of the county current expense fund.  No other county funding procedure is spelled out in either of these acts, and the only appropriation of state funds which was made by the legislature for the current 1969-71 fiscal biennium to administer the costs of the system during that period contains no provision for the distribution of any portion thereof to the counties or cities having administrative responsibilities under the acts.7/   Therefore, it must be concluded that the operational costs of a county disability board, including the costs of medical examinations, are to be paid out of the county's current expense fund.

            Question (2):  Expenditure of County Funds as Nondebatable Emergency:

            Your second question assumes the foregoing answer to question (1), and inquires as to whether the board of county commissioners may authorize expenditure of monies in the current expense fund to meet the operational costs of their county disability board during the current county fiscal year on the basis of the procedure set forth in RCW 36.40.180, relating to nondebatable emergencies.

            RCW 36.40.180 reads as follows:

            "Upon the happening of any emergency caused by fire, flood, explosion, storm, earthquake, epidemic, riot, or insurrection, or for the immediate preservation of order or of public health or for the restoration to a condition of usefulness of any public property the usefulness of which has been destroyed by accident, or for the relief of a stricken community overtaken by a calamity, or in settlement of approved claims for personal injuries or property damages, exclusive of claims arising from the operation of any public utility owned by the county,or to meet mandatory expenditures required by any law, the board of county commissioners may, upon the adoption by the unanimous vote of the commissioners present at any meeting the time and place of which all of such commissioners have had reasonable notice, of a  [[Orig. Op. Page 8]] resolution stating the facts constituting the emergency and entering the same upon their minutes, make the expenditures necessary to meet such emergency without further notice or hearing."  (Emphasis supplied.)

            We believe that the portion of this statute which we have underscored would substantiate a resolution by the board of county commissioners providing for the making of unbudgeted expenditures from the county current expense fund to meet the operational requirements of a county disability board.  Accord,State ex rel. Spinney v. Hoss, 178 Wash. 397, 35 P.2d 10 (1934).  Clearly, in accordance with our analysis of the requirements of RCW 41.26.110-41.26.120,supra, the payment of these expenditures is required by state law.

            Questions (3) and (4):  Determination of Medical Coverage:

            Your third and fourth questions involve the function of the county disability board with respect to the approval of medical benefits for members of the law enforcement officers' and firefighters' retirement system under the provisions of RCW 41.26.150.  Subsection (1) of this statute reads as follows:

            "Whenever any active member, or any member hereafter retired, on account of service, sickness or disability, not caused or brought on by dissipation or abuse, of which the disability board shall be judge, is confined in any hospital or in his home, and whether or not so confined, requires nursing, care, or attention, the employer shall pay for such active or retired member the necessary hospital, care, and nursing expenses not payable from some other source as provided for in subsection (2).  In the case of active or retired fire fighters the employer may make the payments provided for in this section from the firemen's pension fund established pursuant to RCW 41.16.050 where such fund had been established prior to March 1, 1970:  PROVIDED, That in the event the pension fund is depleted, the employer shall have the obligation to pay all retirement benefits payable under RCW 41.16 and 41.18 [[chapters 41.16 and 41.18 RCW]]:  PROVIDED, able under RCW 41.16 and 41.18:  PROVIDED, Thatthe disability board in all cases may have the active or retired member suffering  [[Orig. Op. Page 9]] from such sickness or disabilityexamined at any time by a licensed physician or physicians, to be appointed by the disability board, for the purpose of ascertaining the nature and extent of the sickness or disability, the physician or physicians to report to the disability board the result of the examination within three days thereafter.  Any active or retired member who refuses to submit to such examination or examinations shall forfeit all his rights to benefits under this section for the period of such refusal:  PROVIDED FURTHER,That the disability board shall designate the hospital and medical services available to such sick or disabled member."  (Emphasis supplied.)

            The relationship between this subsection and such medical insurance coverage as a particular employer may be providing for his law enforcement officer and firefighter employees will be seen from a careful reading of subsections (2) and (4) of this same statute.  Subsection (2) provides, in material part, that

            "The medical benefits payable under this section will be reduced by any amount received or eligible to be received by the member under workmen's compensation, social security . . . insurance provided by another employer, other pension plan, or any other similar source. . . ."

            Subsection (4), which was added to the original 1969 statute through the enactment of § 10, chapter 6, Laws of 1970, provides that:

            "Any employer under this 1970 amendatory act, either singly, or jointly with any other such employer or employers through an association thereof as provided for in chapter 48.21 RCW, may provide for all or part of one or more plans of group hospitalization and medical aid insurance to cover any of its employees who are members of the Washington law enforcement officers and fire fighters retirement system, and/or retired former employees who were, before retirement, members of said retirement system, through  [[Orig. Op. Page 10]] contracts with regularly constituted insurance carriers or with health care service contractors as defined in chapter 48.44 RCW.  Benefits payable under any such plan or plans shall be deemed to be amounts received or eligible to be received by the active or retired member under subsection (2) of this section."  (Emphasis supplied.)

            Thus, the function of any plan of medical insurance coverage which an employer determines to provide for its law enforcement officers and firefighter employees is not one of discharging the employer's primary obligation, under subsection (1), to pay for ". . . the necessary hospital, care, and nursing expenses . . ." of an active member or retired former member of the retirement system; rather, the purpose which such a plan of insurance is to serve is that of providing "some other source" of payments for these expenses which will serve as an offset or reduction of the amount which the employer is required to pay.

            From this, as well as from the express language of subsection (1) of RCW 41.26.150,supra, it will be seen that the county or city disability board has no role whatsoever to play in determining the type of insurance coverage to be provided by an employer, if any.  Instead, its function is that of designating the hospital and medical services which are to be available to a sick or disabled law enforcement officer or firefighter who is under its jurisdiction.  In the performance of this function the board is authorized to have the sick or disabled individual examined by a licensed physician or physicians for the purpose of determining the nature and extent of the sickness or disability.  Thus, your third question, as paraphrased, may be answered in the negative and your fourth question in the affirmative.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, RCW 41.26.160 with respect to survivor's benefits.

2/See, RCW 41.26.030 (19) and RCW 41.26.120.

3/See, RCW 41.26.070.

4/As provided for in RCW 41.26.130.

5/See, RCW 41.26.150.

6/See, also, RCW 41.26.150, infra.

7/See, § 45, chapter 209, Laws of 1969, Ex. Sess.

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