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January 26, 1972
Honorable Lowell Peterson
State Senator, 40th District
Olympia, Washington 98504 Cite as: AGLO 1972 No. 8 (not official)
This is written in response to your recent letter requesting our opinion on certain questions relating to reported current employment policies pertaining to fire fighters employed by the city of Anacortes.
Your first question is whether a city such as Anacortes may legally require its fire fighters to reside within the city, as a condition of continuing employment. This question has been fully answered in two previous opinions of this office, AGO 59-60 No. 140 [[to W. J. Beierlein, State Representative on September 2, 1960]]and AGO 63-64 No. 36 [[to Perry B. Woodall, State Senator on July 17, 1963]], copies enclosed. Based upon RCW 35.21.200, we concluded in each of these opinions that while a city could require all applicants for appointment to positions within its fire department to be residents of the city at the time of their application, it could not require a retention of in-city residence as a condition of continuing employment.1/
Your second question has to do with so-called "stand-by" time ‑ i.e., time during which off-duty fire fighters are reportedly required to "stand-by" at their places of residence and to respond therefrom to emergency fire alarms of which they are notified by an electronic communications system.
If a requirement such as this were to embody a further stipulation that the residence at which the fire fighters are to stand-by must be located within the city [[Orig. Op. Page 2]] limits, we would regard it as being unenforceable for the obvious reason that such a stand-by policy as this would, in effect, constitute a requirement of continuing in-city residence in violation of RCW 35.21.200, supra. However, beyond expressing this one legal conclusion, it would not be proper for us to say more at this time in answer to your second question.
While certain of the materials which you have provided us in connection with your request infer that the stand-by time currently required of Anacortes fire fighters is wholly outside the scope of an existing collective bargaining agreement between the city and the labor union representing the fire fighters, and is completely uncompensated, we are informed that this viewpoint is not fully shared by one of the parties to this contract ‑ namely, the city. We further are advised that both of the parties to this dispute are currently involved in mediation proceedings and that one of their objects, at least, is to determine the actual extent of their respective obligations under the contract. Thus, while we might very well entertain serious doubts as to the ability of the city to impose a stand-by requirement such as you have described on a wholly unilateral basis without providing some form of additional compensation for such service, the question of whether or not this is what, in fact, has been done in this case is not for us here to determine. Simply stated, this office cannot properly intercede on behalf of either party to a dispute such as this regarding the interpretation of a municipal collective bargaining contract to which no state agency for which we serve as legal counsel is a party.
We trust that you will understand, and that the foregoing response to your first question and partial response to your second will, nevertheless, be of some assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Deputy Attorney General
*** FOOTNOTES ***
1/RCW 35.21.200, upon which these opinions were based, states, in material part, that
". . . residence of an employee outside the limits of such city or town shall not be grounds for discharge of any regularly appointed civil service employee otherwise qualified: . . ."