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AGO 1966 No. 104 - September 22, 1966
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John J. O'Connell | 1957-1968 | Attorney General of Washington


CITIES AND TOWNS ‑- FIREMEN'S PENSION SYSTEMS ‑- COVERAGE OF PAID FIREMEN.

(1) A city or town which is participating in the state‑wide [[statewide]]city employees' retirement system may not cover its full-time paid firemen under the provisions of that retirement system because such firemen are eligible to be covered under either the paid firemen's pension system (chapters 41.16 and 41.18 RCW) or the volunteer firemen's pension system (chapter 41.24 RCW).

(2) A city or town the fire department of which consists of both full-time paid firemen and volunteer firemen is permitted but not required to provide coverage for its paid firemen under the provisions of the firemen's relief and pension acts of 1947, and 1955 (chapters 41.16 and 41.18 RCW).

(3) RCW 41.16.020 does not require that a city or town must have at least three full-time paid firemen before the paid firemen's pension system (chapters 41.16 and 41.18 RCW) can apply.

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

                                                              September 22, 1966

Honorable Richard Taylor
State Representative, 38th District
721 5th Street
Mukilteo, Washington

                                                                                                              Cite as:  AGO 65-66 No. 104

Dear Sir:

            This is written in response to your letter requesting the opinion of this office on several questions pertaining to the pension coverage available to the full-time paid members of a part-paid, part-volunteer fire department of a city or town.  We paraphrase your questions as follows:

            (1) May a city or town which is participating in the state‑wide [[statewide]]city employees' retirement system cover its full-time paid firemen under the provisions of that system?

            (2) Must a city or town the fire department of which consists of both full-time paid firemen and volunteer firemen provide coverage for its paid firemen under the provisions of the  [[Orig. Op. Page 2]] firemen's relief and pension acts of 1947, and 1955 (chapters 41.16 and 41.18 RCW)?

            (3) Does RCW 41.16.020 mean that a city or town must have at least three full-time paid firemen before the paid firemen's pension system (chapters 41.16 and 41.18 RCW) can apply?

            We answer all three questions, as paraphrased, in the negative for the reasons set forth below.

                                                                     ANALYSIS

            Question (1):

            The statutes covering the state‑wide [[statewide]]city employees' retirement system are codified as chapter 41.44 RCW.  The matter of eligibility of a city's fire department employees for coverage under the provisions thereof is specifically covered by RCW 41.44.060, which provides:

            "Policemen in first class cities and all city firemen shall be excluded from the provisions of this chapter, except those employees of the fire department who are not eligible to the benefits of any firemen's pension system established by or pursuant to state law, and who shall be included in the miscellaneous personnel."

            Thus, city fire department employees are excluded from the provisions of this pension system unless they are, for some reason, ineligible for coverage under any of the firemen's pension systems established by or pursuant to state law.  As will be hereinafter indicated, the full-time paid firemen of a part-paid, part-volunteer municipal fire department are clearly eligible for coverage under the provisions of the volunteer firemen's pension system‑-chapter 41.24 RCW.  In the alternative, under the circumstances noted in response to your third question, such full-time paid members of a part-paid, part-volunteer fire department may be afforded the benefits of the paid firemen's pension system‑-chapters 41.16 and 41.18 RCW.

            Question (2):

            RCW 41.24.010, which relates to the volunteer firemen's pension act, provides in part:

            "'Fire department' means any regularly organized  [[Orig. Op. Page 3]] fire department consisting wholly of volunteer firemen, or any part-paid and part-volunteer fire department duly organized and maintained by any municipality:  Provided, That any such municipality wherein a part-paid fire department is maintainedmay by appropriate legislation permit the full-paid members of its department to come under the provisions of chapter 41.16."  (Emphasis supplied.)

            This same statute defines the terms "municipal corporation" or "municipality" as follows:

            "'Municipal corporation' or 'municipality' includes any city or town, fire protection district, or any water, irrigation, or other district, authorized by law to afford protection to life and property within its boundaries from fire."

            Thus, it is to be seen that in the case of a city or town maintaining a part-paid, part-volunteer fire department, coverage of the paid firemen under the provisions of chapter 41.16 RCW is expressly couched in permissive, rather than mandatory, language.  Furthermore, as we view it, provisions contained in the firemen's relief and pension acts of 1947, and 1955 (chapters 41.16 and 41.18 RCW) themselves support the conclusion that the only cities and towns which must mandatorily place their full-time paid firemen within the statutory paid firemen's pension systems are those cities or towns having a full-time paid fire department‑-as distinguished from a part-paid, part-volunteer department.

            Both of these paid firemen's acts commence with definition sections‑-respectively, RCW 41.16.010 and RCW 41.18.010.  The key terms, in each case, are (a) municipality, (b) fire department, and (c) fireman.

            These terms are defined in RCW 41.16.010 as follows:

            "(9) 'Municipality' shall mean every city and town having a regularly organized full time, paid, fire department employing firemen."

            "(7) 'Fire department' shall mean the regularly organized, full time, paid, and employed force of firemen of the municipality."

             [[Orig. Op. Page 4]]

            "(6) 'Fireman' shall mean any person regularly or temporarily, or as a substitute, employed and paid as a member of a fire department, who has passed a civil service examination for fireman and who is actively employed as a fireman; and shall include any 'prior fireman'."

            The terms "municipality" and "fire department" are identically defined, in so far as chapter 41.18 RCW is concerned by subsections 13 and 11 of RCW 41.18.010, as amended by § 2, chapter 45, Laws of 1965, Ex. Sess.

            The term "fireman" is defined under this act as follows:

            "(2) 'Fireman' means any person hereafter regularly or temporarily, or as a substitute newly employed and paid as a member of a fire department, who has passed a civil service examination for fireman and who is actively employed as a fireman; and any person heretofore regularly or temporarily, or as a substitute, employed and paid as a member of a fire department, and who has contributed under and been covered by the provisions of chapter 41.16 and who has come under the provisions of this chapter in accordance with RCW 41.18.170 and who is actively engaged as a fireman or as a member of the fire department."

            Remaining sections of each of these acts provide for the establishment of a municipal firemen's pension board "in each municipality" (RCW 41.16.020; RCW 41.18.010 (13)), and, likewise, provide for the establishment of a firemen's pension fund "in the treasury of each municipality" (RCW 41.16.050; RCW 41.18.010).  In view of the manner in which the term "municipality" is defined, as noted above, it follows that these various mandatory provisions have application only in the case of those cities or towns,

            ". . . having a regularly organized full time, paid, fire department employing firemen."1/

             [[Orig. Op. Page 5]]

            Accordingly, the statutory provisions of the firemen's relief and pension acts of 1947 and 1955 (chapters 41.16 and 41.18 RCW) are, themselves, consistent with the provision contained in RCW 41.24.010, first above noted, which makes coverage under the paid firemen's pension system2/ of the paid members of a part-paid, part-volunteer municipal fire department permissive rather than mandatory.3/

             Question (3):

            Finally you have asked whether RCW 41.16.020 means that a city or town must have at least three full-time paid firemen before it can operate a paid firemen's pension system.  The statute you have cited, RCW 41.16.020, provides as follows:

            "There is hereby created in each city and town a municipal firemen's pension board to consist of the following five members, ex officio, the mayor, who shall be chairman of the board, the city comptroller or clerk, the chairman of finance of the city council, or if there is no chairman of finance, the city treasurer, and in addition, two regularly employed firemen elected by secret ballot of the firemen.  The first members to be elected by the firemen shall be for a term of one and two years, respectively, and their successors shall be elected annually for a two year term.  The two firemen so elected shall, in turn, select a third fireman who shall serve as an  [[Orig. Op. Page 6]] alternate in the event of an absence of one of the regularly elected firemen.  In case a vacancy occurs in the membership of the firemen members, the members of the fire department shall in the same manner elect a successor to serve his unexpired term.  The board may select and appoint a secretary who may, but need not be a member of the board.  In case of absence or inability of the chairman to act, the board may select a chairman pro tempore who shall during such absence or inability perform the duties and exercise the powers of the chairman.  A majority of the members of said board shall constitute a quorum and have power to transact business."  (Emphasis supplied.)

            The underscored sentence, it will be noted, was added to this statute by amendment in 1961‑-see, § 10, chapter 255, Laws of 1961.  Prior to that time, it was generally recognized that a city or town having two regularly employed full-time firemen could constitute a full firemen's pension board and, thereby, implement the provisions of law governing the paid firemen's pension systems.  Cf. Attorney General's opinion dated October 28, 1927, copy of which is enclosed (concluding that under the then existing law, a municipality had to have at least six paid firemen in its fire department before it could establish a paid firemen's pension system for the reason that the law then in effect contemplated the presence of a firemen's pension board of a total of six paid firemen).

            We do not believe that it was the legislature's intent in 1961, when it amended RCW 41.16.020,supra, so as to provide for the selection of "a third fireman who shall serve as an alternative," to thereby necessarily preclude a city or town having only two paid firemen from utilizing the permissive proviso contained in RCW 41.24.010, supra; i.e., the proviso which, repeated for ease of reference, states:

            ". . .Provided, That any such municipality wherein a part-paid fire department is maintained may by appropriate legislation permit the full-paid members of its department to come under the provisions of chapter 41.16 [[chapter 41.16 RCW]]."4

             [[Orig. Op. Page 7]]

            However, as noted in response to question (2), supra, no city or town having a part-paid, part-volunteer fire department is required to provide this coverage for its full-paid firemen‑-irrespective of how many of them there may be.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, again, as well, the definitions of "fire department," and "fireman," supra.

2/Chapter 41.16 RCW, by express reference, and chapter 41.18 RCW by necessary implication for the reason that chapter 41.18 RCW, codifying the firemen's relief and pension act of 1955 (chapter 382, Laws of 1955) is, in substance, nothing more than a modification of certain aspects of the pension system established by chapter 41.16 RCW (chapter 91, Laws of 1947) covering eligible paid firemen entering service after its effective date together with certain prior firemen as provided for in RCW 41.18.170-41.18.180.

3/Of course, paid firemen who are currently being covered under the paid firemen's pension system have a constitutionally vested right to remain under the coverage of such system.  See, Bakenhus v. Seattle, 48 Wn.2d 695, 296 P.2d 536 (1956).

4/It is noteworthy that this statute, though speaking of "full-paid members" in the plural rather than the singular, contains no qualification as to the total number of full-paid firemen a municipality with a part-paid department must have before it can provide coverage for its full-paid firemen under the paid firemen's pension system.  It seems evident, however, that if such a municipality had only two full-paid firemen, it could nevertheless constitute a legal pension board notwithstanding the absence of a third paid fireman to serve as an alternate in the absence of one of the regular board members.  In reaching the conclusion we have in mind (a) the rule that pension statutes, being remedial, should be construed in favor of the persons benefited thereby (Benedict v. Board Police Etc. Comm., 35 Wn.2d 465, 214 P.2d 171 (1950);Struck v. Everett, 17 Wn.2d 218, 135 P.2d 67 (1943); 3 McQuillin, Municipal Corporations, § 12.143); and (b) the apparent intent of the legislature that the provision for an alternate board member, though mandatory as to a paid firemen's pension system, may be construed as procedural rather than a qualification for the operation of a board, in a city with only a part-paid department.

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