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Bob Ferguson

AGLO 1975 No. 76 - Aug 29 1975
Attorney General Slade Gorton


The Washington industrial safety and health act (WISHA) is applicable to all volunteer firemen who are in any way monetarily compensated for their services as such ‑ including such compensation as is received by reason of their coverage as enrolled members of the volunteer firemen's relief and pension system.

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                                                                 August 29, 1975

Honorable George Sellar
State Senator, 12th District
1324 Terrace Drive
East Wenatchee, Washington 98801                                                                                                               Cite as:  AGLO 1975 No. 76

Dear Sir:

            By recent letter you have requested our opinion on a question which we paraphrase as follows:

            Under what circumstances will so-called "volunteer" firemen who serve as members of the fire department of a fire protection district under Title 52 RCW be deemed to be "employees" for the purposes of the Washington Industrial Safety and Health Act (WISHA)?

            We respond to this question in the manner set forth in our analysis.


            The Washington Industrial Safety and Health Act, now codified as chapter 49.17 RCW, was enacted by the legislature as chapter 80, Laws of 1973.  The stated purpose of this legislation, as set forth in § 1 thereof (RCW 49.17.010) is as follows:

            "The legislature finds that personal injuries and illnesses arising out of conditions of employment impose a substantial burden upon employers and employees in terms of lost production, wage loss, medical expenses, and payment of benefits under the industrial insurance act.  Therefore, in the public interest for the welfare of the people of the state of Washington and in order to assure, insofar as may reasonably be possible, safe and healthful working conditions for every man and woman working in the state of Washington, the legislature in the exercise of its police power, and in keeping with the mandates of Article II, section 35 of the state Constitution, declares its purpose by the provisions of this chapter to create, maintain, continue, and enhance the industrial safety and health program  [[Orig. Op. Page 2]] of the state, which program shall equal or exceed the standards prescribed by the Occupational Safety and Health Act of 1970 (Public Law 91-596, 84 Stat. 1590)."

            Full power to administer the act, and to adopt rules and regulations to achieve its underlying purposes, is vested in the state department of labor and industries.  It would, however, unduly lengthen this opinion to detail, here, all of the various regulatory provisions of the law.  Suffice it to say, for present purposes, that the act imposes, or provides for the imposition by regulation of various obligations upon "employers" for the benefit or safety of their "employees".

            The term "employer" is defined by RCW 49.17.020(3) to mean:

            ". . . any person, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or activity in this state and employs one or more employees or who contracts with one or more persons, the essence of which is the personal labor of such person or persons and includes the state, counties, cities,and all municipal corporations, public corporations, political subdivisions of the state, and charitable organizations:  Provided, That any person, partnership, or business entity not having employees, and who is covered by the industrial insurance act shall be considered both an employer and an employee."  (Emphasis supplied.)

            Subsection (4) of this same statute then defines the term "employee" to mean:

            ". . . an employee of an employer who is employed in the business of his employer whether by way of manual labor or otherwise and every person in this state who is engaged in the employment of or who is working under an independent contract the essence of which is his personal labor for an employer under this chapter whether by way of manual labor or otherwise."

            From the first of these two definitions there can be no doubt but that a fire protection district established  [[Orig. Op. Page 3]] under Title 52 RCW, to the extent that it employs persons for the performance of personal labor of any kind, is an "employer".  Such a district is clearly either a "municipal corporation" or a "political subdivision" ‑ or perhaps, both.  Accord, the reasoning of our state supreme court in Roza Irrigation Dist. v. State, 80 Wn.2d 633, 497 P.2d 166 (1972) which involved the applicability of another recent law containing similar definitions, the public employees' collective bargaining act of 1967 (chapter 41.56 RCW), to irrigation districts and their employees.

            From this it readily follows that any person employed by a fire protection district in connection with the business of such a district (in this case, fire fighting and like services in connection with the provision of fire protection to the inhabitants of rural areas in our state)1/ is an "employee" as above defined in RCW 49.17.020(4); i.e., again (insofar as is here pertinent):

            ". . . an employee of an employer who is employed in the business of his employer whether by way of manual labor or otherwise . . ."

            From this statutory definition it is to be seen that the legislature has, in essence, used the term "employee" in its ordinary sense ‑ the only qualification being that in order to be an "employee" and individual must be employed by an employer, as defined in RCW 49.17.020(3), in the business of that employer.  In ordinary usage, the word "employee" denotes one who (a) renders services for, and under the supervision of, another (b) for a specified salary, wages, or other (usually) monetary consideration.  See, e.g., Webster's Third International Dictionary, p. 743; and Random House Dictionary of the English Language, p. 468.  Accord, such cases as Sills v. Sorenson, 192 Wash. 318, 73 P.2d 798 (1937), in which the word "employee" was said to import ". . . some sort of continuous service rendered for wages or salary and subject to the direction  [[Orig. Op. Page 4]] of the employer or master as to how the work shall be done."

            The basic authority of fire protection districts to "employ" persons to perform the functions of those districts will be found in RCW 52.08.020, which reads as follows:

            "Such fire protection districts shall have full authority to carry out the objects of their creation and to that end are authorized to acquire, purchase, hold, lease, manage, occupy and sell real and personal property, or any interest therein, to enter into and to perform any and all necessary contracts,to appoint and employ the necessary officers, agents and employees, to sue and be sued, to exercise the right of eminent domain, to levy and enforce the collection of taxes and special taxes in the manner and subject to the limitations herein provided against the lands within the district, for district revenues, and to do any and all lawful acts required and expedient to carry out the purpose of this act."  (Emphasis supplied.)

            Often, however, the membership of the fire department of a fire protection district is actually composed of only a small number (perhaps one or two) of full time, regularly compensated employees ‑ together with what is ordinarily a somewhat larger group of so-called "volunteer firemen."  The latter, in most cases, receive no fixed monthly or other periodic salary, as such, but do receive some form of monetary payment for their services ‑ usually in the form of a specified amount per fire call or drill period in which an individual volunteer fireman participates.  In addition, all volunteer firemen are mandatorily covered by the disability provisions of the volunteer firemen's relief and pension system as provided for in chapter 41.24 RCW.  See, RCW 41.24.020.

            Along with this disability coverage, most such firemen are also covered by the optional "pension" program which is similarly established under this state pension system.  Both the disability and the pension benefits which have thus been provided for these firemen must be regarded as a form of what our state supreme court has referred to as "deferred compensation for services previously rendered pursuant to a public employees' 'contract of employment.'"

             [[Orig. Op. Page 5]]   See, the leading case of Bakenhus v. Seattle, 48 Wn.2d 695, 296 P.2d 536 (1956), at page 698.  Were this characterization not deemed to be applicable in the case of volunteer firemen, their pension and disability benefits would, instead, have to be viewed as to amounting to unconstitutional gifts of public funds; yet no challenge has ever been made to the volunteer firemen's relief and pension system on that basis, even though the system has now been in existence for more than thirty years.2/

            Thus, all "volunteer" firemen in this state are, in fact, compensated for their services in one form or another.  As far as the other element of an "employment" is concerned, there can be no question but that such personnel, as members of the fire department of a fire protection district, serve under the general direction of the board of commissioners of the district and the specific supervisory control of the fire chief.  In fact, obviously, the very existence of an effective fire department is dependent upon such specific supervisory control of the members of the department while engaged in their normal fire suppression activities.

            In conclusion, it is therefore our opinion that all volunteer firemen as above described who are in any way monetarily compensated for their services as such ‑ including such compensation as is received by reason of their coverage as enrolled members of the volunteer firemen's relief and pension system because of their membership in the fire department of a fire protection district3/ - must be deemed to be "employees" for the purposes of the Washington Industrial Safety and Health Act (WISHA).

             [[Orig. Op. Page 6]]   It is hoped that the foregoing will be of some assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/The essential function of fire protection districts is spelled out in RCW 52.04.020 as follows:

            "Fire protection districts for the elimination of fire hazards and for the protection of life and property in territories outside of cities and towns are hereby authorized to be established as in this act provided."

2/Chapter 41.24 RCW, which codifies the laws governing this pension system originated as chapter 261, Laws of 1945.

3/See, the term "firemen," as defined in RCW 41.24.010 to mean:

            ". . . any fireman who is a member of any fire department of any municipality . . ."