Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1954 No. 261 - May 21 1954
Attorney General Don Eastvold


1. Firemen employed prior to January 1, 1947, are entitled to have their payroll deduction for support of the Firemen's Pension Fund reduced from 5% to 4% upon becoming eligible for retirement and continuing active employment.

2. If a five percent deduction has been erroneously continued the pension board may legally reimburse the fireman for the excessive deduction from the pension fund.

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                                                                    May 21, 1954

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                          Cite as:  AGO 53-55 No. 261

Attention:  Mr. A. E. Hankins, Chief Examiner

Dear Sir:

            By letter dated May 11, 1954, you have requested our opinion on two questions relating to the provisions of RCW 41.16.070; the questions being:

            1. May a "prior fireman" have the deduction from his salary for the Firemen's Pension Fund reduced from 5% to 4% upon becoming eligible for retirement, where he continues to be actively employed?

            2. If the answer to the first question is yes, but the 5% payroll deduction was erroneously continued, may the pension board legally reimburse the fireman for the excessive payroll deduction from the pension fund?

            We conclude that both questions should be answered in the affirmative.

             [[Orig. Op. Page 2]]                       ANALYSIS


            RCW 41.16.070 classifies firemen into two distinct groups for the purpose of contributions to the pension fund.  Firemen employed on and after January 1, 1947, contribute to the fund according to a percentage of their salary fixed with reference to the age of the fireman, the scale being set forth in that chapter.  Firemen employed prior to January 1, 1947, are known as "prior firemen" under the act.

            RCW 41.16.070 (2) provides that

            "Every fireman employed prior to January 1, 1947, and continuing active employment shall contribute to the fund and there shall be deducted from his salary and placed in the fund, five percent of his salary."

            RCW 41.16.070 (3) provides that

            "Every fireman [prior firemen as well as those employed after January 1, 1947] actively employed and eligible for retirement and not retired shall contribute to the fund and there shall be deducted from his salary and placed in the fund, four percent of his salary."  (Emphasis supplied)

            RCW 41.16.050 requires that such contributions be deposited in the Firemen's Pension Fund.

            It is apparent that any fireman who has become eligible for retirement but continues active employment is entitled to have his contribution to the pension fund reduced from the percentage otherwise required by law to four percent of his salary.  After the date upon which he becomes eligible for retirement, the only deduction permissive under the law for pension fund contributions is four percent.  Any deduction in excess of this amount is unwarranted under the law, and the funds in the hands of the treasurer of the municipality concerned are impressed with a claim of right in the nature of a trust, for the benefit of the true owner of the money, i.e., the fireman.

            The only serious question involved is whether the custodian of the fund may reimburse such over-contributions [[overcontributions]]from the fund, there being no express statutory authority therefor.

             [[Orig. Op. Page 3]]

            A review of RCW 41.16.050 through 41.16.070 clearly indicates that the Firemen's Pension Fund is a special fund in the treasury of each municipality, and is not a part of the general fund of such municipality.  Disbursements from the fund, therefore, are controlled exclusively by the provisions of chapter 41.16 RCW, without regard to the legal requirements relating to claims against cities.

            RCW 41.16.040 defines the powers and duties of the firemen's pension boards, subdivision (7) providing as follows:

            "The board shall have * * * the power to:

            "* * *

            "(7) Issue vouchers approved by the chairman and secretary and to cause warrants therefor to be issued and paid from said fund for the payment of claims allowed by it."

            Also, subdivision (3) authorizes the board to:

            "(3) Provide for payment from said fund of necessary expenses of maintenance and administration of said pension system and fund."

            The board, having the statutory duty to administer the fund, must do so strictly according to the statutes.  If a particular fireman has been assessed a greater amount as his contributory share than the law authorizes, the custodian holds such excess in trust for him.  A claim by the fireman to recover such overpayment is a legitimate claim against the fund, since it is a claim arising out of the administration of the fund within the meaning of (3) above.  Therefore, under (7) above, the board has the statutory authority to cause warrants to be issued against the fund in payment of such claim.

            In our opinion, both of your questions should be answered in the affirmative.

Very truly yours,

Attorney General

Assistant Attorney General