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Bob Ferguson

AGO 1953 No. 21 -
Attorney General Don Eastvold


A fireman who has been employed in a fire department since 1945 is entitled to a refund of his contributions made pursuant to the 1947 act where the city which employed him had no relief and pension plan in effect pursuant to the old act, even though he is classified as a "prior fireman" under the 1947 act.

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                                                                    April 29, 1953

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                                Cite as:  AGO 53-55 No. 21

 Attention:  !ttMr. A. E. Hankins, Chief Examiner,Division of Municipal Corporations

Dear Sir:

             This will acknowledge receipt of your letter in which you state that a city fireman who has been continuously employed since 1945, has made contributions as a "prior fireman" pursuant to RCW 41.16.070 subsection (2), since January 1947.  The city where he is employed did not create a pension and relief system for firemen until May 1947, at which time the system was made retroactive to January 1947.  Now the fireman desires to leave the employ of the city and requests a refund of his contributions.  You ask for an opinion as to his right to such a refund.

             It is our conclusion that he is entitled to a refund of these contributions.


             A fireman's right to a refund of his contributions is based upon RCW 41.16.150 (2) as derived from section 8 (i), chapter 91, Laws of 1947, which reads as follows:

              [[Orig. Op. Page 2]]

            "Any fireman who shall have served for a period of less than twenty years, and shall resign or be dismissed, shall be paid the amount of his contributions, plus accrued compounded interest."

             Our court in the case of Jolly v. Bremerton, 31 Wn. (2d) 873, was called upon to construe this section in a case involving a claim for refund of a fireman's contributions.  The facts in theJolly case were almost identical to those involved here, except as hereinafter noted.  In holding that the fireman was not entitled to a refund the court indicated that the effect of the 1947 act was to place in effect two complete pension laws for firemen.  The old law was kept in effect for "prior firemen."  Section 1, chapter 91, Laws of 1947, reads as follows:

             "(11) 'Prior fireman' shall mean a fireman who was actively employed as a fireman of a fire department prior to the first day of January, 1947, and who continues such employment thereafter."

             In discussing chapter 91, Laws of 1947, the court said in the Jolly case,supra:

             "It is patent that the legislature intended to continue the old pension law for firemen who were employed prior to January 1, 1947, and who continued employment thereafter, and to make the new pension law applicable to firemen who commenced work in a fire department on or subsequent to January 1, 1947."

             Observing that the old law covering "prior firemen" did not provide for a refund of contributions and that the plaintiff was a "prior fireman" under the statutory definition, the court denied the claim.

             The claimant who is the subject of your inquiry is also a "prior fireman."  It appears that the only pertinent difference between this case and the fact pattern in theJolly case is that the municipality employing the present claimant had not set up a firemen's relief and pension plan pursuant to the prior act, whereas Bremerton had.  The court in theJolly case found a legislative intent to separate the firemen's relief and pension systems so that every fireman would be under one act or the other.

              [[Orig. Op. Page 3]]

            It is our conclusion that the rule enunciated in that case should be confined to those situations in which there was in effect a relief and pension plan covering "prior firemen" pursuant to the old act.  It would appear pointless to require a city to set up two separate funds in a situation where there have been no contributions made for the support of one of the two funds.  We conclude that this particular fireman is entitled to a refund of his contributions.

 Very truly yours,
Attorney General 

Assistant Attorney General