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AGLO 1971 No. 72 -
Attorney General Slade Gorton

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                                                                   May 11, 1971
Honorable Paul Klasen
Prosecuting Attorney
Grant County Court House
Ephrata, Washington 98823                                                        Cite as:  AGLO 1971 No. 72 (not official)
Dear Sir:
            This is written in response to your recent letter requesting our opinion with regard to the following questions pertaining to the powers of municipalities employing law enforcement officers of fire fighters who are covered by the provisions of the Washington law enforcement officers' and fire fighters' retirement system, chapter 41.26 RCW:
            "Does a municipality have the authority as a condition of employment to require the employee to sign a 'hold harmless' agreement with a municipality that the employee will not seek redress of any medical expenses pursuant to the Chapter (a) while engaged in outside employment, or (b) participating in certain hazardous activities such as auto racing, sky diving, motorcycle racing?
            "Your opinion is further requested [whether] in the event the employee signs such an agreement, the Disability Board can give full force and effect to said agreement and deny medical expenses to the employee who violates any provision of the above described 'hold harmless' agreement wherein the employee agreed not to claim medical expenses when engaged in (a) or (b) listed above."
            Medical expenses for members of the Washington law enforcement officers' and fire fighters' retirement system are provided for under RCW 41.26.150, as follows:
             [[Orig. Op. Page 2]]
            "(1) Whenever any active member, or any member hereafter retired, on account of service, sickness or disability, not caused on brought on by dissipation or abuse, of which the disability board shall be judge, is confined in any hospital or in his home, and whether or not so confined, requires nursing, care, or attention, the employer shall pay for such active or retired member the necessary hospital, care, and nursing expenses not payable from some other source as provided for in subsection (2).  In the case of active or retired fire fighters the employer may make the payments provided for in this section from the firemen's pension fund established pursuant to RCW 41.16.050 where such fund had been established prior to March 1, 1970:  Provided, That in the event the pension fund is depleted, the employer shall have the obligation to pay all retirement benefits payable under chapters 41.16 and 41.18 RCW:  Provided, That the disability board in all cases may have the active or retired member suffering from such sickness or disability examined at any time by a licensed physician or physicians to be appointed by the disability board, for the purpose of ascertaining the nature and extent of the sickness or disability, the physician or physicians to report to the disability board the result of the examination within three days thereafter.  Any active or retired member who refuses to submit to such examination or examinations shall forfeit all his right to benefits under this section for the period of such refusal:  Provided further, That the disability board shall designate the hospital and medical services available to such sick or disabled member.
            ". . ."
            It is well settled in this state that a pension granted to a public employee is not a gratuity but is deferred compensation.  Accord, Bakenhus v. Seattle, 48 Wn.2d 695, 296 P.2d 536 (1956), and cases cited therein.
            It is also a well-established principle of law that it is contrary to public policy for a public officer or employee to agree to waive all or any portion of his compensation, and that an agreement to accept less than the salary fixed by the constitution, statutes or ordinances is not effective and the officer or employee may maintain an action to recover the difference thereafter.  See, Rhodes v. Tacoma, 97 Wash. 341,  [[Orig. Op. Page 3]] 166 Pac. 647 (1917); Bell v. Mabton, 165 Wash. 396, 5 P.2d 514 (1931); State ex rel. Knez v. Seattle, 176 Wash. 283, 28 P.2d 1020 (1934); State ex rel. Pike v. Bellingham, 183 Wash. 439, 48 P.2d 602 (1935); Rudnick v. Pierce County, 185 Wash. 289, 54 P.2d 409 (1936); State ex rel. Ross v. King County, 191 Wash. 340, 71 P.2d 370 (1937); State ex rel. Bradford v. King County, 197 Wash. 393, 85 P.2d 670 (1938); Chatfield v. Seattle, 198 Wash. 179, 88 P.2d 582 (1939); and Malcolm v. Yakima Etc. School Dist., 23 Wn.2d 80, 159 P.2d 394 (1945).
            In the recent case of Vallet v. City of Seattle, 77 W.D.2d 11,        P.2d        [[77 Wn.2d 12, 459 P.2d 407]](1969), our state supreme court, in effect, put these two basic principles together and concluded that a public employee who is covered by a retirement system may not effectively agree to waive any of the benefits which are payable to him under the laws governing that system.  Based upon this decision, it would be our opinion that any agreement such as is contemplated by your questions would be void and unenforceable.1/

             We trust that the foregoing will be of assistance to you.
Very truly yours,
Philip H. Austin
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/We may distinguish the situations contemplated by your questions from the situation arising following retirement, when the former public employee now drawing a retirement allowance is no longer actively employed in public service ‑ having already performed all of the services required of him as consideration for payment of his retirement allowance.  In this latter situation, involving a person already retired, the reasons for the rule of public policy which was enunciated in the several cases cited above, and applied to the pension situation in the Vallet case, would not appear to exist.  See, opinion dated June 29, 1961, to state representative Ella Wintler, copy enclosed.