Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1971 No. 16 -
Attorney General Slade Gorton


Monies in a city's paid firemen's pension fund established pursuant to RCW 41.16.050 may not be used to fund employers' contributions to the Washington law enforcement officers' and fire fighters' retirement system as required by RCW 41.26.080, or to pay disability leave allowances as provided for in RCW 41.26.110; however, such monies may be used to pay for the costs of hospitalization and other medical expenses incurred by fire fighters covered by the law enforcement officers' and fire fighters' retirement system, and payable by their employers under RCW 41.26.150.

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                                                                   May 6, 1971


Honorable Robert V. Graham
State Auditor
Legislative Building
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1971 No. 16

Dear Sir:

            In connection with information you have recently received pertaining to current practices in certain cities, you have requested our opinion on a question relating to the funding of certain benefits payable to members of the Washington law enforcement officers' and fire fighters' retirement system.  We paraphrase your question as follows:

            May a city expend monies from its firemen's pension fund created pursuant to RCW 41.16.050 for the purpose of paying:

            (a) The employer's contribution to the law enforcement officers' and fire fighters' retirement fund, as provided for in RCW 41.26.080 (2) to the extent that this contribution if related to the monthly salaries of "fire fighters" employed by such city;

            (b) Disability leave allowances to such fire fighters under RCW 41.26.120; or

            (c) Hospital and other medical expenses for such fire fighters under RCW 41.26.150?

             [[Orig. Op. Page 2]]

            We answer parts (a) and (b) of this question in the negative, and part (c) in the affirmative.


            By its enactment of chapter 209, Laws of 1969, Ex. Sess., as amended by chapter 6, Laws of 1970 (codified as chapter 41.26 RCW), the legislature created a comprehensive new statewide retirement system for all full-time, regularly compensated county and municipal law enforcement officers and fire fighters.  This system became operative on March 1, 1970, in accordance with provisions contained in the original 1969 act and carried over into the 1970 amendment thereto.  The coverage of this new retirement system is spelled out in RCW 41.26.040 (1) as follows:

            "(1) All fire fighters and law enforcement officers employed as such on or after March 1, 1970, on a full time fully compensated basis in this state shall be members of the retirement system established by this chapter with respect to all periods of service as such, to the exclusion of any pension system existing under any prior act except as provided in subsection (2) of this section."

            The term "fire fighter," as used in this statute, is defined by RCW 41.26.030 (4) as meaning:

            ". . . any person who is serving on a full time, fully compensated basis as a member of a fire department [of] by an employer and who has passed a civil service examination for fire fighter, or fireman if this title is used by the department, and who is actively employed as such; and shall include anyone who is actively employed as a full time fire fighter where the fire department does not have a civil service examination; this term shall also include supervisory fire fighter personnel; and shall also include any full time executive secretary of an association of fire protection districts authorized under chapter 52.08 RCW."1/

             [[Orig. Op. Page 3]]

            From the provisions of RCW 41.26.040 (1), supra, it will be seen that the new retirement system is designed to cover law enforcement officers and fire fighters who were already employed in such capacities as of March 1, 1970, as well as persons first employed after that date.  And, of course, many of these previously employed personnel were, by virtue of their employments, then participating in one of the several preexisting public employees' pension systems which had been established by previous legislatures; e.g., the Washington public employees' retirement system (chapter 41.40 RCW); the statewide city employees' retirement system (chapter 41.44 RCW); the pension system for volunteer firemen (chapter 41.24 RCW); the pension systems for first class city police officers as provided for in chapter 41.20 RCW; and, lastly, the several municipally operated pension systems for paid firemen established pursuant to the provisions of chapter 41.16 RCW and chapter 41.18 RCW.

            Your question deals with one specific aspect of the relationship between the funding provisions of chapter 41.26 RCW and the last of these several categories of preexisting pension systems.  In each city or other municipality operating a paid firemen's pension system2/ there had been created a firemen's pension fund pursuant to the following provisions of RCW 41.16.050:

            "There is hereby created and established in the treasury of each municipality a fund which shall be known and designated as the firemen's pension fund, which shall consist of (1) all bequests, fees, gifts, emoluments or donations given or paid thereto, (2) forty-five percent of all moneys received by the state from taxes on fire insurance premiums, (3) taxes paid pursuant to the provisions of RCW 41.16.060, (4) interest on the investments of the fund, (5) contributions by firemen as provided for herein. . . ."

             [[Orig. Op. Page 4]]

            From this fund, in each municipality, were made payable all of the various service or disability retirement allowances and death benefits which were provided for under chapters 41.16 and 41.18 RCW, with respect to all municipal firemen covered by either of these chapters.

            In establishing the new statewide law enforcement officers' and fire fighters' retirement system by its enactment of chapter 209, Laws of 1969, Ex. Sess., as amended by chapter 6, Laws of 1970, the legislature must be presumed to have been fully aware of all of these preexisting statutory provisions covering those municipal firemen who were already employed as of the critical transition date of March 1, 1970.  See,Hatzenbuhler v. Harrison, 49 Wn.2d 691, 306 P.2d 745 (1957), and cases cited therein.  Moreover, quite clearly, the legislature was in fact aware of these statutes, including, specifically, the funding provisions of chapter 41.16 RCW and chapter 41.18 RCW relating to paid firemen, for in § 4 (3) of the 1969 act it expressly provided as follows:

            "(3) All funds held by any firemen's or policemen's relief and pension fund shall remain in that fund for the purpose of paying the obligations of the fund.  The municipality shall continue to levy the millage as provided in RCW 41.16.060, and this millage shall be used for the purpose of paying the benefits provided in chapters 41.16 and 41.18 RCW.  The obligations of chapter 41.20 RCW shall continue to be paid from whatever financial sources the city has been using for this purpose."

            Your question, as we have paraphrased it, identifies the three separate areas of financial obligation which the laws governing the new retirement system impose upon all cities (together with counties and other municipalities) which employ law enforcement officers or fire fighters covered by the system.  The first of these obligations, that of making regular monthly contributions to the newly created law enforcement officers' and fire fighters' retirement fund (see RCW 41.26.070), is spelled out in RCW 41.26.080 (2) as follows:

            "Every employer shall contribute monthly a sum equal to six percent of the basic salary of each employee who is a member of this retirement system.  The employer shall transmit the employee and employer contributions with a copy of the payroll to the retirement system monthly."

             [[Orig. Op. Page 5]]

            The second obligation of employers under the new system is that of paying monthly allowances during any period of "disability leave," a term defined in RCW 41.26.030 (19) as meaning:

            ". . . the period of six months or any portion thereof during which a member is on leave at an allowance equal to his full salary prior to the commencement of disability retirement."

            The substantive basis for the payment of disability leave allowances is set forth in RCW 41.26.120, as follows:

            "Any member, regardless of his age or years of service may be retired by the disability board, subject to approval by the retirement board as hereinafter provided, for any disability which has been continuous since his discontinuance of active service and which renders him unable to continue his service, whether incurred in the line of duty or not.  No disability retirement allowance shall be paid until the expiration of a period of six months after the disability is incurred during which period the member, if found to be physically or mentally unfit for duty by the disability board following receipt of his application for disability retirement, shall be granted a disability leave by the disability board and shall receive an allowance equal to his full monthly salary from his employer for such period. . . ."  (Emphasis supplied)

            The third and last area of employer obligation with respect to its employees who are members of the new retirement system is that of paying certain hospitalization and medical costs, as provided for in RCW 41.26.150, which commences by providing as follows:

            "(1) Whenever any active member, or any member hereafter retired, on account of service, sickness or disability, not caused or 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). . . ."

             [[Orig. Op. Page 6]]

            As originally enacted, chapter 209, Laws of 1969, Ex. Sess., contained no provision whatsoever for any use of monies in a city's firemen's pension fund (RCW 41.16.050,supra) for the purpose of paying any of the benefits or other employer obligations under the new retirement system.  In fact, the only reference therein to the monies in these funds was that contained in subsection (3) of § 4, quoted above; i.e., retention of the monies in the local funds ". . . for the purpose of paying the obligations of the fund. . . ."  However, when the legislature reconvened in 1970 and enacted the various technical and similar amendments which were contained in chapter 6, Laws of 1970, it did make one minor alteration in this scheme of things.  Specifically, it added the following sentence to RCW 41.26.150, supra, relating to hospitalization and medical benefits:

            ". . . 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: . . ."

            Based upon this 1970 amendatory provision, it is apparent that part (c) of your question is now answerable in the affirmative.  However, by the same token, and giving effect to the well-established principle of construction that an express mention of one thing in a statute implies exclusion of others,3/ it likewise clearly follows, in our opinion, that this constitutes theonly area in which monies in a municipal firemen's pension fund may be utilized for the purpose of discharging any of the employer obligations imposed under the laws governing the new retirement system.  Therefore, parts (a) and (b) of your question, relating to the fund sources which may be used by an employer in making the contributions required by RCW 41.26.080,supra, or in paying disability leave allowances under RCW 41.26.120,supra, must be answered in the negative.  Monies in a city's paid firemen's pension fund established pursuant to RCW 41.16.050may not be used for either of these purposes.

             [[Orig. Op. Page 7]]

            However, by way of a perhaps necessary clarification of the matter in the case of disability leave allowances, we should point out that these moniesmay still be used to pay the disability allowance provided for under RCW 41.18.060 which remains in effect and constitutes a virtual counterpart to the disability leave allowance provided for by RCW 41.26.110.  This section of the previous paid firemen's pension statutes reads, in material part, as follows:

            "Whenever the retirement board, pursuant to examination by the board's physician and such other evidence as it may require, shall find a fireman has been disabled while in the performance of his duties, it shall declare him inactive.  For a period of six months from the time of such disability he shall draw from the pension fund a disability allowance equal to his basic monthly salary . . ."  (Emphasis supplied)

            Thus, in a particular case involving a fire fighter who remains covered under this statute (in addition to being covered under chapter 41.26 RCW),4/ his disability might in fact be compensated on the basis of a claim under the old rather than the new statutes.  In such a case, it would follow that these payments would be made out of the applicable municipal firemen's pension fund rather than being made by the employer from its other assets.  However, this circumstance would existonly in a case where payments under the prior statutes were being made as the exclusive source of coverage during the period in question.  If, instead, a disability leave allowance were also being paid under RCW 41.26.120, this allowance would constitute a total offset against any disability allowance currently being paid under RCW 41.18.060 pursuant to the formula which is provided for in RCW 41.26.040 (2).  See, AGO 1970 No. 17 [[to Walter B. Williams, State Senator on June 30, 1970]], copy enclosed, for a further explanation of this relationship.

            We trust the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See RCW 41.26.030 (3) for the correlative definition of "law enforcement officer"; however, inasmuch as this opinion does not deal with the funding of benefits for those personnel, we need not consider this aspect of the act any further at this time.

2/Note should be made here of the fact that not all cities or other municipalities employing paid firemen were covering these personnel under a paid firemen's pension system; some such municipalities were, instead, covering these personnel under the volunteer firemen's pension system provided for in chapter 41.24 RCW.  See, AGO 65-66 No. 104 [[to Richard Taylor, State Representative on September 22, 1966]]for an explanation of the basis for this coverage.

3/Expressiouniusestexclusioalterius.  See, e.g.,State v. Roadhs, 71 Wn.2d 705, 430 P.2d 586 (1967), and authorities cited therein.

4/See, RCW 41.26.040 (2).