CITY OF THIRD CLASS ‑- FIRE CHIEF ‑- OPERATION OF PRIVATE TV BUSINESS ‑- USE OF FIRE TRUCK AND CITY HALL OR FIRE HOUSE IN SUCH BUSINESS.

CITY OF THIRD CLASS ‑- FIRE CHIEF ‑- OPERATION OF PRIVATE TV BUSINESS ‑- USE OF FIRE TRUCK AND CITY HALL OR FIRE HOUSE IN SUCH BUSINESS.

1. Whether fire chief in third class city can operate private business when drawing full salary and on 24-hour call is matter for local civil service regulation.

2. Such fire chief cannot use the city fire truck in his business.

3. Nor can he use the city hall or the fire house to store TV sets or supplies for his business.

                                                                  - - - - - - - - - - - - -

                                                                   May 19, 1953

Honorable James E. Duree
Prosecuting Attorney
Pacific County
P.O. Box 552
Raymond, Washington                                                                                                                Cite as:  AGO 53-55 No. 47

 Dear Sir:

             We have received your request of May 13, 1953, for opinions on questions arising from the following facts:  The fire chief of a third class city, who is paid a salary and is on 24-hour call, conducts a private television sales and service business.  He stores television sets and supplies in either the city hall or the fire house, and makes service calls in the fire truck.

             You pose these questions:

             1. Can the fire chief legally conduct this private business?

             2. Can he legally use the fire truck in this manner?

             3. Can he legally use the city hall or the fire house for these purposes?

             Our conclusion on the first question is that this is a matter for local civil service regulation, which cannot be determined on the facts stated.  The answer to the second and third questions, in our opinion, is "No."

              [[Orig. Op. Page 2]]

                                                                     ANALYSIS

             1. Chapter 41.08 RCW deals with civil service requirements applicable to city firemen.  On the facts stated, the fire chief is a member of a "full paid fire department" as defined by RCW 41.08.220, which provides:

             "* * * 'Full paid fire department' means that the officers and firemen employed are paid regularly by the city anddevote their whole time to fire fighting.  * * *"  (Italics supplied)

             This is some indication that an additional private business would not accord with public policy.  But there is nothing in the cited chapter which specifically prevents the operation of such a business.  RCW 41.08.080 states the various grounds for removal or suspension by the civil service commission; but whether or not this case falls within that section is apparently for the determination of the commission.

             Further, the city in question may have made civil service provisions in its charter or local regulations under RCW 41.08.010, so that the rest of the chapter is not specifically applicable to its fire department.  Such charter or regulations would be controlled by the chapter only in case of conflict.  Mosebar v. Moore, 141 Wash. Dec. 203 [[41 Wn. 2d 216]].

             We cannot tell whether the particular city has placed any restriction upon gainful employment outside regular civil service duties.  If it has not adopted chapter 41.08 RCW, under RCW 41.08.020, it is within its power to make such regulations.  Schell v. Aberdeen, 28 Wn. (2d) 335.  If chapter 41.08 RCW is applicable, the commission may promulgate such regulations under RCW 41.08.040 (1).

             2. RCW 42.20.010 (3) provides:

             "Every public officer who:  * * * (3) Employs oruses any * * * property under his official control or direction, or in his official custody, for the private benefit or gain of himself or another;shall be guilty of a gross misdemeanor, * * *"  (Italics supplied)

             We believe that a city fire chief is a public officer under the definition given by RCW 42.04.010:

              [[Orig. Op. Page 3]]

            "A public officer is any person elected or appointed to perform duties prescribed by statute on behalf of the state, or any of its political subdivisions, * * *"

             See also Benefiel v. Eagle Brass Foundry, 154 Wash. 330, 334; and the criteria laid down inFitts v. Gibbs, 40 Wn. (2d) 444.  We conclude that use of the city fire truck for personal profit is illegal.

             3. We believe that where the word "property" is used in a statute such as RCW 42.20.010 (3), supra, without qualification, it refers both to realty and personalty.  We conclude that the use of the city hall or fire house for purposes of gainful private occupation is also illegal.

 Very truly yours,
 DON EASTVOLD
Attorney General 

A. J. HUTTON, JR.
Assistant Attorney General