CONTRACTS FOR FIRE PROTECTION SERVICES

DISTRICTS ‑- FIRE PROTECTION ‑- MUNICIPAL CORPORATIONS ‑- CONTRACTS ‑- CONTRACTS FOR FIRE PROTECTION SERVICES

Taxing district which constitute "municipal corporations" under chapter 64, Laws of 1973, 1st Ex. Sess.; determination of the rate of compensation to be paid by a municipal corporation for fire protection services thereunder; consequences of refusal of a municipal corporation to contract with a fire protection district; municipal bids for fire protection services.

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                                                                  January 9, 1974

Honorable Dale E. Hoggins
State Representative, 21st District
21826 95th Avenue W.
Edmonds, Washington 98020                                                                                                                 Cite as:  AGLO 1974 No. 5

Dear Sir:

            This is written in response to your recent letter directing our attention to the provisions of chapter 64, Laws of 1973, 1st Ex. Sess., and asking for our opinion on several questions with respect to this act under which certain state agencies and municipal corporations will be required to contract with fire protection districts for the services of those districts.  Specifically you have asked:

            "1. What entities are considered to be municipal corporations?

            "2. How will a rate that a fire district can charge a municipal corporation for protection be established?  Is there a limit placed on the rate they can charge?

            "3. What would happen if a municipal corporation refused to contract with a fire district and subsequently required their services?

            "4. Does a municipal corporation have latitude to request bids for fire protection from various fire districts?"

            We respond to these questions as set forth in the following analysis.

                                                                     ANALYSIS

            By its enactment of § 1, chapter 64, Laws of 1973, 1st Ex. Sess., the legislature amended the preexisting provisions of RCW 52.36.020 to read as follows:

            "Wherever a fire protection district has been organized which includes within its  [[Orig. Op. Page 2]] area or is adjacent to, ((state‑owned property)) buildings and equipment, except those leased to a nontax exempt person or organization, ((, the director of finance, budget and business is authorized to arrange for and to make contributions to such district, by payment to the county treasurer, of the county in which the district is located, such sum or sums as in his discretion may be equitable for the fire protection received by the state but in no event to exceed the amount such district would receive in revenue should such state property be on the tax rolls of such district)) owned by the legislative or administrative authority of a state agency or institution or a municipal corporation, the agency or institution or municipal corporation involved shall contract with such district for fire protection services necessary for the protection and safety of personnel and property pursuant to the provisions of chapter 39.34 RCW, as now or hereafter amended:  PROVIDED, That nothing in this section shall be construed to require that any state agency, institution, or municipal corporation contract for services which are performed by the staff and equipment of such state agency, institution, or municipal corporation:  PROVIDED FURTHER, That nothing in this section shall apply to state agencies or institutions or municipal corporations which are receiving fire protection services by contract from another municipality, city, town or other entities."

            Accord, AGO 1973 No. 19 [[to Ronald L. Hendry, Prosecuting Attorney, Pierce County on August 8, 1973]], copy enclosed, in which we concluded that a school district is a "municipal corporation" within the meaning of this amendment.  Before turning to your present questions we should note here, as we did there, that this new legislation, although passed during the 1973 first extraordinary session, will not take effect until July 1, 1974.  See, § 2, chapter 64, supra, which expressly so provides.

            Question (1):

            In concluding in AGO 1973 No. 19 that a public school districtis a "municipal corporation" as that term is used in the subject act we relied, principally, upon a number of prior decisions of the Washington Supreme Court in which school districts have been held to be municipal corporations for various other purposes.

             [[Orig. Op. Page 3]]   Under this same reasoning the term "municipal corporation" as used in chpater 64, supra, would also clearly include not only any county or incorporated city or town in this state but, in addition, it would also include such bodies as port districts, public utility districts, water districts, sewer districts and hospital districts, and any other special purpose taxing districts established pursuant to statute in this state which possess essentially the same characteristics as do the foregoing.

            Question (2):

            As far as your second question is concerned, chapter 64, supra, does not itself purport to dictate any of the terms of the contracts which are required to be executed under its provisions by municipal corporations and fire protection districts.  Note, however, must also be taken of another statute, RCW 43.09.210, which has been in existence for a number of years and provides as follows:

            "Separate accounts shall be kept for every appropriation or fund of a taxing or legislative body showing date and manner of each payment made therefrom, the name, address, and vocation of each person, organization, corporation, or association to whom paid, and for what purpose paid.

            "Separate accounts shall be kept for each department, public improvement, undertaking, institution, and public service industry under the jurisdiction of every taxing body.

            "All service rendered by, or property transferred from, one department, public improvement, undertaking, institution, or public service industry to another, shall be paid for at its true and full value by the department, public improvement, undertaking, institution, or public service industry receiving the same, and no department, public improvement, undertaking, institution, or public service industry shall benefit in any financial manner whatever by an appropriation or fund made for the support of another.

            "All unexpended balances of appropriations shall be transferred to the fund from which appropriated, whenever the account with an appropriation is closed."

             [[Orig. Op. Page 4]]   This statute has generally been viewed as an expression of legislative policy to the effect that public agencies at both the state and local level are to receive full and fair value for any property transferred or service rendered by them to other public agencies when such services are rendered under contracts such as are contemplated by the instant, 1973, amendment to RCW 52.36.020, supra.  Accord, AGO 1973 No. 18 [[to Robert V. Graham, State Auditor on August 2, 1973]], copy enclosed.  As we pointed out in that opinion, statutes which empower municipal agencies to engage in mutual undertakings generally contemplate a bona fide contractual relationship based upon mutual consideration ‑ as distinguished from transactions in which gratuities or gifts are made by either such public body to the other.

            Clearly, the legislature by its enactment of chapter 64, supra, manifested an intent that fire protection services received by a state agency or institution or a municipal corporation by reason of its ownership of buildings and equipment situated within a fire protection district should be paid for by the benefiting agency or municipality.  The measure of payment, however, was left to negotiation between the parties.  In order to conform with the spirit of RCW 43.09.210, supra, the contractual terms ultimately agreed upon as a consequence of this negotiating function should reflect charges which are based, insofar as practicable, upon the estimated costs to the contracting fire protection district of the services which are to be provided under the contract.

            In so concluding, we might add that we are, of course, fully aware of the necessity for a statutory authorization for the payment of fees or other charges by a school district or other municipality for services received by it from another public agency.  See, AGO 1969 No. 16 [[to Robert K. Leick, Prosecuting Attorney, Skamania County on September 22, 1969]].  In our judgment, however, chapter 64 itself imparts that authority here through its express requirement that all municipal corporations owning buildings or equipment within a fire protection district are to enter into contracts with that district for fire protection services.

            Question (3):

            Next you have asked:

            "What would happen if a municipal corporation refused to contract with a fire district and subsequently required their services?"

             [[Orig. Op. Page 5]]   This question, perhaps, is the most troublesome one to arise under this new legislation.  As you will note from a reading of the full text of § 1, chapter 64, supra, the legislature was totally silent with regard to the consequences which would result from a refusal by a municipal corporation to enter into a contract with a fire protection district when required to do so by the act.  Accordingly, the legislature has left both this office and the courts to speculate as to whether a municipal corporation that owns buildings or equipment situated within a fire protection district and refuses to enter into a contract with that district under this act is thereby to be denied any fire protection services, or is merely to be required to pay, on some sort of a quantum meruit basis, the reasonable value of such fire protection services as are actually rendered to the municipality.  Because of the potential drastic consequences which could flow from the first of these two possibilities, however, we are most hesitant to read such an intent on the part of the legislature into this new law in the absence of specific language to that effect.  Moreover, we would most certainly think that any fire protection district which responds to a refusal by a municipal corporation to enter into a contract for fire protection services by failing to provide such services in an emergency will in all likelihood be exposing itself to the potentiality of a substantial lawsuit for damages ‑ absent any such specific provision in the statute allowing it to refuse to provide services in such a case.  Unquestionably, this is an area that should be clarified by the legislature itself prior to July 1, 1974, when the statute takes effect.

            Question (4):

            Finally, you have asked whether a municipal corporation has any latitude to request bids for fire protection from various fire protection districts.

            This question, it appears, is clearly answerable in the negative.  The only fire protection district with which a particular municipal corporation can contract is that district in which its property is located or, in the event that the municipality's property is not situated within a fire protection district or other municipality providing fire protection services but is adjacent to such a district, that one.

             [[Orig. Op. Page 6]]   It is hoped that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

ROBERT F. HAUTH
Assistant Attorney General