DISTRICTS ‑- FIRE PROTECTION ‑- AMBULANCES ‑- USE OF PAID FIREFIGHTERS TO ASSIST IN THE OPERATION OF PRIVATELY OWNED AMBULANCES

DISTRICTS ‑- FIRE PROTECTION ‑- AMBULANCES ‑- USE OF PAID FIREFIGHTERS TO ASSIST IN THE OPERATION OF PRIVATELY OWNED AMBULANCES

A fire protection district does not have the legal authority, under existing statutes, to maintain and provide a paid firefighter who has first aid training, to ride with a privately owned ambulance in order to enable the ambulance operator to comply with RCW 18.73.150.

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

                                                                   March 2, 1978

Honorable Shirley Winsley
State Representative, 28th Dist.
539 Buena Vista Avenue
Tacoma, Washington 98466

                                                                                                                   Cite as:  AGO 1978 No. 5

Dear Representative Winsley:

            By letter previously acknowledged you have requested the opinion of this office on several questions regarding the use of fire protection district employees with first aid training to assist a private ambulance company in transporting persons in need of resuscitation procedures.  We paraphrase your questions as follows:

            (1) Does a fire protection district have the legal authority, under existing statutes, to maintain and provide a paid firefighter who has first aid training, to ride with a privately owned ambulance in order to enable the ambulance operator to comply with RCW 18.73.150?

            (2) Assuming an affirmative answer to question (1), would such use of firefighting personnel violate the provisions of Article VIII, § 7 of the Washington State Constitution?

             [[Orig. Op. Page 2]]

            (3) Also assuming an affirmative answer to question (1), what liability would the fire protection district have (if it adopted a policy allowing the use of firefighters in the manner described above) for injury to a person based on the firefighter's negligence?

            (4) Assuming that a firefighter who was thus assisting was negligent, and without regard to the liability of the fire protection district, would the firefighter be liable to the injured party for the damages sustained?

            For the reasons stated in our analysis we answer your first question in the negative, thereby rendering consideration of your remaining questions unnecessary.

                                                                     ANALYSIS

            In your letter you have provided us with the following factual background for your opinion request:

            "The facts that give rise to my request are as follows:  A fire protection district operates first aid vehicles pursuant to RCW 18.73.170.  They are not used to transport patients except as specified in that statute.  Under normal circumstances, a private or government ambulance is secured for transportation of patients.  RCW 18.73.150 specifies that an ambulance shall operate with 'sufficient personnel for adequate patient care, at least one of whom shall be an emergency medical technician under standards promulgated by the secretary.'

            "Usually, the ambulance is staffed only by a driver and one attendant.  In some instances, an injured party has a cardiac arrest, which requires two or more persons to provide resuscitation procedures.  When this occurs,  [[Orig. Op. Page 3]] the ambulance personnel request that a paid fire fighter accompany the ambulance to the hospital and assist in providing resuscitation procedures."1/

             Your first and basic question is whether a fire protection district is statutorily authorized to provide this service.

            As you know, fire protection districts are municipal corporations.  RCW 52.08.010.  As such, they possess only those powers which have been expressly granted by the state legislature or are necessarily or fairly implied in or incident to the powers expressly granted and are essential to the declared objects and purposes of the particular municipal corporation.  Christie v. The Port of Olympia, 27 Wn.2d 534, 179 P.2d 294 (1947); State ex rel. Hill v. Port of Seattle, 104 Wash. 634, 177 Pac. 671 (1919).  If there is doubt as to whether the power exists, it must be denied.  Pacific Etc. Ass'n. v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947);Woodward v. Seattle, 140 Wash. 83, 248 Pac. 73 (1926).

            (a)Express Authority:

            The legislature has not expressly conferred upon fire protection districts the authority to assist a private ambulance company by providing a fireman employed by it to ride in the ambulance and give first aid treatment.

            RCW 52.08.030 provides, in part, as follows:

            "Any fire protection district organized under this act shall have authority:

            "(1) Tolease, own, maintain, operate and provide fire engines and allother necessary or proper apparatus, facilities, machinery and equipment for the prevention and extinguishment of fires, andprotection of life and property;"  (Emphasis supplied)

             [[Orig. Op. Page 4]]

            We have previously concluded that this language confers the power to own and operate an ambulance.  AGO 53-55 No. 121 [[to W. J. Beierlein, State Representative, on August 24, 1953]](copy enclosed); see also RCW 52.36.095.  However, under the situation you have described, the fire protection district would not be operating its own ambulance but rather would be furnishing an employee to assist a private company in the operation of its ambulance.  Moreover, the authority contained in RCW 52.08.030(1) necessarily implies authority for the fire protection district to use its employees to operate an ambulance service, but this power extends only to ambulances leased, or owned and operated by the district itself.

            (b)Implied Authority:

            In addition, the authority here in question is not essential to the declared objects and purposes of a fire protection district nor is it necessarily implied in powers expressly granted.  In applying the rule of construction of municipal powers, the words "necessarily" and "essential" refer to legal necessity rather than practical necessity.  SeeState Ex Rel. State Board Etc. v. Clausen, 84 Wash. 279, 146 Pac. 630 (1915); AGO 61-62 No. 155 [[to Gordon L. Walgren, Prosecuting Attorney of Kitsap County, on August 14, 1962]].  The purposes specified in RCW 52.04.020, which are the elimination of fire hazards and the protection of life and property in territories outside of cities and towns, may be accomplished without assisting in the operation of privately owned ambulances.

            Whether a municipal power is necessarily implied from authority expressly granted is a matter of legislative intent.  State Ex Rel. Huggins v. Bridges, 97 Wash. 553, 166 Pac. 780 (1917); State Ex Rel. Walla Walla v. Clausen, 157 Wash. 457, 289 Pac. 61 (1930).  RCW 52.08.030(6) provides as follows:

            "Two or more fire protection districts may contract with each other and such a district may contract with a city or county or the state supervisor of forestry or any association approved by him for the joint leasing, ownership, maintenance and operation of all necessary and proper apparatus, facilities, machinery, and equipment for the elimination of fire hazards and for the protection of life and property . . ."

            It is evident from this provision that when the legislature has considered it appropriate to authorize cooperative operation of ambulances and other equipment, it has done so expressly.  Moreover, it has approved such joint operation only with certain entities not including a private ambulance company.

             [[Orig. Op. Page 5]]

            RCW 52.08.030(3) confers the following additional authority on fire protection districts:

            "To enter into contract with any incorporated city or town whereby such city or town shall furnish fire prevention and fire extinguishment service to the districts and the inhabitants thereof under the provisions of this act upon such terms as the board of directors of the district shall determine.  To contract with another county fire protection district, or with any town, city or municipal corporation or governmental agency or private person or persons to consolidate or cooperate for mutual fire fighting protection and prevention purposes. Any city, town, municipal corporation or governmental agency may contract with a county fire protection district established and maintained under the provisions of this act for the purpose of affording such district fire fighting and protection equipment and service or fire prevention facilities, and in so contracting the district, city, town, municipal corporation or other governmental agency shall be deemed for all purposes to act within its governmental capacity.  Any county fire protection district established and maintained under the provisions of this act, or any city, town, municipal corporation or other governmental agency is hereby authorized to contract with any person, firm or corporation for the purpose of affording fire fighting, protection or fire prevention facilities to such person, firm or corporation and such contractual relation shall be deemed for all purposes to be within the governmental power of such rural fire protection district, city, town, municipal corporation or other governmental agency;"  (Emphasis supplied)

            While this provision authorizes fire protection districts to cooperate with government agenciesand private firms or corporations, that power is here limited to fire protection and prevention purposes as opposed to the protection of life from dangers other than fire.

            RCW 52.08.030(3), therefore, demonstrates a legislative intent to permit assistance to or cooperation with private persons or entities only by express legislative authorization.  [[Orig. Op. Page 6]] Hence, such power may not be necessarily implied as a matter of law in RCW 52.08.030(1), supra.2/

             Fire protection districts also possess the very general authority, contained in RCW 52.08.030(7), "[t]o do all things and perform all acts not otherwise prohibited by law."  However, such general grants of power have not been construed to permit the broad range of practices their literal language might be read to allow.  Construing a similar "all powers" clause, our Supreme Court in Century Brewing Co. v. Seattle, 177 Wash. 579, 585, 32 P.2d 1009 (1934), stated as follows:

            "'The general rule may be formulated thus: Where particular powers expressly conferred, are followed by a general grant of power, such general grant by intendment may include all powers that are fairly within the term of the grant, andwhich are essential to the purposes of the municipal corporation, and consistent with the particular powers.  Otherwise stated, where the exercise of particular governmental powers may be fairly included in and authorized by general powers granted, "the rule EXPRESSIO UNIUM EST EXCLUSIO ALTERIUS is not generally applied to specific powers conferred to exclude powers that serve the purposes for which municipalities are organizedwhere such powers are not inconsistent with other powers conferred or with limitations imposed by the charter or by statute upon the municipal powers.'"  (Emphasis supplied)

            Similarly inLark v. Whitehead, 28 Utah 2d 343, 502 P.2d 557 (1972), the court observed:

            ". . .  A general power granted to the [municipal] corporation to pass all ordinances necessary for the welfare of the corporation, is qualified and restricted by those other clauses and provisions of the charter or the general law which specify particular purposes for which  [[Orig. Op. Page 7]] ordinances may be passed.  Otherwise, the general clause would confer authority to abrogate the limitations implied from the express provisions."

            To conclude that RCW 52.08.030(7) authorizes a fire protection district to assist in the operation of an ambulance owned by a private company would be contrary to the rule stated inCentury Brewing Co., supra, that authority granted by an "all powers" clause must be "consistent with the particular powers" granted to the municipal corporation.  As noted above, the particular power of a fire protection district to cooperate in the operation of ambulances, as granted in RCW 52.08.030(6), is limited to joint operation with certain entitiesnot including a private ambulance company.  Similarly, in RCW 52.08.030(3) the legislature has granted a particular power to cooperate with governmental agencies and private firms or corporations, but that authority is limited to fire protection and prevention purposes.  Because the power to cooperate with a private company would be inconsistent with the specific powers expressly granted by the legislature, we must apply the established rule of statutory construction that the express mention of one thing (i.e., the entities with which the district may cooperate and the purpose of their joint effort) excludes others not mentioned.  SeeWn. Nat. Gas. Co. v. Public Util. Dist., 77 Wn.2d 94, 98, 459 P.2d 633 (1969).  Therefore, we conclude that RCW 52.08.030(7) does not encompass the authority to engage in the practice contemplated by your question.

            This conclusion is further supported by a previous opinion of this office on the extent of the authority of a fire protection district.  In AGO 61-62 No. 18 [[to Ray E. Munson, Prosecuting Attorney of Yakima County, on March 21, 1961]](copy enclosed) we noted the existence of the "all powers" clause in RCW 52.08.030(7) but, in view of the established legislative policy that the power to provide fringe benefits in addition to normal compensation is to be expressly granted, we were unable to find any authority for a fire protection district to pay premiums on group life insurance for its employees.  Similarly, in this case there is an established legislative policy that service provided by a fire protection district to or in cooperation with a private or governmental entity should be the subject of a contract.  See, RCW 52.08.030(3) (authorizing contracts for fire protection and prevention with any town, city, municipal corporation, government agency, private person, firm or corporation), RCW 52.08.030(4) (authorizing contracts between fire protection districts for joint operation), RCW 52.08.030(6) (authorizing contracts for protection of life and property with a city,  [[Orig. Op. Page 8]] county, and the state supervisor of forestry or any association approved by him), RCW 35.24.274 (authorizing contracts to provide public facilities or services and to establish a joint purchasing agency) and RCW 52.36.020 (authorizing contracts with any state agency, state institution or municipal corporation for fire protection services).  The legislature may well have determined that the formation of a formal contract prior to the initiation of service or cooperative effort has the advantage of permitting the parties to clarify all aspects of the joint operation, such as potential tort liability.  Such contracts may also assist the fire protection district in avoiding gifts of public funds or property prohibited by Article VIII, § 7 of the state constitution.  Therefore, to read into RCW 52.08.030(7) a general power to assist a private company in the operation of an ambulance without benefit of a contract would, in the language ofCentury Brewing Co., supra, be "inconsistent with . . . limitations imposed . . . by statute upon the municipal powers . . ."