FIREMAN ‑- RETIRED ON PERMANENT DISABILITY ‑- EMPLOYMENT BY ANOTHER DEPARTMENT WHILE NOT FIT FOR SERVICE

FIREMAN ‑- RETIRED ON PERMANENT DISABILITY ‑- EMPLOYMENT BY ANOTHER DEPARTMENT WHILE NOT FIT FOR SERVICE

A paid fireman, retired on permanent disability, can, as long as he is found by the pension board not to be fit for service, work for the same city in another department.

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                                                                   April 18, 1958

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                  Cite as:  AGO 57-58 No. 180

Attention:  !ttMr. A. E. Hankins, Chief Examiner
                       Division of Municipal Corporations

Dear Sir:

            We acknowledge receipt of your request for an opinion on the following question:

            Can a paid fireman, who has been retired on permanent disability, work for the same city in another department in a capacity which does not require the physical effort required of a fireman?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            We assume that the fireman has been retired on permanent disability pursuant to the provisions of either the 1947 act (chapter 41.16 RCW) or the 1955 act (chapter 41.18 RCW).

            We know of no statute preventing a person retired on a public pension for disability from obtaining other gainful employment.  The only problem that we can see, is whether such employment might be indicative of his being fit to return  [[Orig. Op. Page 2]] to service.  The acts make appropriate provisions for such a determination.  (Cf. RCW 41.16.200 and RCW 41.18.090.)  Both sections make provisions for examining such a pensioner every six months, and

            ". . . If such fireman . . . is found fit for service, he shall be restored to duty in the same rank held at the time of his retirement, or if unable to perform the duties of said rank, then, at his request, in such other rank, the duties of which he is then able to perform. . . ." (RCW 41.16.200)

            Our court, in passing on a similar provisions in the police pension act (now RCW 41.20.100) relating to examinations "as to his fitness for duty," had this to say inClark v. Board of Police Pension Fund Commissioners (1937), 189 Wash. 555, 559, 562:

            ". . . the statute respecting the discontinuance of the pension whenever 'such disability shall cease,' means no more and no less than that, whenever the disability sustained by reason of bodily injury or incapacity for service . . . shall cease, the pension shall also cease. . . .

            ". . . The provision of the statute is to the effect that, when the disability ceases, there shall be a restoration of the policeman to the service, at the same salary he received at the time of his retirement.  When restored at the same salary, there should be a restoration to the same position or rank held by the appellant at the time of his retirement, . . .

            ". . . fitness for police duty means the ability to discharge, with average efficiency, the duty of the grade to which the member belongs. . . ."

            The question here, as in the case cited, is whether the firemen's pension board, following an examination, determines whether or not the fireman "is found fit for service."  If so, he must return to duty; but if not, he is free to take such  [[Orig. Op. Page 3]] other gainful employment as he can perform.  The fact that it might be with the same city in another department is a question for administrative determination.  There is no present legal reason why this cannot be done.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MITCHELL DOUMIT
Assistant Attorney General