FIREMEN ‑- PENSION SYSTEMS ‑- ELIGIBILITY FOR REFUND OF CONTRIBUTIONS

FIREMEN ‑- PENSION SYSTEMS ‑- ELIGIBILITY FOR REFUND OF CONTRIBUTIONS.

A paid fireman employed prior to January 1, 1947, who is a member of the pension system established by the Laws of 1909, is not entitled to a refund of his pension contributions if he resigns prior to twenty years' service.

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                                                                October 28, 1955

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 153

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

Dear Sir:

            You have asked our opinion on whether or not a fireman, who is classified as a "prior fireman" under chapter 91, Laws of 1947, and who is resigning, is entitled to a refund of his contributions to the pension fund by virtue of § 11, chapter 382, Laws of 1955.

            In our opinion this fireman is not entitled to a refund.

                                                                     ANALYSIS

            Section 1 (2), chapter 382, Laws of 1955, provides as follows:

            "'Fireman' means any person hereafter regularly or temporarily, or as a substitute newly employed  [[Orig. Op. Page 2]] and paid as a member of a fire department, who has passed a civil service examination for firemen and who is actively employed as a fireman; and any person heretofore regularly or temporarily, or as a substitute, employed and paid as a member of a fire department, and who has contributed under and been covered by the provisions of chapter 91, Laws of 1947 (chapter 41.16 RCW) and who has come under the provisions of this act in accordance with section 16 hereof and who is actively engaged as a fireman or as a member of the fire department."

            Section 11 of the 1955 act provides:

            "Any fireman who shall have served for a period of less than twenty years, and shall resign, or be dismissed from the fire department for a reason other than conviction for a felony, shall be paid the amount of his contributions to the fund plus earned interest."

            InJolly v. Bremerton, 31 Wn. (2d) 873, the court held that a city fireman who was employed prior to January 1, 1947, and who continued in that employment until his resignation in 1948, was not entitled under chapter 91, Laws of 1947, to a refund of his pension contributions.  The court decided that the legislature intended by the 1947 act to establish two complete pension laws for paid firemen.  The court held that the 1909 act is still applicable to firemen who were employed prior to January 1, 1947, and who continued employment thereafter and the 1947 act applies to firemen who commenced employment on or subsequent to January 1, 1947.  Section 17, chapter 382, Laws of 1955, authorizes "prior firemen" to come under the provisions of the 1947 act by exercising an option to do so.  The same section requires those covered by the 1947 act who desire to remain under that pension system to make a written declaration of such intention within sixty days from the effective date of the 1955 act.  Otherwise, under the provisions of § 16 of the 1955 act, such firemen are transferred to the new pension system established by chapter 382, Laws of 1955.  Thus there are now in existence three separate pension funds for paid firemen:

             [[Orig. Op. Page 3]]

            (1) The 1909 act for firemen employed prior to January 1, 1947, who have not elected to join the 1947 pension system; (2) firemen employed after January 1, 1947, and prior to the effective date of the 1955 act who have elected to remain in the pension system established by chapter 91, Laws of 1947.  This system also includes "prior firemen" who have elected to transfer to the 1947 pension system; and (3) firemen employed on or subsequent to June 9, 1955, and firemen previously members of the 1947 pension system who have not affirmatively indicated their intention in writing to the pension boards of their respective municipalities to remain in the 1947 pension system.

            The definition of "fireman" in chapter 382, Laws of 1955, is not broad enough to include "prior firemen."  It is our opinion that a fireman employed prior to January 1, 1947, who is a member of the pension system established by the Laws of 1909 is not entitled to a refund of his contributions if he resigns or is dismissed.  Jolly v. Bremerton, supra.

            We hope the foregoing analysis will prove helpful.

Very truly yours,

DON EASTVOLD
Attorney General

ANDY G. ENGEBRETSEN
Assistant Attorney General