Letter Opinion 1971 No. 041

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                                                                  March 15, 1971
 
 
 
Honorable Paul Barden
State Representative, 30th District
Legislative Building
Olympia, Washington 98501
                                                                                            Cite as:  AGLO 1971 No. 41 (not official)
 
 
Dear Sir:
 
            This is written in response to your letter dated March 11, 1971, requesting our advice in regard to a certain matter which is described in a letter written to you on February 2, 1971, by the chief of the fire department of King County Fire District No. 32 ‑ a copy of which you have enclosed.
 
            Essentially, as we understand it, Chief McPherson is urging that the members of his fire department should be allowed to participate in both the Washington Law Enforcement Officers' and Fire Fighters' Retirement System and the Volunteer Firemen's Retirement System ‑ on the theory that they are both "paid" firemen and "volunteer" firemen.
 
                                                                     ANALYSIS
 
            The reason that this office has advised the secretary for the state board for volunteer firemen that this cannot be done is based upon the portion of RCW 41.26.040 (1) which we will underscore in quoting it below, as follows:
 
            "The Washington law enforcement officers' and fire fighters' retirement system is hereby created for fire fighters and law enforcement officers.
 
            "(1) All fire fighters and law enforcement officers employed as such on or after March 1, 1970, on a full time fully compensated basis in this state shall be members of the retirement system established by this chapter with respect to all periods of service as such, to the exclusion of any pension system existing under any prior act . . ."  (Emphasis supplied.)
 
             [[Orig. Op. Page 2]]
            We do not believe it was the intent of the legislature to allow a fire fighter to participate in both the LEFF system and the volunteer firemen's pension system on the basis of membership in the fire department of a single employer (i.e., county, city, town or fire protection district, as defined in RCW 41.26.030 (2)) simply by asserting that during certain portions of a given day he is "on duty" for comepnsation whereas at other times during the same day he may respond to a fire call during "off duty hours" in a different capacity ‑ i.e., as a "volunteer fireman."  On the other hand, in accordance with the position which has been taken by the secretary of the state board for volunteer firemen, it is perfectly consistent with the foregoing for a person who is a "paid" fireman in the service of one public agency and also a "volunteer" fireman in some other public agency's fire department to be permitted to participate in both pension systems, for in this case, it is perfectly clear and discernible that the person in question is serving in two distinct and independent capacities.
 
            Beyond this, we should further add that those "paid" firemen who were transferred from the volunteer firemen's relief and pension system to the LEFF system on March 1, 1970, in accordance with the provisions of RCW 41.26.040, supra, do remain members of the volunteer system to the extent necessary to preserve their vested rights therein, in accordance with the provisions of subsection (2) of this statute.  However, in our judgment, if the legislature now desires that a single individual be allowed simultaneously to participate on an active and current basis in both pension systems for "paid" and "volunteer" service within the same fire department, we would regard amendatory legislation to be necessary in order to accomplish this.  Such legislation might well take the form of a proviso which would cause RCW 41.26.040 (1), supra, to read as follows:
 
            "The Washington law enforcement officers' and fire fighters' retirement system is hereby created for fire fighters and law enforcement officers.
 
            "(1) All fire fighters and law enforcement officers employed as such on or after March 1, 1970, on a full time fully compensated basis in this state shall be members of the retirement system established by this chapter with respect to all periods of service as such, to the exclusion of any pension system existing under any prior act except as provided in subsection (2) of this section ((.)) : PROVIDED, That any fire fighter who also serves as a  [[Orig. Op. Page 3]] volunteer fireman, whether within the fire department of a single employer or in some other municipal fire department, shall be covered by the provisions of chapter 41.24 RCW for his periods of service as a noncompensated, volunteer fireman to the extent and in the manner provided for in said chapter.
 
            We trust that the foregoing will be of some assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Deputy Attorney General