Letter Opinion 1972 No. 015

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

                                                                February 23, 1972

Honorable Lloyd G. Baker
Director
Law Enforcement Officers
and Fire Fighters Retirement System
General Administration Building
Olympia, Washington 98504                                                                                            Cite as:  AGLO 1972 No. 15 (not official)
 
 
                                    Re:       Eligibility of persons employed
                                                under the Emergency Employment
                                                Act of 1971 for law enforcement
                                                officers and fire fighters retirement
                                                system coverage
 
Dear Mr. Baker:
 
            By recent letter, you have asked this office to respond to a question which you have set forth as follows:
 
            "Are persons who are employed as policemen or firemen by an employer participating in a program authorized by the Emergency Employment Act of 1971 (Public Law 92-54), ineligible for coverage in the Law Enforcement Officers and Fire Fighters Retirement System by virtue of their being employed by an employer participating in such a program?"
 
                                                                     ANALYSIS
 
            Our response to this question is in the negative.
 
            Those persons who are eligible for coverage in the law enforcement officers and fire fighters retirement system (LEFF) are described in the definition of law enforcement officer and fire fighter contained in RCW 41.26.030 (3) (4).  These subsections define the terms "law enforcement officer" and "fire fighter", in relevant part, as follows:
 
            "'Law enforcement officer' means any person who is serving on a full time, fully compensated basis as a county sheriff or deputy sheriff, including sheriffs or deputy sheriffs serving under a different title pursuant to a county charter, city police officer, or town marshal or deputy marshal:  . . ."
 
            "'Fire fighter' means any person who is serving on a full time, fully compensated basis as a  [[Orig. Op. Page 2]] member of a fire department by an employer and who has passed a civil service examination for fire fighter, or fireman if this title is used by the department, and who is actively employed as such; and shall include anyone who is actively employed as a full time fire fighter where the fire department does not have a civil service examination; this term shall also include supervisory fire fighter personnel; . . ."
 
            Therefore, if an individual is properly described by the definitions and has met the minimum medical and health standards as set forth in RCW 41.26.045, that individual would be required to become a member of the LEFF retirement system under RCW 41.26.040.
 
            We find nothing in the Emergency Employment Act of 1971 (Public Law 92-54) that would prohibit a person employed under the emergency employment act from coverage in a state retirement system.  In fact, § 12 (a) (4) provides, as a condition for federal financial assistance, that
 
            "all persons employed in public service jobs under this Act will be assured of workmen's compensation, health insurance, unemployment insurance, and other benefits at the same levels and to the same extent as other employees of the employer and to working conditions and promotional opportunities neither more nor less favorable than such other employees enjoy;"
 
            See also, the following explanatory statement of the Committee of Conference which formulated the final version of the act:
 
            "Both the Senate bill and House amendment provide that participants will have the same fringe benefits and working conditions as other employees of the employer.  The Senate bill also stipulates that participants will enjoy promotional opportunities neither more nor less favorable than other employees enjoy.  The House recedes."1/
 
             Yet, in spite of this clear expression of legislative intent, the suggestion has been made that persons employed under the Emergency Employment Act are "transitional" employees and hence not "full time" employees as required by the LEFF retirement act.  This suggestion undoubtedly springs from the language contained in § 2 of the act which provides as follows:
 
            "It is therefore the purpose of this act to provide unemployed and underemployed persons with transitional  [[Orig. Op. Page 3]] employment in jobs providing needed public services during times of high unemployment and, wherever feasible, related training and manpower services to enable such persons to move into employment or training not supported under this Act."  (Emphasis supplied)
 
            However, the legislative history as contained in § 1 of the joint explanatory statement of the Committee of Conference, makes it clear that the use of the word "transitional" carries no implication that the individuals employed under the Emergency Employment Act are to have their employment terminated upon the cessation of the effectiveness of the act.  Quite the contrary, every effort is to be made that the individuals employed under the act are absorbed into the normal work force.  The committee explains the use of the word "transitional" in § 1 of their report, as follows:
 
            ". . . [T]he word 'transitional' as used in this act ‑
 
            - does not in any way limit the length of time an individual can stay on a specific public service employment job during the term of this act ‑ and no regulation may require any such limitation; ‑
 
            - does not limit the kinds of jobs to be made available under the program; specifically, jobs are not to be limited to those which are inherently temporary; jobs to be funded under this act are to include such jobs as policemen, teachers, nurses, firemen, and other jobs widely recognized as necessary and permanent in nature.
 
            - does not prohibit the reemployment of those who have been laid off regular public service jobs because of fiscal problems at the local level.  In fact, the conferees expect that many localities will rehire such employees."  (Emphasis supplied)
 
            Moreover, even if a contrary view were taken as to the probable tenure of law enforcement officers or fire fighters employed by an employer participating in a program under the subject federal act, this still would not disqualify such personnel from coverage under [[LEOFF]]‑ so long as they are employed on a "full time" basis for whatever duration the program continues.  As is expressly stated in RCW 41.26.040, supra (subject only to the qualifications of RCW 41.26.045 relating to medical standards),
 
            "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 in this chapter with respect to all periods of service as such.  . . ."
 
             [[Orig. Op. Page 4]]
            Therefore, we can see no basis for concluding that an individual employed as a law enforcement officer or fire fighter pursuant to a program in which his employer is participating under the Emergency Employment Act of 1971 would, for this reason, be ineligible for coverage in the LEFF retirement system.  Accordingly, we have answered your question in the negative.
 
            We trust that this has been of some assistance.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
WAYNE L. WILLIAMS
Assistant Attorney General
 
                                                         ***   FOOTNOTES   ***
 
1/1971 United States Code, Congressional and Administrative News, p. 1344.