Letter Opinion 1972 No. 022

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                                                                   April 11, 1972

Honorable R. W. Hutt
Acting Commissioner
Employment Security Department
P.O. Box 367
Olympia, Washington 98504                                                                                            Cite as:  AGLO 1972 No. 22 (not official)

Dear Sir:
 
            This is written in response to your recent letter requesting our opinion on a question regarding the eligibility for membership in the state‑wide [[statewide]]city employees' retirement system of certain municipal firemen.
 
                                                                     ANALYSIS
 
            As you know, the state‑wide [[statewide]]city employees' retirement system, as such, no longer exists ‑ having been merged into the Washington public employees' retirement system as of January 1, 1972, in accordance with the provisions of chapter 75, Laws of 1971.1/   However, as you have explained in your letter, your question involves, basically, the correctness or incorrectness of action taken by certain cities and towns in covering their firemen under the state‑wide [[statewide]]city employees' retirement system a number of years ago, at a time when this system was still in active existence.2/   You have raised this question because of the relationship between retirement system coverage and the application of federal social security to public employees in this state under the provisions of RCW 41.48.050, pursuant to which our various state or municipal retirement systems denote separate social security coverage groups.
 
             [[Orig. Op. Page 2]]
            Specifically, you have asked us to assume the case of a city which, at the time in question, was participating in the state‑wide [[statewide]]city employees' retirement system under the provisions of chapter 41.44 RCW.  This city was also participating in the volunteer firemen's relief and pension system as provided for in chapter 41.24 RCW for the members of its fire department ‑ but only to the extent of affording these personnel the mandatory disability coverage provided for in RCW 41.24.020 (1).  The city had not taken any affirmative legislative action to cover its firemen under the pension benefits program for volunteer firemen pursuant to subsection (2) of this statute.
 
            At the outset, this city had a wholly volunteer fire department, but on a certain date it employed a single full-time paid fireman ‑ its first such employee in this category.  Because it lacked the two full-time paid firemen then necessary in order for the city to establish a "paid fireman's" pension fund and system under chapter 41.18 RCW,3/ this fireman could not then have been considered eligible for coverage under that pension system.
 
            Question:
 
            In view of the provisions of RCW 41.44.060, was it correct under all of these circumstances for this city to have included its first full-time paid fireman within the coverage of the state‑wide [[statewide]]city employees' retirement system?
 
            Answer:
 
            We believe that the foregoing question is answerable in the affirmative.
 
            The key statute, RCW 41.44.060, which was in operative effect at the time stipulated in your question, stated that:
 
            "Policemen in first class cities and all city firemen shall be excluded from the provisions of this chapter, except those employees of the fire department who are not eligible to the benefits of any firemen's pension system established by or pursuant to state law, and who shall be included in the miscellaneous personnel."  (Emphasis supplied.)
 
             [[Orig. Op. Page 3]]
            Also to be noted in RCW 41.44.110, providing for mandatory membership in the state‑wide [[statewide]]city employees' retirement system of all employees in each of three groups of participating city employees, miscellaneous personnel, uniform personnel and elective officials, to the extent that the particular city had determined to provide coverage for each of these three groups under this retirement system.  Thus, assuming that the particular city had taken appropriate action to cover its miscellaneous personnel within the state‑wide [[statewide]]city employees' retirement system, it would follow that the single paid fireman to which your question refers would have been properly (and mandatorily) made a member of statewide if, but only if, he was not at the time in question eligible for the benefits of the volunteer firemen's pension system ‑ i.e., the only pension program covering the members of the fire department of the subject city because of the absence of a "paid fireman's" pension fund as explained above.
 
            This brings us to RCW 41.24.020, which governs those municipalities maintaining a part-paid and part-volunteer (or wholly volunteer) fire department.4/   RCW 41.24.020 provides that:
 
            "(1) Every municipal corporation maintaining and operating a regularly organized fire department shall make provision by appropriate legislation for the enrollment of every fireman under the relief and compensation provisions of this chapter for the purpose of providing protection for all its firemen and their families from death or disability arising in the performance of their duties as firemen:  Provided, That nothing herein shall prohibit any municipality from providing such additional protection for relief and compensation, or death benefit as it may deem proper.
 
            "(2) Any municipal corporation maintaining and operating a regularly organized fire department may make provision by appropriate legislation whereby any fireman may enroll under the pension provisions of this chapter for the purpose of enabling any fireman, so electing, to avail himself of the retirement provisions of this chapter.
 
            "(3) Every municipal corporation shall make  [[Orig. Op. Page 4]] provisions for the collection and payment of the fees as herein provided, and shall continue to make such provisions for all firemen who come under this chapter as long as they shall continue to be members of its fire department."
 
            In AGO 65-66 No. 104 [[to Richard Taylor, State Representative on September 22, 1966]], supra, we concluded that a city or town participating in the state‑wide [[statewide]]city employees' retirement system could not cover its full-time paid firemen under the provisions of that retirement system where such firemen were, when employed, eligible to be covered under either the paid firemen's pension system (chapter 41.18 RCW) or the volunteer firemen's pension system (chapter 41.24 RCW).  However, we did not there address ourselves to the precise issue raised by your present question; namely, the status of a single paid fireman employed by a city which had not taken the appropriate action under subsection (2) of this statute which was necessary to cover its firemen under the pension program portion of the volunteer firemen's relief and pension system.
 
            Query:  In view of the absence of affirmative legislative action to cover its firemen under the pension portion of the volunteer firemen's relief and pension system, should a paid member of the subject city's fire department be deemed to have been "eligible to the benefits of any firemen's pension system established by and pursuant to state law" within the meaning of RCW 41.44.060, supra?
 
            We believe it apparent from a reading of RCW 41.44.060 that its basic purpose was simply to preclude dual pension coverage for city firemen under both the state‑wide [[statewide]]city employees' retirement system and some other public pension program in the state.  However, it also seems evident to us that under the provisions of RCW 41.24.020 (2), supra, a fireman's eligibility for the pension benefits of the volunteer firemen's relief and pension system is dependent upon whether or not the municipality by which he is employed has taken the necessary action to provide these benefits (in addition to compulsory disability coverage) for the members of its fire department.  If it has not, it follows that its firemen are not "eligible" for pension benefits under this retirement system.  Accord, Industrial Commission of Ohio v. Flynn, 129 Ohio St. 220, 194 N.E. 420 (1935), from which we derived the following principle in our opinion (copy enclosed) of November 30, 1961, to the State Teachers' Retirement Board:
 
             [[Orig. Op. Page 5]]
            "The point thus made [in that case], it seems to us, is that where a right to a particular pension type benefit depends upon non-eligibility for some other benefit, eligibility for the other or secondary benefit will be taken to mean membership in a class which is presently fully qualified to apply for and receive the secondary benefit.  The idea of potentiality rather than realization is still expressed, but in terms of a fulfillment of all of the substantive conditions precedent to realization.  Until all of these substantive conditions have been fulfilled, eligibility is not present."
 
            It is on the basis of this reasoning that we believe the action taken by the subject city in covering its first paid fireman under the state‑wide [[statewide]]city employees' retirement system was, at the time of its occurrence, correct.  Moreover, it also follows from RCW 41.44.110, supra, that this coverage under the stipulated circumstances was mandatory.
 
            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
 
                                                         ***   FOOTNOTES   ***
 
1/Codified as RCW 41.40.405 ‑ 41.40.407.
 
2/And, as well, at a time several years prior to the establishment of the new state law enforcement officers' and fire fighters' retirement system (LEOFF) provided for in chapter 209, Laws of 1969, Ex. Sess., and subsequent amendments (chapter 41.26 RCW).
 
3/See, AGO 65-66 No. 104, copy enclosed, which we will discuss further below.
 
4/See, RCW 41.24.010.