TAXATION ‑- DISTRICTS ‑- FIRE PROTECTION ‑- PENSION FUND LEVY

TAXATION ‑- DISTRICTS ‑- FIRE PROTECTION ‑- PENSION FUND LEVY

Mandatory one‑mill levy for fire district pension fund must be within millage limitations of RCW 52.16.130 and 52.16.140.

Additional mill authorized by RCW 41.16.060 for that fund may exceed those limitations.

Both such levies must be imposed if necessary to sustain the fund.

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                                                                    July 25, 1955

Honorable Hugh H. Evans
Prosecuting Attorney
Spokane County
Spokane 1, Washington                                                                                                              Cite as:  AGO 55-57 No. 119

Dear Sir:

            You have requested our opinion on the following two questions arising with respect to chapter 46, Laws of 1955:

            (a) May the mandatory one‑mill levy for a pension fund be in excess of the four-mill levy (See RCW 52.16.130) now authorized for fire protection districts?  We respectfully direct your attention to the two provisos of RCW 41.16.060, which permit cities to levy one mill for pension purposes over and above their normal 15-mill limitation.

            (b) Since the firemen's pension fund is composed of funds derived from various sources other than the one‑mill levy (See RCW 41.16.050), could the fire protection district participate in the pension program to a limited extent without providing the annual one‑mill levy?  Is the one‑mill levy absolutely mandatory in order to participate in the pension benefits?

            From the context of your question we assume you also inquire whether the additional one mill levy provided by RCW 41.16.060 may be imposed in addition to the millage limits provided by chapter 52.16 RCW.

             [[Orig. Op. Page 2]]   In answer to your first question, we conclude the mandatory one mill levy imposed for a pension fund by a fire protection district may not be in excess of the millage limitations provided by RCW 52.16.130 and 52.16.140, but that the additional one mill levy may exceed those limitations.  With respect to your second question we conclude that if a pension program is undertaken both pension fund levies must be imposed each year in which the condition of the fund is such as to require the levies.

                                                                     ANALYSIS

            Chapter 46, Laws of 1955 provides:

            "Section 1. There is added to chapter 46.16 RCW, a new section to read as follows:

            "Any fire protection district having a full paid fire department may by resolution of its board of fire commissioners provide for the participation of its full time employees in a pension program in the same manner, with the same powers, and with the same force and effect as to such districts as the pension program provided by chapter 41.16 RCW for cities, towns and municipalities, or fire protection districts."

            RCW 41.16.050 provides that one of the sources of an established pension fund is:

            "* * * taxes paid pursuant to the provisions of RCW 41.16.060."

            The first paragraph of RCW 41.16.060, which is chapter 72, Laws of 1951, contemplates a levy of two mills to support the fund.  However, if the condition of the fund is such as not to require the full amount of the levy, all or any part of it may be omitted.  The two mills are categorized separately.  The mandatory one mill levy must be included within the millage limitation provided by RCW 52.16.130 and 52.16.140, while the additional one mill levy may be in excess of that limitation.

             [[Orig. Op. Page 3]]   The proviso permitting the additional levy to exceed the statutory limitation refers specifically to the 15 mill limit for cities.  But, as adopted by chapter 46, Laws of 1955, the proviso must be read to give effect to the legislative intent under the 1955 act.  That act directs that fire protection districts shall have the "same powers" accorded to cities in establishing pension funds.  Thus the act empowers the districts to levy the additional one mill for the pension fund in excess of limitations established elsewhere.  Both levies, however, are subject to the general forty mill limitation provided by RCW 84.52.050 (1953 Supp.).  See the enclosed copy of our opinion to the King County Prosecuting Attorney dated November 10, 1948.  Also both levies must be prorated pursuant to RCW 84.52.010 in instances where the provisions of that section are applicable.

            With reference to your second question your attention is directed to the last paragraph of RCW 41.16.060 which permits the omission of the mandatory and/or the additional one mill levies if examination of the pension fund discloses no need for the levies during the ensuing budget year.  However, imposition of the mandatory one mill levy, as the term indicates, is mandatory when a need exists.  Furthermore, imposition of the additional one mill levy is likewise mandatory if the need exists.

            Consequently, the answer to your last question must be that both one mill levies are mandatory once the fund is established unless the conditions of the last paragraph of RCW 41.16.060 exist, which conditions of course may vary from year to year.

Very truly yours,

DON EASTVOLD
Attorney General