VOLUNTEER FIREMEN ‑- PENSION AND RELIEF ACT ‑- ENROLLMENT OF FIREMEN AS PREREQUISITE TO ELIGIBILITY FOR MEDICAL BENEFITS ‑- FIRE DEPARTMENTS COVERED BY THE ACT ‑- LIABILITY OF FIRE PROTECTION...

VOLUNTEER FIREMEN ‑- PENSION AND RELIEF ACT ‑- ENROLLMENT OF FIREMEN AS PREREQUISITE TO ELIGIBILITY FOR MEDICAL BENEFITS ‑- FIRE DEPARTMENTS COVERED BY THE ACT ‑- LIABILITY OF FIRE PROTECTION DISTRICT FOR MEDICAL EXPENSES OF VOLUNTEER FIREMEN.

1. The failure of a fire protection district to enroll a fireman under the provisions of chapter 41.24 RCW does not preclude such fireman from receiving medical benefits under that chapter.

2. The requirements that a volunteer fire department be regularly organized, and that it be operated and maintained by a municipal corporation, in order to be within the coverage of the pension and relief provisions of chapter 41.24 RCW, are met if the fire department is a functioning fire‑fighting unit, if it is recognized by the officers of the fire protection district as having a part in the fire protection scheme of the district, and if it shares in the funds of the district.

3. A fire protection district is not liable to a volunteer fireman for the amount of medical expenses incurred by such fireman due to injuries sustained in the course of his duties as a fireman.

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                                                                   June 14, 1954

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                    Cite as:  AGO 53-55 No. 270

Attention:  !ttMr. F. D. Keister,Assistant State Auditor

Dear Sir:

            This is in response to your letter of May 12, 1954, in which you raise several questions as to the eligibility of a certain volunteer fireman for hospitalization  [[Orig. Op. Page 2]] benefits under chapter 41.24 RCW.  Your questions require a rather full consideration of the facts.

            The volunteer fireman was injured during a practice drill of the Coalfield, Washington, volunteer fire department on April 1, 1953.  Coalfield is located in King county fire protection district No. 10.  When district No. 10 was first established some years prior to 1953, the only fire department in the district was the Issaquah volunteer fire department.  Subsequently, fire stations were organized in surrounding communities, one of which was Coalfield, as sub‑departments [[subdepartments]]of the main department at Issaquah.

            Prior to April of 1953, the district was very loosely organized for fire protection purposes.  The relationships between the district, the Issaquah fire department, and the fire departments in the surrounding communities were not well defined.  There was particular confusion with respect to Coalfield.  Aside from the fire station established under the auspices of the district, there was a second fire department in Coalfield which had been organized in corporate form by interested persons in the community.  The injured fireman here involved was a member of this incorporated group.

            Subsequent to April of 1953, an organizational plan was effected for the district under which a single fire chief, appointed by the commissioners, was in charge of the entire district, and an assistant chief, appointed by the fire chief, had control of each of the sub‑departments [[subdepartments]]in the outlying communities.  The subdepartment in Coalfield consisted of the assistant chief and seven volunteer firemen.  The second incorporated group in Coalfield continued to function somewhat separately, outside the district's organizational scheme.

            None of the men in the two fire departments in Coalfield was enrolled under the death, disability and medical benefit provisions of RCW chapter 41.24 prior to April of 1953.  Some initial steps were taken toward such enrollment early in 1952 and thereafter, but because of a rapid turnover in personnel and other circumstances, such enrollment was never completed.  The fire protection district had, however, procured a private accident insurance policy for all volunteer firemen in Coalfield which paid a maximum of $500 for medical expense.

            The injured fireman's medical and hospitalization expense amounted to more than the $500 allowed him under the private insurance policy.  He sought enrollment under the death, disability and medical benefit provisions of RCW chapter  [[Orig. Op. Page 3]] 41.24 on May 9, 1953, and inquired as to his rights under that statute.  You have put the following questions:

            1. Is the volunteer fireman ineligible for medical and hospitalization benefits by reason of the fact that he and the other volunteer firemen of Coalfield were never "enrolled" pursuant to RCW 41.24.020?

            2. Was the fire department of which the volunteer fireman was a member a "regularly organized fire department," maintained and operated by the fire protection district, as required by RCW 41.24.010 and 41.24.020?

            3. Is the volunteer fireman ineligible for medical and hospitalization benefits by reason of the fact that the fire department of which he was a member had fewer members than the minimum prescribed in RCW 41.24.050?

            4. Is the fire protection district liable for the medical and hospitalization expenses of the volunteer fireman?

            5. Can the district now enroll the injured volunteer fireman, along with others never enrolled, pay the required fees for each to the state treasury trust fund, and thereby render the injured fireman eligible for medical and hospitalization benefits under the statute?

            We conclude that the first question should be answered in the negative, the second in the affirmative, and the fourth in the negative.  No facts are presented on which to predicate an answer to the third question, and the answers to the first and second questions make it unnecessary to answer the fifth.

                                                                     ANALYSIS

            I. The First Question. RCW 41.24.020 provides that

            "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  [[Orig. Op. Page 4]] their families from death or disability arising in the performance of their duties as firemen:  * * *"

            The same section requires every municipal corporation to "make provision for the collection and payment of the fees" provided in the chapter.

            RCW 41.24.030 creates in the state treasury a trust fund for the benefit of the firemen of the state covered by the statute, consisting in part of "an annual fee of three dollars for each member of its fire department to be paid by each municipal corporation" for the purpose of affording its members with protection from death or disability.

            RCW 41.24.040 requires every municipal corporation to pay the amount due from it to the trust fund on or before the first day of March of each year, and provides that delinquent payments shall bear interest at the rate of one per cent per month.  The same section provides that

            "No fireman shall forfeit his right to participate in the relief and compensation provisions of this chapter by reason of nonpayment of any amount due * * *"

            This office has, on two previous occasions, expressed the opinion that the "enrollment" of firemen under the statute is not a condition precedent to their eligibility for death, disability and medical benefits.  See attorney general's opinion, dated December 7, 1945, and attorney general's opinion No. 49-51-105, dated August 11, 1949, copies of which are attached.  We have re‑examined [[reexamined]]the problem, and we adhere to the prior opinions.  The statute, in our view, sets out a uniform statewide scheme for the protection of volunteer firemen of municipal corporations from death, disability or injury.  In this scheme the municipal corporations have the ministerial duties of enrolling their volunteer firemen under the statute and paying the prescribed annual fees.  Under somewhat similar statutory provisions, it has been expressly held that failure to perform such duties does not impair the rights of the persons whom the statute was designed to benefit.  People v. Park Employees' Annuity and Benefit Fund, 314 Ill. App. 101, 40 N.E. (2d) 798.

            You express concern that such interpretation enables those fire protection districts whose firemen were never enrolled and whose fees were never paid to  [[Orig. Op. Page 5]] reap the benefits of the statute at the expense of the complying districts.  But it is our opinion that every district which has not paid the prescribed annual fees for its firemen since the effective date of RCW chapter 41.24 can be compelled to do so, with interest at the specified rate on all delinquent payments.  ComparePeople v. Park Employees' Annuity and Benefit Fund, supra; Moore v. Village of Depew, 58 N.Y.S. (2d) 457.  It would not, therefore, seem open to any fire protection district to profit unjustly at the expense of other districts.

            II.  The Second Question.  RCW 41.24.010 defines the term "fire department," as used in that chapter, as

            "* * * any regularly organized fire department consisting wholly of volunteer firemen, or any part-paid and part-volunteer fire department duly organized and maintained by any municipality: * * *"

            RCW 41.24.020 provides that

            "Every municipal corporation maintaining and operating a regularly organized fire department shall make provision by appropriate legislation for the enrollment of every fireman * * *" (Emphasis supplied).

            To come within the coverage of the statute, then, the injured volunteer fireman in this case must have been a member of a fire department which (1) was "regularly organized," and (2) was operated and maintained by a municipal corporation (in this case the fire protection district).

            While the question is a close one, and the facts are not as complete as they might be, we believe the fire department here in question must be said to have met the above requirements.  Pension and relief laws such as that here involved are to be construed liberally in favor of those to be benefited and the objects sought to be accomplished.  Benedict v. Board of Police Pension Fund Commissioners, 35 Wn. (2d) 465, 214 P. (2d) 171, 62 C.J.S., Municipal Corporations, sec. 614a.  The only case we have found in which a court was called upon to construe a statutory requirement at all similar to that here in question was the case of Donahue v. Board of Trustees, 263 Ill. App. 568.  In that case a  [[Orig. Op. Page 6]] policemen's pension statute required that a police force be "regularly constituted" in order to have pension benefits.  The court held that no particular kind or degree of organization was required, it being sufficient that a police force consisted of personnel regularly employed in the performance of police duties.

            We think that no higher standard should be insisted upon in the instant case.  Nor should the want of a carefully worked out relationship between a volunteer fire department and a fire protection district exclude the firemen from the coverage of the statute.  There is particular reason for liberality in applying such requirements in a relief and pension law covering volunteer firemen who cannot reasonably be required to have the organizational nicety and formality of a fully paid and full time fire department.  It is the opinion of this office that if a volunteer fire department is a functioning fire‑fighting unit, if it is recognized by the officers of the district as having a part in the fire protection scheme of the district, and if it shares in the funds of the district, then its members are covered by chapter 41.24 RCW.

            The fire department here involved was functioning at the time of the volunteer fireman's injury.  Apparently the commissioners of the district recognized it at that time, for initial steps were taken to enroll members of both Coalfield fire departments, indiscriminately, under the death, disability and medical benefit provisions of chapter 41.24 RCW.  Both Coalfield fire departments seem to have considered that they were operating for and under the jurisdiction of the district.  The extent to which the injured fireman's department had use of funds of the district does not appear, but the district did pay for a private accident insurance policy for the members of that department.  The situation was changed somewhat subsequent to April of 1953 by the reorganization of the district for fire protection purposes, but only the facts as of the time of the injury are in issue here.

            III. The Third Question.  RCW 41.24.050 reads as follows:

            "Each municipal corporation shall by appropriate legislation limit the membership of its volunteer fire department to not to exceed twenty-five firemen for each one thousand population or fraction thereof:  Provided, That in no case shall the membership of any fire department coming under the provisions of this chapter be limited to less than fifteen firemen."

             [[Orig. Op. Page 7]]

            No facts are presented with respect to the number of firemen in fire district No. 10, or in Coalfield, or in the injured fireman's department in Coalfield.  In asking whether, in your words, "the membership reached the minimum as provided in Sec. 41.24.050," we assume you have reference to the fact that, after the reorganization of the entire district subsequent to April of 1953, the recognized sub‑department [[subdepartment]]in Coalfield consisted only of an assistant chief and seven firemen.  But this is irrelevant for several reasons:  (1) The sub‑department [[ subdepartment]]had this membership at a time subsequent to the injury of the fireman in question.  (2) The injured fireman was not a member of this sub‑department [[ subdepartment]].  (3) Most important, RCW 41.24.050 places a minimum upon the number of firemenfor the district, not the membership of each fire department within the district.  The section begins, "Each municipal corporation shall by appropriate legislationlimit the membership of its volunteer fire department * * *."  Thereafter a maximum and minimum membership are prescribed.  We think that, for the purposes of this section, all firemen within a district are deemed to constitute a single fire department, regardless whether they are otherwise recognized as separate departments or sub‑departments [[subdepartments]].  The critical question, we think, is the number of volunteer firemen for the district.  Since no facts are given on this point, no answer can be given to your question.  We note that even if noncompliance with RCW 41.24.050 were shown, there would be a substantial question whether it would render the firemen involved ineligible for benefits under chapter 41.24 RCW.

            IV. The Fourth Question.  The only conceivable theories on which the fire protection district could be held liable for the medical and hospitalization expenses of the injured fireman are (1) that the injury was incurred due to the negligence of agents of the district, and (2) that the injured fireman was made ineligible for benefits under chapter 41.24 RCW because of the negligence of the district or its agents in failing to provide for his enrollment and pay the annual fees to the state treasury trust fund.  No recovery could be had on the first ground because the district is immune from suits for torts of its officers, agents, and servants. RCW 52.08.010.  Nor could an action on the second theory be maintained, even assuming that the district would not be immune from such a suit, for the stated omissions of the district did not cause the firemen to be ineligible for benefits under chapter 41.24 RCW.

             [[Orig. Op. Page 8]]

            V. The Fifth Question.  The answers to the first and second questions make it unnecessary to answer this question.

Very truly yours,

DON EASTVOLD
Attorney General

JOHN F. HANSLER
Assistant Attorney General