WSR 08-20-119

PROPOSED RULES

BOARD FOR VOLUNTEER

FIREFIGHTERS AND RESERVE OFFICERS

[ Filed September 30, 2008, 4:44 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 08-06-068.

Title of Rule and Other Identifying Information: Chapter 491-03 WAC, Membership and participation requirements.

1. What duties within a municipality qualify me for participation/membership in the board for volunteer firefighters' and reserve officers' relief and pension principal fund? - Clarifies the definitions of "firefighter," "emergency worker," and "reserve officer."

2. What level of activities do I have to participate in to be eligible for participation/membership in the volunteer firefighters' and reserve officers' pension? - Clarifies what level of activities are required to be an "active member."

Hearing Location(s): Chelan Co. FPD #1, 206 Easy Street, Wenatchee, WA 98807, on November 14, 2008, at 9:00 a.m. and at the East Pierce Fire and Rescue, 10515 234th Avenue East, Buckley, WA 98321, on November 21, 2008, at 9:00 a.m.

Date of Intended Adoption: December 12, 2008.

Submit Written Comments to: Brigette K. Smith, P.O. Box 114, Olympia, WA 98507, e-mail brigettes@bvff.wa.gov, fax (360) 586-1987, by December 1, 2008.

Assistance for Persons with Disabilities: Contact Brigette K. Smith by November 14, 2008, TTY (360) 753-7318 or (877) 753-7318.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This proposal would not change any existing rules, but would clarify what is already required by the state supreme court case law. It would provide clear written guidance to fire, police, and emergency medical service district employees regarding who is allowed to participate in the Volunteer Firefighters' and Reserve Officers' Relief and Pension Act and to what level they have to participate to be considered "active" for pension purposes.

Reasons Supporting Proposal: In Schrom v. Board for Volunteer Firefighters, the state supreme court ruled that "a person asserting pension eligibility must, at minimum, 'fight fires' in order to be a 'firefighter'...(and) must, at minimum, possess some duties that include fighting fires if a fire were to ever occur." City of Kennewick v. Bd. For Volunteer Firefighters 85 Wn. App. 366, 933 P.2d 423 (1997) stated that "it is inconceivable that the Legislature intended to create a firefighters' pension fund for individuals who, apart from paying an annual fee, engaged in no activity related to firefighting." In Campbell v. Bd. For Volunteer Firefighters, 111 Wn. App. 413, 45 P.3d216 (2002), the court stated that a firefighter could not receive credit for the years following his removal from fire response duties. Furthermore, in Kennewick, the court stated that the firefighter was not eligible for pension participation because he "did not engage in sufficient activities related to fire fighting to be eligible for pension credit." Finally, the state supreme court stated that a member must participate in activities such as fire suppression, training to fight fires, and responding to fire alarms.

Statutory Authority for Adoption: RCW 41.24.290.

Statute Being Implemented: Chapter 491-03 WAC.

Rule is necessary because of state court decision, Schrom v. Board for Volunteer Firefighters, 153 Wn.19 (2004).

Name of Proponent: State board for volunteer firefighters and reserve officers, governmental.

Name of Agency Personnel Responsible for Drafting and Implementation: Brigette K. Smith, 605 11th Avenue S.E., Suite #112, Olympia, WA 98501, (360) 753-7318; and Enforcement: State Board for Volunteer Firefighters and Reserve Officers, 605 11th Avenue S.E., Suite #112, Olympia, WA 98501, (360) 753-7318.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule will not affect small businesses.

A cost-benefit analysis is not required under RCW 34.05.328. The board's proposed WAC is not a significant rule of the specified governmental departments nor is it a rule that adopts by incorporation or reference federal or state statutes or rules from other state agencies. It is a rule that relates to only internal governmental operations that are not subject to violation by a nongovernmental party, thus negating the requirement.

September 30, 2008

Brigette K. Smith

Executive Secretary

OTS-1855.2

Chapter 491-03 WAC

MEMBERSHIP AND PARTICIPATION REQUIREMENTS


NEW SECTION
WAC 491-03-010   Purpose.   This chapter sets forth the qualifications necessary to be a participant/member in the volunteer fire fighters' and reserve officers' relief and pension principal fund.

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NEW SECTION
WAC 491-03-020   What duties within a municipality qualify me for participation/membership in the board for volunteer fire fighters' and reserve officers' relief and pension principal fund?   If you are a member of a municipality as a volunteer fire fighter or reserve officer who does not qualify for PERS or LEOFF (for their volunteer duties only), and if:

(1) Reserve officers:

(a) You are a reserve officer only if you are commissioned by the Washington state criminal justice training commission under chapter 43.101 RCW, and a member of a municipality as a:

(i) Reserve city police officer;

(ii) Reserve town or deputy marshal;

(iii) Reserve deputy sheriff.

(b) You are not a reserve officer if you volunteer in either:

(i) A position that is clerical or secretarial in nature;

(ii) You are not commissioned;

(iii) A corrections officer position.

(2) Fire fighter:

(a) You are a fire fighter only if you have the legal authority and responsibility to direct or perform fire protection activities that are required for and directly concerned with preventing, controlling, and extinguishing fires, or your primary duty is to serve as an emergency worker (see subsection (3) of this section).

"Fire protection activities" may include incidental functions such as housekeeping, equipment maintenance, grounds maintenance, fire safety inspections, lecturing, performing community fire drills and inspecting homes, businesses, and schools for fire hazards. These activities qualify as fire protection activities only if the primary duty of your position is preventing, controlling, and extinguishing fires.

(b) You are not a fire fighter if you volunteer in:

(i) A position that is clerical or secretarial in nature;

(ii) A position where your primary duty is not preventing, controlling, and extinguishing fires;

(iii) A position that pays a wage which qualifies you for participation in either PERS or LEOFF;

(iv) A position that is only supervisory in nature and the primary duty is not preventing, controlling, and extinguishing fires.

(3) Emergency worker:

(a) You are an emergency worker only if you have the legal authority and responsibility to perform all aspects of medical assessment, treatment, and care for patients as outlined in state and county protocols for paramedics, emergency medical technicians, and first responders.

"Emergency activities" may include incidental functions such as housekeeping, equipment maintenance, grounds maintenance, home safety inspections, lecturing, and driving emergency vehicles. These activities qualify as emergency activities only if the primary duty of your position is to perform all aspects of medical assessment, treatment, and care for patients.

(b) You are not an emergency worker if you volunteer in:

(i) A position that is clerical or secretarial in nature;

(ii) A position where your primary duty is not to perform all aspects of medical assessment, treatment, and care for patients;

(iii) A position that pays a wage that qualifies you for participation in either PERS or LEOFF;

(iv) A position that is only supervisory in nature and the primary duty is not to perform all aspects of medical assessment, treatment, and care for patients.

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NEW SECTION
WAC 491-03-030   What level of activities do I have to participate in to be eligible for participation/membership in the volunteer fire fighters' and reserve officers' pension?   All departments are required to develop volunteer participation requirements that meet or exceed the participation requirements as set by the state board. If a department does not develop their own requirements, the board requirements will be in effect.

(1) The board requires that all volunteers:

(a) Attend a minimum of ten percent, or twenty hours, of all drills and/or training annually, whichever is less.

(b) Respond to a minimum of ten percent of all calls at the member's assigned station, or ninety-six hours of shift, duty, on-call, or standby time, annually.

(c) Meet the requirements to be a qualified member under WAC 491-03-010.

(d) Be certified as having met the standards by the local board chair and by the fire chief, police chief, or sheriff annually on the board for volunteer fire fighters and reserve officers provided forms.

(2) An exemption of up to twelve weeks in a twelve-month period may be granted for:

(a) A participant's serious health condition;

(b) A participant to care for a parent, spouse, or minor/dependent child who has a serious health condition;

(c) The birth of and to provide care to an employee's newborn, adopted, or foster child as provided in WAC 357-31-460.

For the purposes of this section, "serious health condition" means an illness, injury, impairment, or physical or mental condition that involves any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, and any period of incapacity or subsequent treatment or recovery in connection with such inpatient care; or that involves continuing treatment by or under the supervision of a health care provider or a provider of health care services and which includes any period of incapacity (i.e., inability to work, attend school, or perform other regular daily activities).

(3) An exemption of up to twenty-six weeks in a twelve-month period may be granted for: A participant who is the spouse, son, daughter, parent, or next of kin of a covered service member who is suffering from a serious health condition incurred in the line of duty. The leave described in this subsection shall only be available during a single twelve-month period.

For the purposes of this section, "covered service member" is a member of the armed forces, including the National Guard or reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on a temporary disability retired list for a serious health condition.

(4) An exemption of up to one year may be granted for injuries covered under chapter 41.24 RCW; or up to one year for reserve officers injured in the line of duty and covered under Title 51 RCW.

(5) Departments granting exemptions shall submit written documentation on the board for volunteer fire fighters and reserve officers provided forms for board review.

(6) Members joining service after January 1st, or separating from service before December 31st, will have their requirements prorated for the calendar year.

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Washington State Code Reviser's Office