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Tucker v. Dep't of Retirement Systems of the State of Washington5/24/2005
Kenneth Tucker claims that the Department of Retirement Systems (DRS) and the superior court erroneously denied his request to retroactively transfer his retirement benefits from the Law Enforcement Officers and Fire Fighters (LEOFF) Plan 2 to LEOFF Plan 1. He argues that DRS erred in finding that in 1975: (1) he failed to satisfy the medical and health requirements of former chapter 41.26 RCW; and (2) he was not a fire fighter as defined under former RCW 41.26.030 (1974). We disagree and affirm.
FACTS
In 1975, the Pierce County Fire Marshal (Fire Marshal) hired 15 fire fighter helpers under a federal grant through the Comprehensive Employment and Training Act (CETA). The Fire Marshal assigned three people, including Tucker, to be fire fighter helpers at Pierce County Fire Protection District No. 6 (Fire District No. 6). The fire fighter helpers were enrolled in the state Public Employees' Retirement System (PERS) as employees of Pierce County.
The Fire Marshal's office did not have fire fighting equipment or respond to fires; rather its focus was fire prevention and inspection programs on behalf of the county. Fire District No. 6 was a fully operational fire department that responded to fires and other appropriate emergencies. Fire District No. 6 was funded through county property taxes. In 1975, Fire District No. 6 employed six paid fire fighters who were assisted by volunteer fire fighters.
The Fire Marshal applied for and received CETA money to employ and train fire fighter helpers. Before assigning these employees, the Fire Marshal contacted the local office of the fire fighters' union, International Association of Fire Fighters (IAFF), the exclusive bargaining agency for fire district employees covered by LEOFF. The Fire Marshall asked the IAFF for permission to place the CETA-funded fire fighter helpers with various fire districts, including Fire District No. 6. The IAFF agreed to the assignment of the fire fighter helpers; however, the fire fighter helpers were not considered eligible for LEOFF membership and were not offered union membership.
The fire fighter helpers all received their checks from Pierce County through the Fire Marshal, who controlled their payroll and personnel management. The Fire Marshal wrote a letter to LEOFF, with a copy to all of the fire districts, emphasizing his office's control of the fire fighter helpers. In addition, the Fire Marshal wrote a letter to Fire District No. 1 that was copied to the LEOFF administrator that stated: '{I}n the event a C.E.T.A. employee is permanently employed by a fire district, it is expected that the fire chief involved will immediately notify LEFF {sic} of the change in employment status.' Admin. Record (AR) at 191. The fire districts directly supervised the fire fighter helpers in their daily jobs.
As a CETA fire fighter helper, Tucker worked alongside the fire fighters employed by Fire District No. 6, responding to fire calls and staying current with drills. He wore a uniform and was generally treated as a peer by the fire fighters. But Tucker was paid less than the fire fighters and had a less flexible schedule.
In August 1975, Tucker left his CETA fire fighter helper position and became a dispatcher with Pierce County law enforcement. Then, in January 1979, Fire District No. 6 hired Tucker as a '{p}robationary {f}irefighter {sic}' AR at 6. In the probationary position, Tucker enrolled in LEOFF Plan 2 and completed the medical and health requirements for LEOFF members.
Two months later, Tucker became a Deputy Sheriff for Pierce County. He remained a LEOFF Plan 2 member in this law enforcement position.
In 1984, Tucke
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