Agee v. Trustees of Pension Bd. of Cunningham Fire Protection Dist.

• Decision Date: 15 January 1974
• Docket Number: No. 72--353,72--353
• Parties: George AGEE et al., Plaintiffs-Appellees and Cross-Appellants, v. TRUSTEES OF the PENSION BOARD OF the CUNNINGHAM FIRE PROTECTION DISTRICT et al., Defendants-Appellants and Cross-Appellees. . II
• Court: Colorado Court of Appeals

Page 301

518 P.2d 301

33 Colo.App. 268

George AGEE et al., Plaintiffs-Appellees and Cross-Appellants, v. TRUSTEES OF the PENSION BOARD OF the CUNNINGHAM FIRE

PROTECTION DISTRICT et al., Defendants-Appellants

and Cross-Appellees.

No. 72--353.

Colorado Court of Appeals, Div. II.

Jan. 15, 1974.

Ralph B. Rhodes, Denver, for plaintiffs-appellees and cross-appellants.

Ronald S. Loser, Littleton, for defendants-appellants and cross-appellees.

ENOCH, Judge.

The Trustees of the Cunningham Fire Protection District Pension Board appeal from a declaratory judgment holding that certain pensions were unlawfully awarded by the Board. Plaintiffs-appellees, several members of the volunteer fire department, have filed a cross-appeal seeking an award of attorney's fees incurred in this litigation. We affirm in part and reverse in part.

I.

The pensions challenged in this action were awarded to Harold McFarland and Dale Wasinger following a determination by the Pension Board that both men met the requirements of 1969 Perm.Supp., C.R.S.1963, 139--50--15(6), which states that the Board 'may pension any volunteer fireman having twenty years of active service and being above the age of fifty years . . ..' A Pension Board by-law provides that '(a)ll firemen on the active roll call, district board members, and active dispatchers of the fire telephone shall be eligibe for the state pension.' In computing the number of years served, the Pension Board, in accordance with that by- law, credited each man with time spent as a member of the Board of Directors of the Fire Protection District.

The trial court held that membership on the Board of Directors may not be considered in determining whether a fireman has completed twenty years of active service, and invalidated that portion of the Pension Board by-law which controverted this holding. The issue on appeal, therefore, is whether membership on the Board of Directors of a fire protecton district constitutes 'active service' within the meaning of the firemen's pension statute.

One preliminary matter should be resolved before we determine the issue presented. The Trustees argue that it is within the discretionary powers of the Pension Board to determine pension eligibility, and the Board may be reversed only if it has abused that discretion. This proposition is true in cases involving the application of statutory criteria to a specific set of circumstances. See Hubbard v. Pueblo Firemen's Pension Fund, 150 Colo. 495, 374 P.2d 492. However, the Board does not have discretionary power to alter eligibility requirements mandated by the legislature. The enabling act states that the pension fund 'shall be managed, used and disbursed According to the provisions of this article . . ..' 1969 Perm.Supp., C.R.S.1963, 139--50--1 (emphasis added). The standard of review in this case is whether the criteria applied by the Board conform with statutory provisions, not whether it abused its discretion in granting the pensions.

The act creating a pension fund for volunteer and paid fire departments, C.R.S.1963, 139--50--1 et seq., contains no definition of 'active service.' We must therefore look at the entire legislative plan to determine whether service on the Board of Directors, without more, falls within the meaning of this phrase.

The statute authorizing creation of fire protection districts provides that any 'elector,' as defined by 1971 Perm.Supp., C.R.S.1963, 89--17--8, may be elected to the Board of Directors of a fire protection district. C.R.S.1963, 89--6--13(3) and 1971 Perm.Supp., C.R.S.1963, 89--6--4. ¹

Although the statute does not preclude the possibility that a member of the board may also be a volunteer fireman or participate in firefighting activities, there is no requirement that members of the board assume those obligations. The official duties of the board members, enumerated in C.R.S.1963, 89--6--14, as amended, are solely administrative. In contrast, the pension statute requires that one be 'any volunteer fireman having twenty years of active service . . ..' These provisions of the law apply only to those actively involved in firefighting. Membership on the board of directors of a fire protection district, when not coupled with regular participation in firefighting activities on the same basis as non-board members, cannot fulfill the 'active service' requirement of the pension statute.

The record supports the trial court's conclusion that neither of the men whose pensions were challenged were entitled to the award. Defendant Wasinger was apparently a mainstay of the department throughout its formative years, serving as chief for several terms. He resigned from the department in 1965, prior to the expiration of twenty years of service, and was appointed to the Board of Directors shortly thereafter. During his...