Request By:
Mark E. Gormley, Esq.
Woodford County Attorney
Third Floor, Courthouse
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning the Woodford County Fire Protection District, organized and functioning pursuant to the provisions of KRS Chapter 75.
The fire department consists of two regularly paid employes, the chief and the assistant chief, and approximately fifty-five volunteer firemen. The volunteer firemen receive no regular weekly or monthly compensation but they do receive $11.00 for each fire run they actually make. The purpose of the $11.00 fee is to defray actual expenses incurred by the volunteer firemen. Such expenses include gasoline, wear and tear on private vehicles, damage to personal clothing and damage to eye glasses.
You maintain that at the present time all of the volunteer firemen and the regularly paid chief and assistant chief are covered by the State's Workmen's Compensation Insurance Program for volunteer firemen.
Your first question concerns workers' compensation insurance coverage for the firemen and whether coverage under the state's program for volunteer firemen is jeopardized by the fact that the firemen receive an expense allowance for fire runs actually made. Your specific question is as follows:
"Where the firemen are volunteer as described above and receive no regular salary or hourly rate but do receive an expense allowance of $11.00 per run, does the receiving of that expense allowance preclude the volunteer firemen from being covered by the State (Kentucky) Workmen's Compensation Insurance Program for volunteer firemen? "
You state that another way of asking the same question is to ask what is a volunteer fireman and whether the Woodford County firemen satisfy the definition of a volunteer fireman. You request that the question be answered both as to the volunteer firemen and to chief and assistant chief of the fire department.
There is no doubt that all firefighters, whether they are city, county, fire district, paid or volunteer fire personnel, are subject to the provisions of the Workers' Compensation Act (KRS Chapter 342). KRS 342.640, setting forth the employes covered under the Act, specifically includes persons in the service of a tax district or other political entity as well as members of a volunteer fire department.
Thus while all fire personnel of the Woodford County Fire Protection District are subject to the provisions of the Workers' Compensation Act the next matter to resolve is who is responsible for the payment of the workers' compensation insurance premiums. In OAG 72-835, copy enclosed, we said that a fire protection district created pursuant to KRS Chapter 75 is an autonomous taxing district within the meaning of Section 157 of the Kentucky Constitution and, therefore, the political subdivision would be the individual fire protection district rather than the county for purposes of providing coverage under the Workers' Compensation Act. A fire protection district organized pursuant to KRS Chapter 75 is an autonomous political subdivision and would be responsible for providing its own Workers' Compensation Insurance coverage. See OAG 72-836, copy enclosed.
In connection with volunteer firemen, KRS 342.640 states that every person who is a member of a volunteer fire department shall be deemed for purposes of the Workers' Compensation Act to be in the employment of the political subdivision of the state where the department is organized.
Although neither the Workers' Compensation Act nor any other legislation that we are aware of requires it to do so, the Commonwealth of Kentucky is providing the Workers' Compensation Insurance coverage for volunteer firemen. Not only is there a lack of legislation concerning the program but there are few, if any, written guidelines and regulations concerning the program. The Commonwealth is, however, providing the Workers' Compensation Insurance coverage for all volunteer firemen, including volunteer firemen associated with fire protection districts organized under KRS Chapter 75, provided the volunteer firemen are in fire fighting units recognized by the State Fire Marshal's Office.
As we understand the Commonwealth's program for Workers' Compensation Insurance coverage for volunteer firemen, the volunteer members of your fire district are covered. There is no written definition of a "Volunteer fireman" but the fact that volunteer firemen receive a per run fee for fire runs they actually make would not exclude them from the Commonwealth's program. Such firemen are still considered to be volunteer firemen. The Commonwealth's program does not cover the regularly paid members of your fire district and, thus, the chief and the assistant chief are not covered whether or not they receive a fee for fire runs actually made. The fire district will have to provide the Workers' Compensation Insurance coverage for the chief and the assistant chief since they are regularly paid members of the fire district.
For further information concerning the Commonwealth's Workers' Compensation Insurance Program for volunteer firemen we suggest you contact the person who administers that program:
Mr. Robert Huddleston, Department of Personnel, Room 254, Capitol Annex, Frankfort, Kentucky 40601, Telephone: (502) 564-6700
Your second question is as follows:
"Where the volunteer firemen receive only the expense allowance as described above, must the withholding for F.I.C.A. Insurance be made and then matched by the Department or can the expense allowance be granted without any withholding? "
The Woodford County Fire Protection District, for social security purposes, is operating under an approved plan agreement as authorized by KRS 61.460 and its reporting number, assigned by the Federal Government, is 690610963. The State Agency for Social Security, attached to the Department of Finance, approved the plan agreement for your fire protection district and it administers the social security fund for public employes in this state.
The State Agency for Social Security advises that the $11.00 fee paid to the volunteer firemen for fire runs they actually make is a non reportable wage and is basically a reimbursement for expenses. The Agency suggests that the board of Trustees of the fire district state in its minutes that the fee for fire runs is a reimbursement for expenses.
It is, therefore, our opinion that the fees received by the volunteer firemen for fire runs they actually make are to be considered as reimbursement for expenses, rather than salary or wages from the fire district, and are not subject to F.I.C.A. withholding and matching requirements.
For further information concerning social security coverage for public employes we suggest you contact:
Ms. Martha Belwood or Mr. Rick Stansel, State Agency for Social Security, Department of Finance, P.O. Box 557, Frankfort, Kentucky 40602, Telephone: (502) 564-3952