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AGO 1957 No. 21 - February 21, 1957
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John J. O'Connell | 1957-1968 | Attorney General of Washington

TERMINATION PAY

The secretary of the senate, but not the sergeant at arms, is entitled to termination pay under the provisions of chapter 140, Laws of 1955, RCW 43.01.040 through 43.01.043.  The formula computed by the committee on standards dated July 7, 1955, conforms to the provisions of Chapter 140, Laws of 1955, RCW 43.01.040 through 43.01.043.  The basis for purposes of computing the termination pay of the secretary of the senate shall be biennial.

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                                                                February 21, 1957

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                                Cite as:  AGO 57-58 No. 21


Attention:  !ttF. D. Keister

            Assistant State Auditor

Dear Sir:

            Your letter of January 31, 1957, stated that the former secretary and sergeant at arms of the senate have applied for accrued vacation compensation under the provisions of RCW 43.01.040 (1955 Supp.).  The facts as related to us by the state auditor, are that the secretary has been continuously employed from the beginning of the 1955 session of the legislature until his recent termination at the rate of $60.00 per day during the 1955 session, and $200.00 per month following the session; that subsequent to the 1955 session the secretary had the continuing duty to compile the senatorial payroll voucher regularly each month.

             [[Orig. Op. Page 2]]

            The sergeant at arms was paid at the rate of $45.00 per day during the session and at the same rate at such time as he might be needed between sessions, but his employment following the 1955 legislative session was irregular and not continuous for six months during any period from the commencement of the 1955 session until his recent termination.

            You specifically requested the opinion of this office on the following questions:

            (1) Are either or both of these officials entitled to termination pay under the provisions of chapter 140, Laws of 1955, RCW 43.01.040 through 43.01.043, for computing terminal vacation leave for employees on an hourly or daily rate?

            (2) Does the formula computed by the committee on standards conform to the provisions of chapter 140, Laws of 1955 (RCW 43.01.040 through 43.01.043)?

            (3) On what period shall the annual salary be based for purposes of computing the termination pay of the secretary of the senate?

            In answer to the first question, the secretary of the senate alone is entitled to termination pay under the provisions of chapter 140, Laws of 1955, RCW 43.01.040 through 43.01.043.  We answer the second question in the affirmative.  The period referred to in the third question should be a biennial period.

                                                                     ANALYSIS

            The provisions of § 1, chapter 140, Laws of 1955 (RCW 43.01.040), pertinent to the first question, is as follows:

            "Each subordinate officer and employee of the several offices, departments, and institutions of the state government shall be entitled under their contract of employment with the state government to not less than one working day of vacation leave with full pay for each month of employment if said employment is continuous for six months.

             [[Orig. Op. Page 3]]

            "Each subordinate officer and employee shall be entitled under such contract of employment to not less than one additional working day of vacation with full pay each year for satisfactorily completing the first two, three and five continuous years of employment respectively.

            Such part time officers or employees of the state government who are employed on a regular schedule of duration of not less than one year shall be entitled under their contract of employment to that fractional part of the vacation leave that the total number of hours of such employment bears to the total number of hours of full time employment."

            In order for the secretary and sergeant at arms to come within the provisions of the aforestated statute, it must be determined that they are "subordinate officers" and that the state senate constitutes an "office" within the terms of § 1, chapter 140, Laws of 1955 (RCW 43.01.040).

            "Secretary" and "sergeant at arms" by the very nature of the words connote subordinate officers.  The definitions of the word "office" are many and varied but perhaps the one most applicable to this question is found in Commonwealth v. Murphey, 17 Montg. Co. Law Rep'r. 174, and restated in Volume 29, page 264, Words and Phrases, as follows:

            "An office is a public station or position, to which a portion of the sovereignty of the country, either legislative, judicial, or executive, attaches for the time being, and which is exercised for the benefit of the public.  High, Rec. § 625.  The word itself implies a more or less permanent delegation of a portion of governmental power, coupled with legally defined duties and privileges, continuous in their nature, and which, upon the death, resignation, or removal of the incumbent, devolve upon his successor. . . ."  (See alsoState ex rel. Dunbar v. State Board of Equalization, 140 Wash. 433, at p. 437.)

             [[Orig. Op. Page 4]]

            Under this definition a senator is an officer just as is a governor or secretary of state; the only distinction being that the office of senate is composed of many senators, while that of governor or secretary of state consists of only one individual.  However, this is not a real nor a basic distinction, and, therefore, we conclude that the secretary and sergeant at arms of the senate constitute subordinate officers of a state office under RCW 43.01.040.

            Notwithstanding, the sergeant at arms is precluded from qualifying for terminal vacation leave because his employment, according to the facts heretofore set out, has not been continuous for six months as is required by the last phrase of the first paragraph of § 1, supra, nor one year under the provisions of the third paragraph of § 1,supra, which refers to part time employees.

            Referring to the second question, § 4, chapter 140, Laws of 1955 (RCW 43.01.043), provides:

            "The several offices, departments and institutions of the state government may prescribe supplemental rules and regulations that are not inconsistent with the provisions of this act with respect to vacation leave of subordinate officers and employees thereof."

            While this act specifically states that each person qualifying under the act shall receive not less than one working day of vacation leave with full pay for each month of employment, if said employment has been continuous for six months (§ 1, chapter 140, Laws of 1955, RCW 43.01.040), and that upon termination of employment, accrued vacation leave as specified in § 1 shall be paid (§ 2, chapter 140, Laws of 1955, RCW 43.01.041), the act is silent as to any method to be used in computing a full day's pay for purposes of payment upon termination.

            Therefore, by virtue of the authority granted in § 4, supra, each office, department and institution may prescribe a method for computing a full day's pay for accrued vacation payment upon termination.

             [[Orig. Op. Page 5]]

            The committee on standards has computed the following formula which this office endorses and recommends for adoption by all offices, departments and institutions of the state in order to promote uniformity throughout the state in this regard:

            " For the purposes of computing 'Terminal Vacation Leave' into cash credit or payment as provided for in chapter 140 Laws of 1955 [RCW 43.01.040] the Committee of Standards has adopted the following formula for arriving at a 'Daily Base Rate' of Pay for each monthly employee who may terminate with unliquidated Annual Earned Vacation Time to said employee's credit.

            "Subtract 104 (Average Number of Saturdays and Sundays in a calendar Year)from 365, Total Days in an average Calendar Year. . . . .  Leaving an average balance of 261 Paid Working Days and Paid Holidays in the year.

            "Divide 261 Paid Days into the employee's Annual Salary (12 Times Presently Monthly Rate). . . . .  The Result is the 'Daily Rate' for Cash Settlement of Terminal Vacation Leave.  For rapid calculation the daily rate is .046 X the present monthly salary.  Employees on an hourly or daily rate would receive terminal pay based on such rates."

            Turning our attention to the third question, chapter 140, Laws of 1955 (RCW 43.01.040 through 43.01.043), provides in § 1, supra, "one working day of vacation leave with full pay for each month of employment."  It is apparent from the aforestated portion of § 1 that the one full day of vacation pay for each month of employment should as nearly as possible reflect the pay grade received during the month which serves as the basis for receipt of the vacation pay.  (This is accomplished by the application of the formula heretofore set out in cases in which there is not an appreciable variance in the monthly salary for a year's time.)

             [[Orig. Op. Page 6]]

            However, in the case of the secretary of the senate, his compensation was $60.00 per day, or approximately $1800.00 per month, during the 1955 session, and then was reduced to $200.00 per month for the remainder of his two-year term of state employment.  Due to this great variance in salary, it would be inaccurate in this particular case to follow strictly the formula heretofore set out which requires computation on the basis of annual salary, since the annual salary in which the legislative term is included would be far in excess of the following annual salary without the legislative term.  Therefore, we believe for purposes of accuracy and equity the formula should be adjusted in this case to compute the termination period instead of annual period.

Very truly yours,

JOHN J. O'CONNELL
Attorney General


DOUGLAS HARTWICH
Assistant Attorney General

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