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AGO 1955 No. 158 - November 07, 1955
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Don Eastvold | 1953-1956 | Attorney General of Washington

OASI ‑- COUNTY REFERENDUM ‑- ELIGIBILITY ‑- ELECTED OFFICIALS ‑- SUPERIOR COURT JUDGES ‑- POLICEMEN ‑- FIREMEN ‑- HORTICULTURAL EMPLOYEES ‑- AGRICULTURAL EXTENSION EMPLOYEES ‑- SUPERIOR COURT EMPLOYEES ‑- CITY-COUNTY HEALTH DEPARTMENT EMPLOYEES

1. Elected officials, except where paid on fee basis, are eligible.

2. Superior court judges are ineligible.

3. Sheriff's department, harbor and fire patrols, airport guards, juvenile court employees, county engineer's traffic control officer, and other county law enforcement personnel are eligible.

4. Employees of superior court and Seattle‑King County health department are eligible.

5. Agricultural extension agents and horticultural inspectors are ineligible; other personnel in those departments are eligible.

                                                                   - - - - - - - - - - - - -

                                                                November 7, 1955

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County-City Building
Seattle 4, Washington                                                                                                              Cite as:  AGO 55-57 No. 158


Attention:  Mr. K. G. Smiles, Chief Civil Deputy

Dear Sir:

            In connection with the proposed referendum among members of the state employees' retirement system who are employed by King County, you have requested our opinion as to the eligibility for OASI coverage of several classes of officers and employees.  For purposes of analysis we have grouped these classes as follows:

            1. Elected officials.

            2. Superior Court Judges.

             [[Orig. Op. Page 2]]

            3. Employees of the sheriff's department, including deputies; employees of the county harbor and fire patrols; and other personnel engaged in law enforcement functions, including juvenile court employees, airport guards, and the county engineer's traffic control officer.

            4. Employees of the agricultural extension department.

            5. Employees of the horticultural office.

            6. Employees of the Seattle‑King County health department.

            7. Employees of the superior court.

            In our opinion, groups 3, 6, and 7 are eligible; group 1 is eligible with the exception of officials compensated on a fee basis; group 2 cannot obtain coverage without enabling legislation; group 4 is eligible with the exception of extension agents under federal civil service retirement; and group 5 is eligible with the exception of inspectors.

            Because of the number and variety of classifications involved, our opinion is necessarily confined to general principles.  Should a problem remain regarding a specific case, we will of course be happy to advise you upon it.

                                                                     ANALYSIS

            1.Elected officials.  This group consists of persons who have joined the state employees' retirement system by exercise of the options offered in RCW 41.40.410 and 41.40.120 (3) Subsection 418 (b) (3), Title 42, U.S.C.A. provides that:

            "The term 'employee' includes an officer of a State or political subdivision."

            Pursuant to subsection 418 (c) (3) (B) (iii) of Title 42 (1954 Supp.), § 2 (3) of chapter 4, Laws Ex. Sess. 1955, excludes officials compensated on a fee basis from this group.

             [[Orig. Op. Page 3]]

            Elected officials are subject to the constitutional prohibitions against increase or diminution of compensation during a term of office.  Article II § 25; Article XI §§ 8 and 16.  If the employer contributions toward OASI which would be made on their behalf were "compensation" within the contemplation of those prohibitions, or if the employee contributions deducted from salary were considered a diminution, an argument might be made that persons in group 1 could not be covered during their present terms.

            This question has been squarely presented to the appellate courts of at least two other jurisdictions, and determined in favor of immediate eligibility.  The relevant constitutional prohibitions were the same in effect as ours.  The Supreme Court of West Virginia in State ex rel. Patteson v. Sims, 65 S.E. (2d) 730, at 737, after extensive discussion and citation, declared that

            "It is clear from the foregoing authorities that the deductions from the salaries of the petitioners and the payments to match them out of state funds exacted and required to be paid into the social security fund, by Chapter 123, Acts of the Legislature, 1949, Regular Session, and by the above cited federal statutes, are valid income and excise taxes.  It is equally clear, from the O'Malley case, [O'Malley v. Woodrough, 307 U.S. 277], that they are not a part of, but exist separately and apart from, the salary of each of the petitioners as a public officer of this State; and that the collection and the payment of these taxes do not increase or diminish such salary within the meaning of Article VI, Section 38, of the Constitution of this State."  (Bracket insertion ours)

            The same reasoning was followed by the Supreme Court of Alabama in Opinion of the Justices, 69 So.2d 702 (1954), and is approved in 81 C.J.S. 1059, States, § 93.  We conclude that those in group 1 are eligible.

            2.Superior court judges.  As explained above, there would be no constitutional obstacle to the coverage of judges as elected officials.  However, under present legislation the judges, as members of the retirement system established by RCW chapter 2.12, could not participate in a referendum among members of the state employees' retirement system.  The difficulties confronting our judges in an attempt to secure OASI coverage are outlined in  [[Orig. Op. Page 4]] AGO 55-57 No. 154, addressed to the Governor, indicates our belief that remedial legislation will be necessary for this purpose.  A copy of that opinion is attached for your convenience.

            3.Law enforcement and fire prevention and control personnel.

            The eligibility question here arises under subsection 418 (d) (5) (A) of Title 42, U.S.C.A. (1954 Supp.), providing with regard to the extension of OASI coverage to members of public retirement systems that

            "Nothing in paragraph (3) of this subsection shall authorize the extension of the insurance system established by this title to service in anypoliceman's or fireman's position."  (Emphasis supplied)

            Subsection 2 (2) (b) of chapter 4, Laws Ex. Sess. 1955 in effect writes this exclusion into our state law.

            Regional counsel for the Secretary of Health, Education and Welfare has taken the position that the state's own definition of the underscored phrase will be controlling.  The intent of Congress in making the exclusion is nonetheless relevant, as disclosed by Senate Report No. 1987, in 18 U.S. Code Congressional and Administrative News 6863 (83rd Congress, 2nd Session):

            "The bill continues the present exclusion of policemen and firemen who are covered by a State or local retirement system.  Policemen and firemen, because of the special demands made by their work, usually have special provisions in their retirement systems (retirement at age 50 or 55, for example) and most of them believe that it would be unwise to attempt to coordinate these provisions with the provisions of the old-age and survivors insurance system."

            The personnel under consideration are members of the state employees' retirement system, not subject to the provisions covering the policemen and firemen of municipalities contained in chapters 41.08, 41.12, 41.16, 41.20, and 41.24 RCW, so that the basic reason for the federal exclusion is inapplicable insofar as they are concerned.

             [[Orig. Op. Page 5]]

            Judicial opinion in other jurisdictions, while not dealing with the question at hand, has for purposes of definition turned upon the statutory provisions as to "policemen" and "firemen."  SeePatterson v. City of Peoria, (Ill.) 47 N.E. (2d) 867; Burggraf v. Shields, (N.J.) 2 A.2d 724; Morgan v. City of Rockford, (Ill.) 31 N.E.2d 596;City of Rochester v. Lindner, (N. Y.) 4 N.Y.S. (2d) 4; andState ex rel. Koch v. Retirement Board, (Wis.) 13 N.W.2d 56.  Our legislature has not designated or treated county personnel as "policemen" or "firemen," although they may perform analagous functions.  We have found no decision by the courts of this state which would extend the terms "policemen" and "firemen" to cover persons in group 3.  We are advised that the Attorneys General of Florida, Minnesota, and Wisconsin have construed those terms strictly.

            We therefore believe that the exclusion should be treated as affecting only such personnel as are actually designated "policemen" and "firemen" by law; and we conclude that employees in group 3 are eligible.

            4.Employees of the agricultural extension department.

            County participation in the agricultural extension program is authorized by RCW 36.50.010. It is a cooperative program, however, and the agricultural extension agents hold appointments from the U. S. Department of Agriculture.  They are thus technically in federal service; and we are informed by the regional counsel for the Secretary of Health, Education and Welfare that the Bureau of Internal Revenue has decided, pursuant to subsection 405 (p) (1) of Title 42, U.S.C.A., that their positions are subject to the federal civil service retirement act.  Subsection 410 (a) (6) (A) of Title 42, U.S.C.A. (1954 Supp.) excludes from the definition of employment:

            "Service performed in the employ of the United States or in the employ of any instrumentality of the United States, if such service is covered by a retirement system established by a law of the United States; * * *"

            Subsection 2 (2) (b) of chapter 4, Laws Ex. Sess. 1955 automatically adopts this exclusion.  It follows that agricultural extension agents holding federal appointments are ineligible.  Other personnel connected with this program, e.g. those in clerical positions, would be eligible.

             [[Orig. Op. Page 6]]

            5.Employees of the horticultural office.  The problem here is to determine whether particular individuals are state or county employees, since only the latter could participate in a county referendum.

            Under chapter 15.04 RCW the positions of local inspector and inspector-at-large are created.  Inspectors-at-large are clearly state employees under RCW 15.04.040. Local inspectors are appointed and dismissed by and subject to the direction and control of the director of agriculture.  RCW 15.04.020 (4) and 15.04.070. A county salary and expense allocation is provided for them with respect to specific infection control functions which the county may request them to perform.  RCW 15.04.060 and 15.04.070.  We do not think this prevents compensation by the state for other, and perhaps more numerous, functions.

            Subsection 418 (b) (5), Title 42, U.S.C.A. (1954 Supp.), authorizes agreements for coverage of state and local employees and provides that:

            "* * * For purposes of this section, individuals employed pursuant to an agreement, entered into pursuant to section 1624 or 499n of Title 7, between a State and the United States Department of Agriculture to perform services as inspectors of agricultural products may be deemed, at the option of the State, to be employees of the State and (notwithstanding the preceding provisions of this paragraph)shall be deemed to be a separate coverage group."  (Emphasis supplied)

            We think the state's option, particularly in view of its placement immediately after a sentence providing that civilian employees of a state national guard unit who are paid with federal funds shall be considered state employees, is to decide whether such inspectors shall be treated as state or federal employees.  Chapter 4, Laws Ex. Sess. 1955, is not specific on this point, but § 1 thereof states that it is the legislative policy

            "* * * to provide such protection [OASI] to employees of the state and its political subdivisionson as broad a basis as is permitted under the social security act.  * * *" (Italics ours)

             [[Orig. Op. Page 7]]

            Salaried inspectors are not officials compensated on a fee basis within the meaning of subsection 2 (3) of chapter 4, the only specific exclusion therein.  We are informed that a large majority of inspectors are employed and licensed pursuant to an agreement under § 1624 of Title 7, U.S.C.A., effective July 1, 1955, between the state and federal departments of agriculture.  In view of the legislative intent to include all the employees possible, we believe these inspectors should be treated as state employees, under subsection 418 (b) (5).  That subsection makes them a separate coverage group.  Under subsection 418 (c) (2) all members of a coverage group must be included in an agreement unless the state makes certain permissive exclusions.  Nothing in chapter 4 or in the plan for the state employees' retirement system excludes the inspectors.

            If the inspectors were treated as county employees for purposes of referendum and coverage under subsection 3 (3) of chapter 4 and subsection 418 (d) (6) of Title 42 (1954 Supp.), inspectors in some counties might be covered while those in other counties were not.  No agreement could be made covering the former group, since the coverage group of inspectors would be incomplete.  Logically, therefore, they could be covered as state employees, but probably not as county employees.

            It might be urged that the coverage groups established by subsection 418 (d) (4), Title 42 (1954 Supp.), consisting generally of all those in positions covered by retirement systems, are controlling here.  Assuming that to be the case, although 418 (b) (5) deals specifically with these inspectors and was enacted at the same time as 418 (d) (4) which does not, we feel that the conditions of their employment under state law, as described above, would render them state‑-rather than county‑-employees.  We conclude that horticultural inspectors are ineligible to participate in a county referendum.  Clerical and other personnel employed by a county in a local horticultural office would be eligible.

            6.Employees of the Seattle‑King County health department.

            The county-city health department is authorized by chapter 70.08 RCW.  RCW 70.08.070 (§ 5, chapter 46, Laws of 1949) provides for permissive coverage of all departmental employees (except those already under a retirement system) under the city civil service and retirement plans by city ordinance and agreement with the county.  Having no information before us to the contrary, we assume that a number of employees in the department are  [[Orig. Op. Page 8]] members of the state employees' retirement system and that their employer contributions and salary are derived from county funds.  Nothing in the act appears to constitute the department as a separate municipality or political subdivision.  We conclude that these employees should be treated as members of the "separate retirement system" comprised of King County members of the state employees' retirement system for purposes of the referendum under subsection 3 (3), chapter 4, Laws Ex. Sess. 1955.

            7.Employees of the superior court.  Your question with regard to this group stems from your cognizance of the possibility that the judges might not be eligible.  As explained above, their membership in a separate retirement system has that effect at the present time.  We see no reason why this fact would render employees of the court ineligible.  We think they are clearly county employees for the reasons given in the attached opinion to the chairman of the state employees' retirement system on August 31, 1948, and conclude that they are eligible.

            We hope the foregoing analysis will prove helpful to you.

Very truly yours,

DON EASTVOLD
Attorney General


A. J. HUTTON, JR.
Assistant Attorney General

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