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AGO 1955 No. 168 - December 02, 1955
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Don Eastvold | 1953-1956 | Attorney General of Washington

UNIVERSITY OF WASHINGTON ‑- OASI ‑- EXCLUSION OF CERTAIN EMPLOYEES UNDER DETERMINATION OF CLASSIFICATION

Employees occupying positions covered by the University of Washington's retirement system may not be excluded from a proposed agreement between the state and Federal government for extension of OASI coverage to members of that system.

The classification of positions covered by the University of Washington's retirement system is determined by the Board of Regents.

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

                                                                December 2, 1955

Honorable H. P. Everest
Vice President
University of Washington
Seattle 5, Washington                                                                                                              Cite as:  AGO 55-57 No. 168


Dear Sir:

            You have requested our opinion as to the possibility of excluding several classes of University employees from the agreement under consideration between the state and the Federal government for the extension of OASI coverage to members of the University's retirement system.  The contemplated exclusions would be made with respect to:

            "(a) Those who are employed on a temporary basis for a period of not more than twelve months.

             [[Orig. Op. Page 2]]

            "(b) Those employed on a temporary basis (for a period less than the minimum set forth in Sec. 1, of the rules and regulations of the University System).

            "(c) The permissive exclusions set forth in A and B of subparagraph (3) of Sec. 218 (c) of the Federal act as amended.

            "(d) Student employees."

            We have concluded that the above exclusions may not be applied with respect to individuals occupying positions covered by the University's retirement system.  It should be noted, however, that chapter 28.76 RCW provides that the Board of Regents shall designate the positions to be covered by the University's retirement system.

            In view of our stated conclusion, an answer to your further question regarding a separate coverage group requires further factual information.  We suggest that this question be the subject of a separate opinion.

                                                                     ANALYSIS

            The first question to be determined is whether or not the exclusions authorized by the Federal statute may be applied during the negotiation of the agreement for coverage between the state and the Federal government with respect to any given retirement system.  You have called our attention to 42 U.S.C.A. (1954 Supp.), § 418 (c) (3), which provides as follows:

            "Such agreement shall,if the State requests it, exclude (in the case of any coverage group) any one or more of the following:

            "(A)Any service of an emergency nature;

            "(B) Allservices in any class or classes of (i) elective positions, (ii)part-time positions, or (iii) positions the compensation for which is on a fee basis;

             [[Orig. Op. Page 3]]

            "(C) Allservices performed by individuals as members of a coverage group in positions covered by a retirement system on the date such agreement is made applicable to such coverage group, but only in the case of individualswho, on such date (or, if later, the date on which they first occupy such positions),are not eligible to become members of such system and whose services in such positions have not already been included under such agreement pursuant to subsection (d) (3) of this section."  (Emphasis supplied.)

            We assume, with respect to the permissive exclusion under subsection (C), that the individuals involved are not now serving in positions covered by an agreement.

            For purposes of convenience we shall discuss first the exclusions permitted by subsection (A) and (B).  The primary inquiry must be as to the nature of the state's request for such exclusions.  Section 3 (1) of chapter, Laws of 1955, Ex. Sess., provides in relevant part that:

            "* * * except as may be otherwise required by or under the social security act as to the services to be covered, such agreement shall provide in effect that‑-

            "* * *

            "(d) All services which constitute employment as defined in RCW 41.48.020 and are performed in the employ of the state by employees of the state, shall be covered by the agreement;

            "(e) All services which (i) constitute employment as defined in RCW 41.48.020, (ii) are performed in the employ of a political subdivision of the state, and (iii) are covered by a plan which is in conformity with the terms of the agreement and has been approved by the governor under RCW 41.48.050, shall be covered by the agreement; and

             [[Orig. Op. Page 4]]

            "(f) As modified, the agreement shall include all services described in either paragraph (d) or paragraph (e) of this subsection and performed by individuals to whom section 218 (c) (3) (C) of the social security act is applicable, and shall provide that the service of any such individual shall continue to be covered by the agreement in case he thereafter becomes eligible to be a members of a retirement system; and

            "(g) As modified, the agreement shall include all services described in either paragraph (d) or paragraph (e) of this subsection and performed by individuals in positions covered by a retirement system with respect to which the governor has issued a certificate to the secretary of health, education, and welfare pursuant to subsection (5) of section 3 of this act."

            The foregoing provisions are made immediately following, and we think as a restriction upon, the grant of power to the governor to negotiate an agreement which

            "* * * may contain such provisions relating to coverage, benefits, contributions, effective date, modification and termination of the agreement, administration, and other appropriate provisions as the governor and secretary of health, education, and welfare shall agree upon, * * *"

            The rather clear intent of § 3 of chapter 4, therefore is to require the inclusion of services in all positions which (a) constitute employment as defined in RCW 41.48.020 (§ 2, chapter 4, Laws of 1955, Ex. Sess.), and (b) are covered by a retirement system.  Subsection (2) of § 2, chapter 4, defines "employment" to include any service performed by an "employee" and the latter term is defined by subsection (3) of the same section to include "all officers and employees of the state or its political subdivisions except officials compensated on a fee basis."

             [[Orig. Op. Page 5]]

            The declaration of legislative intent contained in § 1 of chapter 4, discloses that OASI coverage is to be extended, subject to the limitations of the chapter, "* * * on as broad a basis as is permitted under the social security act * * *"  We are thus compelled to the conclusion that all service inpositions covered by a retirement system, with the exception of that rendered by officials compensated on a fee basis, is to be included under the agreement or modification extending coverage to the members of that system.  We do not believe that the legislature has placed any discretionary power to make other exclusions in the hands of the governor.  The result is that services in part-time positions and services of an emergency nature may not be excluded from an agreement by virtue of § 418 (c) (3) of the Federal statute.

            The next inquiry involves the possibility of excluding under § 418 (c) (3) (C),supra, services performed by individuals who are ineligible for membership in a retirement system in positions covered by that system.  Subsection 418 (d) (5) (B) provides in relevant part as follows:

            "At the request of the State, any class or classes of positions covered by a retirement system which may be excluded from the agreement pursuant to paragraph (3) or (5) of subsection (c) of this section, and to which the agreement does not already apply, may be excluded from the agreement at the time it is made applicable to such retirement system; except that, notwithstanding the provisions of paragraph (3) (C) of such subsection, such exclusion may not include any services to which such paragraph (3) (C) is applicable * * *" (Emphasis supplied.)

            The effect of this language is to make an exception, in the case of an agreement covering a retirement system, to the grant of authority in § 418 (c) (3) (C) for the exclusion of service performed by those who are ineligible for membership in the retirement system.  Thus the committee report on the Federal statute, 18 U.S. Code Congressional and Administrative News (83rd Congress-2nd Session) page 6864, states that:

            "* * * If the retirement system members were covered after a favorable referendum, however, employees in positions covered by the system but  [[Orig. Op. Page 6]] not themselves eligible for membership in the system would also be included under the agreement."

            Again at page 6900 of the same report it is pointed out that:

            "* * * The services referred to in paragraph (3) (C) of section 218 (c), which could not be excluded under this paragraph when the agreement is made applicable to the retirement system, are services performed by individuals in positions covered by the system who are ineligible for membership in the system.  Employees in these positions not already included under the agreement would have to be brought under it at the time it is made applicable to the retirement system covering those positions."

            The same provision is written into our state law as subsection 3 (1) (f), chapter 4, Laws of 1955, Ex. Sess., as follows:

            "As modified, the agreement shall include all services described in either paragraph (d) or paragraph (e) of this subsection and performed by individuals to whom section 218 (c) (3) (C) of the social security act is applicable, and shall provide that the service of any such individual shall continue to be covered by the agreement in case he thereafter becomes eligible to be a member of a retirement system;"

            Section 218 of the Social Security Act is of course the same as § 418 of 42 U.S.C.A.  As a result, the possibility of this exclusion is specifically withdrawn by our own statute.

            The third question involves service performed by students.  Section 418 (c) (5) provides that:

             [[Orig. Op. Page 7]]

            "Such agreement shall, if the State requests it, exclude (in the case of any coverage group) any agricultural labor, or service performed by a student, designated by the State.  This paragraph shall apply only with respect to service which is excluded from employment by any provision of section 410 (a) of this title other than paragraph (8) of such section and service the remuneration for which is excluded from wages by paragraph (2) of section 409 (h) of this title."

            Section 418 (d) (5) (B), as quoted above, made the permissive exclusion of student service authorized by the section last quoted available to a state upon request where the service is performed in a position covered by a retirement system.  We think it is unnecessary to discuss the qualifications placed upon this permissive exclusion by the reference in § 418 (c) (5) to §§ 410 (a) and 409 (h), because as we have indicated in our discussion of the first question above, we believe that our statute precludes such an exclusion.

            In summary of what has been said, with respect to the first two classes described in your request, consisting of individuals employed on a temporary basis, we can find no authority in our statute for exclusion.  The same is true of any other individual who might be performing service (except as a public official compensated on a fee basis) to which the permissive exclusions authorized by § 418 (c) (3) (A) (B) could have been applied had our legislature seen fit.  Again, the same conclusion is applicable to service rendered by students.

            All of the foregoing statements are made subject to the qualification that the services performed by a member of any of the classes of employees under consideration are performed in a position covered by your retirement system.  As appears from the analysis made to this point, the scope of OASI coverage is determined under the Federal act by reference to coverage groups consisting of positions covered by a retirement system, and does not turn upon eligibility or ineligibility of the individual for membership in the system.  While this has caused no little difficulty in the attempts of several public retirement systems within this state to organize the administrative details required for the extension of OASI coverage, the translation must be made in order to obtain such coverage.

             [[Orig. Op. Page 8]]

            We have not, however, made any categorical statement with respect to particular individuals in the classes here considered because, under the statutes which authorize the establishment of your retirement system, the designation of those positions which are to be covered by the system has been left, in the main, to the Board of Regents.  See RCW 28.76.240 through 28.76.280, and the amendments thereof (with the exception of RCW 28.76.280) contained in chapter 123, Laws of 1955.  Thus RCW 28.76.240 (as amended by section 1, chapter 123, Laws of 1955) now provides in relevant part that:

            "The board of regents of the University of Washington and the board of regents of the State College of Washington are authorized and empowered:

            "(1) To assist thefaculties and such other employees of their respective institutions as the board of regents may designate in the purchase of old age annuities or retirement income plans under such rules and regulations as the regents of said institutions may prescribe * * *" (Emphasis supplied.)

            RCW 28.76.250 (as amended by section 2, chapter 123, Laws of 1955) now provides:

            "Members of the faculties and such other employees as are now designated by the regents shall be required after January 1, 1948, to contribute not less than five percent of their salaries during each year of full time service after the first two years of such service toward the purchase of such annuity or retirement income plan."  (Emphasis supplied.)

            These statutes do not detail the positions to be covered by your retirement program, as do those with respect to a number of other retirement systems (e.g., RCW 41.40.120, 1953 Supp.).

            As your supplementary letter indicates, nonacademic employees who took positions with the University after April of 1953, were excluded by the Regents from the University retirement system pursuant to the authority  [[Orig. Op. Page 9]] of the two sections last quoted above.  If certain nonacademic employees had joined the University's retirement system before April 1953, and are still members, the question may arise, in view of the decision by the Regents at that time to exclude thereafter nonacademic personnel, as to whether or not nonacademic positions are now covered by the University retirement system.  We think that under the statutes last quoted the answer should be in the negative, since the designation of positions covered lies exclusively with the Regents.  Thus, if a member of the University's retirement system, who retains such membership because he was enrolled during or prior to April of 1953, should resign or be discharged, his replacement would not be entitled to membership in the system.  It follows that the position is not now covered by the retirement system.

            Section 1 of the four-page statement of rules promulgated by the Regents for the University's retirement system, as enclosed with your request, states that participation is

            "* * * restricted to and mandatory for members of the University academic and research staff, and such staff as designated by the Board of Regents, who average more than seventy (70) hours per month with at least five consecutive months of employment each year and whose employment is not incident to their obtaining an education * * *"

            This would indicate that the administrative interpretation placed by the Regents upon the term "faculty" as used in RCW 28.76.240 and 28.76.250 is such that only regular, full-time teaching positions are within the meaning thereof.  This is in accord with the few authorities which we have found, although none of them necessarily compels a definition of this kind.  SeeWest v. Board of Trustees, 41 Ohio App. 367, 181 N.E. 144, at 150;Regents v. Williams, 9 Gill. & J. 365, at 392; 31 Am. Dec. 72; 35 C.J.S. 479, Faculty; and Black's Law Dictionary (3rd ed.) 742.  Thus, under this definition, students who occupy temporary instructive or research positions, visiting lecturers, and experts who may serve as consultants in single courses on anad hoc basis, might be considered as occupying positions which were not covered by the retirement system.  In these cases the services performed are apparently supplementary to the services of the regular faculty.  They do, however, perform functions which are normally assigned to the faculty of an institution of higher learning.  Despite this fact, since the  [[Orig. Op. Page 10]] description of positions covered by the system rests with the Regents under our statutes, it seems to us that personnel of the type under discussion should not be treated for purposes of OASI coverage as occupying such positions.

            We therefore advise that (a) nonacademic personnel do not occupy positions covered by the University's retirement system; and (b) individuals performing academic functions, who are excluded from membership by the Regents on the basis of the classifications indicated above, should not be treated as occupying positions covered by the retirement system.

            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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