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AGO 1956 No. 194 - January 31, 1956
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Don Eastvold | 1953-1956 | Attorney General of Washington

MERIT SYSTEM ‑- STATE PERSONNEL BOARD ‑- AUTHORITY OF BOARD IN CLASSIFICATION AND PAY MATTERS

(1) Under the authority granted the personnel board by statute, proclamation by the governor and its own rules, the board is the responsible authority on classification and pay matters affecting employees in departments under the board's jurisdiction subject to the availability of funds.

(2) A department under the jurisdiction of the board may not ignore an action by the board and refuse to abide by it when such action is in the field of classification or pay.

(3) A fiscal officer of a department under the jurisdiction of the board may not recognize and use for pay purposes rates other than those officially designated by the board for given positions.

(4) When an agency under the board's jurisdiction refuses to recognize applicable board action the board's remedy is to appeal to the appointing authority.

(5) When an employee's rate of pay is designated by the board as of an effective date but not recognized by the fiscal officer of an agency under the board's jurisdiction such employee may institute civil action.

(6) The chief executive of the state lacks authority to change or set aside actions of the board within the board's jurisdiction.

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

                                                                 January 31, 1956

Honorable Reuben A. Knoblauch
State Senator, 25th District
P.O. Box 363
Sumner, Washington                                                                                                              Cite as:  AGO 55-57 No. 194


Dear Sir:

            In your letter of December 26, 1955, you request an opinion concerning the authority and operation of our state civil service system under the direction  [[Orig. Op. Page 2]] of the state personnel board.

            You specifically pose these questions:

            (1) Under the authority granted the state personnel board, either by law, delegation by the Governor or its own rules, is the board the responsible authority on classification and pay matters affecting employees in departments under the board's jurisdiction, subject to the availability of funds?

            (2) Can a department under the jurisdiction of he board ignore an action by the board and refuse to abide by it when such action is in the field of classification or pay?

            (3) Can the fiscal officer of a department under the jurisdiction of the board recognize and use for pay purposes rates other than those officially designated by the board for given positions?

            (4) What recourse does the board have to enforce its decisions when an agency under its jurisdiction refuses to recognize applicable board action?

            (5) What recourse does an employee have to collect a proper rate of pay designated as of an effective date by the board but not recognized by the fiscal officer of an agency under the board's jurisdiction even though such agency has sufficient funds?

            (6) What authority does the chief executive of the state have to change or set aside actions of the board?

            Our conclusions may be stated as follows:

            (1) Yes.

            (2) No.

            (3) No.

            (4) Appeal to the appointing authority.

            (5) He may institute legal action.

             [[Orig. Op. Page 3]]

            (6) None, provided the action taken is within the scope of the board's authority.

                                                                     ANALYSIS

            One of the customary conditions to eligibility of a state for grants from the Federal government is an acceptable method of administration on the state level.  This includes, under Federal law, the establishment and maintenance of personnel standards on a merit basis.

            In 1945 the legislature authorized the appointment by the Governor of a personnel board consisting of three members.  RCW 50.12.030 provides in part as follows:

            "* * * All personnel of the employment security department, and such other departments or offices of the state as the governor may designate, or as provided by law, shall be selected from registers established by the personnel board.  * * *"

            RCW 43.19.290 through RCW 43.19.350 placed under the jurisdiction of the personnel board all personnel of the Washington State Training School, State School for Girls, Lakeland Village, Rainier State School, State School for Blind, and the State School for Deaf.  In addition all the employees of the newly created Division of Children and Youth Services except the supervisor and certified teachers were placed under the personnel board's jurisdiction.

            Merit system rules of personnel administration have been promulgated.  The rules now in force were amended effective October 1, 1954.  In addition to the department of employment security and the institutions listed above the merit system rules also apply to the department of fisheries, department of health, department of public assistance and the personnel board.

            In an opinion dated November 1, 1941, this office advised the personnel board as follows:

            (1) The Governor, pursuant to the authority granted to him by virtue of § 3, chapter 128, Laws of 1941 has given exclusive authority to the state personnel board in matters pertaining to the selection and merit rating of employees in the departments of social security, unemployment compensation and placement  [[Orig. Op. Page 4]] and health.  Where such rules adopted by the personnel board meet all requirements of the Federal statutes and are in conformity with the pertinent Federal regulations, it is not proper or necessary for the commissioner of unemployment compensation and placement to adopt any such rules even though the commissioner was given authority to do so by § 11 (e) of chapter 253, Laws of 1941.

            (2) The department of health and the department of social security have no power to make merit-rating rules for their employees.

            The Public Assistance Act, as amended by § 1, chapter 128, Laws of 1941 (incompletely codified in RCW 74.04.030) provides:

            "The personnel required to carry out the provisions of this act shall be employed under a merit system plan of personnel administration which shall be established on such basis as to conform with the standards of the federal government with regard to personnel administration.  The committee shall establish such rules and regulations as may be necessary to carry out the provisions of the merit system plan: Provided, That if the Department of Social Security is authorized or directed by law or the order of the Governor to join with one or more departments, boards, commissions or offices of state government in establishing a joint or general merit system, rules and regulations shall be adopted by the board, commission, or agency administering such joint or general merit system which board, commission, or agency shall be independent of the departments, boards, commissions, or offices joining in such joint or general merit system:  Provided further, That as to the Department of Social Security such rules and regulations shall conform to the requirements of the federal government with regard to personnel administration."  (Emphasis supplied)

            This statute placed the merit system rule‑making power in a personnel board if and when one was appointed by the Governor.  On April 7, 1941, the Governor issued an executive order giving exclusive authority to the personnel  [[Orig. Op. Page 5]] board in matters pertaining to the selection and merit rating of employees in the departments of social security, unemployment compensation and placement, and health.

            The legislature gave the personnel board jurisdiction over employees of the employment security department in 1945.  RCW 50.12.030.  In 1949 the department of fisheries was included.  RCW 43.25.030.  In 1951 personnel of the various state institutions which were placed in the Division of Children and Youth Services were also placed under the jurisdiction of the state personnel board.  RCW 43.19.290-43.19.350.

            On May 27, 1954, the Governor issued a proclamation containing the following language:

            "NOW, THEREFORE, I, Arthur B. Langlie, Governor of the State of Washington, by virtue of the authority in me vested by provisions of RCW 50.12.030, do hereby designate the personnel board as having full jurisdiction, including applicability of all Board rules and regulations, over all personnel of the Department of Public Institutions, including personnel of the 13 state institutions and the offices and divisions within the Department, except the Director, Superintendent of Institutions and one private secretary for each such position, such jurisdiction and authority of the Board to be effective June 1, 1954."

            Under the personnel board rules, the merit system supervisor is required to prepare a comprehensive classification plan for all positions.  Standards are prescribed.  The proposed classification plan is submitted to the board for review and approval.  The board is required to hold open hearings on the plan.  Article IV, § 2 of the rules provides in part:

            "* * * Upon approval by the Board, the plan shall become effective.  * * *"

            Article IV, § 4, of the rules provides that every position shall be allocated by the supervisor to one of the classes so established.  If a director of an agency disagrees with an allocation recommended by the supervisor, he may within 30 days appeal to the board for a hearing.

             [[Orig. Op. Page 6]]

            Under Article V of the rules, the supervisor is required to prepare a compensation plan for all classes of positions.  Standards are set forth in the rules.  The proposed compensation plan is also submitted to the board for review and approval.  After open hearings and an opportunity to modify it the board acts.  Upon approval by the board, the plan shall become effective.

            Article V, § 3, covers the administration of plans.  This section provides in part:

            "The approved compensation plans shall constitute the official schedules of salaries for all classes of positions in the respective agencies.  No salaries shall be approved by the fiscal officers unless they conform to the approved compensation plans and are at one of the salary levels for the class * * *."

            It is clear that under the terms of section 1, chapter 128, Laws of 1941, and the proclamation of the Governor that the personnel board has authority to adopt rules and regulations.  The rule provides that the personnel board shall approve, or approve as amended, recommendations pertaining to classifications and salaries made by the merit system supervisor.  An examination of the civil service laws of other jurisdictions discloses that a provision requiring the civil service commission or personnel board to classify positions is almost universal.  The power to classify, if contained in the rules, is almost as basic as the rule‑making power itself.  InChittenden v. Wurster, 152 N.Y. 305, 46 N.E. 857, it was held that mandamus would lie to require a civil service body which had failed to exercise its authority to classify positions to do so.  See also State ex rel. George v. Seattle, 184 Wash. 560.

            When a personnel board has authority to make rules and regulations such rules have the effect of law provided that they are not in conflict with an existing statute.  If this were not so it would be futile for administrative bodies, whether in the field of personnel or not, to make rules and regulations.

            The power to classify in the administrative sense can only be exercised by the body to whom the power has been given.  Kilcoyne v. Lohr, 235 N.Y.S. 207 held that where power to classify has been given to a municipal civil  [[Orig. Op. Page 7]] service commission an attempt by the city council to classify a position in the classified service would be ineffective.  A fiscal officer of a department under the jurisdiction of the state personnel board has no authority to use a different salary schedule than the one approved by the board.  Such action is directly contrary to Article V, § 3 of the Rules.

            What recourse is available if a department under the jurisdiction of the board refuses to recognize applicable board action?  Article XX of the rules provides for payroll certification.  The supervisor is required to certify that the names appearing on the payroll are employed in accordance with the provisions of the rules and that the salary rates are authorized by the approved plan.  Exceptions to payroll items must be in writing and constitute official notification to the agency and fiscal officers that such items are in violation of the rule.

            A refusal by the department head to comply with the lawful rules of the personnel board would constitute misconduct or malfeasance in office and justify removal from office by the Governor under RCW 43.06.070.  In addition such objections in writing by the legal authority of the personnel board would supply grounds for civil action by the affected employees.

            In our opinion the chief executive of the state lacks authority to change or set aside formal actions of the board.  Perhaps the most impelling reason for the creation of civil service systems has been to relieve the chief executive of the responsibility of making appointments to and removals from the classified service.  The merit system is regarded as the exact antithesis of the "Spoils System".  It would be inconsistent with the intent and purpose of the merit system law to permit the chief executive to exercise a veto power over the lawful actions of the personnel board in the absence of specific authority to do so.

            It is the responsibility of the personnel board to administer the merit system in substantial conformity with the requirements of federal law and regulations.  A failure to comply with the lawful rules of the board with respect to any state employee in the classified service would, in our judgment, be an invitation to the Federal government to withhold Federal funds.

            We hope the foregoing comments will prove helpful.

Very truly yours,

DON EASTVOLD
Attorney General


ANDY G. ENGEBRETSEN
Assistant Attorney General

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