APPLICABILITY OF ANTI-SUBVERSIVE OATH TO VETERINARIANS DOING DISEASE TESTING, VACCINATIONS, MEAT AND BRAND INSPECTIONS
Veterinarians employed by Department of Agriculture to do disease testing of cattle, calfhood vaccinations, and meat and brand inspections are required to take the anti-subversive [[antisubversive]]oath required under chapter 377, Laws of 1955.
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June 29, 1955
Honorable Sverre N. Omdahl
Director, Department of Agriculture
Old Capitol Building
Olympia, Washington Cite as: AGO 55-57 No. 108
In your letter of June 7, 1955, previously acknowledged, you asked our opinion as follows:
"Your opinion is requested as to the applicability of chapter 377, Session Laws of 1955, which requires a sworn signed statement of loyalty of each state employee, to 250 veterinarians throughout the state performing a service for the Department of Agriculture in connection with Bang's disease testing of cattle, calfhood vaccinations, meat inspections and brand inspections."
Our conclusion is that veterinarians performing services for the state in connection with disease testing and vaccination of cattle and meat and brand inspection are "employees" within the meaning of chapter 377, Laws of 1955 and must therefore take an anti-subversive [[antisubversive]]oath.
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As we understand the problem, the veterinarians in question are not on a regular salary basis, are not entitled to state employee benefits, such as retirement, annual leave or sick leave, and that no withholding tax is taken from fees collected or paid. In the case of Bang's disease testing and calfhood vaccinations, the veterinarians are paid from department appropriations at the rate of 50 cents per head; for brand inspections, 20 cents per head; and for meat inspections on a contract basis by the day or month. All records of inspections and work performed are filed with the Department of Agriculture. Fees due the veterinarians for meat and brand inspection are collected from industry by the department and are then returned to the individual veterinarians with the exception of meat inspections, in which case seven per cent is withheld to cover the department's administrative costs. In many cases the individual veterinarians maintain a private practice.
The foregoing aspects in relation to the various services performed might seem to indicate that these veterinarians are "independent contractors" as opposed to "employees." As to a determination of this phase of the question we turn to Hubbard v. Department of Labor and Industries, 198 Wash. 354, in which the court held:
"The ultimate test by which it is determined whether the relation is that of employer and employee or that of principal and independent contractor is to inquire whether or not the employer retained the right, or had the right under the contract, to control the manner of doing the work and the means by which the result was to be accomplished. Larson v. American Bridge Co., 40 Wash. 224, 82 Pac. 294, 111 Am. St. 904;Clover v. Richardson & Elmer Co., 64 Wash. 403, 116 Pac. 861;Hinds v. Department of Labor & Industries, 150 Wash. 230, 272 Pac. 734 62 A.L.R. 225; Swam v. Aetna Life Ins. Co., 155 Wash. 402, 284 Pac. 792; Hollingsworth v. Robe Lumber Co., 182 Wash. 74, 45 P. (2d) 614;Sills v. Sorenson, 192 Wash. 318, 73 P. (2d) 798. These cases all hold that the chief, and most decisive, [[Orig. Op. Page 3]] factor in determining whether the relationship is that of employer and employee or that of principal and independent contractor is the right of control over the work or thing to be done.
"This power of control is variously spoken of in the different cases, as the primary, master, dominant, decisive, supreme, vital, final, real, or most significant, test, or as the main, principal, determining, or generally controlling, factor or consideration. 71 C. J. 450. Then there are other so-called tests, or rather considerations or factors, which relate to control, and have either a direct bearing or an inferential significance with respect to that question. Among the latter are the nature of the business, the time, place, duration, quantity, and nature of the work performed, the skill and supervision required, the furnishing of equipment, materials, and supplies, the payment of the necessary expenses, the basis of compensation for the work, the right to hire and discharge assistants, and the right to terminate the employment.
"Each of these elements, and many others that might be named, may be of more or less importance and value in a particular case, according to the facts and circumstances present, but none of them is conclusive in determining the nature of the relationship. Back of them all is the question as to who has the right to control the manner of doing the work and the means by which the ultimate result is accomplished."
Since the Director of Agriculture not only has the right to control the manner of the performance of these services by these veterinarians and the means by which the ultimate results are obtained, but in actual practice exercises that right and supervises the work done, then we can only conclude that they are "employees" as opposed to "independent contractors."
[[Orig. Op. Page 4]]
However, the ultimate question calling for a solution here is whether or not these veterinarians are employees of the State of Washington within the meaning of chapter 377, Laws of 1955.
InEmpey v. Yost, 182 Wash. 17, the court said:
"The statute uses the word 'employee' in its ordinary dictionary sense. It has been said that the word has neither technically nor in general use a restricted meaning by which any particular employment or service is indicated, and that it may have different meanings in different connections. The context and the connection in which it is used must largely determine whether in a particular case the term includes a certain person. 20 C.J. 1242,
"'But whatever meaning may be lexically imputed to the word "employee," and whatever differences of meaning may arise when the word is used in different relations and connections, the safe mode of interpreting the word, as used in this statute, is to take into the account the cause for the passage of the act, so far as it may be ascertained, and the evil sought by the act to be remedied.' People v. Buffalo, 11 N.Y. Supp. 314."
RCW 9.81.060 provides as follows:
"No subversive person, as defined in this chapter, shall be eligible for employment in, or appointmentto any office, or any position of trust or profit in the government, or in the administration of the business, of this state, or any county, municipality, or other political subdivision of this state." (Emphasis added)
[[Orig. Op. Page 5]]
Section 1, chapter 377, Laws of 1955, reads as follows:
"Every person and every board, commission, council, department, court or other agency of the state of Washington or any political subdivision thereof,who or which appoints or employs or supervises in any manner the appointment or employment of public officials or employees shall establish by rules, regulations or otherwise, procedures designed to ascertain whether any person is a subversive person. In securing any facts necessary to ascertain the information herein required, the applicant shall be required to sign a written statement containing answers to such inquiries as may be material, which statement shall contain notice that it is subject to the penalties of perjury. Every such person, board, commission, council, department, court, or other agency shall require every employee or applicant for employment to state under oath whether or not he or she is a member of the communist party or other subversive organization, and refusal to answer on any grounds shall be cause for immediate termination of such employee's employment or for refusal to accept his or her application for employment." (Emphasis supplied)
Section 2, chapter 377, Laws of 1955, reads as follows:
"The inquiries prescribed in preceding sections, other than the written statement to be executed by an applicant for employment and the requirement set forth in section 1 of this amendatory act, relative to membership in the communist party or other subversive organization, shall not be required as a prerequisite to the employment of any persons in any case in which the employing authority may determine, and by rule or regulation specify the reasons why,the nature of the work to be performed is such that employment of such persons will not be dangerous [[Orig. Op. Page 6]] to the health of the citizens or the security of the governments of the United States, the state of Washington, or any political subdivision thereof." (Emphasis supplied)
We think it clear that these veterinarians, although not being what could be termed as regular, full time employees of the state, are persons occupying positions of trust in the administration of the business of this state; that they are employees who are appointed or employed by the Department of Agriculture, which has the exclusive right to so appoint or employ, or to terminate such employment; and, that the nature of the work to be performed is such that it could be dangerous to the health of the citizens of this state.
We, therefore, conclude that these veterinarians are "employees" within the meaning of chapter 377, Laws of 1955. This conclusion, however, should not be construed as applying to any other statute than the one under consideration. SeeEmpey v. Yost, supra.
Very truly yours,
JOHN J. CHAMPAGNE
Assistant Attorney General