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AGO 1951 No. 008 - April 05, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

EMPLOYMENT STATUS OF A DEPARTMENT SERVICE OFFICER OF THE UNITED SPANISH WAR VETERANS UNDER THE STATE DEPARTMENT OF VETERANS' AFFAIRS AS IT EXISTED IN 1945 AND 1946.

A Department Service Officer for the United Spanish War Veterans operating under the provisions of chapter 31, Laws of 1945 (10747-10-12 Rem. Supp. 1945), though compensated directly by the Department of Veterans' Affairs of the State of Washington was not a state employee.

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                                                                    April 5, 1951

Honorable Hugh H. Evans
Prosecuting Attorney
Spokane County
Spokane, Washington                                                                                                Cite as:  AGO 51-53 No. 8

Attention:  !ttEarl W. Foster,Deputy Prosecuting Attorney

Dear Sir:

            We are in receipt of your letter of December 12, 1950, asking for our opinion in connection with the computation of retirement benefits under the State Employees' Retirement System for a former state employee now retired.  In connection with such benefits you ask specifically if service as a Department Service Officer of the United Spanish War Veterans is creditable as state service under the provisions of the law governing the aforementioned State Employees' Retirement System.  You make known to us the fact that the person involved was designated "Department Service Officer" for the Spanish War Veterans and administered the pertinent provisions of chapter 31 of the Laws of 1945 for the state with offices in the Spokane County Courthouse from October 14, 1945, to September 30, 1946.  Further, he was apparently entitled to one aide at $250.00 a month whose services he did not require.  You also state that the Commander of the Spanish War Veterans appointed the individual in question and the State Director of Veterans' Affairs retained only the power to discharge and fix compensation.  In  [[Orig. Op. Page 2]] connection with this you point out that the Advisory Council of administration for the United Spanish War Veterans had voted that a service officer shall retain office so long as his services are satisfactory to the Director of Veterans' Affairs, thus giving the said Director of Veterans' Affairs the authority to fire any service officer for incompetency, but still leaving with the Commander the right to appoint his successor.  In connection with this resolution you state "The Director of Veterans Affairs was formally advised of the action of the Advisory Council at the time it was taken and also had actual knowledge of the ratification of that action at the Convention."

            The conclusion reached may be summarized as follows:

            The Department Service Officer for the United Spanish War Veterans under the provisions of section 2, chapter 31, Laws of 1945 (10747-11 Rem. Supp. 1945), was not an employee of the State of Washington and as such service rendered in such a position cannot be used in the computation of pension benefits under the provisions of chapter 274, Laws of 1947, as amended by chapter 240, Laws of 1949.

                                                                     ANALYSIS

            The case you discuss is apparently that of R. O. Wollmuth who was Department Service Officer for the United Spanish War Veterans during the period outlined in your letter.  He became a member of the State Employees' Retirement System on October 1, 1947, by reason of his employment by Spokane County and was retired on January 1, 1950.

            The computation of his retirement benefits was governed by section 1, chapter 240, Laws of 1949, effective April 1, 1949, the pertinent portions of which read as follows:

            "(i) 'Service' shall mean periods of employment rendered to any employer for which compensation is paid and shall include time spent in office as an elected or appointed official of an employer.  * * *"

            also,

            "(d) 'Employer' shall mean every branch, department, agency, commission, board and office of the State of Washington and any political subdivision of the said state admitted into the Retirement System."

             [[Orig. Op. Page 3]]

            Under the provisions of the law just set forth, in order to award service credit to a member the Retirement Board would have to find that such service was rendered to an employer as defined.

            This brings us directly to a consideration of whether Mr. Wollmuth, the service officer in question, was employed by the State Department of Veterans' Affairs.  In establishing an answer to this proposition, we have reviewed very carefully the governing statutes, opinions of the Attorney General and the records of the State Employees' Retirement System, also correspondence between the Department of Veterans' Affairs and Mr. Wollmuth, photostatic copies of certain of this correspondence having been secured by the Retirement Board from the Director of the Veterans' Rehabilitation Council, a successor organization to the State Department of Veterans' Affairs.

            The statute in existence at the time Mr. Wollmuth assumed his duties provided the Department of Veterans' Affairs with the power to employ, fix the compensation and describe the duties of certain officers, employees and assistants.  In addition it made it possible for the Department in its discretion to reimburse bona fide veterans' organizations qualified to prepare, present and prosecute claims for any veteran or member of a veteran's family.

            In connection with the services of Mr. Wollmuth, we find a copy of a letter dated September 20, 1945, written by G. E. Thirlwell, Department Commander of the United Spanish War Veterans, addressed to John L. Slavenburg, Director ‑ Department of Veterans' Affairs, which cites a resolution passed by the United Spanish War Veterans at Aberdeen, Washington, in July, 1945.  Apparently at that time the office of Department Service Officer was created by the Veterans' Organization in question under a resolution, an amendment to which reads as follows:

            "The Department Service Officer shall continue in service as long as he is efficient and his services are satisfactory to the Department of Veteran Affairs."

            The letter then concluded with the following statement:

            "It affords me pleasure to advise you that I have appointed R. O. Wollmuth, Spokane, as the Department Service Officer."

             [[Orig. Op. Page 4]]

            This letter clearly indicates that Mr. Wollmuth was to have the title of Department Service Officer of the United Spanish War Veterans but an action by the Veterans' Organization could hardly confer upon him status as a state employee though, in effect, it was apparently designed to give the officer in question certain security in employment as long as his conduct was satisfactory to the state director.

            The reimbursement feature found in the act was apparently not followed in connection with the United Spanish War Veterans and monies were paid directly to Mr. Wollmuth.  This arrangement as near as can be ascertained at present was entered into for the convenience of the Veterans' Organization involved as it was rather small and did not have a financial status which would enable it to pay directly to its service officer and await reimbursement by the state department.

            Obviously the attitude of the state director in connection with the employment involved is of paramount importance and on this subject we find a copy of a letter dated December 5, 1945, directed to R. O. Wollmuth and signed by John L. Slavenburg, state director, which reads in part as follows:

            "It has been brought to our attention that you are displaying a sign on the door of your office indicating that your office is part of the State Department of Veterans' Affairs.

            "Please be informed that this is absolutely erroneous.  It has been explained to you that you are definitely not an employee of this Department but that you are employed by the USWV, which organization we, in return, reimburse for your services to them.  It will, therefore, be necessary that this sign be removed immediately if your organization expects the continued reimbursement of its expenses from this office.

            "It was also explained to you, and your Department Commander, that inasmuch as your organization is small, your efforts should be mainly concentrated on service to Spanish War Veterans, and their widows and possible young veterans  [[Orig. Op. Page 5]] related to Spanish War Veterans.  I think it should be your effort to refer as many veterans as possible to the State Department of Veterans' Affairs."

            Certainly this is a very clear statement by the state director to the effect that the service officer in question was not regarded as a state employee and the provisions of section 2, chapter 39, Laws of 1945, supra, dealing with reimbursement of veterans was intended to prevail.

            In connection with the termination of service of the person in question we find a letter addressed to R. O. Wollmuth signed by Whittlesey H. Clark, Department Commander, United Spanish War Veterans, dated September 23, 1946, a copy of which was sent to the State Department of Veterans' Affairs and reads in part as follows:

            "I find it an unpleasant duty to inform you that I have this day requested our Comrade Z. S. Starks, of Tacoma, to serve as State Service Officer for the Department of Washington and Alaska.

            "This appointment will relieve you of your duties and official standing as such State Service Officer.  The date this appointment is to become effective is October 1st, 1946, and your official incumbency will therefore cease on September 30, 1946."

            Following this communication, on September 24, 1946, John L. Slavenburg, Director of Veterans' Affairs, wrote to Mr. Wollmuth and informed him as follows:

            "I am in receipt of a letter, dated September 23, 1946, from Whittlesey H. Clark, Department Commander, of the Department of Washington and Alaska, USVW, informing us that he has made a change in personnel.  His letter further states that he has appointed Comrade Z. S. Starks, of Tacoma, to serve as State Service Officer for the Department of Washington and Alaska, USWV.

             [[Orig. Op. Page 6]]

            "As you no doubt know, the Department Commander of any organization has the prerogative to appoint the State Service Officer and to determine what geographical location in the State is most suitable to give the most service to the members of the organization, and any other veteran who may require his services."

            In addition, we find an affidavit filed on behalf of Mr. Wollmuth dated October 25, 1950, signed by George E. Thirlwell which reads in part as follows:

            "I, Geo. E. Thirlwell, certify that I was Dep't Commander of the Department of Washington & Alaska, United Spanish War Vets from July 1945 to July 1946 and as such was asked to appoint a Comrade as Dep't Service Officer to serve under the Director of Veteran Affairs for State of Washington.

            "I recommended R. O. Wollmuth and he was accepted by the Director and given authority to open an office in Spokane.

            "As the Department had no funds to pay the expense of this office the Director informed Wollmuth that the expenses of the office would be paid direct from his ‑ the Director's ‑ office.

            "My Dep't never paid anything toward the expense and gave no orders to the Service Office, all orders and instructions being given by the Director's Office."

            A study of the facts as outlined above certainly indicates that Mr. Wollmuth was appointed by the state commander of his organization and was removed from office by the state commander.  The action by his organization establishing that he should serve at the pleasure of the state director could hardly be construed to give the director any material authority.  Further, we find that the State Department of Veterans' Affairs, through its director, specifically informed the party in question that he was not a state employee.  It is true that the method used in paying him was not strictly according to statute.  This is a situation for which the director might be subject to  [[Orig. Op. Page 7]] criticism, as such action on his part must be regarded in the light of a failure to strictly comply with the law, but could hardly be construed to change the employment status of the party in question and place him in a position not contemplated by the applicable statute.

            It is also interesting to note that on April 24, 1947, the Attorney General of the State of Washington was queried as to certain provisions of House Bill 59 designed to create the Veterans' Rehabilitation Council, which bill became chapter 110 of the Laws of 1947.  One of the questions asked reads as follows:

            "Will the employees of the veterans' organizations, engaged in service work, whose salaries will be reimbursed by the Council, be subject to unemployment compensation and social security deductions."

            The answer given was

            "Since the employees of the veterans' organizations are in no sense state employees inasmuch as the state has no authority to hire or fire them or direct their activities, their salaries are not exempt as those of state employees from unemployment compensation and social security contributions and taxes.  Their status insofar as their contributions and taxes are concerned is exactly the same as it was prior to the passage of chapter 110 of the Laws of 1947."  (Emphasis supplied.)

            The inescapable conclusion in connection with this matter is that the service officer in question was not in any sense a state employee and could not be made such by the resolution of a veterans' organization, which, in fact, was not followed by the organization.  Though compensation in this particular instance was paid directly, this subject is one for which the department might be criticized, but certainly the status of the individual in question would not be altered.  The power to hire, fire and direct, so necessary to establish employment status, resided in the United Spanish War veterans at all times, was not assumed by the State Director of Veterans' Affairs and, as a matter of fact, such director never did possess any such authority.

Very truly yours,

SMITH TROY
Attorney General

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