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AGLO 1979 No. 22 - May 29, 1979
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- ADJUTANT GENERAL ‑- ACTIVE SERVICE ‑- OUTSIDE EMPLOYMENT BY STATE ADJUTANT GENERAL

(1) Under RCW 38.12.030 the governor, in appointing the state adjutant general, is required to order said appointee to active service as defined by RCW 38.04.010 and RCW 38.38.004.

(2) In view of those statutory definitions, the position of state adjutant general must be deemed to be a full-time job; while this does not mean that the adjutant general may not also have some other employment, it does mean that any such other employment must be secondary to the state position.

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

                                                                   May 29, 1979

Honorable Ren Taylor
State Rep., 4th District
322 House Office Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1979 No. 22

Dear Sir:

            By recent letter you have requested our opinion on the following two questions:

            "(1) Is RCW 38.12.030 mandatory or directory insofar as it appears to require the governor to appoint an adjutant general to active service?

            "(2) In light of the definition of 'active service' in RCW 38.04.010 and 'active state duty' in RCW 38.38.004, is it possible for a person to lawfully serve as both adjutant general of the Washington national guard and at the same time as a commercial airline pilot?"

             [[Orig. Op. Page 2]]

            We respond to both questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            The governor is the commander-in-chief of the state militia, except when it is called into federal service.  Article III, § 8 of the state constitution; RCW 38.08.020.  Pursuant to Article X, § 2,1/ the legislature has provided for the establishment and organization of the militia by the enactment of a military code which is now part of Title 38 RCW.  RCW 38.08.010 provides in part as follows:

            "The governor shall cause the organized militia of this state at all times to conform to all federal laws and regulations as are now or may hereafter from time to time become operative and applicable, notwithstanding anything in the laws of this state to the contrary. . . ."

             [[Orig. Op. Page 3]]

The adjutant general is the chief of staff to the governor (RCW 38.12.010) and the executive head of the militia.  RCW 38.08.020.  He is ordered to "active service" by the governor (RCW 38.12.030) and since 19572/ (§ 2, chapter 250) "may be removed by the governor at will."  The manner of appointment and the qualifications of the adjutant general are set forth in RCW 38.12.030, as follows:

            "Whenever a vacancy has occurred, or is about to occur in the office of the adjutant general, the governor shall order to active service for that position from the active list of the Washington army national guard or Washington air national guard an officer not below the rank of a field officer who has had at least ten years service as an officer on the active list of the Washington army national guard or the Washington air national guard during the fifteen years next prior to such detail.  The officer so detailed shall during the continuance of his service as the adjutant general hold the rank of a general officer.

            ". . ."  (Emphasis supplied)

            Question (1):

            Although your first question asks whether this last quoted statute is "mandatory or directory" we surmise that you truly mean, instead, "mandatory or discretionary."  As explained inState v. Miller, 32 Wn.2d 149, 201 P.2d 136 (1948), both a mandatory and a directory statute command  [[Orig. Op. Page 4]] action and are distinguishable only in the sense that under a mandatory statute the power to act is lost if not exercised in a timely fashion‑-whereas under a directory statute both the power and the duty to act continue to exist even though a specified deadline for action has passed.

            A "discretionary" statute, on the other hand, is one which only authorizes, but does not require, a given course of action.  In other words, it is permissive rather than either mandatory or directory.  Generally speaking, a discretionary or permissive statute is identifiable through its use of the word "may" rather than the command word "shall."  See,e.g., RCW 43.06.010, relating to the general powers and duties of the governor, which contains both mandatory (or directory) provisions and discretionary (or permissive) authorizations.  Thus, for example, while subsection (1) of that statute states that the governor ". . .shall supervise the conduct of all executive and administrative offices," subsection (11) says, instead, that the governor ". . .may require any officer or board to make, upon demand, special reports to him, in writing; . . ."

            Viewed against this explanatory backdrop it is our opinion that RCW 38.12.030,supra, is directory‑-and not discretionary or permissive.  The statute says that whenever a vacancy has occurred . . . in the office of the adjutant general, the governor shall (and not "may")

            ". . . order to active service for that position from the active list of the Washington army national guard or Washington air national guard an officer not below the rank of field officer who has had at least ten years service as an officer on the active list of the Washington army national guard or Washington air national guard during the fifteen years next prior to such detail. . . ."

            By this statute the legislature has thus made it a duty of the governor to fill the vacancy in a statutorily described manner‑-leaving to the governor only the discretionary or permissive function of deciding who, among statutorily qualified persons, the adjutant general should be.

            Question (2):

            Your second question, in essence, involves the meaning of the term "active service" in RCW 38.12.030, supra.  For the  [[Orig. Op. Page 5]] applicable definition of that term, insofar as the state militia and military affairs are concerned, we turn to RCW 38.04.010 which reads, in material part, as follows:

            "When used in this act, the following words, terms, phrases shall have the following meaning:

            ". . .

            "The term 'active service' shall be construed to be any service on behalf of the state, or at encampments whether ordered by state or federal authority or any other duty requiring the entire time of any organization or person except when called or drafted into the federal service by the president of the United Statesand shall be analogous to 'active state duty' as defined in RCW 38.38.004."

            ". . ."3/   (Emphasis supplied)

            RCW 38.38.004, in turn, defines "active state duty" as follows:

            ". . .

            "(9) 'Active state duty' means full time duty in the active military service of the state under an order of the governor issued under authority vested in him by law, and includes travel to and from such duty.

            ". . ."

             [[Orig. Op. Page 6]]

            We think the conclusion to be derived from these several statutory provisions is inescapable.  As contemplated by the legislature, the office of state adjutant general is a full-time job‑-one with respect to which the occupant is deemed to be on "full-time" duty‑-and not merely a part-time office or position.  Bearing that in mind, let us now consider your specific question;i.e.,

            "In light of the definition of 'active service' in RCW 38.04.010 and 'active state duty' in RCW 38.83.004, is it possible for a person to lawfully serve as both adjutant general of the Washington national guard and at the same time as a commercial airline pilot?"

            Because of the manner in which you have worded this question, it calls for both a direct answer and a qualifying explanation.  The answer is yes, it is possible in a technical legal sense‑-but only in accordance with significant practical restraints.

            To begin with, it must be recognized that the concept of a "full-time" job is not, per se, incompatible with some form of additional, outside employment.  In fact, various provisions of the State's executive conflict of interest law (chapter 42.18 RCW) take cognizance of such dual employment possibilities and only purport to regulate them in order to avoid conflicts of interest.4/   Therefore, in our opinion, it cannot be said as a matter of law that it is not ". . .possible for a person to lawfully serve as both adjutant general of the Washington national guard and at the same time as a commercial airline pilot."  (Emphasis supplied)

            At the other end of the spectrum, however, there is clearly a difference between full-time and part-time employment, whether for the state or any other employer.  That difference can perhaps be best illustrated for present purposes by comparing various state boards or commissions which, like the office of adjutant general, are also within the executive branch of government.  Some of those boards or commissions, such as the Liquor Control Board (RCW 66.08.012), the Parole Board (RCW 9.95.001), the Board of Industrial Insurance Appeals (RCW 51.52.010), and the Board of Tax Appeals (RCW 82.03.010),  [[Orig. Op. Page 7]] although not expressly so denominated, are by reason of both their duties and the salary levels of their members, deemed to be full time.  Others, like the Public Disclosure Commission (RCW 42.17.350) and the State Board of Education (RCW 28A.04.010), are regarded as part-time bodies for generally the same reasons arising from their respective functions and corresponding compenation[compensation].  Unless statutorily restricted in a given case5/ the members of both kinds of boards or commissions may legally have outside jobs as well.  The difference is that any such outside employment in the case of a full-time board or commission member must be secondary to his state position in the sense that, whatever working hours are involved, the requirements of the outside job give way to those of the full-time position in case of any conflict.  Conversely, where only a part-time state position is involved its occupant can, and usually does, also work elsewhere in a position which, both monetarily and from a priority standpoint, represents his or her principal occupation.

            What we are here saying, in substance, is simply this:  The position of state adjutant general is, under the applicable statutes which we have above analyzed, of the former and not the latter type.  It is a full-time job, to which any outside employment must be secondary, and not merely a part-time office to be filled by one whose principal occupation is elsewhere.

            This completes our consideration of your questions.  We trust that the above will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Article X, § 2, reads as follows:

            "The legislature shall provide by law for organizing and disciplining the militia in such manner as it may deem expedient, not incompatible with the Constitution and laws of the United States.  Officers of the militia shall be elected or appointed in such manner as the legislature shall from time to time direct and shall be commissioned by the governor.  The governor shall have power to call forth the militia to execute the laws of the state to suppress insurrections and repel invasions."  (Emphasis supplied.)

2/Construing the law in effect prior to this 1957 amendment, this office in an opinion to the adjutant general dated November 22, 1948, concluded that the adjutant general could only be removed for cause as determined by court martial.  Cf.,Llewellyn v. Langlie, 37 Wn.2d 384, 224 P.2d 321 (1950).

3/The phrase "this act" in the opening sentence of RCW 38.04.010, supra, includes, notably, all of chapter 38.12 RCW‑-as evidenced by the code reviser's note following the statute as codified in the Revised Code of Washington.

4/See, in particular, RCW 42.18.190.

5/See, e.g., RCW 51.52.010 relating to the Board of Industrial Insurance Appeals.

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