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AGLO 1970 No. 104 - July 27, 1970
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                                    July 27, 1970
 
 
 
Honorable Sidney E. Smith
Secretary, Department of
Social and Health Services
909 Capitol Center Building
Olympia, Washington 98501
                                                                                                             Cite as:  AGLO 1970 No. 104
 
 
Dear Sir:
 
            By a recent letter you have requested an opinion of this office on a question which we paraphrase as follows:
 
            Under present state and federal law, together with implementing regulations, must the state department of social and health services (division of public assistance) provide general assistance, aid to families with dependent children and/or food stamp assistance to persons who are on strike or participating in a labor dispute if such persons meet the other economic qualifications and eligibility provisions of the applicable law and regulations?
 
            We answer your question in the affirmative.
 
                                                                     ANALYSIS
 
            The question presented raises issues as to the duties and responsibilities of the department of social and health services (division of public assistance) to provide benefits in three areas:  (1) General assistance; (2) aid to families with dependent children; and (3) food stamps.
 
            The first program, general assistance, is strictly a state program supported entirely by state funds and governed by state law as well as regulations promulgated by the state department of public assistance ‑ now succeeded by the department of social and health services (division of public assistance).  With respect to the other two programs, aid to families with dependent children and food stamps, such programs ‑ though operated by the state ‑ are governed not only by state laws and regulations but by federal law and regulations as well because of financial participation by the federal government.
 
            General Assistance Program
 
            In answering the question you have raised we must recognize at the outset that the guiding rule and major goal  [[Orig. Op. Page 2]] in an inquiry into the construction or interpretation of a statute is to ascertain and give effect to the intent of the legislature.  Krystad v. Lau, 65 Wn.2d 827, 400 P.2d 72 (1965).  And, in arriving at such intent, our first resort must be to the context and subject matter of the legislation, because the intention of the legislature is to be deduced, if possible, from what it said.  Hatzenbuhler v. Harrison, 49 Wn.2d 691, 306 P.2d 745 (1957).
 
            The eligibility requirements for public assistance are set forth in RCW 74.08.025, as follows:
 
            "Public assistance shall be awarded to any applicant:
 
            "(1) Who is in need; and
 
            "(2) Who has not made a voluntary assignment of property or cash for the purpose of qualifying for an assistance grant; and
 
            "(3) Who is not an inmate of a public institution except as a patient in a medical institution and who is not a patient under sixty-five years of age in an institution for mental disease and who is not a patient in a medical institution because of a diagnosis of psychosis:  Provided, That the assistance paid by the department to recipients in nursing homes, or receiving nursing home care, may cover the cost of clothing and incidentals and general maintenance exclusive of medical care and health services.  The department may pay a grant to cover the cost of clothing and personal incidentals in public or private medical institutions and institutions for tuberculosis."
 
            The definitions of the terms which must be considered are set forth in RCW 74.04.005, as follows:
 
            "For the purposes of this title, unless the context indicates otherwise, the following definitions shall apply:
 
            "(1) 'Public assistance' or 'assistance' ‑ Public aid to persons in need thereof for any cause, including services, medical care, assistance grants, disbursing orders, work relief, general assistance and federal-aid assistance.
 
             [[Orig. Op. Page 3]]    ". . .
 
            "(6) 'General Assistance' ‑ Shall include aid to unemployable persons and unemployed employable persons who are not eligible to receive or are not receiving federal-aid assistance.
 
            ". . .
 
            "(b) Unemployed employable persons are those persons who although capable of gainful employment are unemployed.
 
            ". . .
 
            "(13) 'Need' ‑ The difference between the applicant's or recipient's cost of requirements for himself and the dependent members of his family, as measured by the standards of the department, and value of all nonexempt resources and nonexempt net income received by or available to the applicant or recipient and the dependent members of his family."  (Emphasis supplied.)
 
            Notably, reading and construing RCW 74.08.025 with the foregoing definitions in mind, it is clear that an unemployed employable person who is in need and who is otherwise qualified is entitled to general assistance unless he falls within a class of persons excluded from such benefits by the legislature.
 
            Finding no such exclusion in RCW 74.08.025, or any other statute in the public assistance laws, of a person otherwise eligible to receive such benefits simply because he is on strike, we must conclude that such a person is entitled to receive general assistance.1/ This conclusion  [[Orig. Op. Page 4]] is based, in part, upon the general rule of statutory construction recognized by our supreme court that where there is an express exception in a statute, the statute applies to all other cases not excepted and no other exceptions can be read into it.  In re The Monks Club, Inc., 64 Wn.2d 845, 394 P.2d 804 (1964); Insurance Co. N. Am. Co. v. Sullivan, 56 Wn.2d 251, 352 P.2d 193 (1960).  Stated another way, the express mention of one subject implies the exclusion of all others.  State v. Roadhs, 71 Wn.2d 705, 430 P.2d 586 (1967).2/
 
             Furthermore, to the extent that there may be any question as to whether a person on strike may be considered as an "unemployed employable person" within the meaning of RCW 74.04.005, the answer is provided by the long-standing and consistent construction placed upon the act by the department of public assistance.  In Bradley v. Dept. Labor & Ind., 52 Wn.2d 780, 786, 329 P.2d 196 (1958), the court said:
 
            ". . .  Where a statute is ambiguous, construction placed upon it by the officer or department charged with its administration is not binding on the courts but is entitled to considerable weight in determining the legislative intention, and the persuasive force of such interpretation is strengthened when the legislature, by its failure to amend or by amending some other particular without repudiating the administrative construction, silently acquiesces in the administrative interpretation.  White v. State, 49 Wn.2d 716, 306 P.2d 230."  (Emphasis supplied.)
 
            The key statutory provisions we are concerned with were enacted in substantially their present form in 1953.  We are advised that at no time have strikers who were otherwise eligible to receive benefits been denied such  [[Orig. Op. Page 5]] benefits simply because they were on strike.  In fact, there is written evidence going back to the early 1960's which establishes affirmatively that the department of public assistance regarded strikers as unemployed employable persons within the meaning of RCW 74.04.005 (6) (b).
 
            This long-standing and consistent construction of the act by the department is entitled to great weight in determining legislative intent.  And, as the court said in the Bradley case, the persuasive force of such interpretation is strengthened, in this case, because the legislature has on several occasions amended the relevant statutes without repudiating the administrative construction; thereby, it has silently acquiesced in this administrative interpretation.
 
            In the case of Lascaris v. Wyman, 305 N.Y.S.2d 212 (1969), and Strat-O-Seal Manufacturing Company v. Scott, (Ill.) 218 N.E.2d 227 (1966), the courts in finding strikers eligible to receive benefits under the New York and Illinois public assistance laws, based their decisions upon "legislative intent" as such was established on the basis of administrative construction.  In the Wyman case, supra, the court said at p. 216:
 
            "Since 1952 the State Commissioner of Social Welfare has authorized payment of welfare benefits to those employees who otherwise qualify when they lose employment by reason of strikes, citing eleven strikes.  The State Legislature has never changed the law in view of that administrative policy.  By their silence, the Court must interpret the legislative intent of the statute as not having been violated by this policy."
 
            The court went on to conclude (pp. 216-17):
 
            "Where an employee loses employment by reason of a bonafide strike, lockout or other industrial controversy, this will not be a bar to the employee in obtaining welfare assistance if he otherwise qualifies.  . . .  The Court holds that striking employees, whether union or non-union members, when they lose employment by reason of union-management conflict, may still qualify for welfare benefits if the particular employee meets the other economic qualifications and other provisions of the statute."
 
             [[Orig. Op. Page 6]]    Accordingly, based upon the foregoing reasoning it is our opinion, and you are so advised, that persons who are in need and are otherwise qualified to receive general assistance are entitled thereto and may not be denied benefits by the department simply because they are on a strike.  Stated another way, absent an express statement by a future legislature evidencing its intent to exclude otherwise eligible strikers from general assistance benefits, the department may not, by administrative action, effect such an exclusion.
 
            Federally Funded Programs ‑ Aid to Families with Dependent Children ‑ Food Stamp
 
            In responding to the second part of your question concerning the right of persons on strike, if otherwise eligible, to qualify for benefits under the aid to dependent children and food stamp programs, resort must be had not only to the provisions of state law but also to the federal statutes and applicable regulations because of the federal funding involved in such programs.
 
            We first note that the state statutes governing aid to dependent children (RCW 74.04.050-74.04.055) and food stamps (RCW 74.04.500-74.04.525), like the general assistance law, do not expressly exclude an applicant from benefits simply because he is on strike.  Furthermore, the legislature in order to insure that this state will qualify for federal funding of these programs has provided in RCW 74.04.050, as follows:
 
            "The department shall serve as the single state agency to administer public assistance.  The department is hereby empowered and authorized to cooperate in the administration of such federal laws, consistent with the public assistance laws of this state, as may be necessary to qualify for federal funds for:
 
            "(1) Old age assistance;
 
            "(2) Medical assistance to the aged;
 
            "(3) Aid to dependent children;
 
            "(4) Aid to the needy blind;
 
            "(5) Child welfare services;
 
            "(6) Aid to permanently and totally disabled;
 
            "(7) Any other programs of public assistance  [[Orig. Op. Page 7]] for which provision for federal grants or funds may from time to time be made.
 
            "The state hereby accepts and assents to all the present provisions of the federal law under which federal grants or funds, goods, commodities and services are extended to the state for the support of programs administered by the department, and to such additional legislation as may subsequently be enacted as is not inconsistent with the purposes of this title, authorizing public welfare and assistance activities.  The provisions of this title shall be so administered as to conform with federal requirements with respect to eligibility for the receipt of federal grants or funds.
 
            "The department shall periodically make application for federal grants or funds and submit such plans, reports and data, as are required by any act of congress as a condition precedent to the receipt of federal funds for such assistance.  The department shall make and enforce such rules and regulations as shall be necessary to insure compliance with the terms and conditions of such federal grants or funds."  (Emphasis supplied.)
 
            The legislature has further provided, in so far as the food stamp program is concerned, that:
 
            "The department shall promulgate rules and regulations conforming to federal laws, rules and regulations required to be observed in maintaining the eligibility of the state to receive from the federal government and to issue or distribute to recipients, food stamps or coupons under a food stamp plan.  Such rules and regulations shall relate to and include, but shall not be limited to:  (1) The classifications of and requirements of eligibility of households to receive food stamps or coupons.  (2) The periods during which households shall be certified or recertified to be eligible to receive food stamps or coupons under this plan.  (3) The establishment of a purchase payment schedule for coupons graduated on the basis of the incomes and the number of persons in an eligible household."  (Emphasis supplied.)
 
             [[Orig. Op. Page 8]]    The present program plans under which the department is operating and which have been approved by the appropriate federal agency do not exclude strikers, otherwise eligible, from the benefits of these programs.  Such programs, in our opinion, conform to state law, and we have been advised by the appropriate federal agencies that any plan excluding strikers as a class would not be approved for federal funding.
 
            In a letter dated June 8, 1970, written to Mr. Walter White, Assistant Attorney General, by the Deputy Regional Attorney of the United States Department of Health, Education and Welfare (which administers the AFDC program), a copy of which is enclosed for your information, we were advised that the state may not deny benefits to a person, otherwise eligible, because he is participating in a strike if the state desires to qualify for federal funds.
 
            A similar response was received regarding the food stamp program.  In a letter dated June 4, 1970, the United States Department of Agriculture, which administers that program, advised Mr. White, through the director of the western region, that eligibility requirements for the food stamp program are exclusively those of need.  Therefore, if a family is determined to be otherwise eligible by virtue of need there would be no basis for denying participation in the program because of the involvement of the family head in a strike or other labor dispute.  A copy of this letter and one received April 16, 1968, are enclosed for your information.
 
            Accordingly, we must conclude that under existing law ‑ both state and federal ‑ benefits of the aid to dependent children and food stamp programs may not be denied a person, otherwise eligible, simply because he is on strike.  And, if the state were to attempt, by legislative or administrative action, to exclude such persons from such benefits, this state would be denied federal funding of the programs under the present federal law and regulations.
 
            We trust the foregoing will be of assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General


 
 
DONALD J. HOROWITZ
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/It should be noted that in 1951 the attorney general's office was asked to rule on the question of whether the department of public assistance could provide medical services to persons confined in city and county jails.  The question was answered in the affirmative because there was no specific exclusion of such persons.  As a consequence, in 1953 the legislature enacted RCW 74.08.025 which specifically excluded inmates of public institutions from public assistance.
 
2/The legislature is presumed to know such principles of statutory construction, and as a result thereof, our court has held that legislative intent, not expressed in some appropriate manner, has no legal existence.  State ex rel. Gebhardt v. Superior Court, 15 Wn.2d 673, 690, 131 P.2d 943 (1942).
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