AGO 1960 No. 171 - Dec 30 1960
CIVIL SERVICE - APPLICABILITY OF INITIATIVE 207 TO PRECINCT COMMITTEEMEN, DISTRICT CHAIRMEN OF POLITICAL PARTIES, AND THE VENDORS OF STATE LIQUOR STORES.
(1) An individual covered by the Civil Service Act (Initiative 207) cannot serve as an elected precinct committeeman of either party without being in violation of the law.
(2) An individual covered by the Civil Service Act (Initiative 207) cannot serve as district chairman for either party in the regular legislative district organizations without being in violation of the spirit and intent of the law.
(3) Vendors (managers) of the state liquor stores are covered under the provisions of the new Civil Service Act (Initiative 207).
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December 30, 1960
Honorable Sam Smith
1814 31st Avenue
Seattle, Washington Cite as: AGO 59-60 No. 171
By letter previously acknowledged you requested an opinion of this office on the following questions:
(1) May a person covered by the new Civil Service Act (Initiative 207) serve as an elected precinct committeeman for either party without being in violation of the law as it now stands?
(2) May a person covered by the new Civil Service Act serve as district chairman for the Democratic or Republican party in our regular legislative district organizations without being in violation of the spirit and intention of the law?
[[Orig. Op. Page 2]]
(3) Are vendors (managers) of the state liquor stores covered under the provisions of the new Civil Service Act?
We answer questions one and two in the negative and question three in the affirmative.
At the November 8, 1960 general state election the people passed Initiative No. 207, the State Civil Service Act which became effective December 8, 1960. AGO 51-53-426. By this act the people established a comprehensive civil service system for all employees of the State of Washington except certain persons expressly exempted from the provisions thereof.
Like most civil service laws, this initiative imposes some political restrictions upon persons covered thereby. Section 25 of Initiative 207 reads, in pertinent part, as follows:
"(2) Employees shall have the right to vote and to express their opinions on all political subjects and candidates, but shall not hold any political party office or participate in the management of a partisan, political campaign. Nothing in this section shall prohibit a classified employee from participating fully in campaigns relating to constitutional amendments, referendums, initiatives, and issues of a similar character, and for nonpartisan offices.
"(3) Nothing in this section shall prohibit appointment, nomination or election to part-time public office in a political subdivision of the state when the holding of such office is not incompatible with, nor substantially interferes with, the discharge of official duties in state employment." (Emphasis supplied.)
A fundamental rule of statutory construction is to ascertain and give effect to the intention of the people as expressed in the act.
[[Orig. Op. Page 3]]
St. Paul & Tacoma Lbr. Co. v. State, 40 Wn. (2d) 347, 243 P. (2d) 474 (1952). An initiative is a legislative act of the people and the rules of statutory construction used to interpret legislation enacted by the state legislature are equally applicable. See State v. Houge, 67 N.D. 251, 271 N.W. 677 (1937).
In order to answer your first question it is necessary to determine whether, within the meaning of section 25, supra, a precinct committeeman is (1) a political party officer; or, (2) a part-time public officer of a political subdivision of the state.
The election of precinct committeemen of the major political parties is governed by the provisions of section 1, chapter 178, Laws of 1943 as amended by section 1, chapter 196, Laws of 1953. (Cf. RCW 29.42.040; RCW 29.42.050) A precinct committeeman is elected for a term of two years (RCW 29.42.050) and is by law a member of his party's county central committee. Vacancies in such offices are filled by appointment by the chairman of the county central committee, (RCW 29.42.050).
From our examination of the pertinent statutes, we believe that it is quite clear that a precinct committeeman is a political party officer and not a part-time public officer of a political subdivision of the state. This conclusion is in accord with the general rule recognized by the courts and the earlier opinions issued by this office.
In 18 Am.Jur., Elections, § 139, we find the following statement:
"It is generally agreed that party committeemen do not become public officers by reason of the fact that they are elected at a statutory primary election, because the duties of a public office are in their nature public; that is, they involve in their performance the exercise of some portion of the sovereign power, whether great or small, in the performance of which all citizens, irrespective of party, are interested, either as members of the entire body politic or of some duly established division of it. Manifestly, membership in a political [[Orig. Op. Page 4]] committee belonging to one party or another does not come within the above description of what constitutes public office, and the fact that the legislature undertakes by statute to regulate the election and conduct of political committees does not make the office a public one. The members thereof continue to be, as before, officers of the party which elects them, and their duties are confined to matters pertaining to the party to which they belong and which alone is interested in their proper performance. . . ." (Emphasis supplied.)
The same rule is stated in 29 C.J.S., Elections, § 85. See also, State ex rel. Brown v. Blew, 20 Wn. (2d) 47, 145 P. (2d) 554 (1944) where the test for a public officer is set forth.
On several occasions this office has issued opinions directly or indirectly passing upon the nature of the office of precinct committeemen.
(1) Party Officer
On June 17, 1935, in a letter to the Honorable David E. Gifford, State Representative, 32nd District, we said:
". . . the precinct committeeman is a qualified officer of his party in his precinct, whom the electors of his party have chosen to represent his party in that precinct. He is the people's choice to represent them in party affairs." (Emphasis supplied.)
In a later opinion to the Honorable William J. Gaffney, Prosecuting Attorney, Franklin County, dated December 26, 1946 [[1947-48 OAG 2a]], we concluded that an election statute which provides that a candidate's name shall not appear more than once on the election ballot does not prohibit a person from being a candidate for a state or county office and "the party office of precinct committeemen." (Emphasis supplied.) See also, an opinion written to the Honorable H. L. Nelson, State Senator, dated May 15, 1936; an opinion written to the Prosecuting Attorney, Thurston County, dated August 11, 1938; AGO 45-46 p. 1006 [[1945-46 OAG 1006]]; and, AGO 53-55 No. 203 [[to K. W. McKay, State Representative on February 11, 1954]].
[[Orig. Op. Page 5]]
(2) Not Public Officer
In an opinion to the Honorable I. M. Howell, Secretary of State, dated July 29, 1916 [[1915-16 OAG 328]], we concluded that "a party precinct committeeman is not a public officer in any sense . . ." (Although the nominating procedure there being considered has been changed by statute, we do not believe our conclusion has been affected thereby.) See also, opinion written to the Prosecuting Attorney, Thurston County, dated August 11, 1938; and, a letter to Mrs. H. Gowans, dated September 12, 1938.
Although our court in the case of Anderson v. Milliken, 186 Wash. 602, 59 P. (2d) 295 (1936), did not specifically pass upon the question which we are here considering, we feel that certain language found therein clearly recognizes the political nature of the office of precinct committeeman.
Accordingly, it is our opinion that a precinct committeeman is a political party officer and not a part-time public officer of a political subdivision of the state within the meaning of section 25, supra. Thus, such political activity would fall within the prohibition of the act.
In view of the manner in which we answered your question it is unnecessary to consider what constitutes a "political subdivision of the state" as that phrase is used in the initiative.
There can be little doubt, if any, that the district chairman of the Republican or Democratic party is a political party officer and/or "participate[s] [[participates]]in the management of a partisan political campaign." Therefore, such activity likewise falls within the prohibition of section 25, supra.
For convenience in reading, we restate the question:
Are vendors (managers) of the state liquor stores covered under the provisions of the new Civil Service Act (Initiative 207)?
[[Orig. Op. Page 6]]
"State liquor stores" are established by the Liquor Control Board under the provisions of Chapter 66.16 RCW. See also RCW 66.08. 050 (1). The sale of liquor at each store is conducted by a person employed by the board and who, by statute, is designated as "vendor" (RCW 66.16.030) or "manager" (RCW 66.04.350). The stores and their employees, prior to Initiative 207, have been subject to the exclusive control of the Liquor Control Board. By section 30 of the initiative, which specifically amends RCW 43.66.030, the board's authority in the personnel field is, in effect, limited to determining the number of employees necessary for the operation of the board.
The board itself is composed of three members, appointed by the Governor, who serve on afull-time basis. RCW 43.66.020. There is no doubt that the board and its employees come within the coverage of the act. Section 4 provides, in pertinent part, as follows:
"The provisions of this act apply to:
"(1) Eachboard, commission or other multimember body, . . .
"(2) Each agency, [which by definition in section 2 (2) includes a board] and each employee and position therein, not expressly excluded or exempted under the provisions of section 7 of this act." (Emphasis supplied.)
The applicable provisions of section 7 read as follows:
"The provisions of this act do not apply to:
". . .
"(8) In the case of a multimember board, commission or committee, whether the members thereof are elected, appointed by the Governor, or other authority, serve ex officio, or are otherwise chosen;
[[Orig. Op. Page 7]]
"(a) All members of such boards, commissions or committees;
". . .
"(c) If the members of the board, commission, or committee serve on a full-time basis: (i) the chief executive officer or administrative officer as designated by the board, commission, or committee; and (ii) a confidential secretary to the chairman of the board, commission, or committee;
". . .
"(12) . . . part time or temporary employees, . . . as defined by the State Personnel Board or the Board having jurisdiction;" (Emphasis supplied.)
It is quite clear that, under the above section, only the members of the Liquor Control Board, the chief executive officer or administrative officer designated by the board, the confidential secretary of the chairman of the board and certain part-time employees are "expressly excluded or exempted" from coverage.
Our court in the case of Spokane v. State, 198 Wash. 682, 693-694, 89 P. (2d) 826 (1939), laid down the rule which we feel must be applied in construing the exclusions or exemptions provided in Initiative 207. The court said:
"'An express exception, exemption or saving excludes others. Where a general rule has been established by statute with exceptions the court will not curtail the former nor add to the latter by implication.' 2 Sutherland on Statutory Construction (2d ed.), 923, § 494.
"The logic of the rule stated in the foregoing quotation is self-evident. The consequences of an infraction of the rule have been forcibly stated in our own decisions.
[[Orig. Op. Page 8]]
"'To construe a further exception into the statute . . . is to legislate judicially -an abhorrent thing - . . .' Exchange Nat. Bank v. United States, 147 Wash. 176, 186, 265 Pac. 722, 62 A.L.R. 139; In re Dickson's Estate, 197 Wash. 145, 84 P. (2d) 661."
It is our opinion that the "vendors" (managers) of state liquor stores are employees of the Liquor Control Board and not being expressly exempted from the provisions of Initiative 207, are covered thereby.
In passing we would like to mention that we have not overlooked the argument which could be made that a state liquor store is itself an agency of the state within the broad definition of that term as found in section 2 (2) of the act and that, therefore, the vendor (manager) is excluded from coverage under section 7. Such a construction we feel would be contrary to the rule of the Spokane case, supra, and contrary to the letter and spirit of the initiative itself. As we have previously stated, the people, by the enactment of Initiative 207, have established a comprehensive act covering all employees in state government except those persons expressly exempted. This mandate of the people can only be carried out if the provisions of the act relating to coverage are liberally construed, and provisions thereof relating to exclusions or exemptions are strictly construed.
In addition we call your attention to the rule of statutory construction set forth in Braicks v. Henricksen, 43 F. Supp. 254 (1942) which requires that when two sections of a statute are conflicting in application, that which is more specific will take preference over that which is more general.
We must add that nothing herein should be construed to apply to agent vendors appointed under the authority of RCW 66.08.050 (2). We have received a request for an opinion on the subject of the status of such agent-vendors which will be issued shortly.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
R. TED BOTTIGER
Assistant Attorney General