AUTHORITY TO REGULATE USE OF STATE‑OWNED AUTOMOBILES

OFFICES AND OFFICERS ‑- STATE ‑- OPP&FM ‑- GOVERNOR ‑- AUTHORITY TO REGULATE USE OF STATE‑OWNED AUTOMOBILES

Neither the state automobile policy committee nor the governor, acting alone, is authorized to adopt binding regulations governing the use of state‑owned automobiles, including a proposed requirement for payroll deductions for reimbursements for nonofficial use; however, the office of OPP&FM, as agent for the governor, under the state budget and accounting act, may adopt such regulations.

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                                                                 October 2, 1974

Honorable Robert V. Graham
State Auditor
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1974 No. 84

Dear Sir:
 
            By recent letter you have request our opinion as to the legal effect of a certain policy statement regarding the use of state‑owned automobiles which was issued by a body identified as the "State Automobile Policy Committee" on July 3, 1974.  For ease of reference a copy of this statement is attached hereto.
 
                                                                     ANALYSIS
 
            The first paragraph of the statement, as you will note, says that:
 
            "Only employees on 24-hour call or employees having special equipment shall have permanently assigned vehicles.  Each agency director shall make such designations."
 
            Paragraph 2 then purports to allow state‑owned vehicles to be driven to and from work, provided that the employee to whom the vehicle is assigned reimburses the state at the rate of $.065 per mile through a monthly payroll deduction authorization ‑ except that no such reimbursement is to be required "For employees assigned automobiles as a condition of employment . . ."
 
            Paragraph 3 goes on to enumerate certain mileage factors to be utilized in determining whether or not to assign a vehicle to a given employee on a permanent basis; and finally, paragraph 4 covers the subject of so-called "confidential license plates."
 
            In our opinion, this policy statement is of no legal force or effect from the standpoint of being  [[Orig. Op. Page 2]] enforceable in court.  Apparently, the State Automobile Policy Committee is some sort of ad hoc advisory committee established by the governor, for we can find no statutory references to it anywhere within the existing laws of this state.  As such ‑ i.e., as an advisory committee ‑ it thus obviously has no authority whatsoever to adopt binding rules or regulations governing the use of state‑owned automobiles.
 
            Moreover, even if the policies set forth in the above statement were to be viewed as regulations promulgated by the governor himself, we would still have to express great doubt as to their legal force and effect.  As in the case of all state offices and agencies, it is fundamental that the governor of this state may only exercise those powers necessarily or fairly implied in or incidental to the powers expressly granted by the constittution or statutes, or those essential to the declared objects or purposes of a legislative enactment.  Accord, Young v. State, 19 Wash. 634, 54 Pac. 36 (1898); and AGO 1972 No. 9 [[to Perry B. Woodall, State Senator on April 17, 1972]], copy enclosed.  However, our research of the laws relating to the governor's office has disclosed nothing which can be said to authorize the governor, acting independently, to adopt and enforce rules and regulations governing the use of state‑owned automobiles by all state agencies ‑ including not only those headed by gubernatorial appointees but by independent elected officials as well.  While it is true that Article III, § 2 of the constitution places the "supreme executive power" in the governor, and RCW 43.06.010(1) empowers him to ". . . supervise the conduct of all executive and ministerial offices," we find in neither of these provisions any authorization to adopt rules and regulations establishing standards for the operation of those agencies ‑ an essentially legislative or quasi legislative function.  As recently explained by the Supreme Court of Kansas in State ex rel. Miller v. Board of Ed., 511 P.2d 705 (1973),
 
            ". . . supervision means something more than to advise but something less than to control . . ."
 
            The essence of supervision is superintendence, not regulation, except in a most general sense.  See, Great Northern R. Co. v. Snohomish County, 48 Wash. 478, 93 Pac. 924 (1908).  In the case of the governor it is the function, in the words of Article III, § 5 of the constitution, to ". . . see that the laws are faithfully executed" ‑ and not that of making those laws.
 
             [[Orig. Op. Page 3]]
            The foregoing is not to say, however, that only the legislature itself can enact the laws or regulations necessary to make the automobile use policies above described legally enforceable.  As we recently had occasion to indicate in AGO 1974 No. 15 [[to A. N. Shinpoch, Chairman, Legislative Budget Committee on July 25, 1974]], copy enclosed, rule‑making authority in this area has been previously delegated by the legislature to the office of program planning and fiscal management (OPP&FM) by the state budget and accounting act, chapter 43.88 RCW, and by so much of § 120, chapter 137, Laws of 1973, Ex. Sess., as provides that the director of OPP&FM may:
 
            "(2) Issue rules and regulations to establish uniform standards and business practices throughout the state service, . . ."
 
            And, as you know, the director of this agency in adopting such rules does so as the statutory agent of the governor.  See, RCW 43.88.160.
 
            Likewise, the director of OPP&FM also has the express power under RCW 41.04.230 to authorize additional categories of payroll deductions ". . . upon written request of the officer or employee . . ." from whose salaries or wages a given deduction is to be made.
 
            Accordingly, utilizing these two sources of authority in combination with each other, we believe that if the governor, acting through the agency of the director of OPP&FM, were to translate the policy statement described at the outset of this letter into formal rules and regulations of that state office, to be adopted in accordance with the state administrative procedures act (APA), they would then be legally defensible.  But in the absence of such action it is our opinion, as stated above, that this statement is presently of no legal force or effect.
 
            We trust the foregoing will be of assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General