AGO 1987 No. 26 - Dec 2 1987
STATE ‑- AGENCY ‑- ATTORNEY STAFFMEMBERS ‑- DUES ‑- AUTHORITY OF STATE AGENCY TO PAY CERTAIN MEMBERSHIP DUES
The Board of Industrial Insurance Appeals may not pay membership dues in the Washington State Bar Association for the Board's attorney staffmembers where membership in the Association is required by law as a prerequisite of employment.
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December 2, 1987
Ms. Sara T. Harmon, Chairperson
Mr. Frank E. Fennerty, Jr.
Mr. Phillip T. Bork
Board of Industrial Insurance Appeals
Capital Center Building, FN-21
410 West Fifth
Olympia, Washington 98504-3421
Cite as: AGO 1987 No. 26
Dear Chairperson Harmon and Members:
By letter previously acknowledged, you have requested an opinion of this office on a question which we paraphrase as follows:
May the Board of Industrial Insurance Appeals pay membership dues in the Washington State Bar Association for the Board's attorney staffmembers where membership in the Association is required by law as a prerequisite of employment?
For the reasons set forth below, we answer your question in the negative.
As your letter pointed out, our office has previously considered a related question. In AGO 1974 No. 13 (copy enclosed), we opined that a county did not have legal authority to pay the Washington State Bar Association membership dues of its elected county prosecutor. Our conclusion was based on the premise that active membership in the State Bar Association was a prerequisite for holding the office of prosecuting attorney, and that any individual elected to that position was obligated to maintain that [[Orig. Op. Page 2] ] qualification as a necessary condition to retaining the position. Therefore, we concluded that if the county satisfied the monetary obligation necessary to maintain that status (i.e., paid the individual's bar dues), it in effect would be making a gift of its funds to that individual, in violation of art. 8, section 7 of the Washington State Constitution. See AGO 1974 No. 13, at 5.
Like county prosecuting attorneys, industrial appeals judges, employed by the Board to preside at its hearings, are required to be "active member[s] of the Washington state bar association". RCW 51.52.104. We could, therefore, respond to your question by merely reaffirming the analysis of our earlier opinion and concluding that it applied likewise to your situation.
However, a different analysis can be applied‑-which is arguably more appropriate to your situation‑-than that which underlies our earlier opinion. Specifically, as discussed further below, we conclude that the Board of Industrial Insurance Appeals is lacking the necessary statutory authority to compensate its attorney staffmembers for their bar association dues.
Our analysis begins with the familiar proposition that the Board, as all state agencies, has only those powers that have been expressly granted to it by statute or constitutional provisions, or that are necessarily implied from the powers expressly granted. See, e.g.,State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 538, 304 P.2d 663 (1956).
While the Board clearly has the authority to employ attorney staff to act as industrial appeals judges, we have been unable to find any statute authorizing the Board to fix their compensation. Indeed, the industrial appeals judges are, once employed, state employees covered by the State Civil Service Law, chapter 41.06 RCW. See RCW 41.06.040, 41.06.070. Under RCW 41.06.150(17), the Personnel Board has authority to establish the salary schedule that governs all state employees under the jurisdiction of the Personnel Board, including industrial appeals judges employed by the Board of Industrial Insurance Appeals.
Further, while the Legislature has authorized state agencies, including the Board, to reimburse state employees for certain expenses incurred in performing their duties,see chapter 43.03 RCW, we have found no legislation identifying bar association membership dues as within the category of expenses for which such reimbursement may be made.
[[Orig. Op. Page 3] ]
Since it appears to us that paying the bar association membership dues of state employees would constitute either compensation or reimbursement of expenses, and since we have concluded that the Board is lacking the requisite statutory authority to make such payments under either category, we need not address the constitutional issue underlying our earlier opinion and we therefore decline to do so. In the absence of statutory authority, we nonetheless come to the same conclusion‑-i.e., the Board may not pay the bar association membership dues of its attorney employees‑-and therefore answer your question in the negative.
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
WILLIAM L. WILLIAMS
Assistant Attorney General