ELIGIBILITY FOR PARTICIPATION IN STATE EMPLOYEES RETIREMENT SYSTEM ‑- MEAT AND BRAND INSPECTORS

ELIGIBILITY FOR PARTICIPATION IN STATE EMPLOYEES RETIREMENT SYSTEM ‑- MEAT AND BRAND INSPECTORS

Meat and Brand Inspectors employed by Washington State Department of Agriculture are not eligible for membership in the State Employees Retirement System.

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                                                                    May 3, 1950

Honorable Sverre N. Omdahl
Director of Agriculture
Old Capitol Building
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 270

Dear Sir:

            We have your letter of April 19, 1950, in which you ask the following question:

            May meat and brand inspectors employed by the Washington State Department of Agriculture become eligible for membership in the State Employees' Retirement System?

            The conclusions reached may be summarized as follows:

            Meat and brand inspectors are not eligible for membership in the State Employees' Retirement System.

                                                                     ANALYSIS

            Your letter of April 19, 1950, inquires as to whether meat and branding inspectors, who work for the Department of Agriculture on an "as collected" basis, are eligible for membership in the State Employees' Retirement System.  You explain what "as collected" means, and in doing so point out that such workers are not on a regular salary but receive fees paid by the industry to the department for inspection services.  In addition you point out that such workers are not listed as regular employees of the department and the amount of salary or compensation  [[Orig. Op. Page 2]] they receive varies from just a few dollars in a month to several hundred dollars a month.  Further, you state that they do not come under the forty-hour week, do not receive vacations with pay, and in many cases maintain a private practice.

            Section 13, chapter 274, Laws of 1947, as amended by section 7, chapter 240, Laws of 1949 (11072-13 Rem. Supp. 1949) covers membership in the State Employees' Retirement System.  The first paragraph in this section is general in scope, and lays down the broad principle on which membership in the State Employees' Retirement System is based:

            "Membership in the Retirement System shall consist of all regularly compensated employees and appointive and elective officials of Employers as defined in this act who have served at least six months without interruption, with the following exceptions:"

            From a reading of this excerpt from the law it readily appears that in order to be personally eligible an employee must have served six continuous months with a state department or with some political subdivision of the state whose employees participate in membership in the State Employees' Retirement System.

            After the above general statements we find certain enumerated subdivisions which in each case contain exclusions from the general coverage mentioned at the outset.  The first one of these establishes what is an eligible position.  Any person not holding such an eligible position is, of course, excluded from membership in the system.  The subdivision in question reads as follows:

            "1. Persons in positions requiring normally less than five months of uninterrupted service a year."

            This must mean that the department or political subdivision involved must classify its positions on the basis of its existence over a period of years.  After establishing the fact that a certain position meets the legal requirements it is declared to be an eligible one and a person who has had six months service and occupies such a position is deemed to be a member of the Retirement System.

             [[Orig. Op. Page 3]]

            We are advised that subdivision 1 has been supplemented by a ruling of the Retirement Board.  The law itself requires five months of uninterrupted service a year.  In order to clarify this situation the board has ruled that a month of service will be a month in which a member serves ten days or an equivalent amount of time, which is seventy hours.  The basis for this ruling is found in section 1, subdivision (1) of the act, which defines "service" as any month in which ten full days are worked.  The seventy hour ruling used to implement this is an administrative interpretation by the board and applies to the ordinary number of hours worked in ten days by full time workers in state and county employ.

            Your letter would appear to show that meat and brand inspector positions should be considered ineligible under the wording of the Retirement Act and the rulings of the Retirement Board, hence the employees holding such positions would not be eligible for membership.

            You call our attention to section 13, paragraph 9.  This paragraph was added by the 1949 session of the legislature and is intended to exclude from membership persons who carry on a profession and merely serve the state as a sideline or as a means of augmenting their earnings.  As we understand it, most meat and brand inspectors are qualified as veterinarians and practice their profession privately and merely serve the state on a fee basis.

            This opinion is based upon the now existing facts as to the employment and compensation of meat and brand inspectors.  If the method of paying such inspectors is hereafter changed, the entire subject should be again examined.

Very truly yours,

SMITH TROY
Attorney General

GEORGE DOWNER
Assistant Attorney General