AGLO 1973 No. 37 - Mar 20 1973
LEGISLATURE ‑- LEGISLATORS ‑- MAY STATE LEGISLATOR ALSO BE A STATE EMPLOYEE
Consideration of the eligibility of a member of the legislature to be employed by a state agency during the period of time the state legislature is not in session; applicability of Washington Constitution Article II, § 13; impact of federal Hatch Act and/or RCW 41.06.250 upon the applicability of such a legislator to campaign for reelection while serving as an employee of a state agency.
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March 20, 1973
Honorable Robert S. O'Brien
Olympia, Washington 98504 Cite as: AGLO 1973 No. 37
This is written in response to your recent letter requesting our opinion on the following question:
". . . Can a member of the state legislature be employed by a state agency during the period of time the legislature is not in regular or special session? . . ."
We respond to this question in the manner set forth in the following analysis.
As you have previously been advised by a memorandum opinion dated March 23, 1972 (copy enclosed), there is no legal prohibition of general applicability against a member of the Washington legislature simultaneously serving as an employee of a state agency such as the treasurer's office ‑ assuming (a) his physical ability to perform both jobs;1/ and (b) his disclosure of this employment to the ethics board of the house to which he belongs.2/ We hereby reiterate and affirm this conclusion, [[Orig. Op. Page 2]] noting, however, in so doing that we are not here concerned with any problem of possibly incompatible public offices since your question by its terms is limited to a mereemployment of a legislator by a state agency.3/ Nor, for this same reason are we here concerned with the possibility of a violation of Article II, § 13 of our state Constitution, which provides that:
"No member of the legislature, during the term for which he is elected, shall be appointed or elected to any civil office in the state, which shall have been created, or the emoluments of which shall have been increased, [[Orig. Op. Page 3]] during the term for which he was elected."
This provision, notably, was the sole basis for our ruling in AGO 57-58 No. 75 [[to George C. Starlund, Assistant Director, Department of Licenses on June 4, 1957]], copy enclosed, to which you have made verbal reference in terms of this office having previously indicated a legal barrier against the service of a former legislator on the state barber examining committee. Accordingly it will be seen that we did not there enunciate any sort of a general and permanent prohibition against even this instance of dual office holding. Instead, we simply advised that because the newly created positions on the barber examining committee (see, chapter 101, Laws of 1957) constituted "civil offices" within the meaning of Article II, § 13, supra, no person who was a member of the legislature at the time it was established could, during the remainder of his legislative term, also serve as a member of this committee.
While thus affirming our previous advice to you we should, however, make some reference here to the possibility of a peripheral problem respecting the employment of a legislator by a state agency ‑ in each of two different contexts.
In his status as a state employee it is first possible that the subject individual in a given case might occupy a position in the classified civil service under chapter 41.06 RCW ‑ thereby bringing into play the following language of RCW 41.06.250 (2):
". . .
"(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. . . ."
The important point to be noted with respect to this statute is that while it doesnot prohibit even a state civil service employee from simultaneously holding a partisan elective office (as distinguished from "any political party office") it does prohibit such a civil service employee from participating in the management of a partisan, political campaign ‑ including his own campaign for election or reelection to a partisan, elective office. See, AGO 61-62 No. 146 [[to Robert Benethy, State Representative on July 18, 1962]], copy enclosed.4/
[[Orig. Op. Page 4]]
The other context in which a similar restriction would exist would be that of a state employee whose activities are such as to result in his being covered by the federal "Hatch Act," now codified as 5 U.S.C. §§ 1501-1508. While this act applies primarily to officers and employees of the federal government, it also applies to a state officer or employee (according to information provided to us by the United States Civil Service Commission)
". . . if, as a normal and foreseeable incident to his principal job or position, he performs duties in connection with an activity financed in whole or in part by Federal loans or grants; . . ."
Among the provisions of this federal act is one which is quite similar to RCW 41.06.250 (2),supra, and states that a state or local officer or employee who is covered by the act may not
". . .
"(3) take an active part in political management or in political campaigns."5/
Like our own statute, we understand that this provision has been construed by the civil service commission not to require a person to resign from a partisan elective office in order to serve in a covered state or local governmental employment. It does, however, similarly restrict his ability to seek election or reelection to such an office while continuing to hold a position in state employment the acceptance of which caused the individual to be covered by the federal act.
Thus, in summary, our answer to your question is as follows:
There is no legal prohibition of general applicability against a member of the state legislature also serving as an employee of a state agency ‑ and this is true even though the position in question may be covered either by chapter 41.06 RCW (state civil service) or by the federal Hatch Act, or both. If, however, either of these laws does apply in a given case, the person involved will not be able to campaign for reelection to his legislative office while continuing to serve [[Orig. Op. Page 5]] in such position.6/
We trust that the foregoing will be of assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Your present request largely avoids this problem by limiting the individual's period of employment with a state agency to times when the legislature is not in session.
2/See, Joint Rule No. 1 of the Senate and House of Representatives, and particularly, subsection (2) thereof which states that:
"(2) A legislator shall not enter into any contract with a state agency involving services or property, unless the contract is made after public notice and competitive bidding; except in cases where public notice and competitive bidding are not required, the contract or agreement shall be filed with the Board of Ethics."
3/The five requisites of a public office, which distinguish such a position from a mere employment, were most recently set forth by our court in Oceanographic Comm'n v. O'Brien, 74 Wn.2d 904, 909, 447 P.2d 707 (1968), as follows:
"'. . . five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of a inferior or subordinate office, created or authorized by the legislature and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity and not be only temporary or occasional.'"
The question of whether or not two public offices are incompatible is, of course, one which can only be answered on a basis of a detailed examination of the functions and duties of the particular offices which are involved.
4/However, as later indicated in AGO 1972 No. 7 [[to Stewart Bledsoe, State Representative on February 10, 1972]](copy also enclosed), it is no longer our position that this prohibition applies where the employee has taken a leave of absence without pay from his position in the classified service to run for a particular office.
5/5 U.S.C. § 1502.
6/In so advising you we are, of course, aware of pending litigation involving the constitutionality of both RCW 41.06.250 and at least certain portions of the "Hatch Act." We must, however, continue to presume the validity of both of these laws until a contrary ruling is made by either the state or United States Supreme court.