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Bob Ferguson

AGLO 1971 No. 61 -
Attorney General Slade Gorton

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                                                                   April 12, 1971
Honorable Maxine E. Daly
Commissioner, Employment Security Department
P. O. Box 367
Olympia, Washington 98501
                                                                                                                                                 Cite as: 
Dear Mrs. Daly:
            This is written in response to your request for an opinion from this office on a question which we would paraphrase as follows:
            Are the services of those legislative employees who are employed during a legislative session and are paid solely on the basis of a fixed amount per day of employment without regard to the number of hours or days actually worked covered for unemployment compensation purposes by chapter 3, Laws of 1971?
            Our analysis of subject legislation indicates that such services are not covered for unemployment compensation purposes.
            Unemployment insurance coverage of the services performed by employees of the state is provided for by § 19, chapter 3, Laws of 1971, which reads in part:
            "Commencing with benefit years beginning on or after the effective date of this 1971 amendatory act, services performed subsequent to September 30, 1969 in the employ of this state or any of its wholly owned instrumentalities shall be deemed services in employment unless such services are excluded from the term employment by section 21 of this 1971 amendatory act.
            "The state shall make payments in lieu of contributions with respect to benefits attributable to such employment as provided with respect to nonprofit organizations in subsections (2) and (3) of section 23 of this 1971 amendatory act:  . . ."  (Emphasis supplied.)
             [[Orig. Op. Page 2]]
            The pertinent exclusionary language is contained in § 21, chapter 3, Laws of 1971, which provides in part:
            "The term 'employment' as used in sections 18, 19, and 20 of this 1971 amendatory act shall not include service performed:
            ". . .
            "(10) In the employ of the state or one of its instrumentalities or a political subdivision or one of its instrumentalities by an individual who is (a) occupying an elective office, or (b) who is compensated solely on a fee or per diem basis."  (Emphasis supplied.)
            The term "per diem" is used statutorily in several senses; perhaps the most common is a ratable allowance in lieu of expenses, RCW 43.03.050.  "Per diem" in that context is not intended to compensate for the performance of personal services, but to reimburse the employee for "out of pocket" expenses incurred in the performance of services.  However, this is not the type of per diem with which we are here concerned, for § 21, chapter 3, Laws of 1971, relates to personal services compensated on a per diem basis.  In this context "per diem" means pay for services at a fixed amount per day, regardless of when such compensation is actually paid, for generally the term used in connection with compensation, wages, or salary means pay for a day's services (see, Scroggie v. Scarborough, 162 S.C. 218, 160 S.E. 596, 599 (1931)).  The term further connotes compensation based upon either attendance or availability for a day; and, used in this sense, is not generally considered to be ratable ‑ meaning that it is not compensation based on actual time spent in performing personal services.
            Clearly, this concept of compensation is descriptive of the sole basis of compensation of the legislative employees who are described in your question.  Therefore, it follows that their services in this capacity must be regarded as being excluded from unemployment compensation coverage by the express language of subsection (10) of § 21, chapter 3, Laws of 1971.
             [[Orig. Op. Page 3]]
            Of course, the extension of coverage or exemption from coverage of specified services is a matter within the province of the legislature.  In view of the exclusionary language of subsection (10), of § 21, chapter 3, Laws of 1971, we can only assume that the legislature which enacted this statute deemed the per diem pay adequate compensation for the services performed, and therefore, elected not to extend unemployment insurance coverage to such service.
            We are mindful of the fact that the legislature which enacted the law which we have been called upon to interpret is still in session.  If our interpretation of the pertinent language does not properly convey the intent of the legislature in this regard, an appropriate amendment can be enacted.1/ 
             We trust that the foregoing will be of assistance to you.
Very truly yours,

Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/Note, however, the cost factor involved in covering the services here under consideration should the same "payment in lieu of contributions" (basically, a dollar-for-dollar reimbursement to the unemployment compensation fund for all benefits paid out of it which are attributable to services performed by the state ‑ see § 23 (3), chapter 3, Laws of 1971) funding approach be used with respect to such services as is used in the case of other state employees.