OFFICES AND OFFICERS ‑- COUNTY ‑- AUTHORITY OF COUNTY COMMISSIONERS TO CONTRACT FOR HEALTH CARE SERVICE FOR COUNTY ELECTED OFFICERS

OFFICES AND OFFICERS ‑- COUNTY ‑- AUTHORITY OF COUNTY COMMISSIONERS TO CONTRACT FOR HEALTH CARE SERVICE FOR COUNTY ELECTED OFFICERS.

Board of county commissioners has no statutory authority to pay the premium of a group health plan for elected county officers.

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                                                              September 30, 1958

Honorable John J. Lally
Prosecuting Attorney
Spokane County
Spokane 1, Washington                                                                                             Cite as:  AGO 57-58 No. 220

Attention:  !ttArt Hansen,Civil Deputy

Dear Sir:

            By letter previously acknowledged, you requested an opinion of this office relating to the interpretation of section 1, Chapter 106, Laws of 1957 (RCW 36.32.400).  We state your specific questions as follows:

            (1) Does the term "employees", as used in RCW 36.32.400, include elected county officers?

            (2) If it does, would the payment of county elected officers' premiums on a medical service plan by the county violate Article XI, section 8, of the Washington State Constitution, thus restricting such premium payments to only those officers elected after the passage of a county ordinance providing for the payment of medical service plan premiums?

            We answer your first question in the negative, therefore rendering unnecessary an answer to the second question.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            At the outset it should be borne in mind, that counties are but instrumentalities of the state organized to perform some functions of state government, and, as such, have only the powers expressly conferred by the constitution and state laws, or those which are reasonably or necessarily implied from the granted powers.  State ex rel. King County v. Superior Court, 33 Wn. (2d) 76, 204 P. (2d) 514 (1949); State ex rel. Taylor v. Superior Court, 2 Wn. (2d) 575, 98 P. (2d) 985; see, also, 14 Am. Jur. Counties, pp. 200-209, sections 28-40.

            Section 1, chapter 106, Laws of 1957 (RCW 36.32.400) reads as follows:

            "Any county by a majority vote of its board of county commissioners may enter into contracts to provide health care services and/or group insurance for the benefit of its employees, and may pay all or any part of the cost thereof.  Any two or more counties, by a majority vote of their respective boards of county commissioners may, if deemed expedient, join in the procuring of such health care services and/or group insurance, and the board of county commissioners of each participating county may, by appropriate resolution, authorize their respective counties to pay all or any portion of the cost thereof."  (Emphasis supplied)

            It is a basic rule of statutory construction that in arriving at the intent of the legislature, the first resort of the courts is to the context and subject matter of the legislation, because the intention of the lawmakers is to be deduced, if possible, from the words used.  Hatzenbuhler v. Harrison, 49 Wn. (2d) 691, 306 P. (2d) 745;  Guinness v. State, 40 Wn. (2d) 677, 246 P. (2d) 433; St. Paul and Tacoma Lumber Company v. State, 40 Wn. (2d) 347, 243 P. (2d) 474.  Further, where the language of an act is plain, free from ambiguity, and devoid of uncertainty, there is no room for construction.  State ex rel. Washington Bank v. Bellingham, 8 Wn. (2d) 233, 111 P. (2d) 781; Ernst v. Kootros, 196 Wash. 138, 82 P. (2d) 126.

             [[Orig. Op. Page 3]]

            Applying these rules, it is apparent that it was the intent of the legislature, in passing the above law, to authorize the board of commissioners of any county to enter into contracts for the health care and/or group insurance for the benefit of its employees.  The language of the act is plain and unambiguous, unless there is an ambiguity created by the mere use of the word "employees".  Since the word "employees" is not defined in the act, we must seek the aid of established rules of statutory construction in an attempt to ascertain the meaning intended by the legislature.

            Our court has stated:

            (1) The members of the legislature are presumed to know the meaning of the words they write into their enactments.  Union Oil Co. of California v. State, 2 Wn. (2d) 436, 98 P. (2d) 660; see also, In re Raine's Estate, 193 Wash. 394, 75 P. (2d) 933.

            (2) Statutory words to be construed must be given their usual and ordinary meaning.  See Miller v. City of Pasco, see also, Pacific Northwest Alloys, Inc., v. State, 49 Wn. (2d) 702, 306 P. (2d) 197, 82 C.J.S. Statutes, p. 639, section 329 (b).

            In State v. Vosgien, 82 Wash. 685, 144 Pac. 947, the court said:

            "It is a primary rule of statutory construction that, in the absence of a statutory definition or a well established technical meaning, ordinary words and phrases of a well known and definite sense when used in a statute must be accorded that meaning unless clearly controlled by the context."  (Emphasis supplied)

            The word "employee" is defined by Webster's New International Dictionary as follows:

            "One employed by another; a clerk or a workman in the service of an employer, usual disting. from official or officer, or one employed in a position of higher authority."

            In Black's Law Dictionary, "employee" is defined:

             [[Orig. Op. Page 4]]

            ". . . one who works for an employer; a person working for a salary or wages; applied to anyone so working, but usually only to clerks, workmen, laborers, etc., and but rarely to the higher officers of a corporation or government or to domestic servants.  (Citations omitted)

            "Generally, when person for whom services are performed has right to control or direct individual who performs services, not only as to the result to be accomplished by the work but also as to the detail and means by which result is accomplished, individual subject to direction is an 'employee.'  (Citation omitted)"

            In the early case of Nelson v. Troy, 11 Wash. 435, 39 Pac. 974 (1895), the court said:

            "A deputy clerk is not a county officer.  Jeffries v. Harrington, 11 Colo. 191 (17 Pac. 505); Warwick v. State, 25 Ohio St. 24.

            "The 'officer' is distinguished from the employee in the greater importance, dignity and independence of his position; in being required to take an official oath, and perhaps to give an official bond; in the liability to be called to account as a public offender for misfeasance or non-feasance in office, and usually, though not necessarily, in the tenure of his position.'  Throop v. Langdon, 40 Mich. 673, (per Cooley, J)"

            In Toomey v. New York Legislature, 2 N.Y. (2d) 446, 161 N.Y.S. (2d) 81, 141 N.E. (2d) 584, the court was called upon to construe the word "employees" as used in the state's workmen's compensation act.  The court stated therein that members of the legislature or other public officers were not mentioned in the act and,

            "This omission unquestionably was intentional, as the concept of public official is repugnant to that of  [[Orig. Op. Page 5]] employee although, in a broad sense, both public officers and their subordinates are servants of the People.  It is a distinction the law recognizes, Public Officers Law, Consol. Laws, c. 47.  Nothing turns on the circumstance that, in some situations, the Legislature has brought officers of domestic corporations within the coverage of the Workmen's Compensation Law section 54, subd. 6, or that the Legislature permitted elected public officials to become members of the State Employees' Retirement System, Civil Service law, Consol. Laws, c. 7, former art. 4, section 50, subd. 8.  The point is that when 'officers' are treated as 'employees' for a special purpose, the Legislature has specifically authorized such treatment by appropriate legislative enactment. . . ." (Emphasis supplied)

            The distinction between elected public officers and county employees is consistently recognized throughout Title 36 [[Title 36 RCW]], Revised Code of Washington, which deals with "counties" generally.  Specifically, RCW 36.16.070 gives the "elected county officers" the authority to employ deputies and employees.  The statute provides:

            "In all cases where the duties of any county office are greater than can be performed by the person elected to fill it, the officer may employ deputies and other employees with the consent of the board of county commissioners. . . ." (Emphasis supplied)

            Obviously, if the legislature had intended the medical plan to cover "elected county officers" it would have expressly provided therefor.  For examples of legislation where the legislature has made specific provision for "elected officers", see RCW 41.40.120, Membership in State Employees' Retirement; RCW 41.41.020 "Employee" within the State Employees' Retirement‑-OASI; compare definition of "employee" within Federal Social Security for Public Employees Act, RCW 41.48.020 (3) before and after 1957 amendment.

            From the foregoing, we must conclude that there is nothing in the act to indicate that when the legislature used the word "employee" it intended  [[Orig. Op. Page 6]] other than its usual and ordinary meaning.  Therefore, it is our opinion, that the board of commissioners of Spokane County lack statutory authority for paying the premiums of a group health plan for "elected county officers."

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. DORAN
Assistant Attorney General