Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1959 No. 55 - Jul 27 1959
Attorney General John J. O'Connell


The provisions of RCW 36.17.040, as amended in 1959, authorizing pay days twice monthly are not applicable to certified or noncertified personnel of school districts.

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                                                                    July 27, 1959

Honorable R. A. Hensel
Prosecuting Attorney
Douglas County
Waterville, Washington                                                                                                  Cite as:  AGO 59-60 No. 55

Dear Sir:

            By letter previously acknowledged, you requested the opinion of this office on a question which we paraphrase as follows:

            Do the provisions of RCW 36.17.040, as amended by § 1, chapter 300, Laws of 1959, apply to certified and noncertified personnel of school districts?

            We answer this question in the negative.


            At its recent session our legislature enacted § 1, chapter 300, Laws of 1959, which amended RCW 36.17.040 to read as follows:

            "The salaries of county officers and employees of counties other than counties of the eight [sic] and ninth classes may be paid twice monthly out of the county treasury, and the county auditor, for services rendered from the first to the fifteenth day, inclusive, may, not later than the twentieth day of the month, draw his warrant upon the county treasurer in favor of each of such officers and employees for the amount of salary due him, and such auditor, for services rendered from the sixteenth to the last day, inclusive, may similarly  [[Orig. Op. Page 2]] draw his warrant, not later than the fifth day of the following month, and the county commissioners may enter an order on the record journal empowering him so to do: Provided, That if the board of county commissioners do not adopt the semi-monthly pay plan, they, by resolution, shall designate the first pay period as a draw day.  The draw day period shall be from the first day to the fifteenth day of the month, inclusive.  Not more than forty percent of said earned monthly salary of each such county officer or employee shall be paid to him on the draw day and the payroll deductions of such officer or employee shall not be deducted from the salary to be paid on the draw day.  The draw day shall not be later than the twentieth day of each month.  The balance of the earned monthly salary of each such officer or employee shall be paid not later than the fifth day of the following month.

            "In counties of the eighth and ninth classes salaries shall be paid monthly unless the commissioners by resolution adopt the foregoing draw day procedure."  (Underscoring supplied.)

            By its terms, this statute pertains only to the payment of the salaries ofcounty officers and employees ofcounties.

            With respect to schools, our supreme court has held that teachers are employees of the district which employs them.  They are not public or state officers.  State ex rel. School Dist. v. Wanamaker, 46 Wn. (2d) 341, 281 P. (2d) 846 (1955).  It would seem to follow that employees of a school district, including teachers, are not county employees within the purview of RCW 36.17.040, as amended.

            However, we are not unmindful of the office of county superintendent of schools and the employees thereof, some of whom may or may not be certified to teach in the public schools.  Since the county superintendent of schools is a county officer, it would seem that such subordinates as he may employ would be county employees.  See RCW 36.16.030; AGO 59-60 No. 48 dated June 25, 1959 to State Superintendent of Public Instruction.  The county superintendent and the employees of his office would thus appear to fall squarely within the operation of the above mentioned statute.

            We thus conclude that the question of certification is of no moment in determining whether a given employee is subject to the provisions of  [[Orig. Op. Page 3]] RCW 36.17.040, as amended.  The test of applicability of this statute must be determined by the nature of the employing agency and not by the character of the duties performed.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General