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Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1973 No. 62 -
Attorney General Slade Gorton

Referees, umpires, other athletic officials, ticket sellers, ticket takers, parking lot attendants and others who are employed by school districts or their student body organizations to work at interscholastic and other athletic events conducted by such districts are not excluded from the coverage of the Industrial Insurance Act by RCW 51.12.030 (3).

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                                                                    June 1, 1973
Honorable Robert C. Bailey
State Senator, 19th District
Box 146
South Bend, Washington 98586
                                                                                                               Cite as:  AGLO 1973 No. 62
Dear Sir:
            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:
            Are referees, umpires, other athletic officials, ticket sellers, ticket takers, parking lot attendants and others who are employed by school districts or their student body organizations to work at interscholastic and other athletic events conducted by such districts excluded from the coverage of the Industrial Insurance Act by RCW 51.12.020 (3)?
            We answer this question in the negative for the reasons set forth in the following analysis.
            RCW 51.12.020 codifies § 7, chapter 43, Laws of 1972, Ex. Sess., and provides for the following exclusions from the coverage of this state's industrial insurance act, Title 51 RCW:
            "The following are the only employments which shall not be included within the mandatory coverage of this title:
            "(1) Any person employed as a domestic servant in a private home by an employer who has less than two employees regularly employed forty or more hours a week in such employment.
            "(2) Any person employed to do gardening, maintenance, repair, remodeling, or similar work in or about the private home of the employer which does not exceed ten consecutive work days.
             [[Orig. Op. Page 2]]
            "(3) A person whose work is casual and the employment is not in the course of the trade, business, or profession of his employer.
            "(4) Any person performing services in return for aid or sustenance only, received from any religious or charitable organization.
            "(5) Sole proprietors and partners.
            "(6) Any employee, not regularly and continuously employed by the employer in agricultural labor, whose cash remuneration paid by or due from any one employer in that calendar year for agricultural labor is less than one hundred fifty dollars.  Employees not regularly and continuously employed in agricultural labor by any one employer but who are employed in agricultural labor on a seasonal basis shall come under the coverage of this title only when their cash remuneration paid or due in that calendar year exceeds one hundred fifty dollars but only as of the occurrence of that event and only as to their work for that employer."  (Emphasis supplied.)
            In our opinion, the exclusion above underscored does not apply to the situation described in your question.  The language of the third subsection speaks of two factors.  Both the nature of the work of the workman and the activity of the employer are involved.  For this subsection to be applicable, the person's work must be casual and the employment must not be in the employer's trade, business, or profession.
            In phrasing this exemption in terms of the combination of casual work and work not in the regular course of the trade, business, or profession of the employer, our legislature has followed the example of many other states.  In his discussion of these types of casual labor exemptions, Professor Arthur Larson points out:
            "Most states, however, apply the exemption only when the employment is both casual and outside the usual business of the employer."  Larson, Workmen's Compensation (Desk Ed.), § 51.10.
             [[Orig. Op. Page 3]]
            ". . .
            "Therefore, no matter how brief or sporadic a particular employment may be, it is within the compensation act if it is part of the employer's regular business."  Ibid., § 51.20.
            Thus, even if we assume for the purposes of discussion that the work of the persons described in your question is casual, there is nevertheless coverage if the employment is "in the course of the trade, business, or profession" of the school district by which they are employed.
            In our opinion it is "in the course of the trade, business, or profession" of a school district to conduct interscholastic and other athletic events.  It is a common and practically universal custom of school districts to build and maintain playing fields and gymnasiums; conduct physical education programs; purchase athletic equipment; and, to use such resources in the conduct of interscholastic and other athletic events.  These facts have been acknowledged by our state supreme court in cases involving the issue of tort liability of school districts in connection with student injuries occurring during the conduct of "extra-curricular" activities.  See, for example, the comments of Judge Hill in his special concurrence in Sherwood v. Moxee, 58 Wn.2d 351, 363 P.2d 138 (1961), wherein he stated at page 360:
            "The attempt of the respondent school district to limit the scope of its authority to matters within the curricular activities, and happenings on the school premises is not realistic.  That schools do employ athletic coaches, band directors, even debate coaches, and do exercise supervision and control over numerous extra-curricular activities is common knowledge.  The justification is their educational and cultural value.  . . ."
            Furthermore, the fact that a given referee or other-individual delineated in the question posed may have been employed by or through an associated student body organization sponsored and controlled by a school district does not vary this conclusion.  We have advised previously that such organizations are (in effect) "arms and agencies" of a school district, and that school authorities definitely have a responsibility to supervise the management and expenditure of student body funds derived from athletic events, etc.  See  [[Orig. Op. Page 4]] our opinion to Mr. Lawrence Hubble, Chief Examiner, Division of Municipal Corporations, dated May 16, 1947, copy enclosed.1/
             Therefore, even though they may be employed on a casual basis, such individuals as are described in your question are not excluded from the coverage of the industrial insurance act by RCW 51.12.020 (3), supra, because they are, nevertheless, persons employed in the course of the "regular business" (to use Professor Larson's words) of their employer ‑ whether it be by the school district directly or a student body organization as an "arm and agent" of the district.
            We trust the foregoing will be of assistance to you.
Very truly yours,
Attorney General
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/Accord, the recently enacted provisions of chapter 52, Laws of 1973, which, likewise, characterizes and treats an "associated student body" as an arm and agency of the school district in which its member-students are enrolled.  See, also, Carabba v. Anacortes Sch. Dist., 72 Wn.2d 939, 957, 435 P.2d 936 (1967), in which the court held that the negligence, if any, of an individual retained to referee an extra-curricular wrestling meet sponsored by the associated student bodies of two separate school districts was to be imputed to the school district whose legal duty it was to safeguard its students, saying:
            "The fact that the wrestling matches were nominally staged by the student-body associations of the schools can afford no shield against liability on the part of respondent school districts under the facts appearing in this record, e.g., the participation of the faculty in the governing and operating of the student associations, and the full veto power possessed by the schools over proposed actions of the student associations."