AGREEMENT BETWEEN THE PACIFIC MARINE FISHERIES COMMISSION AND DEPARTMENT OF HEALTH, EDUCATION AND WELFARE FOR COVERAGE OF FULL TIME EMPLOYEES CONSISTENT WITH 41.48 RCW

SOCIAL SECURITY - AGREEMENT BETWEEN THE PACIFIC MARINE FISHERIES COMMISSION AND DEPARTMENT OF HEALTH, EDUCATION AND WELFARE FOR COVERAGE OF FULL TIME EMPLOYEES CONSISTENT WITH 41.48 RCW.

An agreement between the Pacific Marine Fisheries Commission and the Department of Health, Education and Welfare for social security coverage of full time employees only is within the provisions of chapter 41.48 RCW authorizing coverage of employees of interstate instrumentalities.

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                                                              September 20, 1960

Honorable Milo Moore
Director of Fisheries
4015 20th Avenue West
Seattle 99, Washington                                                                                            Cite as:  AGO 59-60 No. 143

Dear Sir:

            This is in response to your letter of April 11, 1960, requesting the opinion of this office on a question which we paraphrase as follows:

            Would an agreement between the Pacific Marine Fisheries Commission and the Federal Department of Health, Education and Welfare for social security coverage of full time employees only be consistent with the provisions of chapter 41.48 RCW authorizing coverage of employees of interstate instrumentalities?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            The Pacific Marine Fisheries Commission was formed by compact between the states of Washington, Oregon and California.  The authority for this state to so do, and the terms of the compact are set forth in chapter 75.40 RCW.

            We understand that in considering a proposed agreement with the Department of Health, Education and Welfare for social security coverage of  [[Orig. Op. Page 2]] permanent employees of the commission, the regional attorney for the federal department issued an opinion requesting approval of this office in so far as the laws of this state are applicable since the proposed agreement if entered upon would exclude the two classes of part-time employees.

            Chapter 41.48 RCW contains the statutes of this state applicable to coverage of public employees by the federal social security program.  RCW 41.48.030 (2) reads as follows:

            "Any instrumentality jointly created by this state and any other state or states is hereby authorized, upon the granting of like authority by such other state or states, (a) to enter into an agreement with the secretary of health, education, and welfare whereby the benefits of the federal old age and survivors insurance system shall be extended to employees of such instrumentality, (b) to require its employees to pay (and for that purpose to deduct from their wages) contributions equal to the amounts which they would be required to pay under RCW 41.48.040 (1) if they were covered by an agreement made pursuant to subsection (1) of this section, and (c) to make payments to the secretary of the treasury in accordance with such agreement, including payments from its own funds, and otherwise to comply with such agreements.  Such agreement shall, to the extent practicable, be consistent with the terms and provisions of subsection (1) and other provisions of this chapter."  (Emphasis supplied.)

            The Pacific Marine Fisheries Commission is by this statute authorized to enter an agreement placing its employees under the federal social security program.  Agreements by such compact commissions are to be consistent with the requirements of chapter 41.48 RCW and in particular RCW 41.48.030 (2) ". . . to the extent practicable, . . ." in the language of the emphasized portion of the above quoted statute.

            RCW 41.48.030 (1) states, in pertinent part:

            ". . . but, except as may be otherwise required by or under the social security act as to the services to be covered, such agreement shall provide in effect that - . . .

            "(d) All services which constitute employment as defined in RCW 41.48.020 and are performed in the employ of the state by employees of the state, shall be covered by the agreement;"

             [[Orig. Op. Page 3]]

            RCW 41.48.020 (2) defines the term "employment" generally, and sets forth two exceptions.  Thus, RCW 41.48.030 (1) may contain a general requirement that state employees should be covered by an agreement instituting the social security program as to them.  As to the compact commissions and boards, however, such a requirement, if it exists, would only be applicable if it is practicable.

            The word "practicable" has been variously defined as meaning capable of being successfully done or feasibly accomplished.  See 33 Words and Phrases, 170 et seq.  It has been distinguished from convenient.  72 C.J.S. "Practicable" pp. 467-468.  While, depending upon the factual situation, "practicable" has been defined as that which is feasible, fair and convenient.  In re Philadelphia and Reading Coal and Iron Co., (C.C.A. Pa.) 105 Fed. 354-356.

            We cannot say from the information at hand whether or not coverage of all of the employees of the Pacific Marine Fisheries Commission is practicable, as above defined.  However, since the authority to initially enter upon the agreement necessary to institute social security coverage rests in the commission, it appears that the determination thereof is within the sound discretion of the commission.  Consequently, we see no legal objection to the proposed plan as related if the commission determines it impracticable to cover the classes of employees now intended to be excluded.

            We trust that this information will be of assistance.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ERNEST M. FURNIA
Assistant Attorney General