Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS ‑‑ EMPLOYEES ASSIGNED TO SUPPORT BOARD FUNCTIONS ‑‑ SUPERVISION OF EMPLOYEES

AGO 1986 No. 14 -
Attorney General Ken Eikenberry

OFFICES AND OFFICERS ‑‑ STATE ‑‑ BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS ‑‑ EMPLOYEES ASSIGNED TO SUPPORT BOARD FUNCTIONS ‑‑ SUPERVISION OF EMPLOYEES

(1) The Board of Registration for Professional Engineers and Land Surveyors, not the Director of the Department of Licensing, has the authority to manage, direct, supervise, and discipline those employees assigned to support the Board's function.

(2) The Director of the Department of Licensing does not have the authority to assign duties to these employees other than duties relating to the Board's functions. 

‑   ‑   ‑   ‑   ‑   ‑   ‑   ‑   ‑   ‑   ‑   ‑   ‑ 

December 17, 1986 

Honorable Theresa Anna Aragon
Director, Department of Licensing
Highways‑Licenses Building
Olympia, Washington 98504AGO 1986 No. 14

                                                         Cite as:  (See attached addendum, No. 14-A. So numbered when

                                                                       converted from old system to new system, August 1992)

 Dear Ms. Aragon:

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

             (1) Does the Board of Registration for Professional Engineers  and Land Surveyors or does the Director of the Department of  Licensing have the authority to manage, direct, supervise, and  discipline the current Registrar, Assistant Registrar, and other persons assigned to support the Board's functions?

             (2) May the Director of the Department assign duties to these employees other than duties relating to the Board's functions?

             For the reasons set forth in our analysis below, we respond to your first question by concluding that the Registrar and other persons assigned to assist the Board of Registration for Professional Engineers and Land Surveyors (Board) in carrying out its duties under chapter 18.43 RCW are under the control of, and [Orig. Op. Page 2] are employees of, the Board.  We answer your second question in the negative.

 ANALYSIS

             In an October 14, 1981 opinion, which you attached to your request, this office concluded that the Board is an independent agency.  We stated there that even though the Board receives its funding for administering chapter 18.43 RCW through appropriations made to the Department of Licensing (Department) the Legislature did not place the Board under the control or supervision of the Department.  The appropriations received by the Department to support the Board's functions are drawn from the Professional Engineers' Account of the State General Fund.  Pursuant to RCW 18.43.150, that account is to be used "to carry out the purposes and provisions . . .and all other duties required for operation and enforcement" of chapter 18.43 RCW.  Most of the duties required for operation and enforcement of that chapter are assigned to the Board.  The Director of the Department has no authority under that chapter, except for such administrative functions as setting fees and furnishing registration application forms.

             Because the appropriations are drawn from a dedicated fund, the Department has no discretion to spend the appropriations on anything other than support for the Board's functions and its own limited administrative functions under chapter 18.43 RCW.  The purpose of an appropriations bill is simply to implement general laws; it cannot suspend provisions of a substantive statute. Flanders v. Morris, 88 Wn.2d 183, 190, 558 P.2d 769 (1977).  That the legislature chose to implement chapter 18.43 RCW by funding the Board's functions through appropriations to the Department does not, in itself, grant the Department any authority to determine how the Board's responsibilities should be carried out or grant the Department control over staff assigned to assist the Board in carrying out its functions.

             The legislature specifically granted the Board authority to employ persons necessary to assist it in carrying out its responsibilities: "The board may employ such persons as are necessary to carry out its duties under this chapter." RCW 18.43.035.  A review of how the legislature has authorized the staffing for other boards established under Title 18 RCW highlights the significance of its specific grant of authority to the Board under RCW 18.43.035 to employ staff.  The legislature has not often [Orig. Op. Page 3] granted business or professional boards general authority to hire their own staff.  Generally, the legislature has granted such boards authority to hire only certain kinds of staff, or it has granted them no authority at all and instead has granted employment authority to the Department.[1]

             With respect to a number of these other boards, the legislature has charged the Director of the Department of Licensing with employing staff to support the boards' functions. For example, RCW 18.92.033 states: "The director shall provide the [state veterinary] board with adequate administrative and investigative staff to carry out its duties."  The same is true with respect to the Board of Occupational Therapy: "The director shall provide such administrative and investigative staff as are necessary for the board to carry out its duties under this chapter." RCW 18.59.150. [Orig. Op. Page 3]

             Another method the legislature has chosen is to give the Director of the Department direct authority to hire such staff as are  "necessary for enforcement of" or "to implement" a chapter, rather than grant the Board that authority.  See RCW 18.83.025 (Examining Board of Psychology); RCW 18.16.040 (Cosmetology, Barbering, and Manicuring Advisory Board).

             In other instances, the legislature has granted the Director of the Department authority to employ certain staff "subject to approval" of, or "after consultation" with, the appropriate board.  The Executive Secretary for the Medical Disciplinary Board is appointed by the Director of the Department from a list of three names supplied by the Board.  RCW 18.72.155.  The Executive Secretaries for the Board of Registration for Architects, the Board of Examiners for Nursing Home Administrators, the Board of Practical Nursing, and the State Board of Nursing are employed by the Director of the Department with the individual board's approval or advice. RCW 18.08.340(2); RCW 18.52.060; RCW 18.78.100; and RCW 18.88.090.  Clerical or other staff for these boards, however, are employed by the Director without consultation or approval.  RCW 18.72.155; RCW 18.08.340(2); RCW 18.52.060; RCW 18.78.110; RCW 18.88.090.

             [Orig. Op. Page 4]

             Some boards are granted limited authority to employ their own staff.  The legislature has granted the Board of Dental Examiners authority to employ staff "on a temporary basis to assist in conducting examinations for licensure."  RCW 18.32.035.  The Chiropractic Disciplinary board and the Dental Disciplinary Board are authorized by statute to hire "necessary stenographic or clerical help" only.  RCW 18.26.110(4); RCW 18.32.640(3).

             Only the Board of Accountancy and the Board of Pharmacy are granted broad authority to hire whatever staff is needed similar to that which chapter 18.43 RCW grants to the Board of Registration for Professional Engineers and Land Surveyors.  See RCW 18.04.045; RCW 18.64.005(5).  One other board, the Optometry Board, is granted authority nearly as broad:  "The board may employ stenographic and clerical help, and such other assistance as may be necessary to enforce the provisions of this chapter."  RCW 18.54.070(4).

             It is apparent from your letter that the Department thought it was following the procedure of hiring staff with the approval or advice of the Board, which procedure the legislature has prescribed for certain other Title 18 RCW boards.  This procedure, however, is not set forth in chapter 18.43 RCW.  The legislature instead has granted the Board of Registration for Professional Engineers and Land Surveyors authority to hire its own staff.

             Minutes of Board meetings, supplied by the Board, show that the Board interviewed job applicants and otherwise acted as though it were hiring its staff.  It also promulgated regulations outlining the duties and qualifications of the Registrar and Assistant Registrar. See WAC 196‑04‑030, 196‑04‑040.  You noted in your opinion request that the Department of Personnel has classified the Board's staff as [Orig. Op. Page 4] Department of Licensing employees.  We do not find this to be significant, however, because the classifications appear to have been made on the basis of representations by the Department of Licensing rather than on the basis of a decision of the Department of Personnel.

     In summary, the Board is an independent agency; appropriations for its support are drawn from a dedicated fund; and the legislature specifically granted the Board authority to employ staff although it generally  has  not  granted such authority to other business or professional boards.  These factors lead us to conclude that the Board, and not the Director of the Department of [Orig. Op. Page 5] Licensing, employs the staff assigned to assist it in carrying out its statutory responsibilities.  As employer, the Board has authority to manage, direct, supervise and discipline the staff.  Accordingly, the Director of the Department could not assign other duties to such staff.  Persons employed to carry out the Department's administrative duties under chapter 18.43 RCW, however, would be employees of the Department and would not be subject to any control by the Board.

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

 Very truly yours,  

KENNETH O. EIKENBERRY                                         Attorney General 

PEGGY L. BROWN
Assistant Attorney General

    [1]In a number of chapters under Title 18 RCW, the legislature has not specifically stated whether the individual board or the Director of the Department has authority to employ staff.