CIVIL SERVICE ‑- STATE ‑- AUTHORITY OF PERSONNEL BOARDS TO REGULATE LEAVES AND VACATIONS

CIVIL SERVICE ‑- STATE ‑- AUTHORITY OF PERSONNEL BOARDS TO REGULATE LEAVES AND VACATIONS

(1) and (2) Under the new state civil service law the several personnel boards are authorized to make rules and regulations governing the allocation of bonus days to an employee with five years' service in any manner that does not conflict with RCW 43.01.040.

(3) Regularly scheduled hourly paid employees are entitled to vacation leave with pay after the performance of one year's service and the several personnel boards are authorized to promulgate rules and regulations consistent with RCW 43.01.040 regulating this vacation leave.

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                                                                   June 30, 1961

Honorable Daniel F. Donohoe
Director, Highway Personnel Board
Transportation Building
Olympia, Washington

                                                                                                                Cite as:  AGO 61-62 No. 44

Dear Sir:

            You have requested an opinion of this office on three questions concerning the authority of the several personnel boards under chapter 1, Laws of 1960 (Initiative 207), which we paraphrase as follows:

            1. Can "bonus days" vacations be prorated so that an employee with five years' service will be credited with an additional day's vacation every four months?

            2. Could such an employee be credited with two hours accrued vacation time each month?

            3. Are hourly paid employees allowed sick and annual leave with pay?

            We answer questions 1 and 2 in the affirmative and question 3 in the analysis below.

                                                                     ANALYSIS

            In our opinion, the answers to questions 1 and 2 may be found in RCW 43.01.040, which reads as follows:

             [[Orig. Op. Page 2]]

            "Each subordinate officer and employee of the several offices, departments, and institutions of the state government shall be entitled under their contract of employment with the state government to not less than one working day of vacation leave with full pay for each month of employment if said employment is continuous for six months.

            "Each such subordinate officer and employee shall be entitled under such contract of employment to not less than one additional working day of vacation with full pay each year for satisfactorily completing the first two, three and five continuous years of employment respectively.

            "Such part time officers or employees of the state government who are employed on a regular schedule of duration of not less than one year shall be entitled under their contract of employment to that fractional part of the vacation leave that the total number of hours of such employment bears to the total number of hours of full time employment.

            "Each subordinate officer and employee of the several offices, departments and institutions of the state government shall be entitled under his contract of employment with the state government to accrue unused vacation leave not to exceed twenty-five working days.  Officers and employees transferring within the several offices, departments and institutions of the state government shall be entitled to transfer such accrued vacation leave to each succeeding state office, department or institution.  All vacation leave shall be taken at the time convenient to the employing office, department or institution."

            and to some extent by RCW 43.01.043, which reads as follows:

            "The several offices, departments and institutions of the state government may prescribe supplemental rules and regulations that are not inconsistent with the provisions of RCW 43.01.040 through 43.01.043 with respect to vacation leave of subordinate officers and employees thereof."

            In AGO 57-58 No. 21 [[to Cliff Yelle, State Auditor on February 21, 1957]], a copy of which is attached, we pointed out that RCW 43.01.043 permits each department or agency to adopt its own  [[Orig. Op. Page 3]] method for computing such vacation pay.  That authority was of course limited in that the method selected could not be inconsistent with the provisions of RCW 43.01.040.  As we noted in that opinion the committee on standards did compute a formula for determining such vacation pay.  That formula could not have been binding on the several departments at that time nor could it be binding now since the statute clearly contemplated each agency adopting its own method of computation.  The obvious purpose of the committee on standard's formula was to promote uniformity within state government.

            We turn then to a determination of the effect of the state civil service law, chapter 1, Laws of 1960 (Initiative 207) on the above‑quoted statutes.  In § 15 of the state civil service law, the several personnel boards are delegated the authority to

            ". . . adopt and promulgate rules and regulations . . . regarding the basis for, and procedures to be followed for, . . . sick leaves and vacations. . . ."

            The question we must answer is whether the above‑quoted language impliedly repeals, or amends the statutes set forth above.  As to RCW 43.01.040 we think not.

            Repeals or amendments by implication are not favored in the law.  See, Generaux v. Petit, 172 Wash. 132, 19 P. (2d) 911 (1933) andBecket v. Hutchinson, 49 Wn. (2d) 888, 308 P. (2d) 235 (1957).

            InTacoma v. Cavanaugh, 45 Wn. (2d) 500, 503, 275 P. (2d) 933 (1954), our court stated:

            "'Repeals by implication are ordinarily not favored in law, and a later act will not operate to repeal an earlier act except in such instances where the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede the prior legislation on the subject, or unless the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot, by a fair and reasonable construction, be reconciled and both given effect.'"

            In our opinion the state civil service law and RCW 43.01.040 can be read together and effect given to both.  Under such construction the several personnel boards may make rules and regulations consistent with the provisions of RCW 43.01.040 for vacation leaves.

            As to RCW 43.01.043, it is apparent that the personnel boards and the agencies may not both have authority to make rules and regulations on this subject matter.  In such cases the latter act operates to repeal the former.  SeeTaylor v. Greenler, 54 Wn. (2d) 682, 344 P. (2d) 515 (1959).  We therefore hold that § 15, chapter 1, Laws of 1960, repeals  [[Orig. Op. Page 4]] RCW 43.01.043 in so far as that statute purports to permit agencies to make rules and regulations concerning vacation leave for employees subject to the jurisdiction of the several personnel boards.  The authority to adopt rules and regulations consistent with the provisions of RCW 43.01.040 for employees covered by civil service rests with the several personnel boards established by the state civil service law.

            It should be noted that RCW 43.01.040 expressly states "not less than one additional . . ." (Emphasis supplied.) It would therefore be our opinion that the several personnel boards established by the state civil service law could adopt a method of computing vacation leave which would credit the time as it is earned either by days or by hours.  It is also equally apparent that the several personnel boards need not adopt such regulations.  The second paragraph of RCW 43.01.040 expressly states that such bonus days shall be credited ". . . for satisfactorily completing the first two, three and five continuous years of employment respectively."  (Emphasis supplied.) We therefore hold that the adoption of regulations permitting crediting of such bonus days as they are earned lies within the discretion of the several personnel boards.  This holding is consistent with the conclusions reached in the opinions of this office dated April 3, 1947, to John Binns, President of the Board of Regents of Washington State College [[1947-48 OAG 26c]]and June 29, 1942, to the director of highways, copies of which are enclosed.

            For ease of reading we restate your third question:

            Are hourly paid employees allowed sick or annual leave with pay?

            As to annual leave, the third paragraph of RCW 43.01.040 requires that part time officers or employees who ". . . are employed on a regular schedule of duration of not less than one year . . ." shall be entitled to vacation leave computed upon the formula stated in the statute.

            On examination of the formula it becomes apparent that the number of days vacation earned could not be computed until the end of a year's service.  We therefore are of the opinion that regularly scheduled hourly paid employees are entitled to vacation leave with pay after the performance of each full year's service.

            In the opinion of June 29, 1942, cited above, we also held:

            ". . . No statute forbids the granting to an employee of 'sick leave and other types of time off with pay.'  It is our opinion, therefore, that under the powers conferred, the granting of such leaves is a matter  [[Orig. Op. Page 5]] for the exercise of departmental administrative discretion. . . ."

            Section 15 of the state civil service law expressly authorizes the several personnel boards to promulgate rules and regulations on this subject.  It is therefore our opinion that such boards may exercise the discretion formerly vested in the several departments.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

R. TED BOTTIGER
Assistant Attorney General