CIVIL SERVICE ‑- STATE ‑- DEPARTMENT OF NATURAL RESOURCES ‑- PERSONS COVERED UNDER INITIATIVE NO. 207

CIVIL SERVICE ‑- STATE ‑- DEPARTMENT OF NATURAL RESOURCES ‑- PERSONS COVERED UNDER INITIATIVE NO. 207

(1 and 2) The Commissioner of Public Lands and the Board of Natural Resources are not covered by the new state civil service law.

(3) Confidential secretaries and administrative assistants in the immediate administrative structure of the office organization of an elected official are not covered by the civil service law.

(4) Part time or seasonal help in the Department of Natural Resources who have been determined by the Director to be skilled or unskilled labor employed temporarily on force‑account construction and maintenance projects or employed on temporary seasonal single phases of agricultural production or harvesting are not covered by the civil service law.

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                                                                    May 4, 1961

Mr. Tom McNulty
Acting Director
Department of Personnel
212 General Administration Building
Olympia, Washington

                                                                                                                Cite as:  AGO 61-62 No. 27

Dear Sir:

            By letter dated February 3, 1961 you requested an opinion of this office on several questions submitted to you by the Department of Natural Resources relating to Initiative No. 207 and the Merit System Rule.  We paraphrase these questions as follows:

            (1) Is the Commissioner of Public Lands exempt from the civil service law?

            (2) Is the Board of Natural Resources exempt from the civil service law?

            (3) What tests apply in determining which secretaries and assistants in the Department of Natural Resources are exempt from the provisions of Initiative No. 207?

             [[Orig. Op. Page 2]]

            (4) What tests apply in determining whether part time or seasonal help in the Department of Natural Resources is exempt from the provisions of Initiative No. 207?

            We answer your first and second questions in the affirmative and questions three and four in the analysis below.

                                                                     ANALYSIS

            In answer to your first question, the pertinent provision of Initiative No. 207, is found in section 7 (5) which reads as follows:

            "The provisions of this act do not apply to:

            ". . .

            "(5) Elective officers of the state;"

            Thus, the Commissioner of Public Lands is clearly exempted by the above section of Chapter 1, Laws of 1960 and Article II, § 2 B. of the Merit System Rule since both of these provisions exempt all elected state officials.

            In answer to your second question, the pertinent provision of Initiative No. 207, is found in section 7 (8) (a) which reads as follows:

            "The provisions of this act do not apply to:

            ". . .

            "(8) In the case of a multimember board, commission or committee, whether the members thereof are elected, appointed by the Governor or other authority, serve ex officio, or are otherwise chosen;

            "(a) All members of such boards, commissions or committees;"

            It is under the above section of Chapter 1, Laws of 1960 and Article II, § 2 F. of the Merit System Rule that members of boards such as the Natural Resources Board who serve ex officio are exempt.

             [[Orig. Op. Page 3]]

            Your third question is concerned with what tests apply in determining which secretaries and assistants in the Department of Natural Resources are exempt from the provisions of Initiative No. 207.  Under section 7 (8) (d) of the initiative and Article II, § 2 F. 4. of the Merit System Rules, the chief executive officer of boards such as the Natural Resources Board and the confidential secretary for such chief executive officer are exempt.  As we understand the administrative structure of the Department of Natural Resources, the Commissioner of Public Lands is now acting as executive officer to the Board.  In the past it has been our opinion that the provision of the initiative most specifically applicable to a given situation must control.  See AGO 59-60 No. 171.  We therefore conclude that the Commissioner is exempt under the provisions pertaining to elective officials.  This distinction becomes significant when considering the exemptions of the confidential secretary to the chief executive officer of the board and the "confidential secretaries and administrative assistants in the immediate offices of the elective officers of the state."  Section 7 (9), Initiative No. 207.

            In interpreting section 7 (9) of the initiative quoted in part directly above, it becomes necessary to determine whether "confidential secretaries and administrative assistants" is used in the singular as applied to each individual elective official or in the plural as the initial reading of this subsection would suggest.

            In our opinion the positions in this section must be read in the plural.  This conclusion is supported by RCW 1.12.050 which provides that:  "Words importing the singular may also be applied to the plural of persons and things; . . ."  It is further supported by the provisions of the other subsections of section 7 wherein exemptions of single specific positions are provided where the subsection is applicable to plural units of state government.

            This should not however be read to mean that any elected official may provide for exemption of positions by designating such positions as "confidential secretary" or "administrative assistant."  The position to be exempt must in fact be that of confidential secretary or administrative assistant as those terms are usually and normally used.

            Fortunately, defining the exemption of the confidential secretary should not pose too great a problem as most civil service laws provide for an exemption of persons in a confidential position to elected officers.  In general, it may be stated that a secretary is a confidential secretary when trust and confidence is  [[Orig. Op. Page 4]] reposed by an official in the integrity and fidelity of a secretary and the very existence of the relationship precludes the party in whom the trust and confidence is reposed from participating in any activity which would violate such confidence.  Some courts have added a requirement of an element of secrecy in the relationship, but, in our opinion, a better description of the nature of the relationship would be the existence of the inability of the secretary to maintain this degree of confidence of more than one official.  See,People v. Palmer, 152 N.Y. 217, 46 N.E. 328 (1897);In re McKenzie, 291 N.Y.S. 485 (1936); Davies v. City of Pittsburgh, 252 Pa. 251, 97 Atl. 413 (1916);Rotherham v. Grece, 14 N.J. Misc., 164, 183 Atl. 291 (1936).  See also, Field, Civil Service Law, page 71 (1939).

            "Administrative assistant" is not so well defined.  In fact, we have been unable to find a court decision interpreting this term.  Most civil service statutes, however, provide an exemption for "deputies," and case law interpretations of that term lead us to the conclusion that the meaning of "administrative assistant" and "deputy" are closely related although not identical.  It has been said that to be a deputy a person must be authorized to act in the place of his chief.  Van Fleet v. Walsh, 202 N.Y.S. 745 (1924).  Speaking generally, we think it may be said that a person is an administrative assistant if in fact his duties are limited to the performance of certain functions designated by an elected official in the administration of his office and who is clothed by such elected official with a greater degree of responsibility and authority in respect to the operation and administration of the office than a mere administrative employee.  Needless to say, the same requirement of a confidential relationship will necessarily exist between such assistants as must exist in the case of the confidential secretary.  It should be noted that we reserve a ruling on any particular position until such time as a specific question is presented.

            It is to be further noted that subsection (9) limits the exemption of the confidential secretaries and administrative assistants to those in the immediate offices of the elected official.  This limitation is fraught with ambiguity.  If "immediate" were construed to mean a geographical area it would necessarily require the elected officials of this state to establish an office arrangement which might not be the most advantageous to the proper function of their operations.  In our opinion this was not the intent of the people in enacting Initiative No. 207.  A construction of this limitation which fulfills the purpose of the civil service law without unduly burdening the elected officials is to construe "immediate offices" as meaning "immediate in the administrative structure of the office organization."  In arriving at this construction we are mindful of the  [[Orig. Op. Page 5]] fundamental rule of statutory construction which requires that we ascertain and give effect to the legislative intent.  Graffell v. Honeysuckle, 30 Wn. (2d) 390, 191 P. (2d) 858 (1948).  We must also ascertain the general purpose or spirit of a legislative intent and avoid absurd consequences so far as possible.  State ex rel. Thorp v. Devin, 26 Wn. (2d) 333, 173 P. (2d) 994 (1946).

            While this determination on our part does not answer the specific question asked, we feel that you will be able to apply these rules to the various positions in the Department of Natural Resources.

            For ease of reading we will restate the fourth question.

            (4) What tests apply in determining whether part time or seasonal help in the Department of Natural Resources is exempt from the provisions of Initiative No. 207?

            In order to better facilitate an understanding of this area of the civil service law, we will set forth our analysis of the statute and rules applicable to part time and seasonal help in general.

            Section 7 (12) of Initiative No. 207 which reads as follows:

            "The provisions of this act do not apply to:

            ". . .

            "(12) Inmate, student, part time or temporary employees, and part time professional consultants,as defined by the State Personnel Board or the Board having jurisdiction;" (Emphasis supplied.)

            provides an exemption from the civil service law for certain classes of employees.  This subsection is not self-executing. It requires that the Personnel Board define classifications of positions which are reasonably related to the specified groups of employees. Under this authority the Personnel Board has adopted the following rule (definition):

            "J. Inmate, student, part time or temporary employees, and part time professional consultants as defined by the State Personnel Board to include:

             [[Orig. Op. Page 6]]

            "1. State and local officials serving ex-officio and performing incidental administrative duties in the programs of the agency;

            "2. Part time local health officers;

            "3. Persons employed on a part time, intermittent or temporary basis for medical, nursing or other professional service and who are not engaged in the performance of administrative duties, provided that such persons meet the standards of training and experience established by the agency;

            "4. Part time or temporary employees who are enrolled as full time day students in recognized educational institutions and whose employment is largely to provide training opportunity.  Compensation for such employees shall be no more than is consistent with the established pay rate for the class of work;

            "5. Patient and inmate help in the covered institutions;

            "6. Skilled and unskilled labor employed temporarily on force‑account construction and maintenance projects; or employed on temporary seasonal single phases of agricultural production or harvesting; or as determined by the Director to be equivalent."  Merit System Rules, Article II, § 2 J.

            As you will note, subdivision 6 allows the Director to determine that a particular position is equivalent to "Skilled and unskilled labor employed temporarily on force‑account construction and maintenance projects; or employed on temporary seasonal single phases of agricultural production or harvesting; . . ."  Such a determination by the Director should, of course, be subject to review by the Board and it would be our opinion that a position exempted under this authority must bear a reasonable equivalence to those positions mentioned.

            The letter from the Department of Natural Resources, which you attached to your request, set forth a brief description of several positions in that Department and requested a ruling as to whether such positions were exempt from the civil service law.  Although it is not practical for our office to pass upon the applicability of Initiative No. 207 to the many positions of state  [[Orig. Op. Page 7]] government, some guidelines should be provided.  The Personnel Board will provide further classification through the promulgation of additional regulations.  We will set forth here our views on the meanings of the current rules defining the exemptions set forth above.  The positions outlined in the Department's letter require our consideration of subdivisions 4 and 6.

            Subdivision 4 provides an exemption for either part time or temporary employees whose employment is basically to provide training opportunities.  All such employees must be full time day students of recognized educational institutions.  These students could be enrolled at either institutions of higher learning or established trade schools.  If they are to be classified as temporary, rather than part time, and in fact work a full shift, they should be on a recognized vacation or on an established away from school training program.

            Subdivision 6.  The first clause of this subdivision provides an exemption for skilled or unskilled labor on force‑account construction and maintenance projects.  This would exempt construction and maintenance people who are employed for a specific project and whose employment does not have the characteristic of being permanent in nature.  It might be said that such persons must be employed for a specific although possibly not a definite term.  That is, their position or job will end when the project is completed.

            The second clause of this subdivision provides for the exemption of temporary agricultural employees engaged in a single phase of production or harvesting.  It would not include people who are regularly employed in several of the agricultural phases.

            The third clause allows the Director of Personnel to make a determination that a particular position is the equivalent of positions covered by either of the first two clauses.  In this respect you may well find that some of the positions mentioned by the Department of Natural Resources are the equivalent of the first or second clauses of this subdivision.

            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