CIVIL SERVICE - STATE - EMPLOYEES - TRANSFER - ACCUMULATED LEAVE

CIVIL SERVICE - STATE - EMPLOYEES - TRANSFER - ACCUMULATED LEAVE

(1) When a state employee transfers from a classified civil service position which is subject to chapter 41.06 RCW to either a classified or an exempt position which is covered by chapter 28B.16 RCW, he is not entitled to receive payment for his accumulated annual leave under RCW 43.01.041; instead, his accumulated annual leave is to be transferred from his old employing agency to his new one as provided for in RCW 43.01.040.

(2) A permanent status employee transferring from a position under chapter 41.06 RCW, to a classified position in an institution of higher learning under chapter 28B.16 RCW, is subject to such "probationary period" regulations as are promulgated by the higher education personnel board under RCW 28B.16.100.

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                                                                   March 3, 1970

Honorable R. Ted Bottiger
State Representative, 29th District
8849 Pacific Avenue
Tacoma, Washington 98499

                                                                                                                   Cite as:  AGO 1970 No. 6

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on several questions pertaining to the rights of state employees transferring from classified positions under chapter 41.06 RCW either to classified or exempt positions with state institutions of higher education under chapter 28B.16 RCW.  We paraphrase your questions as follows:

            (1) When a state employee transfers from a classified civil service position which is subject to chapter 41.06 RCW to a classified position covered by chapter 28B.16 RCW, is he entitled to payment for accrued annual leave under RCW 43.01.041, or is his accumulated annual leave to be transferred from the old employing agency to the new one as provided for in RCW 43.01.040?

             [[Orig. Op. Page 2]]

            (2) If the answer to question (1) is that accumulated annual leave credits are to be transferred under RCW 43.01.040, does this answer equally apply where the transfer of employment is from a classified civil service position under chapter 41.06 RCW to an exempt position under chapter 28B.16 RCW?

            (3) Is a permanent status employee transferring from a position which is subject to chapter 41.06 RCW to a position which is covered by chapter 28B.16 RCW subject to the "probationary period" requirements of regulations promulgated by the higher education personnel board under RCW 28B.16.100?

            We answer question (1) in the manner set forth in our analysis; questions (2) and (3) are answered in the affirmative.

                                                                     ANALYSIS

            Chapter 41.06 RCW codifies the provisions of chapter 1, Laws of 1961 (Initiative 207) by which a comprehensive civil service system for state employees was established together with subsequent legislative amendments thereto.  Chapter 28B.16 RCW codifies the comparable civil service system for employees of the various state institutions of higher education, as provided for in chapter 36, Laws of 1969, Ex. Sess.

            Both of these civil service laws distinguish between covered (classified) positions and positions which are exempt.  See, RCW 41.06.070 and RCW 28B.16.040.  Your first and third questions assume a transfer from a covered position under chapter 41.06 RCW to a covered position under chapter 28B.16 RCW, while your second question assumes a transfer from a covered position under chapter 41.06 [[chapter 41.06 RCW]]to an exempt position under chapter 28B.16.

            Questions (1) and (2):

            The question of how accumulated annual leave credit is to be treated when a state employee transfers from one state department or agency to another was considered at length by this office in AGO 57-58 No. 41, copy enclosed.  The statutes which were involved in that opinion are RCW 43.01.040 and 43.01.041 the first of which reads, in material part, as follows:

            "Each subordinate officer and employee  [[Orig. Op. Page 3]] 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 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 thirty 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. . . ." (Emphasis supplied.)

            The second statute, RCW 43.01.041, reads as follows:

            "Officers and employees referred to in RCW 43.01.040 whose employment isterminated by their death; reduction in force; resignation; dismissal; or by retirement and who have accrued vacation leave as specified in RCW 43.01.040, shall be paid therefor under their contract of employment, or their estate if they are deceased, or if the employee in case of voluntary resignation has provided adequate notice of termination."  (Emphasis supplied.)

            On the basis of these two statutes we concluded that a state employee who transfers from one state agency to employment in another agency of the state government, without an interruption such as would indicate a termination of his contract of employment with the state government, cannot be paid for his accrued vacation leave under the provisions of RCW 43.01.041.  However, an employee transferring from one state agency to another agency of state government is entitled to a transfer of his accrued vacation leave credits to the new employing agency  [[Orig. Op. Page 4]] of state government under the provisions of RCW 43.01.040.

            This conclusion was based, principally, upon the proposition that under RCW 43.01.040,supra, the accumulation and transfer of annual leave is related to the individual's "contract of employment with the state government" (emphasis supplied) and not to a contract with an individual department or agency thereof.  Furthermore, we noted that while under RCW 43.01.041, supra, payment for accumulated annual leave is also identified as a right arising under the individual's contract of employment, it is a right which is conditioned upon termination of employment by death, reduction in force, resignation, dismissal or retirement.  Accordingly we said:

            "We are of the opinion that the legislature intended that a subordinate officer or employee of the state government can only be paid for his accrued vacation leave upon his separation from employment with the state government under the conditions set forth in RCW 43.01.041, and that those subordinate officers and employees of the state government transferring from one state agency to another would not be so compensated but are entitled to transfer all their accrued vacation leave to the new employing agency."

            No material change has been made in either of these two pertinent statutes since this 1957 opinion was written.  We have reviewed the opinion, and found that it still contains a correct analysis of these statutes.

            In our judgment, this previous opinion is totally dispositive of your first two questions.  When a state employee moves from a position which is subject to chapter 41.06 RCW to a position which is either covered or exempt under the provisions of chapter 28B.16 RCW, he is simply transferring his employment between one office, department or institution of state government and another without any termination of his contract of employment with the state government.  Therefore, irrespective of whether the transfer is to a covered position or an exempt position under chapter 28B.16 RCW, the right of the transferring employee is to  [[Orig. Op. Page 5]] have his accumulated annual leave credits transferred with him under RCW 43.01.040, supra, but not to receive payment for such accumulated annual leave under RCW 43.01.041.

            Question (3):

            Responding to your final question, a permanent status employee moving from a state civil service position under chapter 41.06 RCW to a classified position in an institution of higher learning under chapter 28B.16 RCW is, in our opinion, governed by such "probationary period" regulations as the higher education personnel board shall have promulgated under RCW 28B.16.100.  Our research has disclosed nothing in either of these two state civil service laws which requires an institution of higher learning, on the one hand, or a state agency covered by chapter 41.06 RCW, on the other, to accept transferees from positions covered by the other system without their fulfillment of such probationary periods.

            We regard chapter 41.06 RCW and chapter 28B.16 RCW as establishing mutually independent civil service systems each containing its own requirements with respect to the attainment of permanent status.  Thus, while a state employee moving from a classified position under one of these systems to a classified position under the other does not  terminate his contract of employment "with the state government" for purposes of RCW 43.01.040 and 43.01.041 (as discussed above), he does terminate his status as a classified employee under the system he is leaving when he makes such a move and he must reestablish this status under the system covering his new position in accordance with the statutes and rules governing such system.

            It is hoped that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

DEAN A. FLOYD
Assistant Attorney General