DISTRICTS ‑- SCHOOLS ‑- NONCERTIFICATED EMPLOYEES ‑- UNEMPLOYMENT COMPENSATION ‑- HEALTH REGULATIONS ‑- SICK LEAVE BENEFITS ‑- PART-TIME EMPLOYEES

DISTRICTS ‑- SCHOOLS ‑- NONCERTIFICATED EMPLOYEES ‑- UNEMPLOYMENT COMPENSATION ‑- HEALTH REGULATIONS ‑- SICK LEAVE BENEFITS ‑- PART-TIME EMPLOYEES.

(1) A part-time employee of a school district for the purposes of sick leave benefits provided by RCW 28.58.100 (15) (b) is one who is not under contract with the district for a full year.  AGO 63-64 No. 98.

(2) The provisions of WAC 248-100-170 do not apply to employees of an independent contractor employed by a school district.  However, the board of directors, in the exercise of its discretion, may make compliance with the health regulations a condition precedent to the execution of a contract.

(3) A school district is expressly authorized by RCW 50.04.200 to make payments to the unemployment compensation fund, the same as employers otherwise covered by the act.

(4) School employees hired subsequent to the effective date of the 1963 amendment to RCW 28.58.100 (15) are entitled as a matter of right to the minimum benefits set forth in subsections (a) through (h) of RCW 28.58.100.  If these benefits were not granted to such school employees a claim may be made therefor.

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                                                                   May 17, 1966

Honorable Frank J. Warnke
State Representative, 30th District
29457 51st South
Auburn, Washington

                                                                                                                Cite as:  AGO 65-66 No. 86

Dear Sir:

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

            (1) What is the definition of a part-time employee?

            (2) Do the health regulations concerning school employees apply to the employees of independent contractors who contract with the school?

             [[Orig. Op. Page 2]]

            (3) May a school district pay into, and participate in, the unemployment compensation fund?

            (4) May noncertificated employees who were entitled to sick leave benefits in the 1963-1964 work year recover said benefits?

            We answer your questions as explained in the analysis.

                                                                     ANALYSIS

            Question (1):

            At the outset it must first be recognized that it is impossible to give a broad general definition of the term "part-time employee."  This is so because the term varies depending upon either the position involved and/or the area of activity concerned.  For this reason we assume that your question is only concerned with sick leave benefits for noncertificated school district personnel.  As to these people, AGO 63-64 No. 98, dated April 8, 1964, is controlling.  At page 8 of that opinion we said:

            "From 'the face of the act' quoted above, it is obvious that the legislature contemplated only that part-time employees of the school district (i.e. employees not under contract with the district for a full year) would 'earn' days of sick leave based upon the days worked during the school year. . . ."  (Emphasis supplied.)

            It is noteworthy to point out that the above opinion was, in part, concerned with the sick leave benefits of noncertificated employees of a school district and hence the definition is particularly applicable to your question.  Since neither the legislature nor our courts have made any pronouncements which would affect the above opinion, we adhere to the definition stated therein that a part-time employee for the purposes of sick leave benefits is one who is not under contract for a full year.

            Question (2):

            Concerning your second question dealing with health regulations, the provisions of WAC 248-100-170 are pertinent.  This regulation provides as follows:

             [[Orig. Op. Page 3]]

            "No person employed in any public, parochial, or private school, including colleges and universities, in this state shall work at such employment while suffering from any communicable disease.  No contract of any school employee (teacher, bus driver, janitor, clerk, or other employee) who comes in direct contact with the students in any school shall become operative until such employee has filed with the local superintendent of schools and/or president of college or university, a health certificate issued by the county, or district health department.  The word 'operative' may be understood to mean that salary warrants shall not be issued until this evidence is filed properly and recorded with the school superintendent and/or president of college or university.  [Reg. 100.170; Eff. 3/11/60.]"  (Emphasis supplied.)

            Initially it should be noted that the above regulation does not prohibit the employment of an individual who does not have a health certificate.  It only states that the contract of such an employee shall not become operative until he files a health certificate.  The problem with the application of this regulation to the employees of an independent contractor (i.e., a janitorial service, etc.) is that such persons are not employed by, nor do they have a contract with the school.  The owner or proprietor of the business rendering the service has the contract with the school, not such owner's employees.

            To attempt to make the above statute apply to the employees of an independent contractor would, in our opinion, be an attempt to change the clear language of the regulation in order to achieve a desirable result.  The foregoing interpretation of WAC 248-100-170 is based upon the oft-cited rule that where the language of a statute is plain, clear and unambiguous and well understood according to its natural and ordinary sense, the statute itself furnishes the rule of construction beyond which the courts cannot go.  Seattle v. Ross, 54 Wn.2d 655, 344 P.2d 216 (1959);Parkhurst v. Everett, 51 Wn.2d 292, 318 P.2d 327 (1957).

            Thus, in giving the ordinary meaning to all words and phrases of the health regulation in question we must conclude that it is not sufficiently broad to require employees  [[Orig. Op. Page 4]] of independent contractors who have contracts with a school district to have individual health certificates in order to validate their contracts (i.e., their contracts with their own employer, the independent contractor).  However, under its broad powers, a school board would have the power to require such certificates as a condition of its contract with the independent contractor.

            Question (3):

            Regarding school district participation in the unemployment compensation fund, we feel that RCW 50.04.200 clearly answers the question in the affirmative.  The pertinent part of that statute reads as follows:

            ". . .And provided further, That the state or any political subdivision thereof or any instrumentality of this state or its political subdivisions is hereby authorized to pay to the unemployment compensation division for the unemployment compensation fund contributions required of employers by the provisions of this title."

            Without question a school district must be considered a political subdivision of the state, as that term is used in the statute.  A school district is regarded as a municipal corporation.  See,State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P.2d 94 (1934).  For that reason it is also properly called a "political subdivision" as well as an "instrumentality of the state."  See, 1 McQuillin, Municipal Corporations, § 2.08, pp. 458-459; also 2 McQuillin, Municipal Corporations, § 4.04.  See, also, State ex rel. DuPont, Etc. v. Bruno, 62 Wn.2d 790, 384 P.2d 608 (1963).  The remainder of the statute being plain, clear and unambiguous, it provides a rule of construction beyond which we cannot go.  Seattle v. Ross, supra.

            Therefore, we conclude that the statute clearly authorizes a school district to pay into and participate in the unemployment compensation fund.

            Question (4):

            The starting point concerning your question of the recovery of sick leave benefits is RCW 28.58.100, which, as amended by § 1, chapter 104, Laws of 1963, reads as follows:

            ". . .

             [[Orig. Op. Page 5]]

            "(15) Adopt such rules and regulations as the board deems necessary or advisable in regard to granting leaves to persons under contracts of employment with the school district(s)in positions requiring either certification or noncertification qualifications, including leaves for attendance at official or private institutes and conferences and sabbatical leaves for employees in positions requiring certification qualification, and leaves for illness and injury and bereavement for both certified and noncertified employees, and with such compensation as the board of directors prescribe:  Provided, That the board of directors shall adopt rules and regulations granting to such persons annual leave with compensation for illness and injury as follows:

            "(a) For such persons under contract with the school district for a full year, at least ten days;

            "(b) for such persons under contract with the school district as part time employees, at least that portion of ten days as the total number of days contracted for bears to one hundred eighty days;

            "(c)compensation for leave for illness or injury actually taken shall be the same as the compensation such person would have received had such person not taken the leave provided in this proviso;

            "(d) leave provided in this proviso not taken shall accumulate from year to year up to a maximum of one hundred eighty days, and such accumulated time may be taken at any time during the school year;

            "(e) sick leave heretofore accumulated under section 1, chapter 195, Laws of 1959 (RCW 28.58.430) and sick leave accumulated under administrative practice of school districts prior to the effective date of section 1, chapter 195, Laws of 1959 (RCW 28.58.430) is hereby declared valid, and shall be added to leave for illness or injury accumulated under this proviso;

             [[Orig. Op. Page 6]]

            "(f) accumulated leave under this proviso not taken at the time such person retires or ceases to be employed in the public schools shall not be compensable;

            "(g) accumulated leave under this proviso shall not be transferable from one district to another;

            "(h) leave accumulated by a person in a district prior to leaving said district may, under rules and regulations of the board, be granted to such person when he returns to the employment of the district."  (Emphasis supplied.)

            Section 1, chapter 104, Laws of 1963, supra, specifically amended § 1, chapter 66, Laws of 1961, and made express provision for sick leave benefits for the noncertificated employees of a school district.  As we stated in AGO 63-64 No. 98, at page 6:

            "This brief review of the history of sick leave law indicates quite clearly that the 1963 legislature intended to broaden the coverage to includeall school district personnel who meet the conditions of the statute."  (Emphasis supplied.)

            It is thus clear that from the time that the 1963 amendment became effective (i.e., 90 days after adjournment of the legislature or, in this case, July 6, 1963) any contracts subsequently entered into (whether oral or written)must include the statutory sick leave benefits outlined in subsections (a) through (h) of RCW 28.58.100 (15).

            It may be argued from a literal reading of the first portion of the statute that no rights to benefits accrue under the act, except pursuant to rules and regulations subsequently enacted by the school board in each district.  We do not believe that would be a correct interpretation of the act as a whole.  It is an established rule of construction that all parts of a statute are to be read together, and legislative intent is to be gathered from the statute as a whole.  State v. Houck, 32 Wn.2d 681, 203 P.2d 693 (1949);DeGrief v. Seattle, 50 Wn.2d 1, 297 P.2d 940 (1956).

            The first reference to rules and regulations in subsection (15),supra, is clearly apermissive authorization for  [[Orig. Op. Page 7]] school boards to adopt such rules and regulations"as the board deems necessary or advisable. . ."  However, the proviso expressly requires the adoption of rules and regulations granting certain annual leave and sick leave benefits.  At this point, without delving further into the statute, it is still arguable that the provision for benefits is not self-executing; that such rules and regulations are a necessary precondition for the accrual of benefits; and that the only mandate to a school board would be to act within a reasonable time.

            However, from reading the act as a whole, and considering its legislative history, we are convinced it was the legislature's intent to make the act self-executing, and to authorize school boards merely to adopt supplementary rules and regulations in order to implement the operation of the act.  We are also convinced that a contrary interpretation would result in absurdity and confusion.  See, for instance, subdivision (e) of subparagraph (15), supra, with regard to the accumulation of benefits under the act.

            Applying the foregoing interpretation to your question, we conclude that any school employee hiredsubsequent to the effective date of the 1963 amendment to RCW 28.58.100 (15) is entitled, as a matter of right, to the minimum benefits set forth in subsections (a) through (h) of RCW 28.58.100, and further, if these benefits were not granted to such school employees, they may recover such benefits.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

THOMAS D. FREY
Assistant Attorney General