ENTITLEMENT TO ANNUAL LEAVE UNDER RCW 43.01.040, et seq

OFFICES AND OFFICERS ‑- STATE ‑- ENTITLEMENT TO ANNUAL LEAVE UNDER RCW 43.01.040, et seq

(1) RCW 43.01.040, et seq., relating to annual leave for state officers and employees, applies to the legislative and judicial branches of government as well as to the executive branch.

(2) RCW 43.01.040, et seq., applies, equally, to state employees in the classified service and to those occupying exempt positions; accordingly, with a single possible exception relating to employees of a state institution of higher education, no such employees are entitled to have vacation leave accumulated in excess of 30 working days without having a statement of necessity for deferral of leave on file with their particular employing agency.

(3) RCW 43.01.040, et seq., relating to annual leave, applies to individuals appointed by the governor to an agency directorship or as a member of a state board or commission subject to gubernatorial appointment.

(4) While it is the Governor's Office which is the "employing office" with which an application for extension of annual leave must be filed by an agency director or board or commission member referred to in (3), supra, it is the convenience of the agency, office, department or institution to which such individual is assigned which is determinative of the propriety of the extension.

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                                                                   May 22, 1979

Honorable Robert V. Graham
State Auditor
Legislative Building
Olympia, Washington 98504

                                                                                                                 Cite as:  AGO 1979 No. 12

Dear Sir:

            By letter previously acknowledged you requested the opinion of this office on the accrual and conversion of  [[Orig. Op. Page 2]] vacation leave by state officials and employees under RCW 43.01.040, et seq.  Specifically, you asked:

            "1. Does RCW 43.01.040 apply to the several offices, departments and institutions of the State government, i.e. the Legislative, Executive and Judicial?

            "2. Are State employees, who are exempt from the various personnel rules, entitled to have vacation leave accumulated in excess of thirty working days to their credit by their respective employing agencies without having a statement of necessity for deferral of leave on file with their respective employing agency?

            "3. Is an individual appointed by the governor to an agency directorship or as a member of a Board or Commission considered to be a subordinate officer as that term is used in RCW 43.01.040?

            "4. If the answer to (3) above is in the affirmative, would the Governor's Office be the employing Office?

            "5. If the answer to (3) above is in the negative, would such individuals be entitled to receive any payment for vacation leave upon their termination of employment with the State?

            "6. May any agency of State government legally pay an individual for vacation leave for more than thirty working days when a statement of necessity for deferral of leave has not been filed as required in RCW 43.01.040?"

            We answer questions (1) and (3) in the affirmative, questions (2) and (6) qualifiedly in the negative and question (4) in the manner set forth in our analysis; consideration of question (5) is thereby rendered unnecessary.

             [[Orig. Op. Page 3]]

                                                                     ANALYSIS

            RCW 43.01.040, which originated as § 7, chapter 133, Laws of 1921 and was last amended by § 1, chapter 13, Laws of 1965, 1st Ex. Sess., reads, in material part, as follows:

            "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 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.  All vacation leave shall be taken at the time convenient to the employing office, department or institution:  PROVIDED, That if a subordinate officer's or employee's request for vacation leave is deferred by reason of the convenience of the employing office, department or institution, and a statement of the necessity therefor is filed by such employing office, department or institution with the appropriate personnel board or other state agency or officer, then the aforesaid maximum thirty working days of accrued unused vacation leave shall be extended for each month said leave is so deferred."

            RCW 43.01.041, which was first enacted by § 2, chapter 140, Laws of 1955,1/ then, in turn, provides that:

             [[Orig. Op. Page 4]]

            "Officers and employees referred to in RCW 43.01.040 whose employment is terminated 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."

            Finally, RCW 43.01.042 and 43.01.043, codifying §§ 3 and 4, chapter 155,supra, read as follows:

            RCW 43.01.042:

            "State institutions of higher learning may prescribe such rules and regulations as they may determine governing vacation leave for academic and professional personnel."

            RCW 43.01.043:

            "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."

            Because of RCW 43.01.042, supra, it is possible for the governing body of a state institution of higher learning to adopt a different leave program for its employees than the statutory program which otherwise would be applicable.  Note and contrast the different wording of that statute as opposed to RCW 43.01.043,supra.  Accordingly, it should be understood that what we say in this opinion with regard to leave for state officials or employees, generally, is only applicable to the officers or employees of a state institution of higher learning in the absence of local rules and regulations to the contrary.  With that in mind, we now turn, directly, to your questions.

            Question (1):

            First you have asked:

            "Does RCW 43.01.040 apply to the several offices, departments and institutions of  [[Orig. Op. Page 5]] the State government, i.e. the Legislative, Executive and Judicial?"

            We answer this question in the affirmative in accordance with a previous opinion of this office, AGO 57-58 No. 21, copy enclosed.  We there concluded that the positions of secretary and sergeant at arms of the State Senate were "subordinate offices" within the meaning of RCW 43.01.040,supra, saying:

            ". . . The definitions of the word 'office' are many and varied but perhaps the one most applicable to this question is found in Commonwealth v. Murphey, 17 Montg. Co. Law Rep'r. 174, and restated in Vol. 29 page 264, Words and Phrases, as follows:

            "'An office is a public station or position, to which a portion of the sovereignty of the country, either legislative, judicial, or executive, attaches for the time being, and which is exercised for the benefit of the public.  High, Rec. § 625.  The word itself implies a more or less permanent delegation of a portion of governmental power, coupled with legally defined duties and privileges, continuous in their nature, and which, upon the death, resignation, or removal of the incumbent, devolve upon his successor. . . .'  (See alsoState ex rel. Dunbar v. State Board of Equalization, 140 Wash. 433, at p. 437.)

            "Under this definition a senator is an officer just as is a governor or secretary of state; the only distinction being that the office of senate is composed is many senators, while that of governor or secretary of state consists of only one individual.  However, this is not a real nor a basic distinction, and, therefore, we conclude that the secretary and sergeant of arms of the senate constitute subordinate officers of a state office under RCW 43.01.040."

            In essence, we thus ascribed to the legislature a broad intent to grant the leave benefits in question to subordinate officers and employees of state government,  [[Orig. Op. Page 6]] in all branches; an intent not to be defeated by a narrow construction of the terms "officer," "department," and "institution."  A further study of the statute and its history provides ample support for that conclusion as we will now demonstrate.

            The original version of RCW 43.01.040, as above noted, was enacted as § 133, chapter 7, Laws of 1921.  That act, denominated the "Administrative Code," was more broadly entitled:

            "AN ACT relating to, and to promote efficiency, order and economy in, the administration of the government of the state, prescribing the powers and duties of certain officers and departments, defining offenses and fixing penalties, abolishing certain offices, and repealing conflicting acts and parts of acts."

            By this enactment the legislature abolished some 70 different offices, boards, commissions, bureaus and departments, and replaced them with ten new administrative departments of state government (now commonly known as "code agencies") and several multi-member boards and agencies.  The act further provided for a director who was to be the chief executive officer of each of those "code agencies" and for the general management of all of the various agencies, boards and committees.  At first blush it would thus appear to have dealt only with the executive branch.  However, nowhere did the act so state and its bill title, supra, referred broadly to the "administration of the government of the state . . ."‑- not merely the executive branch thereof.

            Moreover, an examination and comparison of the various provisions of the act further indicates that its purpose was to achieve administrative harmony throughout state government‑- in all branches.  While some sections (such as §§ 18 and 130) refer to officers and employees of the departments ". . . created by this act," others (such as § 16 and § 133,supra) refer to officers, employees, departments and agencies ". . . of the state" or "of the state government" and seem plainly intended to have broader effect.

            In addition, it is significant to note that this broad scope of the original act was subsequently confirmed by chapter 140, Laws of 1955, which amended § 33, chapter 7, Laws of  [[Orig. Op. Page 7]] 1921 and RCW 43.01.040, supra, in several particulars.  The title of that act, like its substantive language, expressly referred to ". . . subordinate officers and employees of the state government, . . ." without limitation as to any department or branch.  Similarly, an even more recent amendment, chapter 13, Laws of 1965, 1st Ex. Sess., was entitled,

            "AN ACT relating to state employees.

. . ."

            Consequently, in response to your first question, we reaffirm AGO 57-58 No. 21,supra, and conclude that RCW 43.01.040 applies to the several offices, departments and institutions of state government, in all three branches.

            Question (2):

            Next you have asked:

            "Are State employees, who are exempt from the various personnel rules, entitled to have vacation leave accumulated in excess of thirty working days to their credit by their respective employing agencies without having a statement of necessity for deferral of leave on file with their respective employing agency?"

            Our answer to this question is in the negative except as below qualified.

            It will readily be seen that the subject statute, as above quoted, governs leave for each "subordinate officer and employee" without differentiating between "exempt" and "classified" employees.  In fact, the very term "subordinate officer" denotes a class of personnel who generally fall into the "exempt" category.  See, RCW 41.06.070.  However, the right of all subordinate officers and employees to accrue vacation leave is expressly limited to a maximum ". . . thirty working days . . ." unless the conditions and requirements stated in the statute are fulfilled.

            Since 1965, one of those requirements has been the filing of a statement of necessity by the "employing" agency. Specifically, the statute as then amended2/ directs such a  [[Orig. Op. Page 8]] statement to be filed witheither the ". . . appropriate personnel board or other state agency or officer . . . ," thus clearly recognizing that some of the personnel to whom the statute applies are in the "exempt" category.  What this means, then, is that to the extent either a classified or an exempt state employee is entitled to accumulate vacation leave in excess of thirty working days, he or she may do so only when a statement of necessity has been filed as provided in the statute.  It thus follows, as an absolutely necessary corollary, that any credit or payment3/ for unused vacation leave in excess of thirty days without compliance with that condition would be unauthorized and unlawful.  The only exception to this conclusion would be one involving employees of a state institution of higher learning in accordance with rules and regulations adopted pursuant to RCW 43.01.042, supra, as above explained.

            Question (3):

            Your third question inquires as follows:

            "Is an individual appointed by the governor to an agency directorship or as a member of a Board or Commission considered to be a subordinate officer as that term is used in RCW 43.01.040?"

            A brief preface to our answer to this question is in order.  As you will note upon reading on, we answer it in the affirmative almost entirely on the basis of history, both legislative and administrative.  As the authorities cited indicate, this is, of course, a judicially acceptable approach in determining legislative intent.  At the same time, however, it produces a result which both your office and the legislature may now desire to review.  If so, we would be happy to work with you in the formulation of some form of amendatory legislation designed to clarify not only the basic leave rights of such gubernatorial appointees as are here involved but, as well (and perhaps even more importantly), the procedures to be followed by those appointees in accounting for their vacation time and obtaining approval of extensions of the statutory maximum.

             [[Orig. Op. Page 9]]

            We turn, now, to your question.  In AGO 57-58 No. 21,supra, we defined the term "officer" but then, without further discussion, proceeded to the obvious conclusion that the officers there in question (i.e., the secretary and sergeant at arms of the Senate) were "subordinate."  Our present research has disclosed no express legislative or judicial definition of that word or the full phrase "subordinate officer" as used in the statute.  We therefore have alternatively attempted here to determine and apply "ordinarily accepted" meanings of those words, looking first to the various dictionary and other definitional sources as judicially recognized standards; cf., State v. Vosgien, 82 Wash. 685, 144 Pac. 947 (1914).  Those sources, however, simply reveal that both the word "subordinate" and the phrase "subordinate officer" are ambiguous; they have a wide range of meanings.  For example, the term "subordinate officer" could, in a broad sense, refer to a person who holds any elective or appointive office which ranks inferior to some other office, or more narrowly, refer only to an officer who is subject in whole or in part to the direction or control of another.  See, Black's Law Dictionary, 4th Ed.; also, Words and Phrases, "subordinate officer," citingTusant v. City of Des Moines, 231 Iowa 116, 300 N.W. 690, 693 (1941).  In the context of your question, viewed one way, the term thus could include only those officers who are subordinate to a director or board; viewed another way, the term could also include the directors and board members themselves insofar as they are ""subordinates"‑- i.e., subject to the director or control‑-of the governor.  Many of those officials serve at the governor's pleasure and, although some are, instead, appointed for statutory terms (with a corresponding lesser degree of actual gubernatorial control) the governor still exercises a significant statutory responsibility to "supervise" the conduct of all of them.  See,e.g., RCW 43.06.010; also, RCW 43.06.080 and 43.06.090.  The governor also has a statutory duty to make salary recommendations for such officers.  See, RCW 43.03.040.

            Finding the words themselves inconclusive, we therefore have found it necessary to resort to other sources.  References to the relationship of words and phrases to other words and phrases in the same act, as well as the legislative history of an act, can and often are of significant aid in determining what the legislature intended in a given case.  So may be the construction which has been placed upon an act by executive and administrative officers.  See,Ayers v. City of Tacoma, 6 Wn.2d 545, 108 P.2d 348 (1940);Layton v. Home Indemnity Co., 9 Wn.2d 25, 113 P.2d 538 (1941); also,State v. ex rel. Taylor v. Superior Court for King County, 2 Wn.2d 575, 98 P.2d 985 (1940).  In  [[Orig. Op. Page 10]] fact, regardless of what a statute mayseem to say, one cannot properly ignore such relevant legislative history, longstanding administrative construction, or other clear evidence of its actual intent.  See,e.g., Train v. Colorado Pub. Int. Research Group, 426 U.S. 1, 48 L. Ed.2d 434, 96 S.Ct. 1938 (1976).

            In this case, the text of the original (1921) enactment, by itself, could be read as granting vacation leave benefits only to those officers and employees who were subordinate to the various directors and boards created thereby.4/   But in one respect, of course, we have already rejected such a narrow interpretation.  See, again, AGO 57-58 No. 21, supra.  And even more importantly, such an interpretation of the statute would be at total variance with what we have discovered to be the uniform, longstanding executive and administrative construction of the law.

            Specifically, our research has disclosed that the directors and board members in question, for as long as we have found any record on the subject, have in fact earned, accrued and (upon separation) received pay for annual leavein the same manner and subject to the same limitations as state employees generally.  We have also determined that this practice has been expressly recognized and mandated by various directives from the Governor's Office to agency heads.  For example, in a memorandum dated October 11, 1963, addressed to "All Directors and Members of Boards and Commissions," then Governor Rosellini admonished, in part, as follows:

            "I want to again remind all directors and board members that they are personally subject to the provisions of RCW 43.01.040-43.01.043 concerning annual leave, and to the Personnel Board rules, Article XXI, Section 2, relating to sick leave.  I suggest that you again review carefully these statutes and regulations.  Under no circumstances should you exceed the time authorized in these provisions."

             [[Orig. Op. Page 11]]

            Likewise, more recently, a similar memorandum was issued by Governor Ray's office to all agency heads (dated April 12, 1978) in which the following appears:

            ". . .

            "It is also requested that the average leave taken not exceed the schedule adopted by the State Personnel Board and found in WAC 356-18-090 and WAC 356-18-050(2) and (3).  Please note that RCW 43.01.040 requires six months of continuous employment before taking vacation leave.

            ". . .

            "If the taking of leave would not be convenient to your operations and your leave accumulation would then exceed the maximum number of days as provided in RCW 43.01.040, a statement of the reasons for deferring your leave is to be filed in this office."

            We have further recently discussed the first of the above‑quoted items with its draftsman, Mr. Warren Bishop, who was, at that time, the Governor's budget director and, also, the chairman of a committee which was responsible for recommending salaries and fringe benefits for gubernatorial appointees in the categories5/ referred to in the memorandum.  During our interview Mr. Bishop recalled not only that there was such a contemporaneous practice but, moreover, that it was based on an unquestioned administrative construction of apparent long standing even at that time.  In fact, the reason for the governor's memorandum, as indicated by its text, was that some directors were apparently straying from the established statutory norms as then understood.6/

             [[Orig. Op. Page 12]]

            An executive or administrative construction, no matter how long it persists, would not necessarily overcome the plain meaning of a statute which is unambiguous on its face.  Schoen v. City of Seattle, 117 Wash. 303, 201 Pac. 293 (1921).  As demonstrated earlier in this opinion, however, the statute in question is not free from ambiguity.

            Furthermore, as above noted, the statute has been amended twice, substantially, since its enactment in 1921‑-first by § 1, chapter 140, Laws of 1955; the second by § 1, chapter 13, Laws of 1965, 1st Ex. Sess.  Neither of those amendatory acts, however, purported to change or redefine the term "subordinate officer" in the light of any prevalent custom or practice.  And, significantly, one of the changes made by the 1955 amendatory act vested rule‑making authority in the various agency heads with regard to the application of vacation leave provisions to subordinate officers and employees.  See, RCW 43.01.043,supra. In essence, from reading the above‑quoted 1963 memorandum from then Governor Rosellini, supra, it would appear that the governor, as an agency head, was thereby exercising that regulatory authority as, similarly, was Governor Ray more recently.7/

             In short, as thus construed and applied over the years, it would appear that the statute contemplates several levels of subordination.  Generally speaking, the various employees, assistants and deputies are subordinate to a director; some directors are subordinate to boards and similar governing bodies; and all are subordinate to the governor as the ultimate appointing authority.

            Finally, it will be seen that the 1965 amendments give added strength to this last stated concept.  As amended by § 1, chapter 13, Laws of 1965, supra, RCW 43.01.040 now provides for deferrals of ". . . a subordinate officer's or employee's request for vacation leave . . ." at the convenience of the "employing office."  As a condition of such deferral, the statute  [[Orig. Op. Page 13]] further requires a statement of necessity to be filed by the "employing" agency ". . . with the appropriate personnel boardor other state agency or officer. . . ."8/   (Emphasis supplied)

            Overall, it thus appears that the legislature has at least acquiesced in, and even confirmed, a longstanding executive and administrative construction of RCW 43.01.040, which supports an affirmative answer to your third question.  We believe that a court, upon considering such compelling evidence of legislative intent (together with the severe economic consequences which would result from a contrary conclusion at this time), would adopt that construction consistent with the status quo.  See, Bradley v. The Department of Labor and Industries, 52 Wn.2d 780, 329 P.2d 196 (1958).  In direct answer to your question we conclude, therefore, that individuals appointed by the governor to an agency directorship, or as members of a board or commission,are properly to be deemed "subordinate officers" as that term is used in RCW 43.01.040 and related sections dealing with vacation leave, thus answering the question in the affirmative.

            Question (4):

            This question, repeated for ease of reference, asks:

            "If the answer to (3) above is in the affirmative, would the Governor's Office be the employing Office?"

            In our answer to the preceding question we said that the governor is the officer to whom the various directors and other appointees in question are "subordinate" under the statute.  It follows, as we also there indicated, that the governor has and exercises the responsibility to prescribe rules regarding vacation leave for those appointive officers.  However, as is evident from our discussion, infra, in answering question (2) the term "employing office, department or institution" (as used in the statute) must refer to the agency directly served by the director or other appointive officer.  The convenience of that agency, office, department or institution is the apparent concern of the statute, and it is that agency which, in our opinion, must file the required statement of necessity with "the  [[Orig. Op. Page 14]] appropriate personnel board or other state agency or officer."  The Governor's Office, in our opinion, is the "other state agency or officer" which mustreceive that information in those instances.