Bob Ferguson
Other LanguagesAGLO 1970 No. 23 -
Attorney General Slade Gorton
- - - - - - - - - - - - -
February 25, 1970
Honorable Leonard Nord
Director, State Department of Personnel
600 South Franklin
Olympia, Washington 98501
Cite as: AGLO 1970 No. 23
Dear Sir:
By letter previously acknowledged you have requested our opinion on a question pertaining to a certain function of the state personnel board. We paraphrase your question as follows:
May the state personnel board, by rule adopted pursuant to RCW 41.06.150, provide that the function of adopting and revising the state comprehensive classification plan for all positions in the classified service (as contemplated by this section) shall be performed by the director of personnel rather than by the personnel board itself?
We answer this question in the negative for the reasons set forth below.
ANALYSIS
As you know, our present general civil service system for state employees was adopted by the people of this state through their approval of Initiative No. 207 at the November 1960 state general election.1/ The act thus adopted (together with subsequent amendments thereto) is now codified as chapter 41.06 RCW. Its general purpose is set forth in RCW 41.06.010, as follows:
"The general purpose of this chapter is to establish for the state a system of personnel administration based on merit principles and scientific methods governing the appointment, promotion, transfer, layoff, recruitment, retention, classification and pay plan, removal, discipline and [[Orig. Op. Page 2]] welfare of its civil employees, and other incidents of state employment. All appointments and promotions to positions, and retention therein, in the state service, shall be made on the basis of policies hereinafter specified." (Emphasis supplied.)
As you are further aware, the responsibility for implementation and administration of this system was vested in a separate and independent department of personnel. Pursuant to RCW 41.06.030, this department is headed by a three‑member personnel board and is administered by a director. See, also, RCW 41.06.110 and 41.06.130, detailing the procedures for appointment, etc., of the board and the director, respectively.
The rule‑making powers of the board are spelled out in considerable detail in RCW 41.06.150, to which your question refers, as follows:
"The board shall adopt and promulgate rules and regulations, consistent with the purposes and provisions of this chapter and with the best standards of personnel administration, regarding the basis for, and procedures to be followed for, the dismissal, suspension, or demotion of an employee, and appeals therefrom; certification of names for vacancies, including departmental promotions, with the number of names equal to two more names than there are vacancies to be filled, such names representing applicants rated highest on eligibility lists; examinations for all positions in the competitive and noncompetitive service; appointments; probationary periods of six months and rejections therein; transfers; sick leaves and vacations; hours of work; layoffs when necessary and subsequent reemployment, both according to seniority; determination of appropriate bargaining units within any agency: Provided, That in making such determination the board shall consider the duties, skills, and working conditions of the employees, the history of collective bargaining by the employees and their bargaining representatives, the extent of organization among the employees, and the desires of the employees; certification and decertification of exclusive bargaining representatives; agreements between agencies and [[Orig. Op. Page 3]] certified exclusive bargaining representatives providing for grievance procedures and collective negotiations on all personnel matters over which the appointing authority of the appropriate bargaining unit of such agency may lawfully exercise discretion; written agreements may contain provisions for payroll deductions of employee organization dues upon authorization by the employee member and for the cancellation of such payroll deduction by the filing of a proper prior notice by the employee with the appointing authority and the employee organization: Provided, That nothing contained herein shall permit or grant to any employee the right to strike or refuse to perform his official duties; adoption and revision of a comprehensive classification plan for all positions in the classified service, based on investigation and analysis of the duties and responsibilities of each such position; allocation and reallocation of positions within the classification plan; adoption and revision of a state salary schedule to reflect not less than the prevailing rates in Washington state private industries and other governmental units for positions of a similar nature, such adoption and revision subject to approval by the state budget director in accordance with the provisions of chapter 43.88 RCW; training programs, including in-service, promotional and supervisory; regular increment increases within the series of steps for each pay grade, based on length of service for all employees whose standards of performance are such as to permit them to retain job status in the classified service; and providing for veteran's preference as required by existing statutes." (Emphasis supplied.)
Your question, as we understand it, is whether the function of adopting and revising a comprehensive classification plan, as contemplated by this statute, must be performed by the personnel board itself ‑ or whether this function can be delegated to the director of personnel pursuant to rules and regulations promulgated by the board. In the past, you have advised us, the rules of the board have specifically required the plan ‑ and any revisions thereto ‑ to be prepared by the director (WAC 356.08.010) and then reviewed and adopted by the board (WAC 356.08.020); thus, your question is couched in the context of a proposed modification of these rules.
[[Orig. Op. Page 4]]
Because of its grammatical composition and structure, we regard RCW 41.06.150, supra, as being somewhat ambiguous on the point raised by your question. Under this statute, the personnel board is directed to adopt and promulgate rules and regulations pertaining to a number of different subjects. Many of these subjects, such as the dismissal, suspension or demotion of employees, necessarily involve responsive action by agencies other than the board itself. On the other hand, such subjects as the adoption and revision of the comprehensive classification plan (to which your question refers) and the adoption and revision of the salary schedule involve functions which the board itself can, most certainly, perform as it has in the past.
However, this ambiguity disappears when ‑ in accordance with the well-settled rule of construction that a statute is to be considered in its entirety in order to ascertain legislative purpose and intent2/ - this section of the act is read in conjunction with the next ensuing section ‑ RCW 41.06.160 ‑ which provides that:
"In adopting or revising classification and salary schedules as set forth in RCW 41.06.150 the board shall give full consideration to prevailing rates in other public employment and in private employment in this state and for this purpose shall have made periodic wage surveys with one such survey to be conducted each year prior to the convening of each regular session of the state legislature, the results of such wage survey to be forwarded with a recommended state salary schedule to the governor and state budget director for their use in preparing budgets to be submitted to the succeeding legislature."
Under this provision, it seems quite clear that the function of adopting both of these schedules is one which the framers of the initiative intended would be performed by the personnel board itself. Obviously, this is a discretionary function ‑ from which (in direct answer to your question) it necessarily follows that it must be performed by the board [[Orig. Op. Page 5]] and cannot be delegated to the director of personnel. Accord, Ledgering v. State, 63 Wn.2d 94, 385 P.2d 522 (1963).
We trust the foregoing will be of assistance to you.
Very truly yours,
SLADE GORTON
Attorney General
PHILIP H. AUSTIN
Assistant Attorney General
*** FOOTNOTES ***
1/This general civil service system presently pertains to all state employees except the employees of institutions of higher education. See, chapter 36, Laws of 1969, Ex. Sess., with respect to this latter category of state employees.
2/See, State ex rel. Port of Seattle v. Dept. P. S., 1 Wn.2d 102, 95 P.2d 1007 (1939), and cases cited therein. Unquestionably, this rule is equally as applicable to legislation enacted by the people through the exercise of the power of initiative as it is to statutes enacted by the legislature. See, State v. Houge, 67 N.D. 251, 271 N.W. 677 (1937), as cited and discussed in AGO 59-60 No. 171 [[to Sam Smith, State Representative on December 30, 1960]].