Letter Opinion 1972 No. 082

- - - - - - - - - - - - -
 
 
                                                               November 29, 1972
 
 
 
Honorable R. W. Hutt
Acting Commissioner
Employment Security Department
P.O. Box 367
Olympia, Washington 98504
                                                                                            Cite as:  AGLO 1972 No. 82 (not official)
 
 
Dear Sir:
 
            By letter previously acknowledged you requested an opinion from this office on a question which we paraphrase as follows:
 
            Does an agency head have the authority under RCW 42.18.270 to allow a former state employee, as defined in RCW 42.18.130, to appear before his agency within two years of such employee's separation from that agency?
 
            We answer your question in the negative for the reasons set forth in our analysis.
 
                                                                     ANALYSIS
 
            Chapter 42.18 RCW is the codification of chapter 234, Laws of 1969, Ex. Sess., the "Executive Conflict of Interest Act."  It applies, basically, to the conduct of "state employees," a term defined by RCW 42.18.130 as follows:
 
            "'State employee' means any individual who is appointed by an agency head, as defined in RCW 42.18.040, or his designee, and serves under the supervision and authority of an agency as defined in RCW 42.18.030.
 
            "Notwithstanding the foregoing, the term 'state employee' shall not include any of the following:
 
            "(1) Officers and employees in the legislative and judicial branches of the state of Washington; and
 
            "(2) A reserve of the Washington national guard, when he is not on active duty and is not otherwise a state employee.
 
             [[Orig. Op. Page 2]]
            "An individual shall not be deemed an employee solely by reason of his being subject to recall to active service.
 
            "Every state employee shall be deemed either 'intermittent' or 'regular' as determined by the definitions contained in RCW 42.18.070 and 42.18.100 respectively."1/
 
             Among the substantive prohibitions of this act is the following, as set forth in RCW 42.18.220:
 
            "(2) No former state employee shall, within a period of two years after termination of employment with an agency, appear before such agency."
 
            This provision, notably, is substantially similar to a parallel code of ethics provision which has been in effect since 1959; namely, RCW 42.22.040, which provides in part that:
 
            "(4) No person who has served as an officer or employee of a state agency shall, within a period of two years after the termination of such service or employment, appear before such agency or receive compensation for any services rendered on behalf of any person, firm, corporation, or association in relation to any case, proceeding, or application with respect to which such person was directly concerned and in which he personally participated during the period of his service or employment."  (Emphasis supplied.)
 
            Because of the provision in § 37 of chapter 234, (RCW 42.22.120) that "This chapter [i.e., chapter 42.22 RCW] shall have no application to any person who is a state employee as defined in RCW 42.18.130," it will be seen that this latter prohibition no longer pertains to these former "state employees" to whom RCW 42.18.220 (2), supra, applies.  However, as to the respective categories or classes of personnel to  [[Orig. Op. Page 3]] which each of these statutes is applicable, it is clear that each has, essentially, the same meaning and purpose.  As expressed by the governor in his message explaining his partial veto of other portions of the 1969 act (chapter 234, supra):
 
            ". . .  Section 22 repeats the existing statutory prohibition against a former state employee's appearing before his former agency for two years, and prohibits a former state employee from assisting another person in any transaction involving the state in which the former state employee personally participated as a state employee.  . . ."  (Emphasis supplied.)2/
 
             With this in mind we turn, now, to the section of the act which is cited in your request ‑ § 27, now codified as RCW 42.18.270, which provides that:
 
            "(1) The head of an agency, upon finding that any former employee of such agency or any other person has violated any provision of this chapter, may, in addition to any other powers the head of such agency may have, bar or impose reasonable conditions upon:
 
            "(a) The appearance before such agency of such former employee or other person; and
 
            "(b) The conduct of, or negotiation or competition for, business with such agency by such former employee or other person, such period of time as may reasonably be necessary or appropriate to effectuate the purposes of this chapter.
 
            ". . ."
 
             [[Orig. Op. Page 4]]
            In considering the relationship between this statute and the prohibition set forth in RCW 42.18.220, supra, we take note of the fundamental principle that statutes will not be construed in a manner that will result in a gross injustice or absurdity.  See, Wilson v. Lund, 74 Wn.2d 945, 947, 447 P.2d 718 (1968), in which our supreme court quoted from In re Horse Heaven Irrigation Dist., 11 Wn.2d 218, 226, 118 P.2d 972 (1941), as follows:
 
            "The courts, in pursuance of the general object of giving effect to the intention of the legislature, are not controlled by the literal meaning of the language of the statute, but the spirit or intention of the law prevails over the letter thereof.
 
            ". . .
 
            "It is a rule of such universal application as to need no citation of sustaining authority that no construction should be given to a statute which leads to gross injustice or absurdity."
 
            If RCW 42.18.270 (1) were read as authorizing an agency head to permit a former employee of his agency to appear before the agency within two years after his separation from employment therewith, as you have suggested, we would have just such an absurdity.  We would have, on the one hand, an absolute prohibition against such appearances (RCW 42.18.220), coupled with an authorization to the agency head to "punish" a violation of this prohibition by permitting further such violations.
 
            Accordingly, we reject this construction.  Instead, we read RCW 42.18.270 (1) as merely applying to appearances after the expiration of the proscribed two-year period immediately following separation from employment.  When an agency head has found that a former employee of his agency has appeared before it during this period in violation of RCW 42.18.220, the agency head may respond by restricting the former employee's appearances before the agency even after the period is over ‑ by either barring such appearances or by imposing reasonable conditions thereon.  But the agency head may not, under this section, relieve the former employee of the burden  [[Orig. Op. Page 5]] of compliance with RCW 42.18.220 during the initial two-year period to which it applies.
 
            We trust the foregoing will be of assistance to you.
 
Very truly yours,

 
SLADE GORTON
Attorney General
 
 
Philip H. Austin
Deputy Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/Officers and employees of the legislature and judicial branches, by virtue of their exclusion from this 1969 act, remain governed, instead, by certain preexisting "conflict of interests" statutes; i.e., chapter 42.20 RCW.
 
2/Chapter 234, Laws of 1969, 1st Ex. Sess., p. 2268.  See, also, the discussion between Senators Ryder and McCutcheon during debate on final passage of Engrossed Senate Bill 744 (by which chapter 234 was enacted) which is reported on p. 1062 of the 1969 Senate Journal.