OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF CONSERVATION ‑- APPLICATION OF STATE CIVIL SERVICE LAW

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF CONSERVATION ‑- APPLICATION OF STATE CIVIL SERVICE LAW

The supervisors of flood control, mineral resources, water resources, reclamation and the executive secretary of the Columbia Basin Commission and executive secretary of the soil conservation committee in the department of conservation are exempt from the provisions of the state civil service law.  The supervisor of power resources is not exempt from the state civil service law.

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                                                                   June 27, 1961

Honorable Tom McNulty
Acting Director
Washington State Personnel Department
212 General Administration Building
Olympia, Washington

                                                                                                                Cite as:  AGO 61-62 No. 42

Dear Sir:

            You have requested an opinion of this office on whether the supervisors of flood control, mineral resources (mines), power resources, water resources, the reclamation supervisor and executive secretary of the Columbia Basin Commission, and the executive secretary of the soil conservation committee in the department of conservation are exempt from the provisions of the state civil service law.

            In our opinion all of the above positions except that of the supervisor of power resources are exempt from the provisions of the state civil service law.

                                                                     ANALYSIS

            Section 7 of the state civil service law (chapter 1, Laws of 1960, Initiative 207) reads, in part, as follows:

            "The provisions of this act do not apply to:

            ". . .

            "(7) In the Departments of Employment Security, Health, Fisheries, Institutions and Public Assistance, the director and his confidential secretary;  [[Orig. Op. Page 2]] in all other departments, the executive head of which is an individual appointed by the Governor, the director, his confidential secretary, and hisstatutory assistant directors;

            "(8) In the case of a multimember board, commission or committee, whether the members thereof are elected, appointed by the Governor or other authority, serve ex officio, or are otherwise chosen;

            "(a) All members of such boards, commissions or committees;

            "(b) If the members of the board, commission, or committee serve on a part-time basisand there is a statutory executive officer: (i) the secretary of the board, commission or committee; (ii) the chief executive officer of the board, commission, or committee; and (iii) the confidential secretary of the chief executive officer of the board, commission, or committee;" (Emphasis supplied.)

            In determining whether the several supervisors which you have mentioned are exempt from civil service, we call your attention to the following statutes:

            "The director of conservation and development shall appoint an assistant director, to be known as the supervisor of flood control, who shall have charge and supervision of the division of flood control.

             "With the approval of the director, he may appoint and employ such engineers and clerical and other assistants as may be necessary to carry on the work of the division."  RCW 43.21.150.  (Emphasis supplied.)

            "The director of conservation and development shall appoint and deputizean assistant director, to be known as the supervisor of mines, who shall have charge and supervision of the division of mines.  With the approval of the director, he may appoint such assistants, experts and other personnel as may be necessary to carry on the work of the division.

            "The supervisor shall be a competent mining engineer having practical knowledge of the mineral resources and potential possibilities for development of the mining industry in the state."  RCW 43.21.060.  (Emphasis supplied.)

             [[Orig. Op. Page 3]]

            "The director of conservation and development shall appoint and deputizean assistant director, to be known as the supervisor of reclamation, who shall have charge and supervision of the division of reclamation.

            "With the approval of the director, he may appoint and employ such engineers, experts, accountants, clerks, and other assistants as may be necessary to carry on the work of the division."  RCW 43.21.100.  (Emphasis supplied.)

            "The director of conservation and development shall appoint and deputizean assistant director, to be known as the supervisor of water resources, who shall have charge and supervision of the division of water resources.

            "With the approval of the director, he may appoint and employ such engineers and clerical and other assistants as may be necessary to carry on the work of the division."  RCW 43.21.120.  (Emphasis supplied.)

            In our opinion these statutes clearly establish the above mentioned supervisors as assistant directors within the meaning of Section 7 of the state civil service law.  They are therefore exempt from the provisions of that act.

            Chapter 284, Laws of 1957, RCW 43.21.010, established an additional division in the department of conservation to be known as the division of power resources.  Unlike the other divisions of this department, the division of power resources does not have astatutory assistant director entrusted with the charge and supervision of the division.  Instead the statute establishes a power advisory committee consisting of five part-time nonsalaried persons who are directed to advise the director of conservation in matters pertaining to the division of power resources.  See, RCW 43.21.220 and RCW 43.21.240.  These statutes establish nostatutory executive officer, within the meaning of Section 7 (8) (b) of the civil service law quoted above.  As we stated in AGO 61-62 No. 7 [[to Washington Toll Bridge Authority on January 31, 1961]]and in AGO 59-60 No. 171 [[to Sam Smith, State Representative on December 30, 1960]], these provisions must be construed in favor of coverage of employees in order to effect the obvious intent of the people in enacting the Initiative.  It is manifestly apparent that a position may not be exempt by the administrative act of designating such positions as "assistant director," or "executive officer."  We therefore are of the opinion that the supervisor of power resources is not exempt from the provisions of the state civil service law.

             [[Orig. Op. Page 4]]

            RCW 89.08.030 establishes a part-time soil conservation committee, some of the members of which do not serve ex officio.

            RCW 89.08.050 reads, in part, as follows:

            "The committee [soil conservation] may employ an administrative officer, and such technical experts and such other agents and employees as it requires, and determine their qualifications, duties, and compensation, and may call upon the attorney general for such legal services as it may require."  (Emphasis supplied.)

            We direct your attention to the language of Section 7 (8) (b) quoted above.  As you will note, that section is conditioned upon there being a "statutory executive officer."  The question we are thus presented with here is whether the statutory designation of an administrative officer by RCW 89.08.050, quoted directly above, qualifies the soil conservation committee for the exempt positions mentioned.  In our opinion it does qualify, provided such statutory administrative officer is in fact serving as the executive officer of the board, commission or committee.  In a letter dated December 7, 1960, to the special assistant attorney general assigned to the dairy products commission, we held that the statutory designation of a "manager" in RCW 15.44.050 supplied the requirement of a statutory executive officer, noted above.  We there reasoned that the requirement was directed to the function of the position rather than the title used in the statute.  After re‑examination [[reexamination]], we believe that reasoning is correct.  We therefore hold that the exemptions provided in Section 7 (8) (b) apply to positions under the soil conservation committee.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

R. TED BOTTIGER
Assistant Attorney General