OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF HIGHWAYS ‑- AUTHORITY TO PAY MOVING EXPENSES OF PROSPECTIVE EMPLOYEES

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF HIGHWAYS ‑- AUTHORITY TO PAY MOVING EXPENSES OF PROSPECTIVE EMPLOYEES.

The department of highways does not have the authority to offer a prospective employee, as an inducement for his accepting state employment, to pay the cost of moving his household goods and effects to the vicinity of the place of his employment.

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                                                                  March 20, 1962

Honorable Daniel F. Donohoe
Director, Highway Personnel Board
Transportation Building
Olympia, Washington

                                                                                                              Cite as:  AGO 61-62 No. 102

Dear Sir:

            By letter, previously acknowledged, you have requested the advice of this office on a question which we paraphrase as follows:

            Does the department of highways have the authority to offer to a prospective employee, as an inducement for his accepting state employment, to pay the cost of moving his household goods and effects to the vicinity of the work location?

            We answer your question in the negative.

                                                                     ANALYSIS

            In answer, it is necessary to consider first the general rule relative to the powers of public officers and agencies.  As the supreme court of this state has held, public officers and agencies have only the powers given to them by statute in express terms or by necessary implication.  See,State ex rel. State Board Etc. v. Clausen, 84 Wash. 279, 146 Pac. 630 (1951);Pacific First Fed. Savings and Loan Association v. Pierce County, 27 Wn. (2d) 347, 178 P. (2d) 351 (1947).

            It is our understanding that the employees in question would be classified personnel under the 1961 civil service act, chapter 1, Laws of 1961.  That act does not provide in express terms for payment of the moving expenses of an employee, by contract, or pursuant to board regulation, or otherwise; nor does an examination of the act disclose any such legislative intent by clear implication.

             [[Orig. Op. Page 2]]

            It is possible to conclude that the department of highways itself possessed the requisite authority prior to the passage of the 1961 act.

            In § 3, chapter 53, Laws of 1937 (cf. RCW 43.27.020), the legislature gave to the director of highways the power and duty, among others, to

            ". . . appoint and employ and to determine the powers and duties together with the salariesand other expenses of such engineering, clerical, mechanical, and any and all other assistants. . . ." (Emphasis supplied.)

            On the other hand, an interesting question is raised by the language of § 1, chapter 128, Laws of 1943 (cf. RCW 43.03.110), as to whether or not the authority to pay those specific moving expenses was denied by implication.  That statute provides as follows:

            "Whenever it shall be reasonably necessary to the successful performance of the required duty of a state office, commission, or department to transfer a deputy or other employeefrom one station to another within the state, thereby necessitating a change of such deputy's or employee's domicile, upon securing the approval of the Supervisor of Budget, Accounts and Control, it shall be lawful for such office, commission, or department to move such deputy's or employee's household goods and effects to the new station at the expense of the state, or to defray the actual cost of such removal by common carrier, or otherwise, at the expense of the state, in which latter event reimbursement to such deputy or employee shall be upon voucher submitted by him and approved by the department head."  (Emphasis supplied.)

            However, the pattern of subsequent legislation makes it unnecessary to consider that problem further.

            Whatever such power remained in the director, to provide as a recruitment measure, the payment of initial moving expenses of a new appointee, was transferred to the state highway commission by § 4, chapter 247, Laws of 1951 (cf. RCW 43.27.100).

            We are faced now, however, with a new act, substantially different  [[Orig. Op. Page 3]] and far more comprehensive than the previous laws relating to highway department personnel, including the personnel merit system established by RCW 43.27.060.  Specifically, the provisions of the state civil service act are at variance with any previously expressed or implied intent of the legislature to permit the department to offer or pay initial moving expenses of new appointees.

            Section 6, chapter 1, Laws of 1961, provides in pertinent part as follows:

            "Within thirty (30) days after the effective date of this act the State Highway Commission shall appoint, . . . a Highway Department Personnel Board . . . The board so appointed shall organize as provided in section 11 hereof and enforce and perform for all Highway Department Personnel in the classes of positions covered by this act the policies and duties given to the State Personnel Board by sections 1, 10, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, and 27 of this act; . . ."

            Sections 1, 15 and 16 contain the only further provisions material to the present question, § 1 providing as follows:

            "The general purpose of this act 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 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.)

            Section 15 establishes the duty of the board to adopt and promulgate rules and regulations for administering the act, on various subjects including employment, salaries, and employment conditions and benefits.  Section 16 sets forth certain procedures to be followed in adopting or revising classification and salary schedules.

            To say that at the present time the department of highways may pay the moving expenses of newly-hired personnel is to conclude that either (1) the possible previously existing power of the highway  [[Orig. Op. Page 4]] commission in that regard was transferred by the civil service act to the highway department personnel board; or (2) the civil service act allowed such power to be retained by the highway commission.  In our opinion, neither conclusion would be valid.

            As to alternative (1), an examination of the sections quoted above discloses no intention on the part of the lawmakers to grant to the highway personnel board the power to pay moving expenses, as distinguished from the power to make rules formethod of selection, salary and wage scales, and such matters.

            For purposes of statutory construction, there is no essential difference between measures enacted by the legislature and those enacted by initiative.  28 Am.Jur., Initiative, Referendum and Recall, § 43, p. 177.  A fundamental rule of statutory construction is that a legislative intent, not expressed in some appropriate manner, has no legal existence.  State ex rel Gebhardt v. Superior Court, 15 Wn. (2d) 673, 131 P. (2d) 943 (1942).

            As to alternative (2), it is another rule of statutory construction that legislative intent must be gleaned from a consideration of the whole act, giving effect to the entire statute and every part thereof.  State v. Houck, 32 Wn. (2d) 681, 203 P. (2d) 693 (1949).  Further, the purpose of the act is a matter of prime importance in arriving at a correct interpretation of its parts.  State ex rel. Spokane United Rys. v. Department of Public Service, 191 Wash. 595, 71 P. (2d) 661 (1937).

            In the light of the declared policy of the civil service act, the subjects covered in the portions quoted above, in so far as they apply to highway department personnel covered by the act, are exclusively under the jurisdiction of the highway personnel board.  One of these subjects, as expressed in § 1, supra, is that of recruitment, and the power to make an offer to a prospective employee that his moving expenses would be paid upon his accepting employment would fall logically under that category.  As we have indicated above, that specific power has not been granted to the personnel board expressly or by necessary implication.

            To say that the highway commission itself now possesses the authority, as a recruiting measure, to assure an individual prospective employee that his moving expenses will be paid upon his accepting employment, would be to suggest authority in the highway commission in effect to select its own employees, contrary to the procedures established by the civil service act for employment on merit principles.

             [[Orig. Op. Page 5]]

            For the reasons set forth above, it is our opinion that the highway department may not pay the cost of moving household goods and effects to the vicinity of the work location of persons who have accepted employment.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General