OFFICES AND OFFICERS ‑- STATE EMPLOYMENT SECURITY ‑- GOVERNOR ‑- AUTHORITY TO SIGN AGREEMENT WITH FEDERAL GOVERNMENT FOR TEMPORARY UNEMPLOYMENT COMPENSATION BENEFITS -- UNEMPLOYMENT COMPENSATION...

OFFICES AND OFFICERS ‑- STATE EMPLOYMENT SECURITY ‑- GOVERNOR ‑- AUTHORITY TO SIGN AGREEMENT WITH FEDERAL GOVERNMENT FOR TEMPORARY UNEMPLOYMENT COMPENSATION BENEFITS.

UNEMPLOYMENT COMPENSATION ‑- STATUTORY AUTHORITY OF GOVERNOR OR COMMISSIONER TO SIGN A NEW AGREEMENT UNDER H.R. 12065.

The governor or the commissioner of employment security are not legally authorized to enter into an agreement with the federal government as provided by section 102 of H.R. 12065 to qualify for the federal loan to pay extended unemployment compensation.

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                                                                    June 9, 1958

Honorable Peter R. Giovine
Commissioner
Employment Security Department
Old Capitol Building
Olympia, Washington                                                                              Cite as:  AGO 57-58 No. 201

Dear Sir:

            This is in answer to your request for an opinion of this office on the following question:

            Is the State of Washington, acting through the Governor or the Commissioner of Employment Security, authorized to enter into an agreement with the federal government, as provided by section 102 of H.R. 12065 to qualify for the federal loan to pay extended unemployment compensation as provided by the Temporary Unemployment Compensation Act of 1958?

            We are forced to answer your question in the negative.

                                                                     ANALYSIS

            The act to which you refer was enacted by Congress and signed by the President  [[Orig. Op. Page 2]] on June 4, 1958.  The purpose of the act is to provide temporary additional unemployment compensation to individuals who have exhausted their rights under the unemployment compensation laws of the state and federal government.  A brief analysis of the pertinent provisions of the act is as follows: Section 101 (a) provides that the act is to become effective on or after the 15th day of its enactment (June 19, 1958).  Subsection (b) provides that the maximum amount of temporary unemployment compensation payable to any individual is limited to 50 per cent of the total amount payable to him under the unemployment compensation law of this state.  Subsection (c) provides that the weekly benefit amount an individual can receive under the temporary act is the amount which was payable to him pursuant to the unemployment compensation law of his state, under which his rights have been exhausted.  Subsection (d) provides for the application of the state law to the determination of whether or not an individual is eligible for temporary compensation.

            Section 105 (a) provides that an agreement is to be entered into by the secretary of labor with the state or the agency administering the unemployment compensation law of such state, whereby the state agrees to make, as agent for the United States, the payments of temporary unemployment compensation provided by the act, and to cooperate with the secretary and other state agencies.  Subsection (b) provides that the agreement entered into may specify in lieu of June 30, 1957, a later date for exhaustions under state law.  Subsection (c) provides that the agreement shall contain terms and conditions as to its amendment, suspension or termination.  The state, pursuant to subsection (d), further agrees that there will be no denial or reduction of the state's unemployment compensation law benefits because of the temporary unemployment compensation law.

            Section 103 (a) provides for the payment of temporary unemployment compensation to veterans and federal employees, with further provisions relating to Puerto Rico and the Virgin Islands.

            Section 104 (a) provides that the total credits allowed to taxpayers with respect to wages attributable to the state under U.S.C. 3302 (c) are to be reduced in the same manner as that provided by § 3302 (c) (2) of the federal unemployment tax act for the repayment of advances made under Title 12 of the social security act.

            This reduction in the allowable credit has the effect of increasing the federal unemployment tax in the first year of its operation from three‑tenths of 1 per cent to forty-five hundredths of 1 per cent.  In the second year the tax would be increased to six-tenths of 1 per cent by the second consecutive reduction of the allowable credit, etc.  This increased federal tax, however, would not go  [[Orig. Op. Page 3]] into effect until January 1, 1963, nor would it go into effect even then if the amount expended from the general funds of the treasury has been otherwise restored.

            The only legal question with which this opinion is concerned is the authority of the governor or commissioner of employment security to enter into the agreement required by section 102 of the act in order that persons in this state who are eligible can qualify for benefits under the temporary unemployment compensation act.

            Although the governor is the chief executive officer of the state, his powers and duties are limited to those conferred by the constitution and the statutes of this state.  Article III, subsection (5) Washington State Constitution; and RCW 43.06.010.  An analysis of the constitutional provision and the statute discloses that the governor does not have any specific legal authority to enter into an agreement such as the one in question and bind the state of Washington.

            In an early case,Young v. State, 19 Wash. 634, 636, 637, involving the authority of the governor of the state of Washington to contract for the investigation of the books and accounts of the state penitentiary, our supreme court discussed the powers of the governor as follows:

            ". . . The only question, therefore, to be determined, is whether or not the governor had legal authority to execute the contract on behalf of the state; and in determining this question it is necessary to ascertain the law upon the subject, for it is well settled that public officers have, and can exercise, only such power as is conferred upon them by law, either statutory or constitutional, and that the government is not bound by the unauthorized acts of its officers or agents.  [Citing cases]

            ". . . But we nowhere find, either in the constitution or the statutes, any provision which, either expressly or by necessary implication, authorizes the governor to employ expert assistance for the purpose of investigating the books and accounts of the state penitentiary, or of any other state institution.  We are, therefore, constrained to hold that the governor had not the power to bind the state by the contract in question. . . ."

            A further general statement concerning the powers and duties of the governor is found in 24 Am.Jur., Governor, page 826:

             [[Orig. Op. Page 4]]

            "s 5. Powers, duties, and liabilities.

            ". . .

            "Since a governor is a mere executive officer, his general authority is narrowly limited by the Constitution of the state.  He has no undefined or disputable prerogatives and cannot affect the public money except as he is authorized under the Constitution or by a particular law.  He may not represent the sovereignty of the state as to bind it in any manner to its prejudice, unless specially authorized to do so.  Therefore, all who contract with a governor do so at their own peril and are bound to see, or take the consequence of their own indiscretion, that the governor has strict authority for any contract he makes.  Hence, a contract entered into with a third person by the governor upon his assumption of authority, which contract is within the province of the legislative department only, will not bind the state; the governor's act is purely ultra vires. . . ."

            Accordingly, it is our conclusion that the governor of the state of Washington does not have the necessary legal authority to sign the agreement in question on behalf of the state.

            With respect to the legal authority of the commissioner of employment security to sign such an agreement, an analysis of the unemployment compensation laws of this state (Title 50 RCW) reveals that the only broad delegation of power to the commissioner is found in RCW 50.12.180, which provides for federal and state cooperation in the administration of the social security act.  That section contains provisions relating to the establishment of public employment offices and then authorizes the commissioner to:

            ". . . comply with the regulations of the social security board governing the expenditures of such sums as may be allotted and paid to this state under Title III of the social security act for the purpose of assisting the administration of this title.  The commissioner may afford reasonable cooperation with every agency of the United States charged with the administration of any unemployment insurance law.

             [[Orig. Op. Page 5]]

            "The commissioner may also apply for an advance to the state unemployment fund and accept responsibility for the repayment of such advance in accordance with the conditions specified in Title XII of the social security act, as amended, in order to secure to this state and its citizens the advantages available under the provisions of such title."

            However, the funds to be allotted and paid to the state under the act in question do not come under Title III of the Social Security act nor does the advance of funds come under the provisions of Title 12 of the social security act.  Accordingly RCW 50.12.180 is not authority for the commissioner in the present situation to apply for the advance of federal funds by signing the agreement required by the act.

            In the case ofIn re Jullin, 23 Wn. (2d) 1, a case involving the right of an individual to unemployment compensation, the supreme court had the following to say concerning the administration of unemployment compensation and the duties of the commissioner:

            "While the administration of the unemployment compensation act is entrusted to the commissioner, his administration thereof must be in accordance with the provisions of the act itself and the rules prescribed thereby.  Rem. Supp. 1943, § 9998-111a.  Strmich v. Department of Labor & Industries, 182 Wash. 466, 47 P. (2d) 990.  He is a public officer appointed to administer trust funds.  Rem. Supp. 1943, §§ 9998-109a, 9998-109b, 9998-109c, 9998-109d.  These trust funds are contributed solely and entirely by the employers subject to the act.  Rem. Supp. 1943, §§ 9998-107a, 9998-107b.  The employers are therefore vitally concerned in the proper administration and disposition of such funds.  The commissioner, must administer the act justly and fairly, for the benefit of all concerned, in accordance with law, and unless his powers are so exercised his acts are of no effect.  In the case ofIn re Elvigen's Estate, 191 Wash. 614, 71 P. (2d) 672, we quoted with approval the following statement from 46 C.J. 1033, Officers, § 290:

            "'Powers conferred upon a public officer can be exercised only in the manner, and under the circumstances, prescribed by law, and any attempted exercise thereof in any other manner or under different circumstances is a nullity.'"

             [[Orig. Op. Page 6]]

            In addition, the requirement that the commissioner "afford reasonable cooperation" with every agency of the federal government is not sufficient legal authority for the commissioner to sign the agreement in question.  Thus, in the absence of specific legislative authority, the commissioner of employment security does not have authority to enter into the agreement in question and bind the state of Washington.

            In view of the ruling of our supreme court in the Senior Citizens League v. Department of Social Security, 38 Wn. (2d) 142, there appears to be little doubt but that the legislature could, if it so desired, delegate the commissioner of employment security the authority to enter into an agreement such as the one in question and such a delegation would be a proper one.

            Unfortunately this is not the case at the present time and we are forced to conclude, therefore, that in the absence of specific legislative authority the governor and the commissioner of employment security are not legally authorized to enter into the agreement pursuant to section 102 of H.R. 12065 which is a prerequisite to receipt of federal funds under the temporary unemployment compensation act of 1958.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JANE DOWDLE SMITH
Assistant Attorney General

PAUL MURPHY
Assistant Attorney General