STATE GOVERNMENT EMPLOYEES ‑- VACATION LEAVE

STATE GOVERNMENT EMPLOYEES ‑- VACATION LEAVE

A state employee who transfers from one state agency to employment in another agency of the state government without an interruption such as would indicate a termination of his contract of employment with the state government, cannot be paid for his accrued vacation leave under the provisions of RCW 43.01.041.  However, an employee transferring from one state agency to another agency of state government is entitled to a transfer of his accrued vacation leave credits to the new employing agency of state government under the provisions of RCW 43.01.040.

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                                                                  March 28, 1957

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington
Attention:  Mr. F. D. Keister, Assistant State Auditor                                                                                                                Cite as:  AGO 57-58 No. 41

Dear Sir:

            Your letter of February 18, 1957, requests the opinion of this office as to whether a state employee is entitled to payment for accrued vacation leave under the provisions of  [[Orig. Op. Page 2]] chapter 140, Laws of 1955, when such employee transfers in employment from one state department to another, or, in lieu thereof, must his accrued vacation leave be transferred to the new employing agency of the state government.

            In summary, it is the opinion of this office that a state employee who transfers from one state agency to employment in another agency of the state government, without an interruption such as would indicate a termination of his contract of employment with the state government, cannot be paid for his accrued vacation leave under the provisions of chapter 140, Laws of 1955.  However, an employee transferring from one state agency of the state government to another is entitled under the provisions of RCW 43.01.040 (1955 supp.) to credit for his accrued vacation leave with the new employing agency.

                                                                     ANALYSIS

            RCW 43.01.041 (§ 2, chapter 140, Laws of 1955), authorizing the payment of accrued vacation leave of a subordinate officer or employee of the state government upon termination of his employment, provides as follows:

            "Officers and employees referred to in RCW 43.01.040 whose employment is terminated by their death; reduction in force; resignation; dismissal; or by retirement and who have accrued vacation leave as specified in RCW 43.01.040,shall be paid therefor under their contract of employment, or their estate if they are deceased, or if the employee in case of voluntary resignation has provided adequate notice of termination."  (Emphasis supplied.)

             [[Orig. Op. Page 3]]

            The statute quoted above would appear to be ambiguous in so far as your question is concerned, it not being clear whether the termination in employment is from a department or agency of the state or the state government in its entirety.  In the latter portion of the statute, which is underlined above, the term "contract of employment" is used, and the statute also refers to RCW 43.01.040 (§ 1, chapter 140, Laws of 1955).  RCW 43.01.040 in so far as pertinent, reads as follows:

            "Each subordinate officer and employee of the several offices, departments, and institutions of the state government shall be entitled under theircontract of employment with the state government to not less than one working day of vacation leave with full pay for each month of employment if said employment is continuous for six months."  (Emphasis supplied.)

            In view of the use of the term "contract of employment with the state government" in RCW 43.01.040 (§ 1, chapter 140, Laws of 1955), to which reference is made in RCW 43.01.041 (§ 2, chapter 140, Laws of 1955), we are of the opinion that in order for a state employee to be entitled to payment for accrued vacation leave under the provisions of RCW 43.01.041, there must be a total separation from employment with the state government, rather than a transfer between departments or agencies of the state.  The right to transfer accrued vacation leave by an employee transferring from one agency of the state government to another is set forth in RCW 43.01.040, which reads in part as follows:

            "Each subordinate officer and employee of the several offices, departments and institutions of the state government shall be entitled under his contract of employment with the state government to accrue unused vacation leave not to exceed twenty-five working days.   [[Orig. Op. Page 4]]Officers and employees transferring within the several offices, departments and institutions of the state government shall be entitled to transfer such accrued vacation leave to each succeeding state office, department or institution.  * * *"  (Emphasis supplied.)

            It is a fundamental rule of statutory construction which needs no citation of authority that in ascertaining the intention of the legislature in a particular statute, consideration must be given to all of the provisions of the enactment.

            We are of the opinion that the legislature intended that a subordinate officer or employee of the state government can only be paid for his accrued vacation leave upon his separation from employment with the state government under the conditions set forth in RCW 43.01.041, and that those subordinate officers and employees of the state government transferring from one state agency to another would not be so compensated but are entitled to transfer all their accrued vacation leave to the new employing agency.

            We are cognizant of the fact that the portion of RCW 43.01.040 relating to the transfer of accrued vacation leave would appear to be in conflict with RCW 43.09.210.  RCW 43.09.210, in so far as pertinent, reads as follows:

            "All service rendered by, or property transferred from, one department, public improvement, undertaking, institution, or public service industry to another, shall be paid for at its true and full value by the department, public improvement, undertaking, institution, or public service industry  [[Orig. Op. Page 5]] receiving the same, and no department, public improvement, undertaking, institution, or public service industry shall benefit in any financial manner whatever by an appropriation or fund made for the support of another."  (Emphasis supplied.)

            If that portion of RCW 43.01.040, above quoted, relating to the transfer of accrued vacation leave from one state agency to another is to be effective, it either must be reconciled with RCW 43.09.210 or held to have superseded it, in so far as the two statutes are inconsistent.

            InState ex rel. Ferguson v. Superior Court, 140 Wash. 636, the court had before it for determination the question of which of two statutes relating to the giving of notice of general and special elections would be given effect.  One of the statutes drawn in issue was a general statute on the subject of elections, requiring the posting of notice of any special election at least fifteen days previous to the holding of such special election.  The other statute was a special statute, enacted at a later date, relating only to Class A counties and counties of the first class and providing that the posting of notices of any general or special election should be made not less than thirty days prior to such election.  At page 643 of 140 Washington Reports, the supreme court stated the rule quoted from 25 R.C.L. 914 as follows:

            "'If an act is so repugnant to, or so contradictory of, or so irreconcilably in conflict with, a prior act that the two acts cannot be harmonized in order to effect the purpose of their enactment, the later act operates, without any repealing clause, as a repeal of the first to the extent of the irreconcilable inconsistency.  A later statute without any  [[Orig. Op. Page 6]] repealing clause must be held to repeal an earlier one where under no reasonable hypothesis can the provisions of both be construed as coexisting.'"

            Also, seeState v. Becker, 39 Wn. (2d) 94, 97; Lindsey v. Superior Court, 33 Wn. (2d) 94, 99.

            It is evident from a reading of chapter 140, Laws of 1955, that the legislature intended that a person should only be entitled to full pay for accrued vacation leave upon complete separation from his employment with state government, but allowing the state employee to transfer his accrued vacation leave when such employee changes from one employing agency within the state government to another, although not severing his contract of employment with the state government.

            It is apparent that the department or agency of the state government from which the employee transfers to another will benefit in a financial manner from such transfer, by reason of not having to give full pay during the time when the employee is on his vacation, or upon his terminal separation from employment with the state government.  In accord with the rule inState ex rel. Ferguson v. Superior Court, supra, quoted above, we are of the opinion that in so far as RCW 43.09.210 conflicts with that portion of RCW 43.01.040 relating to the transfer of accrued vacation leave between state agencies, it is superseded to that extent.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

STEPHEN C. WAY
Assistant Attorney General