VIOLATION OF OATH OF OFFICE

OFFICES AND OFFICERS ‑- STATE ‑- LEGISLATORS ‑- STRIKES ‑- LABOR ‑- VIOLATION OF OATH OF OFFICE

Extent to which a refusal by a state legislator to cross a picket line of striking state employees in order to attend a legislative session would constitute a violation of the legislator's oath of office.

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                                                                   March 6, 1975

Honorable R. Ted Bottiger
State Senator, 2nd District

Honorable Peter von Reichbauer
State Senator, 30th District
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 23

Dear Sirs:

            By recent letters each of you have asked for our opinion as to whether a state senator or representative would be in violation of his oath of office if he were to be absent from the legislature at any time when it is in session solely by reason of his refusal to cross a picket line established by striking state employees.

            We respond to this question in the manner set forth in our analysis.

                                                                     ANALYSIS

            Although not specifically required by any statute or constitutional provision, you have advised us that it has long been the practice of all legislators, upon assuming office, to take the same oath of office as is prescribed by RCW 43.01.020 for officers of the executive branch of state government.  This oath reads, in pertinent part, as follows:

            ". . .  I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the state of Washington, and that I will faithfully discharge the duties of the office of (name of office) to the best of my ability."  (Emphasis supplied.)

            We have found no case authority by which to evaluate the legal consequences of a member's absence from a legislative session for the reasons stated in your letters.  However, we note that Article II, § 9 of our state constitution contains the following provision:

             [[Orig. Op. Page 2]] "Each house may determine the rules of its own proceedings, punish for contempt and disorderly behavior, and, with the concurrence of two-thirds of all the members elected, expel a member, but no member shall be expelled a second time for the same offense."

            Pursuant to this authorization both houses have, in fact, promulgated rules dealing, specifically, with the question of absences.  Senate Rule 39, which would presumably be applicable in your own case, provides that:

            "No senator shall absent himself from the senate without leave, except in case of accident or sickness, and if any senator or officer shall absent himself his per diem shall not be allowed or paid him, and no senator, officer or attache shall obtain leave of absence or be excused from attendance without the consent of a majority of the members present."

            A similar provision is contained in Rule 16 of the house of representatives, as follows:

            "No member shall absent himself from the service of the house unless he shall have leave from the speaker or be sick and unable to attend."

            In effect, both of these rules impose a duty upon every member of the legislature to be in attendance whenever the house of which he is a member is in session unless he is prevented from doing so by reason of illness or injury or he has been granted leave to be absent by the speaker, in the case of a member of the house, or a majority of the members present, in the case of a senator.  For any breach of that duty he will, presumably, be subject to whatever sanctions or penalties may be imposed by the house in question under the provisions of Article II, § 9,supra.  In addition, it is also possible that he could be charged with a violation of his oath of office, insofar as that oath includes an undertaking to ". . . faithfully discharge the duties of the office . . ." in a recall petition filed against him under Article I, § 33 (Amendment 8) of the state constitution which lists the violation of an elective public officer's oath of office as one of the potential grounds for a recall ‑ except in the case of judges of courts of record.

             [[Orig. Op. Page 3]]   On the other hand if he asks for and obtains leave to be absent in the manner provided for by the applicable rule, the senator or representative would no doubt thereby be freed from any penalties for his absence that might otherwise be imposed by his own colleagues in the legislature under Article II, § 9.  However, whether this would also protect him against a possible recall action is not so certain.  While a bona fide leave of absence granted for a valid reason other than infirmity would most likely offer such protection, we are not able at this time, in view of the absence of any solid judicial precedent, to assure you that a leave granted for the sole purpose of permitting a legislator to avoid crossing a picket line in the event of a state employees' strike would necessarily have this effect.  It is most certainly conceivable that a court, if called upon to review the sufficiency of a recall petition in an action to enjoin its submission to the voters, could hold the fundamental duty of a legislator to attend to his lawmaking functions to have been breached by even an "excused" absence from the session if the reason for the absence was found by the court not be be necessary for bona fide legislative purposes or the likes.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General