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AGO 1955 No. 97 - June 13, 1955
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Don Eastvold | 1953-1956 | Attorney General of Washington

SCOPE OF RESPONSIBILITY OF GOVERNOR'S ADVISORY COMMITTEE

1. Salaries of all Directors, Members of Boards and Commissions subject to appointment by the Governor are included in the recommendatory duties of the Governor's Advisory Committee on Salaries.

2. State officers salaries may not be increased or diminished during their term of office.   The salaries of State officers having no term of office may be increased or diminished by proper authority at any time during their employment.

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                                                                   June 13, 1955

Honorable David E. Lockwood
Chairman, Governor's Advisory Committee
1069 Capitol Way, Box 688
Olympia, Washington                                                                                                                Cite as:  AGO 55-57 No. 97

Dear Mr. Lockwood:

            By your letter previously acknowledged, you have requested an official opinion on the following questions:

            1. Does the authority of the Governor's Advisory Committee on Salaries extend to directors and members of boards and commissions subject to appointment by the Governor, whose salaries and duties are now set by laws not specifically amended by Substitute Senate Bill 519?

            2. Are there any constitutional inhibitions preventing the increase or decrease of the salaries of the officers covered by such Bill, if such officers are serving specific terms?

            3. Are there any constitutional inhibitions preventing the increase or decrease of the salaries of the officers covered by such Bill, when such officers are serving at the pleasure of the Governor?

             [[Orig. Op. Page 2]]

            Questions No. 1 and 2 are answered in the affirmative.

            Question No. 3 is answered in the negative.

                                                                     ANALYSIS

            1. The authority of the Governor's Advisory Committee on Salaries is actually the responsibility for making recommendations to the Governor, after consideration of which the Governor may fix the salaries of all "directors of the several departments and members of the several boards and commissions who are subject to appointment by the Governor".  The above wording as quoted is taken from § 1, chapter 340, Laws of 1955, (Substitute Senate Bill No. 519).  This section is written in such a way that statutory enactments not specifically amended by chapter 340, which makes some specific salary limitations, would necessarily be in direct conflict with said Senate Bill.  Statutory repeal by implication is not favored in the law.  However, the exception to the general rule permits a repeal by implication of the act:

            "1. Covers the entire subject matter of the earlier legislation;

            "2. Is complete within itself;

            "3. Is evidently intended to supersede the prior legislation on the subject; or

            "4. If the two acts are so clearly inconsistent with and repugnant to each other that they cannot by fair and reasonable construction be reconciled and both be given effect."

            State ex rel. Reed v. Spanaway Water Dist., 38 Wn. (2d) 393 at 397.

            It is our opinion that chapter 340 covers the entire subject, is complete in itself, was clearly intended to supersede the prior legislation on the subject and that any act setting officers salaries in conflict with the 1955 act would be unreconcilable.

             [[Orig. Op. Page 3]]

            We, therefore, conclude that the Governor's Advisory Committee on Salaries has the responsibility for advising the Governor as to salaries for all directors of the several departments and members of the several boards and commissions who are subject to appointment by the Governor.

            2. There are constitutional inhibitions preventing the increase or decrease of the salaries of officers covered by chapter 340 if such officers are serving specific terms.

            Article II, § 25, provides that

            "The legislature shall never grant any extra compensation to any public officer, agent, servant, or contractor, after the services shall have been rendered, or the contract entered into,nor shall the compensation of any public officer be increased or diminished during his term of office."  (Emphasis supplied)

            Amendment 20 to the Washington State Constitution states in part that:

            "The compensation of any state officer shall not be increased or diminished during his term of office, * * *"

            The constitutional prohibition as it applies to executive branches under a legislative determination was considered inState ex rel. Bergin v. Yelle, 11 Wn. (2d) 151 and the court stated on page 153

            "* * * Obviously, if the legislature is without power to increase or diminish the salary of a state officer during his term of office, it cannot delegate such power to the governor."

            As to the legislature's power to increase a salary during the term of the officer, see State ex rel. Bagley v. Clausen, 111 Wash. 254.  That case held that the legislature had no such power under our constitution.  Therefore, the salary of those officers serving specific terms cannot be increased  [[Orig. Op. Page 4]] or decreased during the terms which they are serving.

            3. Article II, § 25 and Amendment 20 dealing specifically with this subject prevent any increases and decreases during the office holders' "term of office."  This wording requires that we analyze the meaning of "term of office."  In Ballentine's Law Dictionary, 1948 Edition, the following definition is found:

            "Term of office is a phrase used to describe the time during which one regularly chosen by election or appointment and inducted into office is entitled to hold the same, perform its functions and enjoy its privileges and emoluments.  (28 Cyc. 423, quoting Smith Mun. Corp. § 166.)  See State v. Knight,‑-Mont.‑-Pac. Rep. 267 [[76 Mont. 71, 245 Pac. 267]]."

            The supreme court of the state of Washington defined "term of office" in State ex rel. Hays v. Twitchell, 9 Wash. 530 at 533:

            "'Term,' as applied to time, signifies a fixed period, a determined or prescribed duration.  25 Am. & Eng. Enc. of Law, p. 949.  A term of office is a fixed period prescribed for holding office.  People v. Brundage, 78 N.Y. 403.  The word 'term' when used with reference to the tenure of office ordinarily refers to a fixed and definite time.  Mechem, Pub. Officers, § 385.  In fact, the expression 'term of office' so clearly defines itself, the words used are so well understood, and their meaning so generally accepted, that, is useless to attempt to further define it."

            The above definition was approved inState ex rel. Meredith v. Tallman, 24 Wash. 426.

            From these definitions we believe that it is clear that one who has no fixed  [[Orig. Op. Page 5]] period of employment or a prescribed duration of employment is not serving a term of office.  For that reason it is our opinion that the constitutional prohibitions do not extend to any employees or officers of the state who are serving at the pleasure of the Governor.

Very truly yours,

DON EASTVOLD
Attorney General

 DON MILES
Assistant Attorney General

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