OFFICERS, MUNICIPAL ‑- REIMBURSEMENT FOR TRAVEL EXPENSES INCURRED WITHIN OR WITHOUT THE STATE
Where a statute, expressly or by implication, authorizes the governing body of a municipality to order travel by a municipal officer, within or without the state, that officer may also be reimbursed for strictly necessary expenses incurred in such travel.
Opinion to State Auditor, June 25, 1953, AGO No. 53-55-73, supplemented and clarified.
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August 8, 1953
Honorable Cliff Yelle
Olympia, Washington Cite as: AGO 53-55 No. 111
Attention: !ttMr. A. E. Hankins
On July 17, 1953, we advised you that an opinion which we rendered to your office on June 25, 1953, relating to out-of-state travel by municipal officers, would require further refinement and clarification. We considered this necessary because the very general nature of the question presented and the correspondingly broad scope of the answer given might lead, in many situations, to an inaccurate application of the basic rule which we intended to state.
The opinion of June 25, 1953, AGO No. 53-55-73 [[to the State Auditor)]], was based upon the decision inJames v. Seattle, 22 Wash. 654 (1900). The Supreme Court held in that case that a public officer could be reimbursed for expenses only when those expenses were necessarily incurred in the course of official duties, and made it clear that a necessary expense is to be defined as an expense strictly essential to the exercise of the powers of the municipality. This rule is still the law in the state of Washington. But, because of the extensive development and change which has taken place in municipal government since the turn of the century, the correct application of the rule today may differ in many instances from its application at the time of theJames case. For that reason, we address the following observations and analysis to you for guidance in connection with the auditing functions you perform for the municipalities of our state.
James v. Seattle, supra, arose on the following facts: By ordinance, the City of Seattle created a committee to visit several cities, both in Washington and in other states, for the purpose of gathering information concerning waterworks, street paving and lighting, and other municipal matters. Among the members of the committee who made the trip was Mr. James, a councilman.
Upon his return, Mr. James claimed reimbursement for expenses incurred in travel. An ordinance was enacted approving the claim and appropriating general fund money for payment. The city comptroller refused to honor a warrant presented for the claim. Mr. James then brought an action to compel payment, which was finally concluded by the Supreme Court in the cited decision. The court held that the comptroller properly refused to pay the warrant.
[[Orig. Op. Page 2]]
Two reasons may be found in the opinion for that result. The first is this: that if the councilman was in performance of official duty while making the trip, reimbursement of his travel expenses would violate Article II, Section 25 of the State Constitution, which forbids increase in the compensation of a public officer during his term of office. This point was not considered at length, and the constitution is not cited in the opinion. It does not appear to be the primary basis for the holding.
If this was an alternative ground for the decision, it is no longer a correct statement of the law. InState ex rel. Todd v. Yelle, 7 Wn. (2d) 443, the court upheld a statute providing an expense allowance for legislators against an attack based directly upon that constitutional provision. That decision was reached by the court sitting en banc, and presents a careful and detailed analysis of this specific question. It sets forth numerous examples of judicial and legislative interpretation as placed upon Article II, Section 25, and analogus provisions from other states. In providing for the execution of public business the legislature has often acted upon the principle there stated; that reimbursement of travel expenses incurred by public officials is not unconstitutional. Possibly the clearest and most recent example is RCW 43.03.050, as amended by Chapter 259, Laws of 1953:
"The heads of all state departments may prescribe per diem rates of allowance, not exceeding nine dollars in lieu of subsistence and lodging to elective and appointive officials and state employees while engaged on official business away from their designated posts of duty, but within the state of Washington or an adjoining state, and not exceeding twelve dollars per day while engaged in official business elsewhere."
The constitutional provision construed in the Todd decision applies to all public officers, as does the rule of the case.
We conclude that the constitution does not prohibit reimbursement to municipal officials for travel expenses actually and unavoidably paid by them while on official business.
The second ground for the holding in James v. Seattle is set out in the following language:
"The (authority of the city council is) fixed by legislation, and no expenditures of money belonging to the city can be made without express authority, or implied authority by reason of a necessary granted power. Where this authority does not exist, the council is without power to authorize payment of the claim . . ." (22 Wash. at p. 659. Italics added)
[[Orig. Op. Page 3]]
In that case the court apparently found that there was no statutory grant of power to the city, express or implied, to authorize such a trip, or payment of expenses therefor. The absence of such a statute lies at the very center of the decision.
In the followingJames v. Seattle, AGO No. 53-55-73 could not be considered as covering these situations which fall outside the rule of that case. Where a statute exists, empowering a municipal corporation, either expressly or by implication, to provide for travel and expenses, neither the James case nor the opinion could apply.
Reference to the general case law will help to illustrate why it would be unwise and inappropriate to apply the rule of James v. Seattle to every situation involving travel by municipal officers at the present time. Many authorities hold that travel by public officers to conventions is not properly public business: Smith v. Holovtchiner, 101 Neb. 248, 162 N.W. 630; Shanks v. Commonwealth, 219 Ky. 212, 292 S.W. 837;Waters v. Bonvouloir, 172 Mass. 286, 52 N.E. 500;State ex rel. Marani v. Wright, 42 Ohio Cir. Ct. 202; McCaffrey v. City of Boston, 254 Mass. 50, 149 N.E. 659;Lake County v. Neuenfeldt, 78 Ind. App. 566, 136 N.E. 580;Beauchamp v. Snider, 170 Ky. 220, 185 S.W. 868; Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court, 269 Ky. 768, 108 S.W. (2d) 810; Stevens v. Board of Com'rs. of Sedgwick County, 5 Colo. App. 115, 37 Pac. 943.
On the other hand, at least an equal number hold to the contrary:Lindquist v. Abbott, 196 Minn. 233, 265 N.W. 54; Town of Farmington v. Miner, 133 Me. 162, 175 Atl. 219;Tousley v. Leach, 180 Minn. 293, 230 N.W. 788;Louisville & Jefferson County Board of Health v. Steinfeld, 308 Ky. 824, 215 S.W. (2d) 1011;Madden v. Riley, (Cal.) 128 P.(2d) 602;City of Roseville v. Tulley, 55 Cal. App. (2d) 601. See, also,Green v. Kitchin, 229 N.C. 450, 50 S.E. (2d) 545, involving salary and expenses of police officer attending National Police Academy.
There is an apparent conflict of authority, but a careful examination of the cases proves it to be misleading. Close study of the first cited group of decisions discloses two characteristics: almost all were decided a great many years ago; and many have been overruled, although they remain in the earlier annotations and texts. The course of decision in Kentucky is typical. Four early cases, one a legal landmark, forbade payment of such travel expenses. They no longer express the law of that state, which has been resettled by their supreme court inLouisville & Jefferson County Board of Health v. Steinfeld, supra.
The obvious lesson to be drawn from this prevailing trend in the case law is that changing conditions have dictated a different judicial attitude toward travel by public officers; and this fact is clearly recognized in the decisions. The evolution of great municipal corporations, and the growth of other, more specialized municipal units, has forced public officials to become expert in highly complicated areas of governmental [[Orig. Op. Page 4]] service. New developments occur almost constantly. The skills and information needed by these officials for the efficient performance of their duties very often can be obtained only by study of methods and procedure already worked out in other cities. Some of these problems have been subjected to careful and intensive analysis by trained experts, who may be unable to visit the city which needs their advice. Conventions of officers concerned with particular phases of municipal government frequently fulfill similar needs. Many of the most beneficial improvements in municipal operation have resulted directly from the exchange of ideas at such meetings.
It could hardly be denied that one of the most important duties of any public official is to utilize whatever means he can, including the knowledge and experience of others, for the more efficient and economical administration of his office. If such assistance and information can be made available only by travel and personal consultation, then we believe that such travel may properly be considered public business. Any other rule would seriously hamper a conscientious official in his efforts to stay abreast of important developments directly affecting his ability to serve the public.
Our legislature has been aware of this problem. For an example of the solution it has provided in numerous cases, we may take RCW 53.08.160, relating to port districts. We think this statute permits a port district to authorize travel within or without the state, and payment of expenses, for purposes very similar to those described in theJames case. Various other statutes could be cited which grant virtually the same power to different types of municipal corporations. As we have pointed out, such statutes do not violate the constitution. They serve to fill a pressing need. In the presence of a law of this kind, theJames case offers no barrier to travel by municipal officers, either within or without the state, nor to payment of expenses which are strictly necessary to authorized travel. The same must be said of AGO No. 53-55-73.
Notwithstanding what has been said, we know that the authority to travel upon public business is all too often perverted to the personal benefit and enjoyment of the unscrupulous official. As the Supreme Court of Minnesota said, in Tousley v. Leach,supra:
"That there are abuses connected with the expenditure of public money in traveling to meetings, conferences, conventions, and public hearings is not to be questioned. Traveling at public expense gives a thrill and perhaps carries a sort of prestige. Men like it. It is to be hoped that unjustifiable running about the country with pleasure the real end and public service the excuse is lessening. So much has the practice prevailed without just cause that the word 'junket,' not bad in its [[Orig. Op. Page 5]] derivation or early use, has come to be applied with a suggestion of shame and as indicative of a petty use of public money * * *" (230 N.W. at p. 789)
Although the holding ofJames v. Seattle may not apply in all cases, the underlying principle of the decision stands as a stern warning whenever travel expenses must be paid:
"Necessary expenses must be such as are strictly essential to municipal purposes." (22 Wash. at p. 658)
The true difficulty lies not in determining when travel is a lawful incident to the conduct of municipal affairs, but rather in the prevention of its abuse. It is the solemn duty of every body which may authorize such travel to guard constantly against misuse of the privilege. Such trips should be authorized in advance whenever possible. Travel orders should be spread formally upon the record by resolution; together with a finding that the travel will be of substantial benefit to the public, either by the accomplishment of specific business, or by assistance to the official concerned on matters which directly involve the functions of his office.
First, that the rule of James v. Seattle, as restated in AGO No. 53-55-73, is to be applied only when the particular facts of that case arise;
Second, that where express or implied statutory authority exists, neitherJames v. Seattle nor our opinion forbids reimbursement for travel expenses incurred in the performance of municipal functions, within or without the state; and
Third, that when such travel is authorized, the governing body of the municipal corporation must decide in each case whether or not the travel expense constitutes a proper charge against municipal funds.
Our opinion of June 25, 1953, AGO No. 53-55-73, must be read in conjunction with, and considered as clarified by, the views expressed herein.
Very truly yours,
A. J. HUTTON, JR.
Assistant Attorney General