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AGLO 1980 No. 30 - October 27, 1980
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTY ‑- TRANSPORTATION AUTHORITY ‑- COMPENSATION ‑- COMPENSATION OF MEMBERS OF GRAYS HARBOR TRANSPORTATION AUTHORITY

(1) A county transportation authority established pursuant to chapter 36.57 RCW may not fix a rate of compensation for its members which is less than that fixed by RCW 36.57.030.

(2) Consideration of several related questions arising from previous resolutions relating to the compensation payable to members of the Grays Harbor County Transportation Authority.

                                                                 - - - - - - - - - - - - -

                                                                October 27, 1980

Honorable Curtis M. Janhunen
Prosecuting Attorney
Grays Harbor County
P.O. Box 550
Montesano, Washington 98563                                                                                                               Cite as:  AGLO 1980 No. 30

Dear Sir:

            By letter previously acknowledged, you submitted certain material to us concerning the Grays Harbor County Transportation Authority and, in particular, directed our attention to two resolutions purporting to set the compensation of its members at levels less than specified in RCW 36.57.030.  With reference thereto, you then asked for our opinion on several questions which we paraphrase (slightly) as follows:

            (1) May a county transportation authority established pursuant to chapter 36.57 RCW fix a rate of compensation for its members which is less than that fixed by RCW 36.57.030?

            (2) If not, is the Grays Harbor County Transportation Authority now required to pay claims for additional compensation submitted by former members for meetings which occurred between November, 1974 and the present time?

             [[Orig. Op. Page 2]]

            (3) If the Authority is required to pay any or all of those claims, does RCW 36.57.030 require the members to be paid $100 per meeting or $100 per day?

            (4) If compensation must be paid for past and future meetings, are the county commissioners of Grays Harbor County who served (or now serve) as members of the Authority to be considered "full-time" for that purpose?

            We answer your first question in the negative and respond to your other three questions in the manner indicated in our analysis below.

                                                                     ANALYSIS

            The Grays Harbor County Transportation Authority is a public transportation authority organized pursuant to chapter 36.57 RCW.  The section of that chapter which is most pertinent to your questions is RCW 36.57.030 which establishes the membership of such an authority and the compensation to be paid to those members as follows:

            "Every county which undertakes the transportation function pursuant to RCW 36.57.020 shall create by resolution of the county legislative body a county transportation authority which shall be composed as follows:

            "(1) The elected officials of the county legislative body, not to exceed three such elected officials;

            "(2) The mayor of the most populous city within the county;

            "(3) The mayor of a city with a population less than five thousand, to be selected by the mayors of all such cities within the county;

            "(4) The mayor of a city with a population greater than five thousand, excluding the most populous city, to be selected by the mayors of all such cities within the county: PROVIDED, HOWEVER, That if there is no city  [[Orig. Op. Page 3]] with a population greater than five thousand, excluding the most populous city, then the sixth member who shall be an elected official, shall be selected by the other two mayors selected pursuant to subsections (2) and (3) of this section.

            ". . .

            "Any member of the authority who is a mayor or an elected official selected pursuant to subsection (4) above and whose office is not a full time positionshall receive one hundred dollars for each day attending official meetings of the authority"  (Emphasis supplied)

            Notwithstanding this last quoted portion of the statute, however, you have advised us that shortly after its formation the Grays Harbor County Transportation Authority, by a resolution adopted on September 12, 1974, stated that:

            ". . . the undersigned members of the Grays Harbor County Transportation Authority do hereby waive any right to compensation for time spent in fulfilling their responsibilities as members of the Authority."1/

             Then, on March 4, 1980, the current members of the Authority passed another resolution purporting to establish their compensation in the amount of ". . . fifty dollars for each and every official Authority meeting attended . . ."

            Question (1):

            Your first question involves the legal force and effect of the foregoing resolutions in view of the statutory language in RCW 36.57.030 which we have above underscored.  We are of the opinion that, given the manner in which the legislature has expressed itself in that portion of the statute, a county public transportation authority may neither waive the compensation payable to its members nor establish a different rate or method of compensation.

             [[Orig. Op. Page 4]]

            We start with the familiar proposition that, in the absence of a specific provision to the contrary, a municipal corporation or similar public agency has only those powers expressly granted by the legislature or necessarily implied therefrom.  See,e.g.,State ex rel. Bain v. Clallam County Board of County Commissioners, 77 Wn.2d 542, 463 P.2d 617 (1970) and Lauterbach v. Centralia, 49 Wn.2d 550, 304 P.2d 656 (1956).  In the case of a county public transportation authority, however, the legislature has flatly provided that certain of its members2/ ". . . shall receive one hundred dollars for each day attending official meetings of the authority."  RCW 36.57.030, supra.

            By way of contrast, in various other instances the legislature has left it up to the particular municipal governing body to set its compensation within statutory limits.  See,e.g., RCW 57.12.010 which relates to the compensation of water district commissioners and provides, in pertinent part, as follows:

            ". . .

            ". . . A district shall provide by resolution for the payment of compensation to each of its commissioners at a rate not exceeding forty dollars for each day or major part thereof devoted to the business of the district: . . ."

            And, see also, the similar language in RCW 56.12.010 (sewer district commissioners) and in RCW 70.44.050 (public hospital district commissioners.)

            We likewise would direct your attention, for comparative purposes, to RCW 53.12.260 and RCW 53.12.265 concerning the compensation of port district commissioners.  The first of those two statutes sets a certain maximum compensation and the second then specifically provides that a commissioner may waive all or any portion of his compensation.  Similarly, in the case of fire protection district commissioners, RCW 52.12.010 first fixes the compensation of those commissioners but, then, again, expressly authorizes waivers of that statutory compensation.  Conversely, in the case of RCW 36.57.030, supra, the legislature, in providing for the compensation of members of a county  [[Orig. Op. Page 5]] public transportation authority, has neither granted discretion to those members in setting their own compensation nor has it provided for the possibility of a waiver of compensation.

            The significance of these distinctions is further emphasized by a long line of cases in which the Washington Supreme Court has held that in the absence of an authorizing statute, it is contrary to public policy for a public officer or employee to agree to waive all or any portion of his salary, wages or compensation.  See,e.g., Malcolm v. Yakima County Consolidated School District No. 90, 23 Wn.2d 80, 159 P.2d 394 (1945); Chatfield v. Seattle, 198 Wash. 179, 88 P.2d 582 (1939);State ex rel. Ross v. King County, 191 Wash. 340, 71 P.2d 370 (1937) and other cases cited therein; and see also, 63 Am.Jur.2d, Public Officers and Employees, § 393; 160 A.L.R. 490, 118 A.L.R. 1458 and 70 A.L.R. 792, together with AGLO 1979 No. 40 (copy enclosed) dealing with the compensation of the state adjutant general and discussing the same cases and other authorities noted above.

            Based both on this principle of public policy and the legislative pattern noted above we must, therefore, answer your first question in the negative.  A county public transportation authority established pursuant to chapter 36.57 RCW may not, by resolution, fix a rate of compensation for its members which is less than that established in RCW 36.57.030.

            Question (2):

            Your second question assumes the foregoing answer to your first inquiry and asks whether, under the above‑described factual circumstances, the Grays Harbor County Transportation Authority is now required to pay claims for additional compensation submitted by former members for meetings which occurred between November, 1974 and the present time.

            Because, under our answer to your first question, the two resolutions involved (i.e., the 1974 and 1980 resolutions) were not statutorily authorized, it follows that neither of those resolutions, by their own force and effect, may be invoked to bar payment of any such claims.  But that is not to say, however, that the Authority is now absolutely liable to accept and pay any and all claims submitted by its present and former members.  To the contrary, there may well be other legal or equitable defenses to at least some of the claims which might be submitted.

             [[Orig. Op. Page 6]]

            First, as a legal defense, we would direct your attention to the statute of limitations possibilities under chapter 4.16 RCW.  Since the type of relief represented by the claims in question is not otherwise provided for, the two-year statute of limitations set forth in RCW 4.16.130 would appear to apply and thus provide the Authority with a legal defense as to any claim relating back to a more distant period of time.

            In addition, even within the two-year period not covered by the statute, there could well be an equitable defense which the Authority could assert, depending upon all of the relevant facts in each particular case.  Specifically, we have in mind the possibility of an equitable estoppel argument in the case of those members who not only accepted the lesser (or zero) rate of compensation but also affirmatively voted for the resolution or resolutions involved.  The elements of equitable estoppel have been defined in recent Washington case law as follows:

            (1) An admission, statement or act that is inconsistent with the claim after it is asserted;

            (2) Action by the other party on the faith of such admission, statement or act, and

            (3) Injury to such other party from allowing the first party to contradict or repudiate such admission, statement or act.  Finch v. Matthews, 74 Wn.2d 161, 443 P.2d 833 (1968).

            The first of these three elements would seem in all probability to be present here.  On the other hand, we are not certain whether, under the limited facts you have given us together with any other facts that might be presented, a court would find the other two elements to have been established.  And, as with any such equitable defense, the applicability of the estoppel doctrine would be for the court itself to determine upon examination of all pertinent facts.

            Thus, in summary, our response to your second question is neither unequivocally in the affirmative nor the negative.  The answer, instead, depends on the facts of each case as related to the possibility of either a legal (statute of limitations) defense or some similar kind of equitable defense based upon the above‑noted estoppel principles or the like.  We would, however, suggest that any and all such possibilities be carefully explored before any claim for additional compensation is honored as a consequence of our earlier disposition of your first question.

             [[Orig. Op. Page 7]]

            Question (3):

            Your third question involves the method of computing the compensation which is payable under RCW 36.57.030, supra.  As above quoted, this statute speaks of receiving

            ". . . one hundred dollars for each day attending official meetings of the authority."

            Your inquiry, as we understand it, is whether this statutory language requires that the eligible members of a county transportation authority be paid one hundred dollars (a) per meeting or (b) per day.

            In our opinion the proper measuring unit is a day and not a meeting.  Thus, for example, if a given meeting were to continue for several days, an eligible member attending that meeting would be entitled to compensation at the rate of one hundred dollars for each day of the meeting.  But if, instead, two or more meetings were held during a single day, that member would be entitled only to one hundred dollars for that day and no more.

            Once again, a comparison of RCW 36.57.030, supra, with certain other statutory provisions is helpful.  See,e.g., RCW 53.12.260 which relates to the compensation of port district commissioners and provides that those commissioners:

            ". . . shall receive up to forty dollars per day for each day or portion thereof spent (a) in actual attendance at official meetings of the port district commission, or (b) in performance of other service in behalf of the district: . . ."

            Similarly, under RCW 56.12.010, a commissioner of a sewer district (if the district so provides) may receive up to:

            ". . . forty dollars for each day or major part thereof devoted to the business of the district: . . ."

            Thus, as in the case of members of a county transportation authority, a commissioner of a sewer district or port district also has his compensation measured by the days he spends  [[Orig. Op. Page 8]] on official business and not strictly by the number of meetings he attends.3/

             Question (4):

            Finally, again with reference to the concluding paragraph of RCW 36.57.030,supra, you have asked whether those county commissioners of Grays Harbor County who have served (or currently serve) as members of the county public transportation authority are to be considered "full time" for purposes of compensation.

            Once again, the pertinent statutory language (repeated for ease of reference) reads as follows:

            ". . .

            "Any member of the authoritywho is a mayor or an elected official selected pursuant to subsection (4) above and whose office is not a full time position shall receive one hundred dollars for each day attending official meetings of the authority."  (Emphasis supplied)

            In view of the underscored language of this statute, however, we find it unnecessary to answer the question as you have thus framed it.  For, as we read the statute in its entirety, those members of a county public transportation authority who are elected officials solely by virtue of their service on a board of county commissioners (or other county legislative authority) are not entitled to compensation at all‑-regardless of the "full time" versus "part time" nature of their elective positions.

            Our point, quite simply, is that so much of RCW 36.57.030 as provides for the payment of compensation to members of a county public transportation authority relates only to those members who are either a mayor or some other elected officialselected pursuant to subsection (4) of the statute‑-which (also repeated for ease of reference) provides that the membership of an authority shall include:

             [[Orig. Op. Page 9]]

"(4) The mayor of a city with a population greater than five thousand, excluding the most populous city, to be selected by the mayors of all such cities within the county:  PROVIDED, HOWEVER, That if there is no city with a population greater than five thousand, excluding the most populous city, then the sixth member who shall be an elected official, shall be selected by the other two mayors selected pursuant to subsections (2) and (3) of this section."

            County commissioners, on the other hand, serve as members of a county public transportation authority by virtue of subsection (1) of RCW 36.57.030 which states that such an authority shall be composed of:

            "(1) The elected officials of the county legislative body, not to exceed three such elected officials;"

            This completes our consideration of your questions.  It is hoped that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

JAMES K. PHARRIS
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/This resolution was apparently signed by all of the original members of the Authority.

2/But see our response to question (4), below, with regard to the scope of this provision relating to compensation.

3/In this respect, the language of the statutes being compared is similar rather than, as related to the amount of compensation payable, being dissimilar as above noted.

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