OFFICES AND OFFICERS ‑- STATE ‑- WASHINGTON STATE HUMAN RIGHTS COMMISSION ‑- COMPENSATION FOR SERVICE AS MEMBERS OF HEARING TRIBUNAL
The Washington State Human Rights Commission has the power to compensate persons for service as members of hearing tribunals appointed under the law against discrimination, including members of the commission itself who serve as members of a hearing tribunal in accordance with RCW 49.60.250.
However, because of Article XXX, § 1, (Amendment 54) of the state constitution, the compensation of tribunal members who are also commissioners cannot be increased during their respective terms of office as members of the Human Rights Commission.
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November 29, 1977
Honorable Bill W. Hilliard
Human Rights Commission
402 Evergreen Plaza Building
Olympia, Washington 98504 Cite as: AGLO 1977 No. 54
By letter previously acknowledged you have requested an opinion of this office on the following questions:
"1. Does the Washington State Human Rights Commission have the power to compensate persons for service as members of hearing tribunals appointed under the law against discrimination?
"2. If so, can this include members of the commission who serve as members of a hearing tribunal?
[[Orig. Op. Page 2]]
"3. Does the executive conflict of interest act, chapter 42.18 RCW, or other law, prevent commissioners from being compensated for service as members of the hearing tribunals?"
We answer your first two questions in the affirmative and your third in the manner set out in our analysis.
By its enactment of the law against discrimination, chapter 49.60 RCW, the legislature created the Washington State Human Rights Commission and gave it "general jurisdiction and power"1/ to eliminate discrimination and prevent unfair practices as defined in the law.2/ One of the authorized means of doing this is to process complaints of unfair practices. If a complaint is not dismissed for lack of "reasonable cause" after investigation or is not settled through conciliation it is then to be administratively adjudicated before a three‑member hearing tribunal appointed by the chairman of the commission. This tribunal is to be composed either of "members of the [commission]3/ or of a panel of hearing examiners." RCW 49.60.250. In practice, however, you have advised us that:
". . . hearing tribunals have been composed of citizen volunteers with commissioners occasionally serving. . . ."
In addition you have informed us that:
"Tribunal members have been paid per diem (subsistence) and travel expenses pursuant to general statutes (RCW 43.03.050 and 43.03.060) but have never been compensated. The reason why tribunal members have never been compensated has been lack of funds for this purpose, not, in the view of the Commission, lack of authority."
[[Orig. Op. Page 3]]
In response to a request from the commission, however, the 1977 legislature included funds for compensating tribunal members in the state budget for the 1977-79 biennium. The commission, then, in July, adopted the following regulation:
"WAC 162-08-212 COMPENSATION AND EXPENSES OF TRIBUNAL MEMBERS. (1)Compensation. Tribunal chairpersons shall be compensated for their services at the rate of $25.00 per hour and tribunal members other than the chairperson shall be compensated at the rate of $15.00 per hour. Alternate tribunal members shall be compensated at the rate of $15.00 per hour for any time expended in attendance with the tribunal at the direction of the chairperson of the commission."
Your first question is whether the commission is correct in its belief that it has the power to compensate tribunal members. The governing statute, in our opinion, is RCW 49.60.120 which provides, in material part, as follows:
"The [commission] . . . shall have the functions, powers and duties:
"(1) To appoint an executive secretary and chief examiner, and such investigators,examiners, clerks, and other employees and agents as it may deem necessary, fix their compensation within the limitations provided by law, and prescribe their duties.
". . ." (Emphasis supplied)
An initial question is whether RCW 49.60 120(1), supra, applies at all to hearing tribunal members because of the fact that under RCW 49.60.250 they are appointed by the chairman of the commission, acting alone, and not by the whole commission. A negative answer to that question, however, would render meaningless the word "examiners"4/ and would be contrary to the [[Orig. Op. Page 4]] administrative and legislative understanding next discussed. We therefore reject such an interpretation which, of course, would require the conclusion that no tribunal members can be compensated, whether or not they are also members of the commission.
Any doubt that we might otherwise have as to the adequacy of RCW 49.60.120(1) to authorize the compensation of tribunal members is removed by two facts: First, the commission's regulation (WAC 162-08-212,supra) is itself an authoritative ruling on the point by the agency with statutory authority to adopt rules to carry out the provisions of the law against discrimination. RCW 49.60.120(3). See also,Lindsay v. City of Seattle, 86 Wn.2d 698 at 711-712, 548 P.2d 320 at 329 (1976); cf. AGO 1976 No. 17 [[to Alan Bluechel, State Senator, on September 28, 1976]]. Second, our review of the appropriate budget documents confirms your assertion that the legislature did intend to provide the commission with funds to compensate hearing tribunals this biennium.5/ We therefore answer your first question in the affirmative. The amount of compensation to be paid is to be fixed by the commission, within the limitations of its appropriation.
[[Orig. Op. Page 5]]
Your second question is whether the power to compensate hearing tribunal members includes members of the Human Rights Commission itself who serve as tribunal members;i.e., whether that power was intended by the legislature to extend to all tribunal members or only to those tribunal members who are not commissioners.6/
Once again the statute on appointments and compensation (RCW 49.60.120, supra) reads as follows:
"The [commission] . . . shall have the functions, powers and duties:
"(1) Toappoint an executive secretary and chief examiner, and such investigators, examiners, clerks, and other employees and agents as it may deem necessary, fix their compensation within the limitations provided by law, and prescribe their duties.
". . ." (Emphasis supplied)
The statute does not authorize the human rights commissioners to compensate themselves as commissioners. Commissioners do not appoint themselves; they are appointed by the Governor. RCW 49.60.050. Nor has the legislature provided directly for the compensation of commissioners. They are authorized subsistence and travel expenses only. RCW 49.60.070. Therefore, it necessarily follows that the commissioners, as such, serve without compensation. But the question presented is whether they may nevertheless be compensated when, as authorized by RCW 49.60.250,supra, they serve as members of a hearing tribunal.
The first issue to be considered is whether the word "examiners" in RCW 49.60.120(1) is tied only to the term "hearing examiners" in RCW 49.60.250, thus manifesting an intention to exclude from compensation those tribunal members who are commissioners. RCW 49.60.250 says that:
". . . The chairman of the [commission] . . . shall thereupon appoint a hearing tribunal of three persons, who shall be members of the [commission] . . . or a panel of hearing examiners . . ."
[[Orig. Op. Page 6]]
However, the authority to compensate extends to "other employees and agents," as well as to examiners and the other named positions and classes of appointees. The literal meaning of RCW 49.60.120(1), supra, as we have already indicated, is that the commission can compensate all persons whom it can appoint. And, as we have already concluded, this includes hearing tribunal members (reserving for the moment the status of those who are commissioners), although tribunal members are appointed by the chairman of the commission, acting alone.
We turn, then, to the more crucial inquiry which, as we view it, is whether commissioners perform a separate function when they serve as tribunal members. Or, instead, is their performance as tribunal members merely an exercise of their functions as human rights commissioners? The answer to this question requires a somewhat more detailed examination of the nature of a hearing tribunal and its relationship to the commission.7/
The following language from RCW 49.60.2508/ is all that the law against discrimination says about the appointment of hearing tribunals:
". . . The chairman of the [commission] . . . shall thereupon appoint a hearing tribunal of three persons, who shall be members of the [commission] . . . or a panel of hearing examiners, acting in the name of the [commission] . . ., to hear the complaint and shall cause to be issued and served in the name of the [commission] . . . a written notice . . . requiring the respondent to answer the charges of the complaint at a hearing before such tribunal, at a time and place to be specified in such notice.
". . . No member or employee of the [commission] who previously made the investigation or caused the notice to be issued shall participate in [[Orig. Op. Page 7]] the hearing except as a witness, nor shall he participate in the deliberations of the tribunal in such case. . . ."
From this we see that:
(1) A hearing tribunal "act[s] in the name of the [commission]."
(2) Commissioners are not automatically tribunal members; they must be appointed to the position.
(3) Commissioners cannot be appointed to a tribunal by the commission, or by themselves individually. Tribunal members are appointed by the chairman of the commission. The chairman is not eligible to serve as a tribunal member because he or she also causes the notice of hearing to be issued.
(4) Commissioners have no duty to serve as tribunal members; they are simply eligible for appointment.
(5) It is unlawful for a commissioner who has not been appointed to a tribunal to participate in the deliberations of the tribunal, or to participate in the hearing except as a witness.
The functions of a hearing tribunal are then spelled out in later paragraphs of RCW 49.60.250 as follows:
". . .
"If, upon all the evidence, the tribunal finds that the respondent has engaged in any unfair practice it shall state its findings of fact and shall issue and file with the [commission]. . . and cause to be served on such respondentan order requiring such respondent to cease and desist from such unfair practice and to take such affirmative action, including, (but not limited to) hiring, reinstatement or upgrading of employees, with or without back pay, an admission or restoration to full membership rights in any respondent organization, or to take such other action as, in the judgment of the tribunal, will effectuate the purposes of this chapter, and including a requirement for report of the matter on compliance.
[[Orig. Op. Page 8]]
"If, upon all the evidence, the tribunal finds that the respondent has not engaged in any alleged unfair practice, it shall state its findings of fact and shall similarly issue and file an order dismissing the complaint.
". . ." (Emphasis supplied)
Thus, in summary, the tribunal determines issues of fact, applies the law, judges whether unfair practices have been committed, and issues an order disposing of the case. The tribunal exercises its own discretion as to the appropriate remedy when unfair practices are found. The order of a tribunal is issued to the parties andfiled with the commission. Thus, the tribunal's product is not the commission's document until it is filed with the commission.
The rules of the commission (chapter 162-08 WAC) also bear upon the functions of a tribunal. Thus, we note that tribunal members can be removed only for cause on motion of a party made before the tribunal has made any ruling involving discretion. WAC 162-08-215, 162-08-217. The rules also specify that the commission is a party to the hearing before the tribunal.9/ This is so because RCW 49.60.250 provides, in its second paragraph:
". . . The case in support of the complaint shall be presented at the hearing by counsel for the [commission] . . .:"
The commission is not empowered to review or revise the decision or order of the hearing tribunal. Instead, appeal from a tribunal order is to the superior court under the administrative procedure act, RCW 34.04.130.
From all of this it appears that a hearing tribunal, once appointed, exists independently of the commission and its members and is not subject to any direction or correction by them. We therefore conclude that the position of hearing tribunal member is separate from the position of human rights commissioner.
[[Orig. Op. Page 9]]
Commissioners are eligible for appointment as tribunal members, but they are under no duty to accept the appointment. When commissioners serve as tribunal members their actions are those of the tribunal and not of the Human Rights Commission.10/ Accordingly, it follows that the compensation of a person serving as a hearing tribunal member should be determined for that position without regard to whether the person is compensated for a separate office held at the same time. And, therefore, it is our opinion that the authority to compensate hearing tribunal members for their service as such may include commissioners serving as tribunal members to the same extent as other tribunal members are now compensated under WAC 162-08-212, supra.
Turning to your third question, we first find nothing in the executive conflict of interest law (chapter 42.18 RCW) which would in any way prevent the payment of compensation to human rights commissioners for their service as hearing tribunal members.
It is most certainly true that this law does prohibit certain conflicts of interest in the executive branch of state government. Moreover, both the Human Rights Commission and its hearing tribunals are "agencies" covered by the act. See RCW 42.18.030. And, under the special definition in RCW 42.18.130, both the commissioners themselves and human rights tribuanl members are "state employees" for purposes of the act. However, the executive conflict of interest act does not prevent the service of commissioners as tribunal members. This, as we have seen, is expressly authorized by RCW 49.60.250. In addition, an employee's interest in his or her own compensation from the state itself is simply not the kind of interest that this act was intended to regulate. See RCW 42.18.190, 42.18.010.
There is, however, another "law" that could prevent, temporarily, the compensation of hearing tribunal members who are commissioners. We have reference to the constitutional prohibition against raising the compensation of certain officers during their terms of office. Washington Constitution, Article XXX, § 1, (Amendment 54) reads as follows:
[[Orig. Op. Page 10]]
"The compensation of all elective and appointive state, county, and municipal officerswho do not fix their own compensation, . . . may be increased during their terms of office to the end that such officers and judges shall each severally receive compensation for their services in accordance with the law in effect at the time the services are being rendered.
"The provisions of section 25 of Article II (Amendment 35), . . . insofar as they are inconsistent herewith are hereby repealed." (Emphasis supplied)
The referenced Article II, § 25 says:
". . . nor shall the compensation of any public officer be increased or diminished during his term in office. . . ."
The effect of this constitutional provision is thus to limit the former general prohibition against raising the compensation of a public officer during his or her term so that it now applies only to officers who "fix their own compensation."
Article II, § 25 (as now limited by Amendment 54) applies to all state officers, not just to legislators. City of Everett v. Johnson, 37 Wn.2d 505, 224 P.2d 617 (1950). Also, providing compensation for the first time for an office that was previously uncompensated is an "increase" in compensation for purposes of the constitutional provision. State ex rel. Livingston v. Ayer, 23 Wn.2d 578, 161 P.2d 429 (1945). Adding new duties does not alone justify increasing the compensation for an office. AGO 53-55-137 [[to T. Hall, State Senator, on September 22, 1953]]. An officer is covered by the prohibition if he or she is a voting member of a body of officers who fix the compensation. AGO 1968 No. 36 [[to Ernest H. Campbell, Associate Director, Government Research and Services, on December 5, 1968]]. The courts have not hestitated to strike down schemes, including the creation of dual offices, that were designed to get around the prohibition. State ex rel. Troy v. Yelle, 27 Wn.2d 99, 176 P.2d 459 (1947); State ex rel. Livingston v. Ayer, 23 Wn.2d 578, 161 P.2d 429 (1945).
We do not see in the present circumstances any element of subterfuge to avoid the effect of the foregoing constitutional prohibition against increasing compensation during a term of office. As we understand it, the purpose of the commissioners and the legislature in now providing compensation for tribunal members was to insure an adequate supply of tribunal memberswho are not commissioners. The issue is simply whether the [[Orig. Op. Page 11]] constitution prevents tribunal members who are commissioners from receiving the new compensation during their respective terms of office as commissioners because they are members of the same body which fixed the compensation.
Tribunal members as such do not fix their own compensation, but when a tribunal member is also a commissioner that person, as a commissioner, has the authority to fix his or her compensation as a tribunal member. The question thus posed is whether the constitutional prohibition in question is sufficiently broad to include the authority of the individual as a member of a separate body to participate in fixing his or her own compensation as a tribunal member; or whether it should be construed narrowly to include only the compensation-fixing authority of the office to which the compensation is attached. This precise point has never been addressed by the Washington courts or by our office. Nor are we aware of any authority from other states on the question because few states, if any, have a constitutional salary increase limitation such as ours that applies only to officers who fix their own compensation.
Our only guidance, therefore, is the spirit with which the salary limitation provisions have been applied by our courts. Again, that spirit has been one of extraordinary strictness; i.e., taking a broad view of the prohibition and a strict or narrow view of the exception. The Washington court has even discarded the usual presumptions of the constitutionality of statutes and of the good faith of legislators and has overturned statutes on the basis of the apparent motive of the legislators. Troy and Livingston,supra. In view of this history our best judgment is that the court will take the stricter of the two possible constructions of the term "officers who do not fix their own compensation;" i.e., that the prohibition broadly applies to the authority of a person to fix his or her own compensation whether the compensation is for the office empowered to fix the compensation or for a separate office held by that person. We therefore conclude that the compensation of tribunal members who are also commissioners is subject to the quoted clause of Article II, § 25,supra, and cannot be increased during the person's term of office as a commissioner.11/ Cf. AGO 53-55-137.
[[Orig. Op. Page 12]]
We trust that the foregoing will be of some assistance to you.
Very truly yours,
MORTON M. TYTLER
Senior Assistant Attorney General
*** FOOTNOTES ***
1/See RCW 49.60.010.
2/See RCW 49.60.175-49.60.223.
3/The name of the agency was changed from Washington State Board Against Discrimination to Washington State Human Rights Commission in 1971, RCW 49.60.051, but throughout the text of the chapter it is still called the "board." For clarity, we have here substituted "commission" in quotations from the chapter.
4/We are unclear as to the significance of the title "chief examiner" in RCW 49.60.120(1). In context, the position would seem to be permanent (or of indefinite duration) like that of the executive secretary. But tribunal members are appointed for each case separately. See, RCW 49.60.250, discussed below. Possibly the statute anticipates the day when some or all of the panel of hearing examiners from which tribunal members can be appointed are regular salaried personnel and the chief examiner is the chief of the pool of potential tribunal members. We need not resolve this question here, however, because we have concluded that the language of RCW 49.60.120(1) is broad enough to cover tribunal members, however they are designated.
5/The commission's request for funds for this purpose is on pages 4, 5 and 20 of its General Justification Materials in support of its budget request for 1977-79. The Governor's 1977-79 proposed budget on pages 504-55 included $112,800 for "reimbursements of hearing tribunal members" and explained that
". . . hearings have been held in the past through volunteer services of at least one attorney and two other individuals per hearing. But the large number of hearings currently being held has created difficulties in recruiting free services, and reimbursement for hearing members is also proposed."
The word "reimbursement" must mean compensation because tribunal members have always been reimbursed for expenses and the $112,800 figure is far beyond what would be needed only for expenses of the number of tribunals projected. The final budget adopted by the legislature was not the same as the proposal but nothing in the record indicates an intention entirely to eliminate this or any other item.
6/Possible limitations on the power of the legislature to authorize the compensation of commissioners who serve as tribunal members are addressed in our response to question (3), below.
7/In this inquiry we look at the tribunal as a whole, rather than to the position of individual tribunal member. This is so because the tribunal is a deliberative body and acts as a whole, and because tribunal members appointed from the pool of commissioners have no status within the tribunal different from that of tribunal members appointed from the panel of hearing examiners.
8/The text of the statute quoted in this opinion is actually from the session law, § 18, chapter 37, Laws of 1957. The Revised Code of Washington erroneously omits the comma after "examiners."
9/WAC 162-08-288(1) says:
"The parties to the [tribunal] hearing shall be the commission, through its counsel presenting the case in support of the complaint, . . ."
10/This is not to say that commissioners when serving as tribunal members, may not use their specialized knowledge gained as commissioners. See RCW 34.04.100(4). We presume that the legislature specified that commissioners may be appointed as tribunal members so that their special knowledge may be used by them and may be made available to other tribunal members.
11/Thus, for example, a human rights commissioner whose current five‑year term (see, RCW 49.60.060) began in 1973 will not be able to draw compensation for service as a tribunal member under WAC 162-08-212, supra (which, as above noted, was adopted in July, 1977) until 1978, after that term ends, etc.