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AGLO 1976 No. 39 - June 15, 1976
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Slade Gorton | 1969-1980 | Attorney General of Washington

APPROPRIATIONS ‑- STATE ‑- COMMUNITY COLLEGES ‑- SALARIES ‑- LIMITATION UPON SALARY INCREASES FOR COMMUNITY COLLEGE EMPLOYEES

Answers several questions pertaining to the average 5% salary increase provided for by § 6(3), chapter 133, Laws of 1975-76, 2nd Ex. Sess., for community college and other educational employees.

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

                                                                   June 15, 1976

Honorable John C. Mundt
Director, State Board for
Community College Education
319 Seventh Avenue
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1976 No. 39

Dear Sir:

            By letter previously acknowledged you have requested our opinion on several questions relating to implementation of the average 5% salary increase provided by the legislature in chapter 133, Laws of 1975-76, 2nd Ex. Sess., for faculty and exempt employees of four-year higher educational institutions and the community college system.  See, specifically, § 6(3) of chapter 133, supra, which reads as follows:

            "(3) Not more than $9,777,624 of general fund moneys shall be expended to provide effective July 1, 1976,an average 5% salary increase for faculty and exempt employees of the four year units of higher education and the community college system:  PROVIDED, Thatno community college district or four year unit of higher education may grant from any fund source any additional salary increase greater than that authorized in this 1976 amendatory act."  (Emphasis supplied.)

            Your questions regarding this provision of the 1976 supplemental budget are as follows:

            1. If a community college district's share of the salary increase fund is insufficient to pay an average increase of 5% to all eligible faculty and exempt employees:

            (a) may it use other legally available funds for the purpose of making up the difference between the amount available and the amount necessary to pay an average 5% salary increase?

            (b) is that district obliged to pay the full 5% by making up the difference with other legally available funds?

            2. When it would require expenditures in excess of the amount made available to a community college district from the appropriation for the average 5% salary increase, may that college district:

             [[Orig. Op. Page 2]]

            (a) grant salary increases to faculty and exempt employees who have been promoted to positions involving greater responsibilities?

            (b) grant longevity increments to eligible faculty and exempt employees who qualify under terms of its duly negotiated salary schedule?

            (c) grant educational advancement increments to faculty and exempt employees who qualify under terms of its duly negotiated salary schedule?

            3. Is there a legal distinction between the term "promotion" as it is used in question 2(a) above and the application of the term to the circumstances described in question 2(c) above?

            4. Is there a legal distinction between the term "promotion" as it is used in question 2(a) above and the application of the term to a circumstance wherein a faculty member or exempt employee received a salary increase as a result of being advanced to a higher pay range because of a finding by the appointing authority that the individual had performed meritorious service?

            We answer question 1(a) in the affirmative, 1(b) in the negative, and except as qualified in our analysis, question 2(a) in the affirmative and questions 2(b) and (c) in the negative.  Questions 3 and 4 are answered as set forth in our analysis.

                                                                     ANALYSIS

            In posing the above questions you have advised us that:

            "The typical method of salary administration for most community college faculty and exempt employees functions through the use of matrix salary schedules that provide eligible employees (1) longevity increments, and (2) educational advancement increments awarded for completion of additional advanced study.  In some cases, merit increases are possible."

            You have then gone on to express the general thrust of your questions in the following manner:

            "Recognizing that college district boards of trustees have the statutory right to set salaries for  [[Orig. Op. Page 3]] such employees1/ and the obligation to negotiate such matters with recognized bargaining agents, we are seeking an answer to the general question of whether all salary adjustments must be paid from funds appropriated by the Legislature under the 5% increase provision or whether some adjustments may or must be paid in addition to the 5% increase appropriation."

            In order to place your inquiry in prospective we should, at the outset, briefly examine certain matters which predated the enactment of the 1976 supplemental budget, chapter 133, supra.  During the final months of the 1973-75 biennium the legislature also authorized a salary increase for community college faculty and employees.  That increase, which was effective March 1, 1975, was provided for by a supplemental appropriation in § 2, chapter 9, Laws of 1975, that read in pertinent part as follows:

            ". . . for faculty and exempt employees . . . an average salary increase of twelve percent: PROVIDED, That the twelve percent average salary increase shall include both incremental increases and general salary increases granted previously within the individual institution in fiscal year 1975. . . ."

             [[Orig. Op. Page 4]]

            We note that the increase authorized by that earlier appropriation provided, as does the 1976 version, for an "average increase" ‑ in contrast to a twelve percent increase foreach employee.  However, while the 1976 appropriation makes no reference to incremental increases the 1975 act,supra, specifically declared that incremental increases were included within the average twelve percent salary increase which it provided for.

            Then, in June of 1975, the legislature enacted the appropriation for the current (1975-77) biennium and provided funds to continue the salary increases which had been authorized by the 1975 supplemental appropriation, supra.  This biennial appropriation act, chapter 269, Laws of 1975, 1st Ex. Sess., provided in § 11(8) for the:

            ". . . continuation during 1975-77 biennium of the salary increases which were granted effective March 1, 1975 pursuant to section 2, chapter 9, Laws of 1975 . . .  Such salary increase funds include increments, or their equivalent, that may be granted by the individual institutions of higher education."

            In AGLO 1975 No. 68 [[to John C. Mundt, Director, State Board for Community College Education an Informal Opinion, AIR-75568]], copy enclosed, we said, with reference to this latter appropriation:

            "As will thus be seen, the item in question is a subsection of a special appropriation to the governor in the amount of $159,691,470.  This specific subsection allocates $117,016,320 from that larger appropriation to be used solely for the continuation of the salary increases previously granted by the legislature by § 2, chapter 9, Laws of 1975, to the several listed categories of state employees.

            "The restrictive language 'not more than,' however, as it appears in subsection (8), is not a limitation on the entire amount of general fund moneys appropriated by chapter 269,supra, but rather it is simply a limitation on the amount of money from the underlying $159,691,470 appropriation made by § 11, proper, which can be used for continuation of the earlier granted salary increases.  Thus, in essence, this subsection merely means that not more than $117,016,320 in general fund moneys from the larger appropriation to the governor may be expended for continuation during the 1975-77 biennium of the salary increases which were granted effective March 1, 1975."

             [[Orig. Op. Page 5]]

            After reviewing various other portions of the appropriations act (chapter 269,supra) as well, we then informed you that, in our opinion:

            ". . . nothing contained in . . . § 11(8),supra, or any other legislative enactment of which we are aware purports to bar a community college from doing either of the following two things:

            "(1) Using other appropriated funds or nonappropriated local funds which are legally available for the payment of salaries to fund a full continuation of the above described earlier granted salary increases if the funds allocated to the college from the appropriation made by § 11(8) of chapter 269, are insufficient; or

            "(2) Using either such local funds or any appropriated funds which are legally available for the payment of salaries to provide additional pay increases for its faculty and exempt staff employees in accordance with RCW 28B.50.140(3),supra ‑ over and above the salary increases which were previously granted to those employees in response to § 2, chapter 9,supra."

            It seems apparent that the recent legislative session which enacted § 6(3), chapter 133, Laws of 1975-76, 2nd Ex. Sess., had this attorney general's ruling in mind when it passed that provision.  While § 6(3) begins with limiting language similar to that contained in the 1975 enactment which was the subject of our opinion, it then goes on, in a proviso, to declare that:

            ". . . no community college district or four year unit of higher education may grant from any fund source any additional salary increase greater than that authorized in this 1976 amendatory act."

            Before turning to your specific questions we should dispose of two other preliminary points.  First, it is true that ordinarily an appropriation act is simply an authorization to expend funds in accordance with Article VIII, § 4 of our state constitution;2/ i.e., authority from the legislature, given at  [[Orig. Op. Page 6]] the proper time and in legal form, to the proper officer, to supply sums of money from the treasury in order to meet specified objects or demands against the state.  See,State ex rel. Pub. Co. v. Lindsley, 3 Wash. 125, 27 Pac. 1019 (1891).  Thus, a pure appropriation act cannot contain extrensic substantive legislation because Article II, § 19 of our state constitution provides

            "No bill shall embrace more than one subject, and that shall be expressed in the title."

            See, e.g., our letter opinion to Senator Frank Atwood dated April 2, 1971, copy enclosed.

            In the present instance, however, the legislature appear to have avoided this constitutional problem by giving the act here in question a broader title than that of "AN ACT Adopting the budget; . . ." ‑ the usual title to a pure appropriation act.3/   The title to chapter 133, supra, instead, reads in material part as follows:

            "AN ACT Relating to expenditures of state agencies and offices of the state: . . ."

            This title, in our judgment, is sufficiently broad to encompass § 6(3), chapter 133,supra, in its entirety.

            Secondly, as also explained in our 1971 opinion to Senator Atwood,supra, legislation designed to limit salaries of public employees may not constitutionally impair existing contractual obligations.  Accord, Wash. Const., Article I, § 23.4/   Thus, to the extent that a given employee otherwise covered by § 6(3), chapter 133,supra, is currently employed pursuant to a legally authorized and enforceable contract requiring the payment of additional salary increments in excess of those provided for by that subsection, the proviso therein will be unenforceable ‑ although the source of payment will have to be something other than the $9,777,624 appropriation in the preceding sentence of the subsection.  See, again, Article VIII, § 4, supra.  Furthermore, if the only "contract" involved is a collective agreement entered into under chapter 28B.52 RCW (the community college professional negotiations act), this constitutional impairment argument will be foreclosed by the recent amendment to that  [[Orig. Op. Page 7]] chapter contained in the following provisions of § 4, chapter 205, Laws of 1973, Ex. Sess. (now codified as RCW 28B.52.035):

            "At the conclusion of any negotiation processes as provided for in section 2 of this 1973 amendatory act, any matter upon which the parties have reached agreement shall be reduced to writing and acted upon in a regular or special meeting of the boards of trustees, and become part of the official proceedings of said board meeting.  The length of terms within any such agreement shall be for not more than three fiscal years.  These agreements will not be binding upon future actions of the legislature."  (Emphasis supplied.)

            Question (1):

            Repeated for ease of reference, your first question asks:

            If a community college district's share of the salary increase fund is insufficient to pay an average increase of 5% to all eligible faculty and exempt employees:

            (a) may it use other legally available funds for the purpose of making up the difference between the amount available and the amount necessary to pay an average 5% salary increase?

            (b) is that district obliged to pay the full 5% by making up the difference with other legally available funds?

            The clearly expressed object of § 6(3), chapter 133, supra,5/ is to provide $9,777,624 in state funds to implement  [[Orig. Op. Page 8]] an average salary increase which, in the aggregate for all of the employees covered by its provisions, is not to exceed 5%.  As indicated in AGLO 1975 No. 68, supra, however, the community college districts of our state are not completely dependent upon appropriated state funds to finance their operations.  The proviso in § 6(3) is a legislative recognition of the fact that community college districts (as well as the four year state colleges and universities) have, to varying degrees, other sources of funding available for their operations.  The proviso does not flatly prohibit such institutions from using other fund sources for salary increases.  To reach a contrary conclusion would be to ignore the phrase ". . . greater than that authorized in the 1976 amendatory act" and it is, of course, a well-established maxim of statutory construction that a statute must be read to give effect to all of the language included therein and not render any such language superfluous.  See,State ex rel. Schillberg v. Barnett, 79 Wn.2d 578, 488 P.2d 255 (1971); Jordan v. O'Brien, 79 Wn.2d 406, 486 P.2d 290 (1971); andState v. Jestes, 75 Wn.2d 47, 448 P.2d 917 (1968).

            The language of § 6(3),supra, further reflects a recognition of the historical pattern, referred to in AGLO 1975 No. 68, of the legislature providing for salary increases but not appropriating sufficient funds to pay them in full.  We therefore conclude in answer to your question 1(a), that a community college district can utilize funds from other sources, when the distribution of funds from the $9,777,624 appropriation is inadequate, to implement salary increases within the 5% level authorized ‑ provided that the district has funds available which can legally be expended for salaries.  Accord, the reasoning of our prior opinion to that extent.

            In responding to question 1(b), reference must again be made to the specific language of § 6(3) as quoted on page 1, above.  By this provision the legislature has appropriated funds which "shall be expended" to provide an average 5% salary increase.  An appropriation act is normally construed as authorization granted by the legislature to permit the expenditure of funds not to exceed a stated sum ‑ as contrasted with a mandate to expend all of the appropriated funds.  The only language in this enactment which is expressed in mandatory terminology (i.e., "shall") is that which directs the money to be expended to provide the salary increase.  But even if this language was given mandatory effect6/ it would only require that the full $9,777,624 be expended for salary increases.  It would not, in addition, create an obligation on the part of a community  [[Orig. Op. Page 9]] college district (or other higher educational institution) to use other funds to effectuate an average 5% salary increase if the funds made available by the 1976 supplemental appropriation are not sufficient to achieve that purpose.

            Question (2):

            Your next question asks:

            When it would require expenditures in excess of the amount made available to a community college district from the appropriation for the average 5% salary increase, may that college district:

            (a) grant salary increases to faculty and exempt employees who have been promoted to positions involving greater responsibilities?

            (b) grant longevity increments to eligible faculty and exempt employees who qualify under terms of its duly negotiated salary schedule?

            (c) grant educational advancement increments to faculty and exempt employees who qualify under terms of its duly negotiated salary schedule?

            It is quite clear that funds appropriated by § 6(3), chapter 133,supra, cannot be used to pay the costs of any salary increases above or beyond the average 5% salary increase for which they have been appropriated.  Accord, Wash. Const., Article VIII, § 4, supra.  Therefore, any additional salary increase, if implemented, would have to be funded from some other source.  Yet unlike the situation which existed under the 1975 salary increase appropriation in chapter 269,supra, the legislature has here specifically declared that except as authorized by § 6(3), ". . . no community college district or four year unit of higher education may grant from any fund source any additional salary increase . . ."

            Except as rendered constitutionally unenforceable in a given case under Article I, § 23 of the constitution, supra (previously discussed at p. 6), it appears to us that this limiting proviso means precisely what it says.  But as we above indicated the average 5% salary increase does not mean a 5% increase for each and every employee; rather it means that salary increases in total shall not exceed 5% of the total base salaries of all employees covered by the appropriation.  Thus, if an employee is promoted to another existing position which is vacated by another incumbent there will in most situations be no problem presented.  For example, if a position currently has  [[Orig. Op. Page 10]] attached to it a salary of $1,500 per month and, upon being vacated by its incumbent, is filled by the promotion of an employee previously making $1,200 per month, the promoted employee could receive the full $1,500 (i.e., a $300 personal increase) and in the aggregate salary structure there would be no impact upon the 5% because there would be no increase in the total payroll.

            There are, however, two situations in which promotions may present problems under the appropriation involved in your question:  First, when the person being promoted assumes his new position at a higher salary than was paid to the prior incumbent; and second, when the promotion is made to a newly created position which did not previously exist.  We will discuss these situations separately.

            We believe in the first situation, when an individual is promoted to a position to fill a vacancy, any increase in compensation in excess of that paid to the prior holder of the position will in fact be a salary increase within the meaning of the appropriation act.  This conclusion is based on the fact that the limitation is upon the aggregate increase in compensation for positions covered by the appropriation.  Since a promotion to an existing position clearly involves a position which is covered by the appropriation it would appear that any increase granted (irrespective of who the incumbent is) above the level existing as of the time of the increase would be an increase within the meaning of the act.

            In the second situation (i.e., the creation of a new position to which an individual is promoted) we conclude that the salary established for the position and paid to its initial incumbent will not constitute an "increase" within the meaning of the act.  Obviously if a bona fide new position is created the salary for the position did not exist within the base upon which the 5% increase is to be computed.  The same situation exists for new positions that did not previously exist which are filled by individuals who are promoted as for those filled by persons who are hired from outside the system.  Such new positions obviously are not included within the base as computed by the legislature.  The only alternative would be to consider the entire cost of the new position as "an increase" which would result in any significant increase in staffing virtually eliminating any increases for the existing staff.  We do not believe the legislature intended that result.

            Therefore, it is our opinion that if a community college employee is promoted to a position which is, in fact, a new position carrying more significant duties and involving greater responsibilities the pay established for that position need not be included within the 5% limitation.  We would emphasize, however, that the employee's transfer to the new position must in  [[Orig. Op. Page 11]] fact be a bona fide promotion and not simply a subterfure to try to avoid the legislative limitation upon salary increases.

            By analogy, we would refer to cases arising under Article XI, § 8 of our constitution insofar as it contains a prohibition against increases in compensation during a term of office.  For example, inState ex rel. Seattle v. Carson, 6 Wash. 250, 33 Pac. 428 (1893), the court permitted an increase in compensation for a county treasurer because of legislation which required the county treasurer to assess and collect city taxes.  The court found that these were new duties which were entirely outside of his former duties and thus permitted an increase in compensation.  In contrast, inState ex rel. Funke v. Bd. of Commissioners, 48 Wash. 461, 93 Pac. 920 (1908), the court found that the changing of a job title and adding some incidental duties was not sufficient to justify an increase in compensation during term.  Further, inState ex rel. Livingston v. Ayer, 23 Wn.2d 578, 161 P.2d 429 (1945), the court found the attempt to increase the salary of certain designated county officers was clearly an attempt to evade the constitutional prohibition against increases during term and that the slight change in duties was not sufficient to justify such an increase.

            We note these decisions simply by way of analogy to indicate that if a new position is created it must be a bona fide position and the filling of the same by promotion must entail the addition of new duties and responsibilities in excess of those previously performed by the individual involved.

            The remaining two segments of your second question essentially inquire as to whether longevity and educational pay increments can be excluded from the pay raises which are subject to the average 5% limit.  In the community college system the compensation for most of the employees covered by this limit is established by annual contracts.  In negotiating such contracts, elements such as increment increases and increases related to educational attainments are normally included.  As we have previously indicated in this opinion, both the salary adjustment earlier provided by the legislature in March of 1975, and the continuation of that increase for the current biennium specifically defined salary increases to include increments.  Thus the legislature there made it clear that the 12% salary increases then involved were not in addition to increments which had previously been contracted for with the respective districts.  We have further noted that the 1976 appropriation section does not correspondingly define the term "increase" either expressly to include or exclude increment increases.  Nevertheless we conclude that such increases must be included within the limits  [[Orig. Op. Page 12]] of the 1976 act by implication for, as we have seen, the 1975 act also differed from the 1976 version in that the former did not prohibit the local districts from granting increases in excess of those provided by the legislative appropriation.  In the 1976 enactment the legislature has not only supplied funds for an average 5% increase but has specifically prohibited the granting of any further increases from other funds by the community college districts.  If this prohibition were read to exclude discretionary increases (i.e., the annual contracting provisions by the districts re base salaries, increment increases, educational adjustments, etc.), then the prohibition would be meaningless.  Since we are mandated to give meaning to legislative provisions the prohibition, therefore, must be construed to include incremental increases either on the basis of longevity or educational attainments.

            Questions (3) and (4):

            Finally you have asked:

            3. Is there a legal distinction between the term "promotion" as it is used in question 2(a) above and the application of the term to the circumstances described in question 2(c) above?

            4. Is there a legal distinction between the term "promotion" as it is used in question 2(a) above and the application of the term to a circumstance wherein a faculty member or exempt employee received a salary increase as a result of being advanced to a higher pay range because of a finding by the appointing authority that the individual had performed meritorious service?

            We assume that your purpose in asking these two questions is to obtain, if possible, a broadening of the scope of our affirmative answer to question 2(a) so as to justify additional salary increases, over and above those covered by § 6(3), chapter 133,supra, to faculty members or other community college exempt employees7/ who, although remaining in the same positions, have either undergone some form of "educational advancement" or have performed meritorious services.

            We do not, however, believe that the rationale which we applied in answering question 2(a), can be extended to  [[Orig. Op. Page 13]] cover these two alternative situations.  In short, thereis in our opinion a legal distinction between the term "promotion," as it is used in question 2(a), and either of the two concepts referred to in your second and third questions.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

EDWARD B. MACKIE
Deputy Attorney General

RICHARD M. MONTECUCCO
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, RCW 28B.50.140(3) which provides that:

            "Each community college board of trustees:

            ". . .

            "(3) Shall employ for a period to be fixed by the board a college president for each community college, a director for each vocational-technical institute or school operated by a community college, a district president, if deemed necessary by the board, in the event there is more than one college and/or separated institute or school located in the district, members of the faculty and such other administrative officers and other employees as may be necessary or appropriate and fix their salaries and duties;"

2/"No moneys shall ever be paid out of the treasury of this state, or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; . . ."

3/See, e.g., the title to chapter 269, Laws of 1975, 1st Ex. Sess., supra.

4/"No bill of attainder, ex post facto law, or law impairing the obligations of contracts shall ever be passed."

5/Also repeated for ease of reference as follows:

            "(3) Not more than $9,777,624 of general fund moneys shall be expended to provide effective July 1, 1976,an average 5% salary increase for faculty and exempt employees of the four year units of higher education and the community college system:  PROVIDED, Thatno community college district or four year unit of higher education may grant from any fund source any additional salary increase greater than that authorized in this 1976 amendatory act."  (Emphasis supplied.)

6/See, Island Cy. Comm. v. Dep't of Revenue, 81 Wn.2d 193, 204, 500 P.2d 576 (1972).

7/I.e., except from the classified service provided for under the higher education personnel act, chapter 28B.16 RCW.

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