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AGLO 1975 No. 7 - January 28, 1975
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTY ‑- SALARIES OF COUNTY ELECTIVE OFFICIALS

Under certain described factual circumstances the correct salaries currently to be paid to the various county elective officials in Grays Harbor county, except for the county commissioners themselves, are those which were provided for in the 1975 county budget adopted on December 6, 1974.

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                                                                 January 28, 1975

Honorable Curtis M. Janhunen
Prosecuting Attorney
Grays Harbor County
P.O. Box 550
Montesano, Washington 98563                                                                                                                 Cite as:  AGLO 1975 No. 7

Attention:          Mr. Dennis R. Colwell
                                    Chief Civil Deputy

Dear Sir:

            By recent letters1/ you have directed our attention to certain actions recently taken by the Grays Harbor county board of commissioners involving the salaries of county elected officials.  You have then posed several questions relating to the powers of a board of county commissioners with respect to this subject from a standpoint of both substance and procedure.  The essence of your inquiry, however, is simply this:

            Under the factual circumstances described, what are the correct salaries currently to be paid to the various county elected officials in Grays Harbor county?

            Our answer to this question will be found in the following analysis.

                                                                     ANALYSIS

            Prior to the adoption of Amendment 57 to the state constitution at the November 7, 1972, general election, the function of fixing salaries of all county elected officials was exclusively that of the legislature under the then existing provisions of Article XI, §§ 5 and 8 of the constitution.  By their adoption of this recent amendment, however, the voters changed these two sections to read as follows:

             [[Orig. Op. Page 2]]Article XI, § 5:

            "The legislature, by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys and other county, township or precinct and district officers, as public convenience may require, and shall prescribe their duties, and fix their terms of office:  PROVIDED, That the legislature may, by general laws, classify the counties by population and provide for the election in certain classes of counties certain officers who shall exercise the powers and perform the duties of two or more officers.  It shall regulate the compensation of all such officers, in proportion to their duties, and for that purpose may classify the counties by population:  PROVIDED, That it may delegate to the legislative authority of the counties the right to prescribe the salaries of its own members and the salaries of other county officers.  And it shall provide for the strict accountability of such officers for all fees which may be collected by them and for all public moneys which may be paid to them, or officially come into their possession."

            Article XI, § 8:

            "((The legislature shall fix the compensation by salaries of all county officers, and of constables in cities having a population of five thousand and upwards; except that public administrators, surveyors and coroners may or may not be salaried officers.))  The salary of any county, city, town or municipal officers shall not be increasedexcept as provided in section 1 of Article XXX or diminished after his election, or during his term of office; nor shall the term of any such officer be extended beyond the period for which he is elected or appointed."

            The significance of the first part of this amendment is that by its adoption it became possible for the legislative  [[Orig. Op. Page 3]] authority (in your case, the county commissioners) of a county to set their own compensation and that of the various other county elected officials if authorized by the legislature to do so.  However, by reason of the second part of the amendment, the members of a county's legislative authority may not exercise such an authorization by giving themselves a pay increase that any given member can begin receiving prior to his next term of office.  Accord, AGO 1974 No. 9 [[to Smith Troy, Prosecuting Attorney, Thurston County on April 10, 1974]], and AGO 1973 No. 20 [[to Granville Egan, Prosecuting Attorney, Ferry County on September 20, 1973]], copies enclosed, in which we explained in some detail the interrelationship between Amendment 57, supra, and Article XXX, § 1 (Amendment 50) which provides that:

            "The compensation of all elective and appointive state, county, and municipal officerswho do not fix their own compensation, including judges of courts of record and the justice courts 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."  (Emphasis supplied.)

            Thereafter, at its 1973 session the legislature enacted chapter 88, Laws of 1973, Ex. Sess., by which it did two separate things.  First, continuing the legislature's past practice, this act itself fixed a new level of annual salaries for county elected officials by amending the preexisting provisions of RCW 36.17.020 to provide that beginning on January 1, 1974, those salaries would be as set forth in the amendment; i.e., in the case of counties of the third class such as yours:

            Office                                       Salary
            Auditor                                         $ 13,800.00         per year
            Clerk                                                 13,800.00        per year
            Treasurer                                        13,800.00        per year
            Assessor                                           13,800.00        per year
            Sheriff                                             13,800.00        per year
            Prosecuting Attorney                23,700.00        per year
            Commissioner                              13,800.00        per year
            Coroner                                            4,000.00        per year

            And then, secondly, the legislature proceeded to implement the authority granted to it by the above quoted 1972 constitutional amendment by providing, also as a part of  [[Orig. Op. Page 4]] RCW 36.17.020, as amended, that:

            "The county legislative authority of such county is authorized to increase or decrease the salary of such office:  Provided, That the legislative authority of the county shall not reduce the salary of any official below the amount which such official was receiving on January 1, 1973."

            With these statutory and constitutional provisions in mind, we may now turn to the facts giving rise to your immediate inquiry ‑ as you have described them in your letters and by attachments thereto.

            On July 22, 1974, the board of county commissioners of Grays Harbor county adopted a resolution2/ which, after acknowledging the provisions of chapter 88,supra, provided (in material part) as follows:

            "BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS of Grays Harbor County that the salary figures set in Chapter 88, Laws of 1973, First Ex. Sess., effective on January 1, 1974, for the various county officials of Grays Harbor County are to be increased in an amount not to exceed 10.5%, and that these salary increases are to become effective on January 1, 1975."

            Next, in accordance with this resolution, the board in adopting the formal county budget for 1975 on December 6, 1974, set out corresponding new salary amounts for each of the below listed county elected officials within each department's portion of the budget document ‑ these new salaries being as follows:

                                    Office                                       Salary
                        Auditor........................           $15,249
                        Clerk............................             15,249
                        Treasurer.....................             15,249
                        Assessor........................             15,249

 [[Orig. Op. Page 5]]

                        Sheriff...........................        15,249
                        Prosecuting Attorney......        26,189
                        Commissioner.................         15,249
                        Coroner..........................         4,420

            Consistent with the period covered by the budget these increases were to take effect on January 1, 1975 ‑ with the exception, obviously, of the salary increase for the county commissioners themselves in view of the continuing prohibition in our constitution against post-election [[postelection]]or mid-term [[midterm]]raises for county officers who fix their own compensation.  See, AGO 1973 No. 20, copy enclosed. Before that date arrived, however, the commissioners apparently had a a change of heart with the result that on December 30, 1974, they met and passed another resolution3/ providing that:

            ". . . the salary items for the following elected county officials, as such items are set out in the 1975 Grays Harbor County Budget, are hereby revised so that the 1975 salaries for those offices will be increased 3% over the 1974 levels instead of the 10.5% increase originally budgeted . . .:

                                 Office                                               Salary
                        "Auditor                                               $ 14,214
                        "Assessor                                                  14,214
                        "Clerk                                                        14,214
                        "Sheriff                                                     14,214
                        "Prosecuting Attorney                        24,411
                        "Commissioner                                      14,214
                        "Coroner                                                    4,120        "

            According to your letter of January 14, 1975, however, this resolution was not published in accordance with the provisions of RCW 36.32.120(7), which deals with the adoption of county resolutions or ordinances and requires the advance publication of the text of certain of those measures in a notice of public hearing to be given at least ten days prior to their adoption.  Nor, by the same token, were the notice requirements of RCW 36.40.100, relating to the enactment of supplemental appropriations after the adoption of a county budget, apparently met.

             [[Orig. Op. Page 6]]   Therefore, on January 6, 1975, the commissioners met again, this time after having (according to your most recent letter) complied with the publication requirements of RCW 36.32.120(7), and, in effect, readopted their December 30, 1974, resolution,4/ encompassing the revised salary figures which had been provided for therein.

                        OPINION

            On the basis of the foregoing facts, it is our opinion that the correct level of salaries currently to be paid to all of the county elected officials of Grays Harbor county, except the county commissioners, are those set forth in the county budget as adopted on December 6, 1974.  In the case of all three members of the board of county commissioners, their salaries will remain at the level fixed by RCW 36.17.020, supra, ($13,800 per year) until the commencement of their respective next ensuing terms of office.

            In support of this conclusion with respect to the various other county elected officials our reasoning, briefly stated, is as follows:

            First, it does not appear to us that the initial salary resolution adopted by the commissioners on July 22, 1974, by and of itself, did anything more than to indicate an intention, at some future time, to provide for salary increases for county elected officials, to become effective on January 1, 1975, ". . . in an amount not to exceed 10.5% . . ."  Thus, as of the date of the November, 1974, election of county officers, the salaries attached to the various offices which were involved in that election remained at their January 1, 1974 levels which had been fixed by the legislature in chapter 88, Laws of 1973, 1st Ex. Sess.5/

            Secondly, however, it is further our opinion that when, on December 6, 1974, the county commissioners formally adopted the county budget for 1975, they did thereby effectively establish increased salaries, to take effect on  [[Orig. Op. Page 7]] January 1, 1975, for all county elected officials constitutionally eligible to receive those increases.  RCW 36.17.020,supra, is silent with respect to the manner in which a county legislative authority is to exercise its delegated power to increase or decrease the salaries of county officers.  Therefore it follows that this delegated legislative function can be performed either through the enactment of a county ordinance or resolution under RCW 36.32.120(7),supra, or by means of an inclusion of appropriate salary provisions in the county budget for a given year.  Accord, State ex rel. Bradford v. King County, 197 Wash. 393, 85 P.2d 670 (1938), and cases cited therein.  The latter is as much a legislative act as the former.  See, 5 McQuillin, Municipal Corporations, 3rd Ed. 1969 Rev. Vol., §§ 15.04 and 15.05.

            Nevertheless, because the increased salaries provided for in the budget did not take effect unitl January 1, 1975, it remained possible during the intervening period, from a constitutional standpoint, for the county commissioners to act again on the subject and to reduce the amount of the prospective increases provided for in the budget.  Accord,Yelle v. Kramer, 83 Wn.2d 464, 520 P.2d 927 (1974), in which the state supreme court, in effect, held that the reduction of a prospective salary increase prior to the time that such increase takes effect does not constitute a constitutionally prohibited post-election [[postelection]]or mid-term [[midterm]]decrease.6/   The next question thus becomes that of whether the commissioners ever effectively exercised this authority.  In our opinion they did not.

            Under the facts which you have given us, the only relevant action which the commissioners took during this period was the adoption of their December 30, 1974, resolution ‑ as to which no publication was made under RCW 36.32.120(7) nor notice given under RCW 36.40.100.  We are not particularly concerned, from a legal standpoint, about the first of these two omissions because it is our reading of RCW 36.32.120(7) that the publication requirement contained therein is only applicable with respect to "police and sanitary regulations."  See, opinion dated April 21, 1953, to the prosecuting attorney of Lewis county [[to J. Panesko, AGO 53-55 No. 12]], copy enclosed.  However, we are of the opinion  [[Orig. Op. Page 8]] that the failure to have given the notice required by RCW 36.40.100, relating to budget amendments, rendered this resolution void.  Miller v. Pacific County, 9 Wn.App. 177, 509 P.2d 377 (1973); see also, 56 Am.Jur.2d, Municipal Corporations, Etc., § 350, and cases cited therein.  Therefore, although the county and cases cited therein.  Therefore, although the county commissioners could have reduced the proposed 1975 salary increases provided for in the budget as adopted on December 6, 1974, by the proper adoption of an amendatory resolution or ordinance before the proposed salaries took effect, they did not do so.

            This brings us, finally, to the later county resolution which was adopted on January 6, 1975.  You have advised us that this resolution, as contrasted with the resolution of December 30, 1974, ". . . was published in accordance with the provisions of RCW 36.32.120(7)," but it is not apparent from your letter whether the requirements of RCW 36.40.100, supra, were also met.  We need not, however, concern ourselves with that question becuase it is our opinion, in any event, that any attempt to reduce thethen already effective salary of a county officer after his election or during his term of office would constitute a true decrease, as opposed to a mere prospective reduction, and for this reason would be unconstitutional under Article XI, § 8, supra.

            In so concluding we are aware of the possibility that our court might hold our present constitutional prohibitions against mid-term [[midterm]]decreases in compensation to prevent only those decreases resulting in a salary below that which was in effect at the commencement of the applicable term of office.  Cf., AGO 1973 No. 20,supra, at page 9.  Because our state is apparently unique in now7/ allowing mid-term [[midterm]]decreases, we have been unable to find any cases from other jurisdictions which are at all helpful as to this issue which, by the same token, remains an as yet undetermined "question of first impression" insofar as our own court is concerned.  In our judgment, however, if and when our own court is squarely presented with this issue, it will, in all probability, hold that once a salary increase has taken effect, the salary cannot thereafter be decreased during the remainder of the term of office involved even where the decrease does not cause the salary to drop below the level which was in effect at the commencement of the term.  The obvious purpose of a constitutional prohibition against midterm salary decreases is to prevent the salary fixing authority  [[Orig. Op. Page 9]] (ordinarily a legislative body) from posing the threat of a salary decrease as a penalty to induce a desired course of conduct from either its own members or from the elected official of another branch of government,8/ and this objective would seem to us to be as much thwarted by the threat of a mid-term [[midterm]]withdrawal of an earlier granted mid-term [[midterm]]salary increase as it would be a comparably threatened decrease below the initial salary level for the term of office in question.

                        SUMMARY

            Thus, in summary, it is our opinion that except for the county commissioners themselves, the correct salaries currently to be paid to the various elected officials of Grays Harbor county, as of January 1, 1975, are those which were fixed by the county budget when it was adopted by the county commissioners on December 6, 1974.

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

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***  FOOTNOTES   ***

1/Dated January 1, 1975, and January 14, 1975, respectively.

2/Grays Harbor County Resolution No. 74-28.

3/Grays Harbor County Resolution No. 74-55.

4/Grays Harbor County Resolution No. 75-2.

5/It is for this reason, therefore, that even the county commissioner who was elected at that time is not entitled to benefit form the salary increase provided for in the December 6, 1974, county budget document until the commencement of his next ensuing term of office.  See, again, AGO 1973 No. 20 [[to Granville Egan, Prosecuting Attorney, Ferry County on September 20, 1973]],supra.

6/This case, as you may know, was the one involving Initiative No. 282 and its impact upon the salaries of various state elected officials and district court judges.

7/I.e., since 1968 when the present provisions of Article XXX, § 1, supra, were adopted.

8/See, 63 Am.Jur. 2d, Public Officers and Employees, § 370, and cases cited therein.

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