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AGLO 1975 No. 27 - March 14, 1975
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Slade Gorton | 1969-1980 | Attorney General of Washington

COMMUNITY COLLEGES ‑- EMPLOYEES ‑- CONTRACTS ‑- PAYMENT OF SALARIES TO COMMUNITY COLLEGE EMPLOYEES

A community college, pursuant to contract, may legally pay its academic employees their salaries in twelve equal installments commencing in September and concluding in August of the succeeding year where the employee in question is assigned to teach fall, winter and spring quarters; or fall, winter and summer quarters; or fall, spring and summer quarters, but not winter, spring and summer quarters.

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                                                                  March 14, 1975

Honorable Robert R. Rhule
Acting President
Tacoma Community College
5900 South 12th Street
Tacoma, Washington 98465                                                                                                               Cite as:  AGLO 1975 No. 27

Dear Dr. Rhule:

            By recent letter you have requested our opinion on a question which we paraphrase as follows:

            May a community college, pursuant to a formal written contract, legally pay its academic employees their salaries in twelve equal installments commencing in September and concluding in August of the suceeding year where the employee in question is assigned to one of the following sequences of academic assignments:

            (1) To teach fall and winter quarters, vacation during spring quarter and return to teach during summer quarter; or

            (2) To teach fall quarter, vacation during winter quarter, and return to teach during spring and summer quarters; or

            (3) To vacation fall quarter, then commence teaching at the beginning of winter quarter and continue teaching during the ensuing spring and summer quarters?

            We answer the first two parts of this question in the affirmative and the third part in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            In each of the three cases presented by your question there can be no doubt but that all of the requisities of a bona fide contract of employment would be present.  In each instance, services would be rendered by the employee pursuant to contract, and payments for those services would be made by the community college.  The problem, however, is that because those payments  [[Orig. Op. Page 2]] would necessarily be made from public funds of the state, they would be subject to so much of RCW 43.88.160(2), a part of the state budget and accounting act, as provides that:

            "It shall be unlawful for the treasurer to issue any warrant or check for public funds in the treasury except upon forms duly prescribed by the director of program planning and fiscal management.  Said forms shall provide for authentication and certification by the agency head or his designee that the services have been rendered or the materials have been furnished . . ."

            What this statute contemplates, as we read it, is that when a contract entered into by a state agency call for the performance of services by an employee or other contractor in return for payment by the state, the services for which a given payment is to be made must have been rendered before they can be paid for.  Granting this to be the case, it is, nevertheless, our opinion that if the particular community college contract of employment is properly drafted, this statutory requirement can be met in the first two cases posited by your question.  In each of those two instances, some services will have been rendered by the employee prior to his or her receipt of any contractual payments; and secondly, the services thus rendered will be those which the contract (if so drafted) calls for as a condition precedent to receipt of the monthly salary payments for which claims are made.

            For example, let us assume the case of an individual who is employed by a community college under a one‑year written contract whereby he is to be paid $12,000, in equal increments of $1,000 per month, for teaching at the college during its fall, winter and ensuing summer quarters.  At the end of each month covered by the contract this individual will be able to say, in connection with his claim for compensation, that he has rendered services under the contract and that those services are the ones required by the contract to have been performed in exchange for the monthly salary increment which he is claiming.  In effect, the three or so monthly payments that he receives during the spring quarter, while he is on vacation, will constitute a part of his compensation for the services rendered during the preceding fall and winter quarters.

            Similarly, in the case of an employee such as is described in the second part of your question, that individual or his payroll officer will be able to say, in connection with each monthly voucher for salary payments, that services have been rendered in exchange for the payment being sought and that  [[Orig. Op. Page 3]] those services are the ones required by the contract to have been performed in exchange for that payment.1/

            Thus, it is our opinion that both of these hypothetical cases represent instances in which the contractual approach contemplated by your question may be legally utilized without violating the provisions of RCW 43.88.160(2),supra, and for this reason we answer the first two parts of your question, as above paraphrased, in the affirmative.2/

            On the other hand, in the case of part (3), the situation would be somewhat different.  In that case, the employee would not be required to render any employment services whatsoever prior to receiving his first three monthly salary payments; i.e., payments for the months of September, October and November which are covered by the first academic quarter of the community college year.  For this reason, he or she would not be able to make the showing of services rendered that the statute requires to be made prior to any payments.  In other words, in this case no services would have been rendered, during the first three months of the contract period, for which salary payments under the contract could lawfully be made without violating the provisions  [[Orig. Op. Page 4]] of the above‑quoted section of the budget and accounting act.  Therefore, we believe it necessary to answer this part of your question in the negative.

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

Very truly yours,

SLADE GORTON
Attorney General

ROBERT F. HAUTH
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/This, of course, would also be true of an employee who teaches a normal fall, winter and spring quarter schedule under a contract calling for payments in equal installments over a twelve month period.   It is our understanding that such contracts are already common at the present time and, although you have not specifically asked about them, they are, most certainly, permissible.

2/We would suggest, however, that among the terms of any such contract there be included a specific provision concerning the "penalty" to be paid by the employee for any days of leave without compensation he may take during the period covered by the contract.   This could, as under a standard employment contract covering teaching assignments for fall, winter and spring quarters, quite properly continue to be a single designated fraction of the total number of teaching days covered by the contract, but it should be spelled out so as to be agreed upon in advance rather than being left to be determined later.

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