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AGLO 1979 No. 40 - November 13, 1979
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- ADJUTANT GENERAL ‑- DETERMINATION OF COMPENSATION

It is not lawful for the state adjutant general, in view of his outside private employment, to be paid as full compensation for his services as adjutant general an annual salary lower than that prescribed by RCW 38.12.030.

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                                                               November 13, 1979

Honorable Joe Taller
State Rep., 36th District
2852 42nd W.
Seattle, Washington 98199                                                                                                               Cite as:  AGLO 1979 No. 40

Dear Sir:

            By letter previously acknowledged you requested our opinion on two questions which we paraphrase as follows:

            (1) Is it lawful for the state adjutant general, in view of his outside employment as a commercial airline pilot, to be paid as full compensation for his services as adjutant general an annual salary lower than that prescribed by RCW 38.12.030?

            (2) In the event of an affirmative answer to question (1), is a certain described formula for computation of the adjutant general's salary legally valid?

            For the reasons set forth in our analysis we answer question (1) in the negative, thereby rendering consideration of question (2) unnecessary.

                                                                     ANALYSIS

            In AGLO 1979 No. 22, copy enclosed, we made note of certain provisions in RCW 38.12.030, RCW 38.04.010 and RCW 38.38.004 and concluded, on the basis of those provisions,  [[Orig. Op. Page 2]] that the position of state adjutant general must be deemed to be a full-time job.  We then further explained that while this does not mean that the adjutant general may not also have some other employment, it does mean that any such other employment must be secondary to his state position.

            Question (1):

            Your present request takes note of the fact that the present adjutant general is thus additionally employed as a commercial airline pilot.  The issue posed is whether, in view of that fact, he may lawfully be paid, as his full compensation for serving as the adjutant general, an amount less than the salary fixed by law;i.e., so much of RCW 38.12.030 as provides that:

            "The adjutant general shall receive an annual salary equal to the base pay of a major general in the United States army . . ."

            We must answer that question in the negative.  In a long and consistent line of cases the Washington Supreme Court has held that 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.  Accordingly, the Court has held that an agreement to accept less than the salary fixed by the applicable constitutional proviso, statute, or ordinance (as the case may be) is not legally effective.  See,Malcolm v. Yakima County Consolidated School Dist. No. 90, et al., 23 Wn.2d 80, 159 P.2d 394 (1945);Chatfield v. Seattle, 198 Wash. 179, 88 P.2d 582 (1939);State ex rel. Bradford v. King County, 197 Wash. 393, 85 P.2d 670 (1938);State ex rel. Ross v. King County, 191 Wash. 340, 71 P.2d 370 (1937);Rudnick v. Pierce County, 185 Wash. 289, 54 P.2d 409 (1936);State ex rel. Pike v. Bellingham, 183 Wash. 439, 48 P.2d 602 (1935);State ex rel. Knez v. Seattle, 176 Wash. 283, 28 P.2d 1020 (1934);Bell v. Mabton, 165 Wash. 396, 5 P.2d 514 (1931); andRhodes v. Tacoma, 97 Wash. 341, 166 Pac. 647 (1917).

            Nor is Washington alone in this regard.  See, in addition, 63 Am.Jur.2d Public Officers and Employees, Sec. 393 and cases cited therein; also, 160 A.L.R. 490, 118 A.L.R. 1458 and 70 A.L.R. 792.  And note also the following statement of the underlying reasons for the rule inAllen v. Lawrence, 61 N.E.2d 133 (1945):

             [[Orig. Op. Page 3]]

            ". . . The reasons for the rule are obvious.  Where the compensation for an office has been fixed by law, it would be detrimental to the public service if the office could be let out to the lowest bidder.  Laws designed to attract competent persons to the public office by providing them with adequate compensation could be set at naught at the caprice of those charged with their administration.  The effects on the efficiency and morale of the public service, if this were permitted, are not difficult to imagine. . . ."

            Accordingly, in direct answer to your first question we conclude that is not lawful for the state adjutant general, in view of his outside private employment (or for any other reasons), to be paid as full compensation for his services as adjutant general an annual salary lower than that prescribed by RCW 38.12.030,supra.  And, therefore, to the extent that he may have agreed to such an arrangement, he is not legally bound by that agreement but, instead, may later insist on payment in full at any time prior to the running of the applicable statute of limitations governing the claim.  If he were to do so, the contract could not be invoked by the State as a legal defense.1/

             Question (2):

            Having thus answered your first question n the negative in accordance with the above‑cited Court decisions, it is unnecessary for us to consider, at this time, the second question posed in your letter.

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

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/In so concluding, however, we do not mean to suggest that there might not be other defenses (such as equitable estoppel) which could be invoked by this state in such a case.

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