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AGLO 1973 No. 106 - November 13, 1973
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Slade Gorton | 1969-1980 | Attorney General of Washington
OFFICES AND OFFICERS ‑- STATE ‑- SUPERINTENDENT OF PUBLIC INSTRUCTION ‑- APPROPRIATIONS ‑- CONTINUATION OF $40 PER MONTH SALARY INCREASE
 
To the extent that the funds appropriated by § 86, chapter 137, Laws of 1973, 1st Ex. Sess., for continuation of the $40 per month salary increase provided by chapter 8, Laws of 1973, for school district classified employees are sufficient for that stated purpose, they are to be distributed on the basis of the amount necessary for each district to continue such increase, independent of the substantive provisions of the school apportionment formula.
 
                                                              - - - - - - - - - - - - -
 
                                                               November 13, 1973
 
Honorable Frank Brouillet
Superintendent of Public Instruction
Old Capitol Building
Olympia, Washington 98504
                                                                                                             Cite as:  AGLO 1973 No. 106
 
Dear Sir:
 
            This is written in response to your recent request for an opinion of this office on a question which we paraphrase as follows:
 
            Are the funds appropriated by § 86, chapter 137, Laws of 1973, 1st Ex. Sess., for continuation of the $40 per month salary increase provided in February of 1973 for school district classified employees to be distributed to each district on the basis of the amount necessary for that district to continue such increase, independent of the substantive provisions of the school apportionment formula set forth in RCW 28A.41.130?
 
            To the extent that the funds appropriated by this section are sufficient for that stated purpose, we answer the foregoing question in the affirmative.
 
                                                                     ANALYSIS
 
            Although your question deals, specifically, with an appropriation for the 1973-75 fiscal biennium, we begin by noting the earlier enacted provisions of § 2, chapter 8, Laws of 1973.  By that section, which is a part of a supplemental appropriations act for the remainder of the 1971-73 biennium, the legislature, early during its 1973 regular session, adopted a general fund appropriation to pay a specified monthly salary increase for each individual school district classified employee, as follows:
 
            "Based upon the salary schedule in effect on January 1, 1973 the governor shall allot the amounts necessary for a salary adjustment of $40 per month for full time employees pro-rated for less than full time, effective February 1, 1973:  For all local school district classified employees,  [[Orig. Op. Page 2]] for all employees of four-year units of higher education, and for all state employees except faculty and exempt staff of community colleges and certificated staff of local school districts.
 
            "General Fund Appropriation . .  $10,139,600" (Emphasis supplied.)
 
            Subsequently, by § 86, chapter 137, Laws of 1973, 1st Ex. Sess., the omnibus appropriations act for the 1973-75 biennium, the legislature made the following additional general fund appropriation to which your inquiry refers:
 
            "For continuation of the $40 per month salary increase provided February 2, 1973:  PROVIDED, That these salary increase funds shall be allocated through the school apportionment formula . . $19,114,368 . . ."
 
            From the enabling portion of this line item appropriation ‑ i.e., the clause preceding the proviso ‑ it seems clear that the legislature's basic and express intent in appropriating these funds was solely to make possible a continuation of the earlier, $40 per month per full time school district classified employee1/ salary increase which it had first provided for in chapter 8, supra, ‑ without requiring a resort to other funding sources.  Nothing contained therein evidences an intent either to fund classified employee salary increases above that level or in any other way to supplant school district funds which would otherwise be used to pay any other increments of the salaries of these employees.  This brings us, then, to a consideration of the effect of the proviso.
 
            The "school apportionment formula" which is referred to therein is set forth in RCW 28A.41.130, and has both a substantive and a procedural aspect.  Substantively, the formula establishes the basis for allocating state appropriated maintenance and operation funds to each school district in an amount which, coupled with certain other district revenue sources including local property taxes, "will constitute an equal guarantee in dollars for each  [[Orig. Op. Page 3]] weighted student enrolled."  School districts receive a variable amount of state funds under this formula depending upon the amounts they derive from these other sources, together with certain weighting factors which vary from one biennium to another.  See, § 2, chapter 134, Laws of 1973, 1st Ex. Sess., for the weighting factors which are to be utilized during 1973-75.  However, notwithstanding the variables within the formula itself, the guarantee per weighted pupil is a uniform amount throughout the state.
 
            Following the computation of its state allocation under RCW 28A.41.130, this statute then goes on, procedurally, to direct that each district's annual entitlement to such funds is to be distributed over a twelve‑month period in accordance with the following provisions of RCW 28A.48.010:
 
            "On or before the last business day of September 1969 and each month thereafter, the superintendent of public instruction shall apportion from the current state school fund and/or the state general fund to the several intermediate school districts of the state the proportional share of the total annual amount due and apportionable to such intermediate school districts for the school districts thereof as follows:
 
            "September                                          10%
 
            "October                                                        8%
 
            "November                                                     6.5%
 
            "December                                                     8.5%
 
            "January                                                       13%
 
            "February                                                     13%
 
            "March                                                 11%
 
            "April                                                   5%
 
            "May                                                              5%
 
            "June                                                    3%
 
            "July                                                     8.5%
 
            "August                                                          8.5%
 
            ". . ."
 
            From this description of the school apportionment formula it will readily be seen that if full and literal effect were to be given to the proviso in § 86, supra, the subject $19,114,368 appropriation made by this section would have to be allocated and distributed to each school  [[Orig. Op. Page 4]] district on a basis determined by factors which are wholly unrelated to the number of full time and/or part time classified personnel employed by that district.  The net result, as substantiated by figures provided by your offfice, would be that most districts which are eligible for state funds within the apportionment formula would thereby receive an amount from this special appropriation that would be either below or in excess of the amount necessary to continue the February, 1973, $40 per month salary increase for those employees.  In the case of those districts receiving less than that amount the employees' continuing receipt of that increase would be dependent upon the availability of other district funds to supplement the state allocation.  Conversely, in those districts receiving more than that amount required to continue the payment of the $40 per month increase to their employees, there would be excess moneys received from the state which could not be used for any purposes, salaries or otherwise, because any such use would be contrary to the restraint of Article VIII, § 4 (Amendment 11) of the state Constitution with respect to the use of appropriated funds for any purposes other than those stated in the appropriation.
 
            It seems to us from this discussion that what we here have in § 86, supra, is the rare situation of a legislative enactment containing so great an inconsistency between its enabling clause and a provisio thereto as to bring into play a rule of statutory construction sometimes referred to as the repugnant proviso rule.  Under this rule, as described at some length by our court in State ex rel. Wilson v. King County, 7 Wn.2d 104, 109 P.2d 291 (1941),
 
            ". . . a proviso or saving clause which is directly repugnant to the purview or body of the act is inoperative and void for repugnancy . . ."
 
            In considering the applicability of this rule to the situation at hand we are fully aware that it has only been applied by our court in case of a complete repugnancy,2/ whereas in the more common situation of a mere partial inconsistency the rule is that the proviso, instead, survives and serves as a limitation or qualification upon the enabling clause.  State ex rel. Olympia Credit Bureau v. Ayer, 9  [[Orig. Op. Page 5]] Wn.2d 188, 114 P.2d 168 (1941).  In our judgment, however, the conflict between the expressly stated purpose of the enabling clause of § 86, supra (to fund a continuation of a $40 per month salary increase previously granted to each eligible school district employee) and the result which would flow under the proviso from a literal application of the substantive aspects of the school apportionment formula (funds allocated on the basis of other district revenues and weighted pupils ‑ unrelated to the number of eligible classified employees) is such as to render the proviso void insofar as those aspects of the apportionment formula are concerned.
 
            Procedurally, on the other hand, the proviso is not so in conflict with the enabling clause of § 86, supra, as to render it also void with respect to the monthly distribution schedule provided for in RCW 28A.48.010, supra; and, accordingly, that aspect of the apportionment formula remains applicable to the funds here in question, in our opinion.
 
            In summary, then, our direct answer to your question is that the entitlement of each school district to a portion of the $19,114,368 appropriated by § 86, chapter 137, Laws of 1973, 1st Ex. Sess., is to be calculated independent of the substantive provisions of RCW 28A.41.130.  To the extent that this amount is sufficient to do so that entitlement is, instead, to be computed solely on the basis of the amount necessary for each district to fund a continuation during the 1973-75 biennium of the $40 per month per full time (prorated for part time) classified employee salary increases originally provided for by § 2, chapter 8, Laws of 1973, supra.  If, on the other hand, your information discloses that the $19,114,368 figure is insufficient to continue those February, 1973, increases in full for the entire biennium, then the entitlement of each school district should be proportionately reduced.
 
            Following the calculation of each district's annual entitlement to a share of this money, however, that share is then to be distributed over a twelve‑month period in the manner and monthly percentages dictated by RCW 28A.48.010.
 
            Finally, we also should note here that the conclusion which we have reached with respect to the force and  [[Orig. Op. Page 6]] effect of the proviso contained in this particular appropriation is not to be read as also applying to a companion appropriation in § 86, supra, of $42,357,562 "For an average five percent salary increase for certificated employees of local school districts."  In that case, because the enabling clause speaks only of what we have previously advised you should be viewed as a statewide average increase for those employees,3/ there is no such complete repugnancy between it and the ensuing proviso (which also speaks of distribution through the school apportionment formula) as to render the proviso void under the rule of construction which we have here applied.
 
            We trust the foregoing will be of some assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
 
ROBERT E. PATTERSON
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/Prorated for part time employees.
 
2/E.g., Seattle v. Rothweiler, 101 Wash. 680, 172 Pac. 825 (1918); and McKnight v. Hodge, 55 Wash. 289, 104 Pac. 504 (1909).
 
3/See our informal memorandum to you of April 24, 1973.
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