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AGLO 1972 No. 077 - October 24, 1972
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                                October 24, 1972
 
 
 
County Road Administration Board
106 Maple Park
Olympia, Washington 98501
                                                                                            Cite as:  AGLO 1972 No. 77 (not official)
 
 
Attention:  !ttMr. Ernest Geissler, P.E.
            Administrative Engineer
 
Dear Mr. Geissler:
 
            This is in response to your request for legal assistance from this office on the four questions which we have paraphrased as follows:
 
            1. Are fringe benefits which constitute a part of the compensation of county commissioners, such as insurance and similar benefits, payable in whole or in part from county road funds?
 
            2. Is it lawful for a county under chapter 25, Laws of 1971, 1st Ex. Sess., to use any part of its road fund millage for the purpose of paying the salaries and/or fringe benefits of its county commissioners?
 
            3. May the expenses of county commissioners, such as automobiles, convention expenses, travel, and other types of expenses, be payable from the county road fund?
 
            4. Are such expenses, or any of them, payable from the millage diverted from the county road fund pursuant to chapter 25, Laws of 1971, 1st Ex. Sess.
 
            We answer questions (1) and (2) in the negative and questions (3) and (4) in the affirmative as qualified in our analysis.
 
                                                                     ANALYSIS
 
            Question (1):
 
            "Are fringe benefits which constitute a part of the compensation of county commissioners, such as insurance and similar benefits, payable in whole or in part from county road funds?"
 
             [[Orig. Op. Page 2]]
            The fringe benefits to which you refer are, by their nature, "compensation."  See our informal opinion to Representative Olsen dated February 18, 1965, and authorities cited therein, a copy of which is enclosed.  See also, RCW 41.04.190, which expressly declares certain insurance to be additional "compensation."
 
            In AGO 63-64 No. 76, [[to C. W. "Red" Beck, State Representative on December 19, 1963]], we concluded that no portion of the salaries of county commissioners, other than counties of the sixth, seventh, eighth or ninth class, could be lawfully paid from the county road fund.  At that time RCW 36.32.320 expressly permitted county commissioners of those four listed classes of counties to be paid certain compensation as road commissioners.  However, that express authorization was eliminated with the repeal of RCW 36.32.320 by § 3, chapter 237, Laws of 1971, 1st Ex. Sess.  Accordingly, the reasoning of our previous opinion, AGO 63-64 No. 76, is now applicable to the salaries of all county commissioners.  We find no basis for distinguishing between compensation of county commissioners payable in the form of a salary, and that payable in the form of insurance and other fringe benefits.  For the reasons stated in AGO 63-64 No. 76 we conclude that no part of the compensation of county commissioners is payable from the county road fund.
 
            Question (2):
 
            "Is it lawful for a county under chapter 25, Laws of 1971, 1st Ex. Sess., to use any part of its road fund millage for the purpose of paying the salaries and/or fringe benefits of its county commissioners?"
 
            Prior to the 1971 legislative session, counties were authorized by RCW 36.82.040 to make an annual levy not exceeding 10 mills exclusively for county road purposes.  Chapter 25, Laws of 1971, 1st Ex. Sess., amended that statute by removing the provision which restricted the use of such millage for only county road purposes.  However, the legislature imposed two restrictions on the use of such diverted millage as follows:
 
            1.         Funds must be placed in separate identifiable accounts within the county current expense fund.  (§ 2, chapter 25, Laws of 1971, 1st Ex. Sess.);
 
            2.         Expenditures are limited to services provided in unincorporated areas of the county.  (§ 1, chapter 25, supra.)
 
            It is the second such restriction; i.e., "Expenditures are limited to services provided in unincorporated areas of the county" which is germane to this inquiry.  We are not aware of any statute which specifically authorizes the division of a county commissioner's salary between his time spent  [[Orig. Op. Page 3]] performing services in the incorporated and unincorporated areas of the county.  In the absence of such a specific statute his salary is not divisible in that manner.  See our earlier opinion, AGO 63-64 No. 76.  We explained in that opinion, in some detail, the requirement that county officers are to be paid from the county current expense fund.  As we said at page 4 of that opinion:
 
            ". . .  We deem the intent of the legislature to be that the salaries of county officers should be paid from the current expense fund in the absence of other specific provision."  (Emphasis supplied)
 
            We further indicated at page 6:
 
            "There is hardly any officer of county government who does not perform some duties which touch upon the county roads or provide some benefit to the county road fund.  If the general governmental function of county commissioners can be divided into parts for the purpose of allocating part of their salaries to the county road fund, then the same conclusion could be made as to the county treasurer and the county auditor and others, the result being simply a tax upon the county road fund for purposes of general government.  This result, we feel, should not be reached without express legislative direction to that effect."  (Emphasis supplied)
 
            The legislature has since met, being presumably aware of its existing statutes and the construction placed upon them1/ and chose to pass no specific statute to accomplish any different result.  We do not consider the general language in the provisions of chapter 25, Laws of 1971, 1st Ex. Sess. to constitute a specific authorization to pay the county commissioners' salaries from a separate fund created under that statute, even if it were possible to segregate the county commissioners' activities between those which were provided in the unincorporated areas and those provided within the incorporated areas.  In answer to your second question, therefore, it is our opinion that the legislature has not evidenced any intention on its part to allow any division of county commissioners' salaries or fringe benefits between funds and we answer your second question in the negative.
 
            Question (3):
 
            "May the expenses of county commissioners, such as automobiles, convention expenses, travel, and  [[Orig. Op. Page 4]] other types of expenses, be payable from the county road fund?"
 
            The answer to this question is in the qualified affirmative, again on the basis of our reasoning in AGO 63-64 No. 76, and other opinions and authorities cited therein.  We concluded in that opinion that to the extent particular expenses are incurred by county commissioners in connection with activities connected directly with county roads, such expenses are payable from the county road fund.
 
            Question (4):
 
            "Are such expenses, or any of them, payable from the millage diverted from the county road fund pursuant to chapter 25, Laws of 1971, 1st Ex. Sess.?"
 
            We answer this final question in the qualified affirmative, on exactly the same reasoning as AGO 63-64 No. 76.  To the extent that expenses (as distinguished from compensation) are identifiable as having been incurred in connection with activities performed entirely within the unincorporated areas of the county, such expenditures are payable from millage diverted and segregated under the provisions of chapter 25, Laws of 1971, 1st Ex. Sess., supra.


 
            We trust the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Edward B. Mackie
Deputy Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/State v. Thornbury, 190 Wash. 549, 69 P.2d 815 (1937); Atworth v. Tanner, 152 Pac. 523, 87 Wash. 670 (1915).
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