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AGLO 1972 No. 078 - November 09, 1972
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                                November 9, 1972
Honorable Phillip B. Winberry
Administrator for the Courts
Temple of Justice
Olympia, Washington 98504
                                                                                            Cite as:  AGLO 1972 No. 78 (not official)
Dear Sir:
            This is written in response to your request for our advice regarding the proper salaries to be paid to the various justices or judges of the supreme, appellate, superior and district justice courts of the state of Washington for the period commencing November 14, 1972.
            By its enactment of chapter 100, Laws of 1972, Ex. Sess., effective July 1, 1972, the legislature increased the salaries of all of the foregoing justices or judges as follows:
                                                Old Annual Salary                    New Annual Salary
            Supreme Court                         $27,500                                                           $33,000
            Court of Appeals                      25,000                                                 30,000
            Superior Court                         22,500                                                 27,000
            District Court                            20,000                                                 22,000 1/
             However, because these increases appeared to exceed the limitations upon pay raises which are set forth in the guidelines and regulations governing Phase II of the federal wage‑price freeze, the new salaries provided for by this act were not immediately implemented on its effective date but were, instead, submitted to the federal pay board for its ruling.  Thereafter, by order dated August 29, 1972, the pay board denied payment of the full amounts authorized by the legislature but did allow a seven percent increase in all of the subject salaries as of July 1, 1972 ‑ so that since that time the salaries of  [[Orig. Op. Page 2]] the affected justices and judges have been based upon the following annual rates:
            Supreme Court                                     $29,425
            Court of Appeals                                  26,750
            Superior Court                                     24,075
            District Court                                        21,400
            In addition, this pay board order provided, in pertinent part, as follows:
            "1. That, under Section 201.3 of Pay Board Regulations, the appropriate employee unit is the 162 judges of the Supreme, Appellate, Superior and District Courts of the State of Washington.
            "2. That, under Section 201.53 of Pay Board Regulations, the proposed pay adjustment, scheduled to be effective July 1, 1972, is within the first control year of the employee unit involved, which control year begins on November 14, 1971, and ends November 13, 1972."  (Emphasis supplied.)
            The meaning of this portion of the order is to be gleaned from §§ 201.3 and 201.10 of the pay board's regulations.  Section 201.3 (36 C.F.R. 25427) provides that:
            "'Maximum permissible annual aggregate wage and salary increase' means, with respect to an appropriate employee unit during any control year, the limitation on increases in the base compensation rate.  This limitation is the general wage and salary standard described in § 201.10 or, if appropriate, any exception thereto pursuant to § 201.11, including any decision of the Pay Board relating to such unit pursuant to paragraph (d) of such section."
            Regulation § 201.10 (36 C.F.R. 25427) further states that:
             [[Orig. Op. Page 3]]
            "Effective on and after November 14, 1971, the general wage and salary standard (hereinafter referred to as the 'standard') is established as 5.5 percent.  The standard shall apply to any wage and salary increase payable with respect to an appropriate employee unit pursuant to an employment contract entered into or modified on or after November 14, 1971, or to a pay practice established, modified or administered with discretion on or after November 14, 1971.  Except as otherwise provided in the Regulations under this title or by decision of the Pay Board, the standard shall be used to compute the maximum permissible annual aggregate wage and salary increase.  The appropriateness of the standard will be reviewed periodically by the Pay Board to insure that it is generally fair and equitable, that it calls for generally comparable sacrifice by business and labor as well as other segments of the economy and that it takes into account such factors as changes in productivity and the cost of living as well as other factors consistent with the purposes of the Act."  (Emphasis supplied.)
            Reading the pay board's order in the light of these regulations it is to be seen, then, that November 14, 1972, will mark the beginning of a new "control year" for an employee unit consisting of all justices or judges of the four levels of state courts which are referred to therein.  Therefore, commencing on that date and for the year thereafter, an additional salary increase of 5.5 percent will be allowed for these judges ‑ to the extent (of course) that the resulting increased salaries remain at or below the levels fixed by the legislature through its enactment of chapter 100, Laws of 1972, Ex. Sess., supra.  Moreover, payment of this increase will not require prior approval of or prenotification to the pay board because such prior approval or prenotification is not required for any Category III pay adjustment such as this.  See, regulation § 101.25 which states:
            "Category III pay adjustments; monitoring and spot checks.
            "(a) A category III pay adjustment means a pay adjustment which applies to or affects less than 1,000 employees.
            "(b) Category III pay adjustments are not  [[Orig. Op. Page 4]] subject to prenotification and reporting.  However, they are subject to monitoring and spot checks as are pay adjustments by firms in other categories.  [37 C.F.R. 1237]"
            In addition, regulation § 101.28, which is also applicable, provides that:
            "Pay adjustments which affect the employees of State and local governments, except those pay adjustments defined in § 101.21 (a) (3), need not be submitted to the Pay Board in accordance with the provisions of § 101.21 (b) and (c).  . . .  Approval, however, must be granted by the Pay Board for any pay adjustment in excess of 5.5% which affects the employees of State and local governments."
            However, in computing the actual salary increases which will thus be allowed for each of the four classes of judges for the November 14, 1972 ‑ November 13, 1973 control year it is important to note that the permissible 5.5% increase is applicable to the employee unit per se and not to separate individuals within the unit.  See, § 201.51 of the pay board's regulations (37 C.F.R. 7615) which provides, in pertinent part:
            "(a) Purpose.  The purpose of the provisions of this subpart is to set forth the methods of computation of pay adjustments which shall be used under the applicable provisions of this chapter with respect to the periods of time called 'control years' for which such computations are made.  The methods of computation described in this subpart shall be used, among other things, to examine the relationship of pay adjustments to the maximum permissible annual aggregate increase in the base compensation rate for an appropriate employee unit during any control year (§ 201.53).  Every person who makes any computation pursuant to the provisions of this subpart shall be required to make such computation in good faith and in a manner consistent with the policies of the Act.
            "(b) . . .
            "(c) Limitation on wage and salary increases.   [[Orig. Op. Page 5]] Except as otherwise provided in this title, an appropriate employee unit's aggregate percentage increase in the base compensation rate (as determined pursuant to § 201.52) for any control year may not exceed its maximum permissible annual aggregate wage and salary increase (as defined in § 201.3).  However, the wage and salary increases of an individual employee in an appropriate employee unit may exceed such maximum so long as the aggregate increase in the base compensation rate for such unit as a whole does not exceed such maximum."  (Emphasis supplied.)
            The significance of this proposition in the instant case derives from the inclusion within the subject employee unit of district justice court judges whose statutory salaries were raised by chapter 100, supra, from $20,000 to $22,000 per year.  By virtue of the pay board's allowance of a seven percent increase for the period from July 1, 1972 through November 13, 1972, these judges are currently being paid at an annual rate of $21,400 ‑ so that an additional increase of 5.5% would bring them to a level of $22,577 per year, or to $577 more than the level fixed by the legislature.
            Since these district court judges cannot be paid the full increase allowable under the pay board's order and regulations without exceeding their statutory salary levels, it follows from the foregoing discussion that the excess amounts otherwise payable to them may, instead, be distributed equally among the other three classes of judges within the employee unit ‑ inasmuch as the 5.5% increase for them will still leave these judges below their statutory levels as fixed by the legislature.
            The computation to accomplish this may be made by first adding together the present salaries of all the subject justices or judges (including the 7% initial increase allowed by the pay board order) and then multiplying this total by .055.  The resulting amount will represent the maximum number of additional dollars which may be paid to all justices or judges in the employee unit.  By subtracting from this figure the amount of $600 multiplied by the number of district court judges who can only receive a raise of this amount, a remaining figure will be obtained which will represent the total amount which may be applied for salary increases for the other three classes of judges in the employee unit.  A comparison of this figure with the total of all current salaries payable to these supreme, appellate and superior court judges will allow a calculation  [[Orig. Op. Page 6]] of the actual permissible percentage rate of increase for these judges ‑ and to the extent that this rate of increase may be paid without exceeding the levels fixed for these judges by chapter 100, supra, it may so be paid as of November 14, 1972, without violating the pay board's order and regulations, supra.2/
             We trust that the foregoing will be of assistance to you.

Very truly yours,
Attorney General
Philip H. Austin
Deputy Attorney General
Richard M. Montecucco
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/Full time district court judges only.
2/We assume that your office either has or can obtain such additional data (basically, the correct numbers of judges serving on each of the courts covered by the pay board's order) as are necessary to make these computations; we would, however, be happy to assist you in then making such computations if you would like us to do so.
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