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AGO 1982 No. 16 - December 09, 1982
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTY ‑- COMPENSATION ‑- SALARY INCREASES FOR OFFICERS OF HOME RULE CHARTER COUNTY WHO FIX THEIR OWN COMPENSATION

The provisions of Article XI, § 8 (Amendment 57) of the state constitution which prohibit the salaries of those county officers who fix their own compensation from being increased, or diminished, after their election or during their term of office are applicable even in the case of a county which has adopted a home rule charter pursuant to Article XI, § 4 (Amendment 21). 

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                                                                December 9, 1982

Honorable Don Herron
Pierce County Prosecuting Attorney
County-City Building
930 Tacoma Avenue S.
Tacoma, Washington 98402

Cite as:  AGO 1982 No. 16                                                                                                                

 Attention:  Roger J. Miener, Chief Civil Deputy

Dear Sir:

            By recent letter you requested our opinion on the following question:

             "May a County Home Rule Charter adopted pursuant to Const. Art. 11, § 4 (Amendment 21) permit the County legislative body to adopt a salary increase for its members which is free from the restriction contained in the first sentence of Const. Art. 11, § 8 (Amendment 57) that, in order to be effective for a particular member, the increase must be adopted prior to that member's election or re‑election?"

             We answer the foregoing question in the negative for the reasons set forth in our analysis.

                                                                      ANALYSIS                                                                 

            Article XI, § 4 (Amendment 21) of the Washington Constitution, which was adopted in 1948, provides for the formation, in any county, of a "home rule" charter for county government.  And, as you have noted, Pierce County is now among the several counties in  [[Orig. Op. Page 2]] the state which have adopted such charters.1/   In turn, the third paragraph of Article XI, § 4 (Amendment 21),supra, states, in pertinent part:

             "Any home rule charter . . . may provide for such county officers as may be deemed necessary to carry out and perform all county functions as provided by charter or by general law, and for their compensation, . . ."

             The question you have raised is whether such a charter must, nevertheless, be in conformity with another section of Article XI of the Constitution; namely, § 8 which in its original (1889) form read as follows:

             "The legislature shall fix the compensation by salaries of all county officers, and of constables in cities having a population of five thousand and upwards; except that public administrators, surveyors and coroners may or may not be salaried officers.  The salary of any county, city, town, or municipal officersshall not be increased or diminished after his election, or during his term of office; nor shall the term of any such officer be extended beyond the period for which he is elected or appointed."  (Emphasis supplied.)

             The Pierce County Charter, as you have described it,

             ". . .does restrict a Council member's eligibility to receive a salary increase by specifying that no Council member may receive a salary increase for the term of office during which the salary increase ordinance is adopted . . ."

             The Charter does not, however, take the further step of prohibiting Council members from receiving salary increases authorized by Council action occurring prior to the commencement of their respective terms of officebut after their election.2/

              [[Orig. Op. Page 3]]

            In support of this omission from the Charter you have directed our attention to the first sentence of the last paragraph of Article XI, § 4 (Amendment 21),supra, which states:

             "The provisions of sections 5, 6, 7, and the first sentence of section 8 of this Article as amended shall not apply to counties in which the government has been established by charter adopted under the provisions hereof. . . ."

             In addition, you have pointed to the provisions of Amendment 57 to the Constitution, as adopted in 1972, by which the original text of Article XI, § 8,supra, was amended as follows:

             "((The legislature shall fix the compensation by salaries of all county officers, and of constables in cities having a population of five thousand and upwards; except that public administrators, surveyors and coroners may or may not be salaried officers.))  The salary of any county, city, town, or municipal officers shall not be increasedexcept as provided in section 1 of Article XXX or diminished after his election, or during his term of office; nor shall the term of any such officer be extended beyond the period for which he is elected or appointed."

           We have set forth this measure in bill form, as originally formulated by the legislature,3/ in order to place the issue thus raised in perspective.  What will thus been seen, quite simply, is that the first sentence of Article XI, § 8, as it existed when Amendment 21 was adopted in 1948, was not merely amended by this 1972 amendment.  Instead, it was totally deleted from the section so as to cause the former second sentence to become, henceforth, the first (and only) sentence.4

              [[Orig. Op. Page 4]]

            Your suggestion, as we understand it, is that because it now contains only one sentence (its former second sentence as amended), Article XI, § 8 should not be deemed to be entirely inapplicable to a home rule charter county‑-in accordance with a literal reading of the first sentence of the last paragraph of Article XI, § 4 (Amendment 21), supra.  You further have pointed out, in that regard, a similar provision in Article XI, § 16 of the Constitution which relates to the framing of a combined county-city "home rule" charter.  That provision, which was also adopted by the voters at the 1972 election, reads, in pertinent part, as follows:

             ". . .

             "The provisions of section 2, 3, 5, 6, and 8 and of the first paragraph of section 4 of this article shall not apply to any such city-county."

             ". . ."

             We are unable, however, to agree with the ultimate proposition which you have, by your letter, urged upon us; namely, that your question (as above stated) should be answered in the affirmative because of a similar inapplicabilityof any part of Article XI, § 8, supra, to a home rule charter.  While it is of course, entirely clear that the voters, in 1972, intended to exempt a combined county-city goverment from any portion of Article XI section 8,supra, their earlier intent in 1948, in the adoption of Article XI, § 4 (Amendment 21) relating to the counties alone, seems to us to have been quite different.

             At the time of adoption of Amendment 21 in 1948‑-and indeed, until the adoption of Amendment 57 in 1972‑-the general rule of constitutional law was that the function of setting the salaries of county elected officials was not a function of the county legislative authority at all but, instead, was exclusively a function of the state legislature.  Accord, AGLO 65-66 No. 115, copy enclosed.  And the basic reason for that precept, of course, was the first sentence of the original text of Article XI, § 8,supra, which, repeated for ease of reference, then read:

             "The legislature shall fix the compensation by salaries of all county officers, and of constables in cities having a population of five thousand and upwards; except that public administrators, surveyors and coroners may or may not be salaried officers. . . ."

              [[Orig. Op. Page 5]]

            In line with the general concept of home rule government, however, the framers of Amendment 21 apparently felt is appropriate to transfer this salary-fixing function (in the case of charter counties only) to the county government provided for thereunder.  They therefore provided, in the third paragraph of that 1948 amendment (repeated for east of reference), that:

             "Any home rule charter proposed as herein provided, may provide for such county officers as may be deemed necessary to carry out and perform all county functions as provided by charter or by general law, and for their compensation, . . . (Emphasis supplied)

             Then, to be consistent, they further exempted such counties from the "first sentence" of Article XI, § 8‑-but only the first sentence‑-as it then read.  Conversely, however, the frames of this earlier constitutional amendment did not see fit to exempt the officers of such a home rule charter county from the remainder of Article XI, § 8 which then (as now) related to, and restricted, changes in the compensation of county officers5/after their election or during their respective terms of office.

             Thereafter, nearly a quarter of a century later, the framers of another constitutional amendment felt it appropriate to abrogate the prior general rule in its entirety and, thus, make it possible for the legislature to delegate the function of fixing salaries to the local boards of county commissioners or other legislative bodies in all classes of counties. This object, we note, was duly reflected in the official ballot title for SJR 38, supra (which became Amendment 57) as follows:

             "Shall the state constitution be amended to allow the legislature to authorize boards of county commissioners and other county legislative authorities to set their own salaries and those of all other county officers, subject to the existing prohibition against mid-term pay increases for those officers who fix their own compensation?"

             On the other hand, we find no suggestion in either the 1972 Official Voter's Pamphlet or any other source of "intent" that this same 1972 constitutional amendment was also designed to accomplish something else as well; namely, to free the elected officials of a  [[Orig. Op. Page 6]] home rule charter county who fix their own compensation from the still existent ban of Article XI, § 8,supra, against salary increases (or decreases) after their election or during their terms of office.

             In short, the original first sentence of Article XI § 8 of the Constitution having been eliminated, it is our opinion that the reference to it in Amendment 21,supra, is now surplusage.  But the remainder, as amended (i.e., the previous second sentence) remains‑-as before‑-applicable to all county elected officials who fix their compensation, including those who serve as members of a legislative body of a home rule charter county.  For that reason, notwithstanding your argument to the contrary, we believe that your question, as stated above, must be answered in the negative.

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

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

PHILIP H. AUSTIN
Deputy Attorney General 

                                                         ***   FOOTNOTES   ***

 1/The other counties which have thus far done so are King, Clallam, Snohomish and Whatcom.

 2/It is also to be noted that there is no prohibition in the Charter which purports to bar even mid-term salary increases for those other county officers, such as the auditor, assessor or prosecuting attorney, who are not involved in fixing their own compensation.  That omission, however, is perfectly permissible in view of Article XXX, § 1 (Amendment 54) of the State Constitution which, as adopted in 1968, now expressly permits the compensation of all elective and appointive state, county, and municipal officialswho do not fix their own compensation to be increased during their terms of office.

 3/See Senate Joint Resolution No. 38 of the 1971 session.

 4/In addition, that sentence was amended to bring it into conformity with Article XXX, § 1 (Amendment 54) to which reference was made in footnote 1, supra.

 5/Except, after 1968, those who do not fix their own compensation.

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