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AGO 1973 No. 20 - September 20, 1973
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTIES ‑- SALARIES ‑- AUTHORITY TO FIX SALARIES OF COUNTY ELECTED OFFICIALS

(1) Chapter 88, Laws of 1973, Ex. Sess., authorizes the legislative authorities of all classes of counties to increase or decrease the salaries of those county officers whose salaries are fixed by its provisions.

(2) Under Article XXX, § 1 (Amendment 54) of the state Constitution, prohibiting mid-term salary increases for elective and appointive officers who fix their own compensation, a board of county commissioners or other legislative authority may not grant a mid-term increase in compensation to its own members under chapter 88, Laws of 1973, Ex. Sess.

(3) A board of county commissioners or other legislative authority exercising the powers granted by chapter 88, Laws of 1973, Ex. Sess., is effectively authorized by this chapter to fix the salaries of its other elective officials at or above their current levels by an ordinance adopted prior to January 1, 1974, but it may not reduce any of those salaries below those levels.

(4) After January 1, 1974, a board of county commissioners or other county legislative authority which by inaction has simply allowed the new salary levels fixed by the legislature to take effect most likely will not be able then to roll those salaries back to their prior levels in the case of any county elective officials then serving ‑ except on a basis which will cause those salary decreases not to take effect until the commencement of the next ensuing terms of the respective county officers.

                                                              - - - - - - - - - - - - -

                                                              September 20, 1973

Honorable Granville Egan
Prosecuting Attorney
Ferry County
Republic, Washington 99166

                                                                                                                 Cite as:  AGO 1973 No. 20

Dear Sir:

             [[Orig. Op. Page 2]]   By recent letter you requested our opinion on a question pertaining to the salaries of county elected officials. We have divided and paraphrased your question in the following manner:

            (1) Does chapter 88, Laws of 1973, Ex. Sess., authorize the legislative authorities of all classes of counties to increase or decrease the salaries of those county officers whose salaries are fixed by its provisions?

            (2) If question (1) is answered affirmatively, then what limitations, constitutional or otherwise, currently exist with respect to the exercise of this authority?

            We answer question (1) in the affirmative and question (2) in the manner set forth in our analysis.

                                                                     ANALYSIS

            Prior to the adoption of Amendment 57 to the state Constitution at the November 7, 1972, general election, the function of fixing salaries for all county elected officials was exclusively that of the legislature under the then existing provisions of Article XI, §§ 5 and 8 of the Constitution.  Accord, our opinion to you of October 12, 1971 [[to Granville Egan, Prosecuting Attorney, Ferry County, an Informal Opinion AIR-71619 on October 12, 1971]], copy enclosed; see, also, AGO 65-66 No. 115 [[to Perry B. Woodall, State Senator on October 20, 1966]], a copy of which is also enclosed for your information.  By their adoption of this recent amendment,1/ however, the voters amended these two sections to read as follows:

            Article XI, § 5:

            "The legislature, by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys and other county, township or precinct and district officers, as public convenience may require, and shall prescribe their duties, and fix their terms of office:  PROVIDED,  That the legislature may, by general laws, classify the counties by  [[Orig. Op. Page 3]] population and provide for the election in certain classes of counties certain officers who shall exercise the powers and perform the duties of two or more officers.  It shall regulate the compensation of all such officers, in proportion to their duties, and for that purpose may classify the counties by population:  PROVIDED, That it may delegate to the legislative authority of the counties the right to prescribe the salaries of its own members and the salaries of other county officers.  And it shall provide for the strict accountability of such officers for all fees which may be collected by them and for all public moneys which may be paid to them, or officially come into their possession."

            Article XI, § 8:

            "((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."

            Shortly after the election at which this amendment was approved we were asked by the prosecuting attorney of Wahkiakum county whether it constituted a self-executing grant of power to the various boards of county commissioners or other county legislative authorities to fix their salaries or those of other county officers ‑ or whether, instead, some form of implementing legislation was required.  By opinion dated November 22, 1972 [[to George F. Hanigan, Prosecuting Attorney, Wahkiakum County an Informal Opinion AIR-72581 on November 22, 1972]], copy enclosed ‑ confirming the tentative opinion of the prosecutor himself ‑ we answered as follows:

            "We are in complete agreement with you that the proviso which was added to Article XI, § 5,supra, by this amendment merely  [[Orig. Op. Page 4]] authorizes the legislature to delegate its previous function of fixing county officers' salaries to the legislative authorities of the counties.  It is not a self-executing grant of power to these county legislative authorities to fix such salaries."

            Thereafter, at its 1973 session the legislature enacted chapter 88, Laws of 1973, Ex. Sess., the act cited in your letter.  As originally introduced2/ this measure merely proposed to amend the preexisting statutes fixing the salaries of most county elected officials3/ in order to provide legislatively enacted increases in those salaries effective January 1, 1974.  In other words, although Amendment 57,supra, allowed the legislature to delegate this function to the counties, this act did not originally purport to do so.

            However, following extensive recorded debate in the State Senate the following committee amendment was added at the end of each of the two prior statutes covered by the original bill:

            "The county legislative authority of such county is authorized to increase or decrease the salary of such office:  PROVIDED, That the legislative authority of the county shall not reduce the salary of any official below the amount which such official was receiving on January 1, 1973."

            Thus, as finally enacted into law, § 1 of the act amended RCW 36.16.032 to read as follows:

            "The office of county auditor may be combined with the office of county clerk in counties of the eighth class by unanimous resolution of the board of county commissioners passed thirty days or more prior to the first day of filing for the primary election for county offices.  The salary of such office of county clerk  [[Orig. Op. Page 5]] combined with the office of county auditor shall be nine thousand four hundred dollars.

            "Beginning January 1, 1974, the salary of such office shall be ten thousand three hundred dollars.  The county legislative authority of such county is authorized to increase or decrease the salary of such office:  PROVIDED, That the legislative authority of the county shall not reduce the salary of any official below the amount which such official was receiving on January 1, 1973."  (Emphasis supplied.)

            And § 2 then similarly amended RCW 36.17.020 to provide that:

            ". . .

            "Beginning January 1, 1974:

            "The salaries of the following county officers of class AA and A counties and counties of the first, second, third, fourth, fifth, sixth, seventh, eighth and ninth classes, as determined by the last preceding federal census, or as may be determined under the provisions of RCW 36.13.020 to 36.13.075, inclusive, shall be per annum respectively as follows:

            "Class AA counties:  Prosecuting attorney, thirty thousand three hundred dollars;

            "Class A counties:  Auditor, seventeen thousand six hundred dollars; clerk, seventeen thousand six hundred dollars; treasurer, seventeen thousand six hundred dollars; sheriff, nineteen thousand five hundred dollars; assessor, seventeen thousand six hundred dollars; prosecuting attorney, twenty-four thousand eight hundred dollars; members of board of county commissioners, nineteen thousand five hundred dollars; coroner, sixteen thousand five hundred dollars; . . . [similar provisions for counties of the first through eighth classes omitted] . . .

            "Counties of the ninth class:  Auditor-clerk,  [[Orig. Op. Page 6]] eight thousand two hundred dollars; treasurer-assessor, eight thousand two hundred dollars; sheriff, nine thousand four hundred dollars; prosecuting attorney, nine thousand nine hundred dollars; members of the board of county commissioners, six thousand one hundred dollars.

            "The county legislative authority of such county is authorized to increase or decrease the salary of such office:  PROVIDED, That the legislative authority of the county shall not reduce the salary of any official below the amount which such official was receiving on January 1, 1973.

            "One‑half of the salary of each prosecuting attorney shall be paid by the state."  (Emphasis supplied.)

            Question (1):

            Your first question arises because of the placement and wording of the two identical committee amendments underscored above.  Because each of these amendments speaks of "the county legislative authority of such county" in the singular and is placed in immediate proximity to a statutory paragraph relating to only a certain class of county, it is possible to read the act as meaning that the ability to fix the salaries of county officers has, in truth, only been delegated by the legislature in those cases involving county auditors and clerks in eighth class counties (§ 1) or county offices, generally, in ninth class counties (the last part of § 2).  Conversely, however, because any givenclass of county may encompass a plurality of counties4/ it is at least equally possible to disregard these factors and, instead, to read the all-important second of these two committee amendments as applying to the legislative authorities of all classes of counties enumerated in RCW 36.17.020,intoto.

            We think that this situation is at least productive of a sufficient ambiguity to permit us to make resort to the rules of statutory construction which are to be applied in determining legislative intent in such cases, one of which is the well-established principle that in determining legislative intent with respect to an ambiguous enactment,  [[Orig. Op. Page 7]] resort may be had to the recorded journals of the enacting legislature.  See,State v. Coma, 69 Wn.2d 177, 417 P.2d 853 (1966), and authorities cited therein.  As hereinbefore noted, the committee amendments to Senate Bill No. 2513 which have given rise to your questions were adopted only after extensive recorded floor debate, and, therefore, consistent with this rule of construction we may now turn to this record for such assistance as it may provide in ascertaining the true intent of the legislature in its adoption of those amendments.

           The record in question is to be found on pages 929-31, 960-61 and 964 of the Senate Journal for the 1973 First Extraordinary Session.  Looking there we find that the subject amendments were fully regarded by all who are recorded as discussing them as providing for a general delegation of the salary fixing function for county officers to the legislative authorities ofall classes of counties.  Typical of the colloquy which demonstrates this is the floor debate recorded at pages 930-31, which runs as follows:

            "POINT OF INQUIRY

            "Senator Ridder:  'Will Senator Woodall yield to a further question?  Would this mean that immediately upon passage of the raise to ten thousand three hundred dollars the legislative authority of the county could then increase or decrease at that time?'

            "Senator Woodall:  'If they wanted to, yes.  That is local control.  They have the power to face the local voters and do what they want just like we have the power to set our salaries.'

            "POINT OF INQUIRY

            "Senator Fleming:  'Would Senator Woodall yield? As I read the amendment, Senator Woodall, we are still setting the salary of ten thousand dollars as of 1974 and then thereafter they will be able to establish their salaries.'

            "Senator Woodall:  'This gives them the immediate authority to go either direction they want.  The way it read before was they did not have any  [[Orig. Op. Page 8]] authority until after 1975 and then they could only go one way, up.  I do not know how you feel up your way, but in the smaller counties, we are always hit with this.  The county commissioners hide behind the law and they always say, "Oh, we did not ask for the raise.  They did it to us over in Olympia."  Of course, they come around and ask us to do it.  They come around and beg us to vote these and then they go home and they say, "But we did not really want it."  And I am just saying, let us put the local control where it should be and let them measure up and accept their full share of responsibility.'

            ". . .

            "POINT OF INQUIRY

            "Senator Bottiger:  'Senator Woodall, as I understand it, with the adoption of your amendment the county commissioners, the legislative authority of the county, can set the salary effective right now pursuant to the recent constitutional amendment up or down and the rest of this language in here about what we are setting has no effect.'

            "Senator Woodall:  'It does if they do not do anything about it, but they have the power to go up or down.  In other words, they cannot say that we made it higher than they wanted it or that we put a burden on them by making it too costly.  They have the authority to adjust right now, as soon as this amendment goes in, or they can leave it alone and do nothing.'"

            In each of these three instances it seems to us apparent that the speakers were discussing, broadly, the merits of a proposal not only to implement the authority granted by Amendment 57, supra, in certain cases involving persons serving jointly as county auditors and clerks in eighth class counties (RCW 36.16.032,supra) but, as well, with respect to all county officials whose salaries were previously fixed exclusively by the legislature in all classes  [[Orig. Op. Page 9]] of counties (RCW 36.17.020).  Moreover, as a matter of policy we can conceive of no plausible reason for the legislature to have intended anything less ‑ and most certainly nothing so limited as an act which would only apply to one particular joint office‑holding situation in four eighth class counties, there being no ninth class counties presently existent in this state to which the committee amendment to RCW 36.17.020, supra, could apply if that amendment were only declared operative with respect to such counties.5/   We therefore emphatically reject such a construction of this statute as amended, and answer your first question in the affirmative.

            Question (2):

            Although the various salaries for county elective officials which were fixed by the legislature in chapter 88, supra, will not take effect until January 1, 1974, that act itself is already in effect ‑ as of July 16, 1973.6/   It therefore follows that the legislative authorities of all classes of counties are already vested with the authority to increase or decrease salaries for the officials covered by this act, even before the new salaries established by the legislature go into effect.7/   This power, however, is not wholly unrestricted ‑ a point to which we shall address ourselves in the remainder of this opinion lest there be any misunderstanding as to its scope.

            First to be noted, of course, is the limitation which is contained in each of the provisos to the above discussed committee amendments to the act itself; namely, that the legislative authorities of the several counties ". . . shall not reduce the salary of any official below that amount which such official was receiving on January 1, 1973."  Under this provision it will readily be seen that although a board of county commissioners or other legislative body is effectively authorized by the act to fix the salaries of its elective officialsat or above their current levels (same as January 1, 1973) by an ordinance adopted prior to January 1, 1974, it may not reduce any of those salariesbelow those levels.

            Beyond thisstatutory restriction, however ‑ the existence of which should be self-evident to any reader of the act ‑ there is also a provision in our state Constitution which bears upon the ability of a county legislative authority to decrease or increase salaries under this new legislation.   [[Orig. Op. Page 10]] We have reference to so much of Article XI, § 8, supra, as provides that:

            ". . .  The salary of any county . . . officers shall not be [1] increasedexcept as provided in section 1 of Article XXX or [2]diminished after his election, or during his term of office; . . ."  (Emphasis supplied.)

            This means, first, that although the act authorizes the granting of salaryincreases as well as decreases, any such increases will be subject to Article XXX, § 1 (Amendment 54) of the Constitution, as adopted in 1968, which states that:

            "The compensation of all elective and appointive state, county, and municipal officerswho do not fix their own compensation, including judges of courts of record and the justice courts may be increased during their terms of office to the end that such officers and judges shall each severally receive compensation for their services in accordance with the law in effect at the time the services are being rendered."  (Emphasis supplied.)

            Thus, whilemid-term increases may now statutorily and constitutionally be granted by the legislative authorities of the various counties toother county elected officials by action taken either before or after January 1, 1974, they may not be granted to the county commissioners or other salary fixing legislative authorities themselves.8/

             Secondly, the restraint of Article XI, § 8,supra, against mid-term decreases also means, in our opinion, that while (as aforesaid) salaries may be maintained at their current levels (but not below) by an ordinance adoptedprior to January 1, 1974, when the legislatively granted increases are otherwise to take effect, on or after that date it is most likely that a board of county commissioners or other  [[Orig. Op. Page 11]] legislative authority which by inaction has simply allowed the new salary levels fixed by the legislature to take effect will not be able then to roll those salaries back to their prior lower levels in the case of any county elective officials then serving ‑ except on a basis which will cause those salary decreases not to take effect until the commencement of the next ensuing terms of the respective county officers.9/

             Accordingly, while it is our opinion that the county commissioners or other legislative authorities of all counties (and not merely those of the eighth and ninth classes) are now vested with the authority to fix salaries for both themselves and the various other elective officials of their counties (as indicated in our answer to question (1),supra) we must in concluding this opinion urge that they exercise this power with care in order to insure that their action does not run afoul ofeither the statute (chapter 88, supra) under which the power was grantedor the Constitution as it applies in the  [[Orig. Op. Page 12]] circumstances last above described.10/   The statutory restraint, as we have said, should be evident to all because it is a part of the act in question; the constitutional limitations which we have discussed, on the other hand, may not be so apparent to a casual reader of this new state law, for which reason we have devoted a significant portion of this opinion to a discussion of their potential ramifications as well.

            We trust the foregoing will be of assistance to you.

Very truly yours,


SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Identified on the ballot as Senate Joint Resolution No. 38.

2/See, Senate Bill No. 2513.

3/RCW 36.16.032 and RCW 36.17.020.  The reason we say "most county elected officials" is because salaries fixed by or pursuant to county charter provisions in King county ‑ a "home rule" charter county operating under Article XI, § 4 (Amendment 21) of the Constitution ‑ are excepted.

4/In fact, at the present time, there are four eighth class counties in the state (San Juan, Ferry, Wahkiakum and Garfield) and no ninth class counties ‑ based upon 1970 census figures as applied to the population criteria in RCW 36.13.030.

5/See, footnote 4, supra.

6/See, AGLO 1973 No. 63 [[to Richard C. White, Code Reviser, Statute Law Committee, an Informal Opinion AIR 73563 on June 8, 1973]].

7/Accord, the remarks of Senator Woodall in response to the inquiry from Senator Fleming, supra.

8/Contrast this with the situation which pertained during the period following the adoption of Amendment 54, supra, in 1968 and ending with July 16, 1973, when chapter 88,supra, became effective.  During that period county commissioners did not have the authority to fix their own salaries ‑ and, hence, could constitutionally be granted mid-term increases by the legislature.  Accord, AGO 1969 No. 2 [[to Robert V. Graham, State Auditor on January 20, 1969]].

9/We say "most likely" because, although we are not inclined to predict a contrary result in view of the ordinary meaning of the word "diminish," it is possible that our court might hold that our present constitutional prohibitions against mid-term decreases in compensation prevent only those decreases below the salary level at the commencement of the applicable term of office.  Because our state is apparently unique in now (i.e., since 1968) allowing mid-term pay increases while still prohibiting mid-term decreases, we have been unable to find any cases from other jurisdictions which are at all helpful as to this issue which, by the same token, remains an as yet undetermined "question of first impression" insofar as our own court is concerned.

10/For ease of reference we would tabularly synopsize the restraints of these provisions as follows:

 

Time of County Commissioners Action

Increases above salaries fixed by legislature

Decreases below salaries fixed by legislature

 

Prior to January 1, 1974

Yes, except no mid-term increases for county commissioners themselves

May maintain salaries at current level but not below

                                                                 

 

On or after January 1, 1974

Again yes, except no mid-term increase for county commissioners

Once salaries fixed by legislature take effect without prior action by commissioners, any ensuing mid-term decreases from these levels probably would be unconstitutional

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