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AGO 1962 No. 138 - May 22, 1962
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS ‑- STATE ‑- BOARD OF EDUCATION ‑- REIMBURSEMENT FOR ACTUAL EXPENSES.

The members of the state board of education may be reimbursed for the actual expenses incurred in the performance of their duties.

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                                                                   May 22, 1962

Honorable Louis Bruno
President, State Board of Education
Old Capitol Building
Olympia, Washington

                                                                                                              Cite as:  AGO 61-62 No. 138

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:

            Under § 4, chapter 97, Title I, subchapter 3, Laws of 1909 (RCW 43.63.130), may members of the state board of education be reimbursed for actual expenses incurred in the performance of their duties as members of said board, whether or not such expenses exceed $12.00 per day?

            We answer the question in the affirmative.

                                                                     ANALYSIS

            During its regular 1909 session, the legislature passed an act providing a special method for reimbursing members of the state board of education for expenses incurred.  Section 4, chapter 97, Laws of 1909 (p. 235) [cf. RCW 43.63.130] provides as follows:

            "The State Board of Education shall hold an annual meeting at the capital of the state on the third Tuesday of June of each year, and may hold such special meetings as may be deemed necessary for the transaction of public business, such special meetings to be called by the Superintendent of Public Instruction.  The persons serving as members of the State Board of Education shall be reimbursed for the actual expenses incurred in the performance of their duties, which expenses shall  [[Orig. Op. Page 2]] be paid by the State Treasurer on warrants of the State Auditor, out of funds not otherwise appropriated, upon the certificate of the Superintendent of Public Instruction:  Provided, That members of the board who are not under salary to whom special committee work is assigned shall be paid for such services five dollars per day."  (Emphasis supplied.)1/

             Thereafter, in 1943, the legislature enacted § 1, chapter 86, Laws of 1943, which provided as follows:

            "The heads ofall departments of state government are herebyauthorized to prescribe per diem rates of allowance not exceeding six dollars ($6) per dayin lieu of subsistence and lodging to elective and appointive officials and state employees engaged in official business away from their designated posts of duty, but within the State of Washington or an adjoining state, and per diem rates of allowance not exceeding eight dollars ($8) per day in lieu of subsistence and lodging to such officials and employees engaged in official business elsewhere."  (Emphasis supplied.)

            Section 1, chapter 86, Laws of 1943, supra, has been amended by the legislature four times since its original enactment.  See chapter 17, Laws of 1949, chapter 259, Laws of 1953, chapter 194, Laws of 1959, chapter 220, Laws of 1961.  However, the only changes effected by these amendments wereincreases in the maximum per diem rates.

            Section 1, chapter 86, Laws of 1943, does not pose an irreconcilable conflict with the earlier provision relating specifically to the state board of education.  There are many familiar examples of specific legislation relating to individual boards and agencies and legislative committees, authorizing different or greater expense reimbursement rates.  After a review of these enactments it becomes apparent that there has been no repeal of the earlier 1909 legislation by enactment of the general authorization contained in chapter 86, Laws of 1943.

             [[Orig. Op. Page 3]]

            InLindsey v. Superior Court, 33 Wn. (2d) 94, 99, 204 P. (2d) 482 (1949), the supreme court of Washington observed as follows:

            "Repeals by implication are ordinarily not favored in law, and a later act will not operate to repeal an earlier one unless the later act covers the entire subject matter of the earlier act, is complete in itself, and is evidently intended to supersede the prior act, or unless the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot, by a fair and reasonable construction, be reconciled and both be given effect.  [Cases cited.]"

            Therefore, reading § 1, chapter 86, Laws of 1943, and § 4, chapter 97, Laws of 1909, together, it appears that the members of the state board of education may be reimbursed without monetary limitation for their actual expenses incurred in the performance of their duties; or, in the alternative, they may be reimbursed on a per diem basis at a rate not to exceed that prescribed.

            In our consideration of the question presented we have not overlooked the possible application of the budget and accounting act.  See, chapter 328, Laws of 1959.  Acting under that chapter the budget director has promulgated the following regulation:

 

            "C1.02 TRAVEL EXPENSE

            "A. Reimbursement for Expense

            "The reimbursement to employees for subsistence and lodging shall be (a) either on an actual expense basis, or (b) on a per diem basis in lieu of subsistence and lodging.  Neither basis for reimbursement shall exceed the per diem allowance specified herein.  [$12.00]"  (Emphasis supplied.)

            It cannot be concluded, however, that this regulation can have the effect of limiting the authority granted by § 4, chapter 97, Laws of 1909, supra.

            That section authorizes the payment of actual expenses to the members of the board of education and the regulation cited cannot have the effect of amending an act of the legislature.  Keeting v. P.U.D. No. 1, 49 Wn. (2d) 761, 767, 306 P. (2d) 762 (1957);Spokane Hotel Co. v. Younger, 113 Wash. 359, 194 Pac. 595 (1920);Robertson v. Schein,  [[Orig. Op. Page 4]] 305 Ky. 528, 204 S.W. (2d) 954 (1947);Stokely-Van Camp v. State, 50 Wn. (2d) 492, 312 P. (2d) 816 (1957);Whitcomb Hotel v. California Employment Com'n., 24 Cal. (2d) 753, 151 P. (2d) 233 (1944).

            It is therefore the opinion of this office that under § 4, chapter 97, Title I, subchapter 3, Laws of 1909 (RCW 43.63.130) members of the state board of education may be reimbursed for actual expenses incurred in the performance of their duties as members of said board, whether or not such expenses exceed $12.00 per day.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

GENE GODDERIS
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/This provision is similar to one found in 1909 law governing

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