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AGO 1977 No. 2 - January 10, 1977
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTY ‑- COMMISSIONERS ‑- SALARIES ‑- INCREASE IN SALARIES OF COUNTY COMMISSIONERS UPON RECLASSIFICATION OF COUNTY

Under present state constitutional provisions, it is now permissible for county commissioners to receive a legislatively granted mid-term salary increase resulting from an upward reclassification of their county and the commissioners may, constitutionally, adopt appropriate budgetary amendments to fund such salary increases.

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                                                                 January 10, 1978

Honorable Andrew C. Braff
Prosecuting Attorney
Stevens County Court House
Colville, Washington 99114

                                                                                                                   Cite as:  AGO 1978 No. 2

Dear Sir:

            By recent letter you have indicated that due to an increase in its population, the classification of Stevens county was changed from fifth to fourth class as of January 1, 1976, in accordance with RCW 36.13.010, et seq.  You have then noted that under RCW 36.17.020 (quoted below) the statutory salary for commissioners of a fifth class county is $9,400 per year whereas, in the case of a fourth class county, the statutory salary has been fixed by the legislature at $11,000 per year.  Nevertheless you have informed us that because of an opinion issued by our predecessor in 1974, the commissioners of Stevens county have continued to be paid at the fifth class county rate ‑ believing themselves to be constitutionally ineligible, at this time, for any increase as a result of the reclassification.  At their request, however, you have now determined to submit the question to us ‑ along with several related questions.

            Specifically, you have first asked us whether, in view of the above described reclassification of their county, the commissioners of Stevens county may now constitutionally be paid at the $11,000 per annum rate which has been  Orig. Op. Page 2 fixed by the legislature for commissioners of a fourth class county ‑ even during the remainder of the terms which they were serving when the reclassification occurred.

            Then, in the event of an affirmative answer to that question you have asked us three additional questions which we would paraphrase as follows:

            (2) If question (1) is answered in the affirmative, will correlative increases in the county's contributions to federal social security and the public employees' retirement system (PERS) also be required?

            (3) Does the fact that the 1976 county budget, as adopted in December of 1975, only contemplated a continuation of the previous ($9,400 per year) salary rate for the county commissioners now bar them from receiving, during 1976, the salary to which they would be entitled in accordance with an affirmative answer to question (1)?

            (4) In the event of an affirmative answer to question (1), may a retroactive adjustment now be made with respect to the county commissioners' salaries so as to provide them, at this time, with lump sum payments representing the difference between the salaries which they have been receiving during 1976 and those to which they would be entitled if question (1) is so answered?

            For the reasons set forth in our analysis below we answer your first and primary question in the affirmative.  Then, as a consequence of that answer, we likewise answer your second and fourth questions in the affirmative and your third question in the negative.

                                                                     ANALYSIS

            Prior to the passage of Amendment 57 to the state constitution at the November 7, 1972, general election, the function of fixing salaries for all county elective officials was exclusively that of the state legislature under the then existing provisions of Article XI, §§ 5 and 8 of the constitution.  By their adoption of that amendatory proposition, however, the voters amended those two sections to read as follows:

             Orig. Op. Page 3

            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 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 increased except 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."

            Also to be noted at the outset is Article XXX, § 1 of the constitution, to which reference is made in Article XI, § 8, supra, as amended.  That section, which became a part of the constitution in 1968 in the form of Amendment 54, modified various other constitutional provisions which  Orig. Op. Page 4 generally had prohibited both mid-term pay increases and mid-term pay decreases for elective or appointive officials serving fixed terms.1/   It did so by adding to the constitution a new section, Article XXX, § 1, which reads as follows:

            "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.)

            Finally, before turning to your questions, we must make note of the legislature's implementation of Amendment 57, supra, the 1972 amendment relating to the salaries of county elected officials.  By chapter 88, Laws of 1973, Ex.Sess., the legislature in effect combined its previous practice of fixing the salaries of county elected officials with a now constitutionally permissible delegation of that same authority to local county legislative authorities.  See, RCW 36.17.020 which, as amended by § 2 of chapter 88, supra, now reads (insofar as is material to your questions) as follows:

            "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:

            ". . .

            "Counties of the fourth class:  Auditor, twelve thousand one hundred dollars; clerk,  Orig. Op. Page 5 twelve thousand one hundred dollars; treasurer, twelve thousand one hundred dollars; sheriff, twelve thousand one hundred dollars; assessor, twelve thousand one hundred dollars; prosecuting attorney in such a county in which there is no state university or college, fourteen thousand three hundred dollars; in such a county in which there is a state university or college, sixteen thousand five hundred dollars; members of the board of county commissioners, eleven thousand dollars;

            "Counties of the fifth class:  Auditor, ten thousand one hundred dollars; clerk, ten thousand one hundred dollars; treasurer, ten thousand one hundred dollars; assessor, ten thousand one hundred dollars; sheriff, eleven thousand two hundred dollars; prosecuting attorney, thirteen thousand two hundred dollars; members of the board of county commissioners, nine thousand four 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.)

            Question (1):

            Your first question, of course, is whether in view of the above described reclassification of Stevens county, the commissioners of that county may now constitutionally be paid at the $11,000 per annum rate which has been fixed by the legislature for commissioners of a fourth class county during the remainder of the terms which they were serving when the reclassification occurred.

            Before the adoption of the two above described recent amendments to our state constitution it is clear that midterm salary increases for county commissioners, based upon county reclassification, were not constitutionally permissible.  See,State ex rel. Jordan v. Dehart, 15 Wn.2d 551,  Orig. Op. Page 6 131 P.2d 156 (1942), andState ex rel. Maltbie v. Will, 54 Wash. 453, 103 Pac. 479 (1909).  The rationale of those cases, as set forth by the court in the Maltbie case, was quite straightforward ‑ as follows:

            "'The constitution, art. 11, § 8, requires that the compensation of a county officer, authorized and fixed at the date of his election, must continue without change during the entire term for which he is elected.  If, during such term, the county, by reason of an increase in population, is advanced to a higher class, the increased salary resulting therefrom cannot benefit the incumbent, but will be paid to his successor.  This construction harmonizes the various sections of our constitution relating to the matter of an increase or decrease of salaries of public officers.  Section 25 of art. 2 provides that the compensation of any public officer shall not be increased or diminished during his term of office.  Section 25 of art. 3 provides that the compensation of state officers shall not be increased or diminished during the term for which they shall have been elected.  Section 13 of art. 4 provides that the salaries of supreme and superior court judges shall not be increased after their election, nor during the term for which they have been elected, and § 8 of art. 11 provides that the salary of any county, city, town or municipal officer shall not be increased or diminished after his election or during his term of office.  These sections disclose a consistent and uniform intention to prevent any increase or decrease in the compensation of public officers during their respective terms of office, and in the cases of judges and county officers not only during their terms but also at any time after their election.'"

            Undoubtedly, the 1974 opinion of your predecessor, to which you have referred in your letter, was based upon the Jordon and Maltbie decisions.  Nevertheless, for reasons which we will next explain it is our opinion that because, particularly, of Amendment 54, supra, the earlier rule which was thus enunciated by our supreme court is no longer operative.

            Shortly after the adoption of Amendment 54, supra, this office wrote AGO 1969 No. 2 to Robert V. Graham, State Auditor, on January 20, 1969, copy enclosed, in which we specifically advised that members of a board of  Orig. Op. Page 7 county commissioners were not precluded from receiving mid-term salary increases when granted by the legislature under the then existing provisions of Article XI, § 8 of the constitution,supra, because they were not, at that time, officers who fixed their own compensation.  Then, with the passage of Amendment 57 in 1972, and the implementing provisions of chapter 88supra, in 1973, we were asked whether such mid-term increases could still be received by persons serving as county commissioners when granted by the legislature rather than by the commissioners themselves; i.e., in the exercise of their newly obtained power to raise the salaries of county elected officials above the statutory levels established by the legislature.

            After due consideration we said, in AGO 1974 No. 9 to Smith Troy, Prosecuting Attorney of Thurston County, on April 10, 1974(a copy of which is also enclosed), that such legislatively granted mid-term salary increases could still be received.  In effect, we thus drew a distinction between such salary increases as might now be granted locally by the commissioners themselves and those which, as before, continue to be provided for by state laws as enacted by the legislature.  Addressing ourselves, particularly, to the latter we said, at page 5 of our opinion, that:

            ". . .  Neither the spirit nor the letter of the constitution is violated by the payment to a county commissioner of a mid-term salary increase provided for by the legislature ‑ as distinguished from one which is granted by the commissioners themselves.  In the one case, the new salary is fixed by a state law enacted by the legislative authority of the state; in the other, it is fixed by a county ordinance or resolution requiring the approval of the commissioners themselves for passage. . . ."

            Thus, as we view it, the only mid-term salary increases which may not now be received by members of a board of county commissioners are those which are provided for by the board itself in the exercise of the power delegated to it under Amendment 57,supra, and RCW 36.17.020.  A board of county commissioners may not, in the exercise of that delegated power, grant to its own members any salary increases which will take effect prior to the expiration of their then existing terms of office.2/   However, while it is quite true  Orig. Op. Page 8 that the commissioners of a county also have a limited statutory role to play in the reclassification of a county as a result of a population increases,3/   the functions thus performed do not, in our judgment, constitute a fixing of their compensation in the same manner as would an exercise of the discretionary power to raise salaries which commissioners now also possess under RCW 36.17.020,supra.  Moreover, reclassification has numerous legal consequences unrelated to salaries.  For example, as you know, the January 1, 1976, reclassification of Stevens county with which your present questions are concerned resulted, among other things, in an elimination of the legal ability of the prosecuting attorney to continue to engage in the private practice of law.  Accord, RCW 36.27.060.

            Therefore, consistent with the rationale which we outlined in AGO 1974 No. 9,supra, we are now also of the opinion, in direct answer to your first question, that when a county, by reason of an increase in population, is reclassified at a higher level under RCW 36.13.010, supra, the commissioners of that county are entitled, as of the effective date of the reclassification, to any increase in the legislatively fixed salary for county commissioners which flows therefrom.  We thus answer your first question, supra, in the affirmative.

            Question (2):

            Your second question involves the relationship between the foregoing answer to question (1) and the county's mandatory contributions to federal social security and the public employees' retirement system (PERS) under chapter 41.40 RCW.

            Any time that an increase in the salary of a county elected official who is participating in PERS is granted, there necessarily will be a correlative increase in both the employer's and the employee's contributions to the retirement fund.  See, RCW 41.40.330 and 41.40.361.  This, likewise, is also true under federal social security under the provisions of 26 U.S.C. §§ 3101 and 3111, respectively.  Thus, given the premise that the commissioners of Stevens county are entitled, by reason of the January 1, 1976, change in classification of that county, to the increase in the minimum statutory salaries provided for by RCW 36.17.020,supra, it also necessarily follows that correlative increases in the county's payments to the state retirement fund and for federal social security  Orig. Op. Page 9 will have to be made.

            Question (3):

            Next you have asked whether, notwithstanding our answer to question (1), the fact that the 1976 Stevens county budget (as adopted in December of 1975) only contemplated a continuation of the "old," 5th class county, salary level for county commissioners must now be said to bar any upward adjustments during the calendar year covered by that budget.

            Before answering this question, however, we must dispose of a potential peripheral issue.  Under RCW 36.17.020,supra, it is not only possible for a board of county commissioners to raise salaries above the levels fixed by the legislature but qualifiedly to lower them below those levels as well. Thus it might be argued that in budgeting for their own salaries during 1976 at the prior, $9,400 per annum, rate the commissioners of your county were actually exercising that latter discretionary power rather than (as you have described it) merely appropriating an amount sufficient to pay what they thought was the statutory salary to which they were entitled.4/   In this case, however, that possibility may readily be discounted because the figure thus involved, $9,400, was actually less than the January 1, 1973, salary level for commissioners of a fourth class county; namely, $10,000 per annum.  See, RCW 36.17.020 as it read at that time, prior to being amended by chapter 88, supra.  Therefore, since in lowering salaries under that act the commissioners may not, in any event, go below the January 1, 1973 level, it follows that if they were actually attempting to establish lower salaries than those fixed by the legislature when they adopted the 1976 county budget, their action would have been contrary to the law.

            Having so disposed of that issue we turn to your question, as above stated, and answer it in the negative.  As distinguished from the act of budgeting for a different salary level than that fixed by the legislature, the act of merely budgeting a sufficient amount of money to pay legislatively fixed salaries for county commissioners does not, in and of itself, constitute an exercise of the delegated authority provided for in RCW 36.17.020,supra.  Therefore, it is our opinion that the commissioners of Stevens county, acting in accordance with the pertinent provisions of the county budget  Orig. Op. Page 10 law (chapter 36.40 RCW), may now take appropriate budgetary action to provide funds with which to pay the statutory salaries to which they are currently entitled.

            Question (4):

            Finally you have asked:

            "In the event of an affirmative answer to question (1) may a retroactive adjustment now be made with regard to the county commissioners' salaries so as to provide them, at this time, with lump sum payments representing the difference between the salaries which they have been receiving during 1976 and those to which they would be entitled if question (1) is so answered."

            Your concern, here, is presumably with so much of Article II, § 25 of our state constitution as prohibits retroactive pay increases for public officials and employees.  See, e.g., AGO 1974 No. 19 to Gary Grant, State Senator, on September 18, 1974, copy enclosed.  In our judgment, however, that constitutional provision would not bar a retroactive adjustment such as is contemplated by your question. In essence, such an adjustment would merely be an administrative correction of an earlier "error" in not immediately implementing the provisions of RCW 36.17.020, supra, as of January 1, 1976, when the reclassification took place.  Thus, like your first and second questions we may also answer your fourth and final question in the affirmative.

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

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/See, in particular, Article II, § 25, Article III, § 25, Article IV, § 13, Article XI, § 8, supra, and Article XXVIII, § 1 (Amendment 20).

2/Accord, as well, AGO 1973 No. 20 to Granville Egan, Prosecuting Attorney of Ferry County, on September 20, 1973and AGLO 1975 No. 7 to Curtis M. Janhunen, Prosecuting Attorney of Grays Harbor County, on January 28, 1975, an Informal Opinion, AIR-75507, copies enclosed, in which we specifically addressed ourselves to that question.

3/See, RCW 36.13.030 ‑ 36.13.050 under which the county commissioners are simply authorized (a) to cause a county census to be conducted and (b) to enter a formal order ". . . declaring and fixing the population of the county . . ." in accordance with that census.

4/See, AGLO 1975 No. 7, a copy of which is also enclosed, for the proposition that salaries for county elected officials may be fixed by the budget ordinance in lieu of a general, substantive, salary ordinance.

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