OFFICES AND OFFICERS ‑- STATE ‑- COLLEGES ‑- BOARDS OF TRUSTEES ‑- COMPENSATION ‑- REIMBURSEMENT FOR EXPENSES.
Members of the boards of trustees of the state colleges are entitled to reimbursement for expenses incurred in attending board meetings (RCW 43.03.050, RCW 43.03.060); however, the legislature has not authorized the board to establish in addition thereto, payment of compensation to board members for attendance at board meetings.
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August 12, 1965
Honorable Melvin B. Voorhees
Chairman, Board of Trustees
Eastern Washington State College
Cite as: AGO 65-66 No. 30
By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:
Does the board of trustees of a state college have the authority to establish, by resolution, payment of $40.00 to each trustee for each regular or special board meeting he attends, which payment is in addition to and "separate from already authorized statutory per diem and transportation reimbursement?"
We answer your question in the negative.
You have advised us that the board of trustees of Eastern Washington State College adopted a resolution providing for payment of $40.00 per meeting for each trustee, the operative effect thereof being delayed until receipt of an opinion of this office as to its legality. The resolution reads, in pertinent part, as follows:
"Therefore, be it resolved that the administration of Eastern Washington State College [[Orig. Op. Page 2]] be directed, effective with this meeting, to reimburse each trustee the sum of forty dollars ($40.00) for each regular or special board meeting he attends.
"Be it further resolved that such reimbursement shall be in addition and separate from already authorized statutory per diem and transportation reimbursement."
The proposed payment of forty dollars per meeting to each trustee,in addition to reimbursement for expenses as provided by law, is a form ofcompensation. See,State ex rel. Jaspers v. West, 13 Wn.2d 514, 519, 125 P.2d 694 (1942). Since the state college is an agency of the state, created by statute, the board of trustees has only those powers expressly given it by statute or those necessarily implied therefrom. See,State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952);State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956); see, also, State ex rel. Taylor v. Superior Court, 2 Wn.2d 575, 98 P.2d 985 (1940), and cases cited therein.
The legislature has not authorized payment of compensation to the regents of the two universities or the trustees of the three state colleges.1/ In fact, the statute governing the powers and duties of the University of Washington regents specifically prohibits compensation and only authorizes reimbursement for expenses. RCW 220.127.116.11/
There is no statute specifically authorizing reimbursement for expenses incurred by members of the boards of trustees. However, the trustees are entitled to reimbursement for expenses under the general provisions for payment of expenses for state officials and employees found in chapter 43.03 RCW. RCW 43.03.050, as amended by chapter 77, Laws of 1965, Ex. Sess., (effective August 6, 1965) reads as follows:
[[Orig. Op. Page 3]]
"The heads of all state departments may prescribe per diem rates of allowance, not exceeding fifteen dollars in lieu of subsistence and lodging to elective and appointive officials and state employees while engaged on official business away from their designated posts of duty, but within the state of Washington, and not exceeding twenty-five dollars per day while engaged on official business elsewhere."
RCW 43.03.060,3/ reads as follows:
"Whenever it becomes necessary for an elective or appointive official or employee of the state to travel away from his designated post of duty while engaged on official business, and it is found to be more advantageous and economical to the state that he travel by a privately owned automobile rather than by a common carrier, he shall be allowed a mileage rate not to exceed eight cents a mile."
It is a general rule that compensation can be paid to public officers only when affirmatively authorized by law. See,James v. Seattle, 22 Wash. 654, 62 Pac. 84 (1900); MacKenzie v. Douglas County, 81 Ore. 442, 159 Pac. 625 (1916);Madden v. Riley, 53 Cal.App.2d 814, 128 P.2d 602 (1942); 4 McQuillin § 12.174.
In the absence of a definite provision fixing compensation, the services performed by a public officer are honorary and are deemed gratuitous. InState ex rel. Jaspers v. West, supra, the court said:
". . . If the law does not provide a compensation or make a definite provision that no compensation shall be allowed, the [[Orig. Op. Page 4]] office is deemed to be an honorary one and the services gratuitous. 22 R.C.L. 532; Mechem on Public Officers, 577, § 856." (p. 519.)
Accordingly, since the legislature has made no provision for payment of compensation to members of the boards of trustees of the state colleges (in addition to reimbursement for expenses) and has not authorized the boards to establish compensation by resolution of the board itself, we must conclude that the board lacks the legal authority to adopt or operate under a resolution such as that submitted for our review. Cf. State ex rel. Jaspers v. West, supra.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
CHARLES F. MURPHY
Assistant Attorney General
*** FOOTNOTES ***
1/School directors, as well, receive no compensation, but are reimbursed for expenses. See, RCW 28.58.310.
2/Reimbursement for expenses of the regents of Washington State University is also specifically authorized. RCW 2.80.150.
3/During the 1965 session, bills were introduced in the house and senate to increase the mileage rate from eight to ten cents a mile. Both bills were indefinitely postponed. See, House Bil 204 and Senate Bill 55.