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AGO 1968 No. 36 - December 05, 1968
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John J. O'Connell | 1957-1968 | Attorney General of Washington


CONSTITUTIONAL LAW - AMENDMENT - COMPENSATION OF MUNICIPAL OFFICERS - INCREASES.

(1) The constitutional amendment contained in H.J.R. No. 13, which was adopted by the voters at the 1968 general election, grants to all municipal officers who do not fix their own compensation a constitutional right henceforth to receive the salary provided for by the state law or municipal ordinance in effect at the time that their services are being rendered, notwithstanding a city charter provision to the effect that the salary of no officer of the city shall be increased during his term of office.

(2) Where the salary of a mayor of a city is fixed by city ordinance, the mayor is an officer who fixes his own compensation within the meaning of H.J.R. No. 13, where he is a member of the city council or commission which enacts all city ordinances; however, he is not such an officer if he has only a veto power over ordinances passed by the city council.  Where the mayor is authorized to cast either an affirmative or negative vote on an ordinance in the event of a tie in the votes of the councilmen, he will be prevented by the constitution from receiving a pay raise during his term of office only where his own affirmative vote becomes necessary for the passage of an ordinance raising his salary.

(3) Where the mayor of a city is a member of the council or commission which enacts all city ordinances, he may not qualify himself to receive a mid-term increase in his compensation by abstaining from participating in the enactment of an ordinance involving his compensation as mayor.

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

                                                                December 5, 1968

Honorable Ernest H. Campbell
Associate Director
Bureau of Governmental Research & Services
University of Washington
3935 University Way N.E.
Seattle, Washington 98105

                                                                                                                 Cite as:  AGO 1968 No. 36

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on several questions pertaining to the application of H.J.R. No. 13 to the salaries of municipal officers.  We paraphrase your questions as follows:

             [[Orig. Op. Page 2]]

            (1) Does the state constitutional amendment contained in H.J.R. No. 13, which was adopted by the voters at the November 5, 1968, state general election, grant to all municipal officers who do not fix their own compensation a constitutional right henceforth to receive the salary provided for by the state law or municipal ordinance in effect at the time that their services are being rendered, notwithstanding a city charter provision to the effect that the salary of no officer of the city shall be increased during his term of office?

            (2) Where the salary of the mayor of a city is fixed by city ordinance, is the mayor a municipal officer who fixes his own compensation, within the meaning of this constitutional amendment, where

            (a) He is a member of the council or commission which enacts all city ordinances;

            (b) He has only a veto power over ordinances passed by the city council;

            (c) He has, in addition, the authority to cast either an affirmative or negative vote on an ordinance in the event of a tie in the votes of the councilmen?1/

             (3) To the extent that question (2) is answered in the affirmative, could such a mayor qualify himself to receive a mid-term increase in his compensation by abstaining from participating in the enactment of an ordinance involving his compensation as mayor?

            We answer questions (1) and (2) (a) in the affirmative, questions (2)(b) and (3) in the negative, and question (2)(c) in the manner set forth in our analysis.

                                                                     ANALYSIS

            The constitutional amendment contained in H.J.R. No. 13, which was approved by the voters at the recent (November 5, 1968) state general election, reads as follows:

             [[Orig. Op. Page 3]]

            "The compensation of all elective and appointive state, county, and municipal officers who 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.

            "The provisions of section 25 of Article II (Amendment 35), section 25 of Article III (Amendment 31), section 13 of Article IV, section 8 of Article XI, and section 1 of Article XXVIII (Amendment 20) insofar as they are inconsistent herewith are hereby repealed."

            On and after the effective date of this amendment,2/ it will take precedence over Article XI, § 8, with respect to county and municipal officers, to the extent that it is inconsistent therewith.  On this basis, it will be seen that Article XI, § 8, which provides that,

            ". . . The salary of any county, city, town, or municipal officers shall not be increased or diminished after his election, or during his term of office; . . ."

            will remain in effect to the following extent:

            (1) It will continue to prohibit those officers "who fix their own compensation"3/ from receiving either increases or decreases in compensation after their election or during their terms of office;

            (2) It will continue to prohibit decreases in compensation for any county, city, town or municipal officers after their election or during their terms of office.

             [[Orig. Op. Page 4]]

            Question (1):

            Your first question has to do with the effect of the constitutional amendment on the compensation payable to municipal officers of those cities which have, in their own city charters, provisions to the effect that the salary of no officer of the city shall be increased during his term of office (e.g., § 11, Aberdeen city charter; § 2, Bellingham city charter; and Article 17, § 1, Seattle city charter).

            In AGO 1968 No. 33, we said:

            ". . . we read the constitutional amendment contained in H.J.R. No. 13 to the extent that it says 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.'

            "as granting to these officers and judges an immediate constitutional right (as of the effective date of the amendment) to be paid the salary provided for by the 'law in effect' at the time all of their services on and after that effective date are rendered.  The right is granted by the constitution, and no further action by the legislature is necessary. . . ."

            Because of this aspect of the constitutional amendment, it is our opinion that the full effect of the amendment is not merely to repeal or qualify the several sections of the state constitution set forth in the second paragraph of the amendment; it is, as well, to grant to all persons holding elective and appointive state, county and municipal office ". . . who do not fix their own compensation" an affirmative constitutional right -which would take precedence over any conflicting municipal charter provision4/ -to receive, for  [[Orig. Op. Page 5]] all official services rendered after the effective date of the amendment, the salary payable under the state law or municipal ordinance in effect when such services are rendered.5/   Consequently, we answer your first question, as paraphrased, in the affirmative.

            Question (2):

            If a state, county or municipal officer (serving a fixed term) is one of those ". . . who . . . fix their own compensation . . .," then the prohibitions against mid-term pay increases contained in such constitutional provisions as Article XI, § 8, supra, continue to apply.  The operation of this qualification to the new constitutional amendment was described in the official voters' pamphlet argument for H.J.R. No. 13, prepared pursuant to RCW 29.81.020, et seq., as follows:

            "A 'yes' vote for H.J.R. 13 will correct these unfair and discriminatory conditions.  It will NOT, however, allow uncontrolled salary increases, since H.J.R. 13 pertains only to state, county and municipal officials who do not set their own salaries.  STATE LEGISLATORS, THEREFORE, COULD NOT RAISE THEIR OWN SALARIES DURING A CURRENT TERM OF OFFICE."

            The reason that state legislators will not be able to receive mid-term pay raises is that under Article XXVIII, § 1 (Amendment 20) of the state constitution, they are included among the "state elected officials" who are to "receive such compensation as the legislature may direct."  See,State ex rel. O'Connell v. Dubuque, 68 Wn.2d 553, 413 P.2d 972 (1966).  In other words, legislators fix their own compensation.

            Similarly in all of the various types and classes of cities and towns in this state, the salary fixing function is performed by the "legislature" of such cities; i.e., the city commission or council.  Thus,

            (1) In cities operating under the commission form of government provided for by chapter 35.17 RCW, the salaries of the commissioners (including the mayor) are fixed pursuant to  [[Orig. Op. Page 6]] ordinances adopted by the commission.  See, RCW 35.17.108 and RCW 35.17.180-35.17.190;

            (2) In cities operating under the council-manager form of government pursuant to chapter 35.18 RCW, these salaries are fixed by ordinances adopted by the city council.  See, RCW 35.18.220, and the laws referred to therein;

            (3) In first class cities, these salaries are fixed by the law-making body (council) pursuant to city charter provisions;

            (4) In second class cities, the salaries of "all officials" are fixed by ordinance adopted by the city council.  See, RCW 35.23.220;

            (5) Likewise, in the case of third (RCW 35.24.020 and 35.24.090) and fourth (RCW 35.27.130) class cities, these salaries are fixed by ordinance adopted by the city or town council.

            Clearly, just as the constitutional amendment will not permit state legislators to grant themselves a mid-term pay raise, it will not permit the members of these various city law-making bodies to do so.  Your question is whether, and to what extent this inhibition will also apply to the mayors of such cities.  For ease of discussion, we have broken this question down into three parts, depending upon the "law-making" role which may be played by the mayor under the law applicable to each of the various types or classes of cities which are recognized by the statutes.

            In those cities which are operating under the commission (chapter 35.17 RCW) or statutory council-manager (chapter 35.18 RCW) form of government, the mayor is actually a member of the law-making -salary fixing -commission or council.  In the first instance, this is spelled out in RCW 37.17.010, which provides:

            "The commission form of city government means a city government in which the legislative powers and duties are exercised by a commission of three, consisting of a mayor, a commissioner of finance and accounting, and a commissioner of streets and public improvements, and in which the executive and administrative powers and duties are distributed among the three departments as follows:

            "(1) Department of public safety of which the  [[Orig. Op. Page 7]] mayor shall be the superintendent;

            "(2) Department of finance and accounting of which the commissioner of finance and accounting shall be the superintendent;

            "(3) Department of streets and public improvements of which the commissioner of streets and public improvements shall be the superintendent."

            Under the council-manager plan, the applicable statutory provision is RCW 35.18.190, which reads:

            "Biennially at the first meeting of the new council the members thereof shall choose a chairman from among their number who shall have the title of mayor.  In addition to the powers conferred upon him as mayor, he shall continue to have all the rights, privileges and immunities of a member of the council."

            Furthermore, in each case the mayor, as a member of the commission or council, is entitled to vote on all ordinances being considered by that law-making body.  See, RCW 35.17.180 and RCW 35.18.180; cf., RCW 35.18.190, supra.  Therefore, in both instances he is a full voting member of the council or commission which fixes his salary; thus, like all of the other members of this body, he remains constitutionally disqualified from receiving a mid-term pay increase.

            On the other hand, where a mayor is not a member of the city council and only has a veto power over ordinances passed by the council -which that body may in turn override6/ -the mayor's role is essentially analogous to that of the governor, in relation to the legislature, under Article III, § 12 of the state constitution.  While it is true that the governor's veto power has been held to be legislative rather than executive in nature,Lynch v. Dept. of Labor & Industries, 19 Wn.2d 802, 145 P.2d 265 (1944), and cases cited therein, it is purely a negative power.  Spokane Grain & Fuel Co. v. Lyttaker, 59 Wash. 76, 109 Pac. 316 (1910).  If the legislature -or the city council of a city in which the mayor has only this negative law-making function -were to pass a bill designed to increase its chief executive's salary, he could allow the measure to  [[Orig. Op. Page 8]] become law or he could, by vetoing it, prevent it from becoming law.7/

             However, the clear import and purpose of the qualification contained in H.J.R. No. 13, was (as indicated in the proponents' official argument) only to prevent those officers having the power to raise their own salaries from doing so with immediate (mid-term) effect.  This implies a restraint on the affirmative law-making power of the legislature -or city council -itself, and not a barrier to receipt of a mid-term pay raise by an officer whose only legislative power is one which would merely allow him to prevent (subject to being overridden) the granting of this raise.  Therefore, we answer part (b) of your second question in the negative.

            The third situation covered by this question differs from the second only in that here, in addition (or instead) of having a purely negative veto power, the mayor has the authority to cast either an affirmative or a negative vote in the event of a tie in the votes of the councilmen.  This is the case under present statutory law in second class cities (RCW 35.23.280), third class cities (RCW 35.24.200) and fourth class cities (RCW 35.27.290).8/

             Such statutes, of course, do not make the mayor a full member of the city council, but they do, most certainly, vest him with a degree of affirmative, as well as negative, law-making power.  However, this is a power which may only be exercised in one situation -a tie vote on a proposed ordinance by the city council itself.

            Giving effect to the underlying purpose for the continuing constitutional barrier against the granting of mid-term pay raises to officers who "fix their own compensation," our opinion is that only where the mayor's own affirmative vote becomes necessary for the passage of an ordinance raising his salary will he be prevented from receiving the raise during his current term of office.  In all other cases, i.e., where the ordinance is passed by the city council itself, the raise may become effective without waiting for the commencement of a new term.

             [[Orig. Op. Page 9]]

            Question (3):

            The question of abstinence from voting on a proposed ordinance increasing the mayor's salary, as raised by your third question, is of significance (in view of our answer to the previous question) only in the case of cities operating under the commission or the council-manager form of government.  You inquire as to whether, in this case, the mayor may qualify himself for a mid-term pay raise by simply abstaining from voting on the ordinance enacting the proposed salary increase.

            The constitutional exception to the otherwise unqualified grant of a right to all state, county and municipal elected and appointed officers, to receive the compensation for their services as provided by the law in effect at the time the services are being rendered, is expressed in terms of those officers who "fix their own compensation."  If an officer, by virtue of his membership on a city council or commission is a member of the law-making body which fixes the compensation of the officers of the governmental body, then he is one of those officers who fixes his own compensation -as a matter of law.  He cannot avoid this status by inaction; i.e., by not participating in the law-making process as to a particular ordinance.

            In this respect, we see an apt analogy in the cases involving personal interests in municipal contracts on the part of members of a multimember municipal board or commission by, or through which, the contract is made.  It has generally been held in such cases that the board member having the private interest in the proposed contract cannot validate the contract, if it would otherwise be contrary to law, by voting against it or abstaining from voting thereon.  See,Bay v. Davidson, 133 Iowa 688, 111 N.W. 25 (1907); accord, 63 C.J.S., Municipal Corporations, § 990 (p. 554), and cases cited therein.

            Likewise, an analogy can be drawn between this constitutional provision and one such as Article II, § 13 of our constitution, which prohibits any member of the legislature, during the term for which he has been elected, from being elected or appointed to any civil office which was created, or the emoluments of which were increased during such term.  So far as we are aware, it has never even been seriously suggested that a particular legislator might avoid this prohibition by the expedient of abstaining from voting on the  [[Orig. Op. Page 10]] bill creating or raising the compensation, of a civil office in which he was interested.

            Accordingly, we are answering your third question in the negative.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/In addition, you have noted the situation where the mayor is required by law to sign all ordinances in order to attest to the regularity of their adoption.  See, RCW 35.18.180 (cities operating under council-manager plan) and RCW 35.27.290 (fourth class cities).  However, as we shall see, in the first case the mayor is also a member of the council, and in the second he has authority as well to cast tie breaking votes.

2/See, AGO 1968 No. 33, copy enclosed.

3/See our discussion of your questions (2)(a), (b) and (c), below.

4/See, State ex rel. Everett Etc. v. Johnson, 46 Wn.2d 114, 278 P.2d 662 (1955), and cases cited therein.  Under Article XI, § 10 of the state constitution, which grants to certain cities the right to frame their own charters, such charters must be ". . . consistent with and subject to the constitution and laws of this state . . ."

5/Likewise, this constitutional right to receive the salary payable under the ordinance in effect when the services are rendered will take precedence over the comparable statutory provisions governing second (RCW 35.23.220), third (RCW 35.24.090), and fourth (RCW 35.27.130) class cities.

6/See, e.g., Article IV, §§ 11 and 12 of the Seattle city charter.

7/Accord, State ex rel. Ruoff v. Rosellini, 55 Wn.2d 554, 348 P.2d 971 (1960).

8/In fourth class cities, the mayor has no veto power; thus, his only law-making function is in voting on ordinances in case of a tie vote by the councilmen.

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