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AGO 1969 No. 20 - October 16, 1969
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Slade Gorton | 1969-1980 | Attorney General of Washington


OFFICES AND OFFICERS - COUNTY - PROSECUTING ATTORNEYS - SALARIES - PAYMENT OF ONE HALF BY STATE - FRINGE BENEFITS

The requirement in RCW 36.17.020, as amended by § 1, chapter 226, Laws of 1969, Ex. Sess., that "one half the salary of each prosecuting attorney shall be paid by the state" does not impose an obligation upon the state to make one half of the employer's required payments for state retirement and social security coverage for such prosecuting attorneys as are participating in these retirement programs.

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                                                                October 16, 1969

Honorable James R. Thomas
Prosecuting Attorney
Okanogan County
P.O. Box 392
Okanogan, Washington 98840

                                                                                                                 Cite as:  AGO 1969 No. 20

Dear Sir:

            This is written in response to your recent request for an opinion of this office on a question which we paraphrase as follows:

            Does the requirement in RCW 36.17.020, as amended by § 1, chapter 226, Laws of 1969, Ex. Sess., that "one half the salary of each prosecuting attorney shall be paid by the state" impose an obligation upon the state to make one half of the employer's required payments for state retirement and social security coverage for such prosecuting attorneys as are participating in these retirement programs?

            We answer this question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Prosecuting attorneys are among the county officers expressly provided for in Article XI, § 5 of our state constitution.  Under § 8 of this same article, they like all of the other  [[Orig. Op. Page 2]] county officers provided for therein are to receive such "compensation by salaries as are fixed by the legislature."  See, AGO 65-66 No. 115, copy enclosed.

            The legislation setting the salaries of all county officers is currently codified as RCW 36.17.020.  Prior to the recent amendment of this statute by the 1969 legislative session, the full amount of all of these salaries, although fixed by the legislature, was to be paid entirely by the respective counties.  However, in the case of county prosecuting attorneys, this approach has been somewhat modified.  As amended by § 1, chapter 226, Laws of 1969, Ex. Sess., RCW 36.17.020 now contains the following provisions with respect to (a) the amount and (b) the source of payment of "the salaries of prosecuting attorneys":

            "The salaries of prosecuting attorneys who are not forbidden under section 2 of this 1969 amendatory act to engage in the private practice of law shall be six thousand five hundred dollars.  The salaries of prosecuting attorneys who are forbidden under section 2 of this 1969 amendatory act to engage in the private practice of law shall be twenty thousand dollars and an additional five hundred dollars for each judge of the superior court in the county's judicial district: Provided, That no prosecuting attorney's salary shall exceed the salary of a superior court judge.  One half the salary of each prosecuting attorney shall be paid by the state."  (Emphasis supplied.)1/

             Your question involves the scope of the underscored portion of this amendment and arises because of the participation of at least some of the county prosecutors in the Washington  [[Orig. Op. Page 3]] Public Employees' Retirement System.2/   In addition, you have alluded to federal social security coverage.  The issue raised is, essentially, as to whether the legislature, in requiring the state to pay one half of the salary of each prosecuting attorney, imposed an obligation upon the state to make one half of the employer's required payments for these two retirement programs for such prosecuting attorneys as are participating therein.

            The governing statute with respect to the state retirement system is RCW 41.40.361, under which every "employer" of members of the retirement system is required to pay into the retirement fund, periodically (i.e., monthly or quarterly, at the discretion of the retirement board see, RCW 41.40.370), an amount equal to a designated percentage of the compensation paid to its covered officers and employees during the prescribed period.  The term "employer" is defined by RCW 41.40.010 (4) to mean the state department or agency or political subdivision by which members of the system are employed.

            With respect to social security coverage, the applicable statute is RCW 41.48.050, which requires every "political subdivision" electing to extend this coverage to its employees to pay into the state social security contribution fund

            ". . . with respect to wages (as defined in RCW 41.48.020), . . . contributions in the amounts and at the rates specified in the applicable agreement entered into by the governor under RCW 41.48.030."3/

             [[Orig. Op. Page 4]]

            The 1969 session of the legislature, which enacted the subject amendment to RCW 36.17.020,supra, must be presumed to have been aware of these prior acts regarding the matter of employer's contributions for county officer or employee retirement and social security coverage.  Accord,Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948), and cases cited therein.  Yet no intent to alter their operation was in any way manifested in the amendment for nothing contained therein purports to do anything more than to impose upon the state an obligation to make payment of one half of the "salary" of each prosecuting attorney.

            Another existing statute of which the legislature must be presumed to have been aware is RCW 36.17.040, which establishes the method of payment of all county officers' salaries; i.e., by warrant drawn upon the county treasury.  This statute, which was also left unaltered by the legislature, states that:

            "The salaries of county officers and employees of counties other than counties of the eighth and ninth classes may be paid twice monthly out of the county treasury, and the county auditor, for services rendered from the first to the fifteenth day, inclusive, may, not later than the twentieth day of the month, draw his warrant upon the county treasurer in favor of each of such officers and employees for the amount of salary due him, and such auditor, for services rendered from the sixteenth to the last day, inclusive, may similarly draw his warrant, not later than the fifth day of the following month, and the county commissioners may enter an order on the record journal empowering him so to do: . . .

            "In counties of eighth and ninth classes salaries shall be paid monthly unless the commissioners by resolution adopt the foregoing draw day procedure."

            Thus, the procedure for payment of prosecuting attorneys' salaries was also unaffected by the 1969 legislature instead all that was done was to require the state to pay (into each county treasury, we would assume, in view of the continuing effectiveness of this last-quoted statute) one half of the salary (rather than the broader term  [[Orig. Op. Page 5]] "compensation"4/ ) of each prosecuting attorney.  Furthermore, this requirement was spelled out within the context of an amendment relating, specifically, to stated annual dollar amounts payable, as "salaries," to the various prosecuting attorneys.  It is, of course, a well-established rule of construction that the statutory context in which a term appears is of considerable significance in determining the meaning to be attributed to the term.  See, Mercer Island v. Kaltenbach, 60 Wn.2d 105, 371 P.2d 1009 (1962), and cases cited therein.

            Accordingly, with this point in mind, and in the absence of any indication of legislative intent to establish some degree of employer-employee relationship between thestate and the prosecuting attorneys it is our considered opinion that your question should be answered in the negative.  So long as the state makes payment of one half of the statutorily fixed salaries of these county officers, its obligation under the subject amendment will be fully performed.5/

             [[Orig. Op. Page 6]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/The legislature's delineation between those prosecuting attorneys who are to serve full-time and those who are not barred from engaging in the private practice of law is spelled out in RCW 36.27.060, as amended by § 2, chapter 226, Laws of 1969, Ex. Sess., on the basis of the class of county being served by the particular prosecuting attorney.

2/Under RCW 41.40.120, persons, such as prosecuting attorneys, who hold elective offices are not required to participate in this retirement system; rather, their participation is made optional.

3/The term "wages" is defined by RCW 41.48.020 (1) to mean ". . . all remuneration for employment as defined herein . . ."; "employment," in turn, includes ". . . any service performed by an employee in the employ of the state, or any political subdivision thereof, for such employer . . ."  See, RCW 41.48.020 (2).

4/This broader term would, in all probability, have included such employer-funded "fringe benefits as retirement and social security," (see, Bakenhus v. Seattle, 48 Wn.2d 695, 296 P.2d 536 (1956)), and as well health insurance premium payments under RCW 41.04.180-41.04.190.

5/In thus concluding, we have not overlooked the fact that under the provisions of Article IV, § 13 of the state constitution, which states that

            ". . . One half of the salary of each of the superior court judges shall be paid by the state, and he other one half by the county or counties for which he is elected. . . ."

            it has long been the practice of the state to pay the employer's contribution to federal social security.  However, of course, these judicial officers have long been characterized as holding the dual status of state and county officers for salary purposes see, e.g.,In re Salary of Superior Court Judges, 82 Wash. 623, 144 Pac. 929 (1914) whereas the various prosecuting attorneys (although they perform the function of criminal prosecution on behalf of the state) are strictly county officers.  Accord, Article XI, § 5,supra, and RCW 36.16.030.

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