AGO 1994 No. 8 - Apr 29 1994
STATE OFFICERS-SALARIES-ELECTED OFFICIALS-Authority of the Washington Citizens' Commission on Salaries for Elected Officials to decrease salaries during term; effect of change in number of congressional districts on composition of the Commission
1. The Washington Citizens' Commission on Salaries for Elected Officials may not decrease the salaries of elected officials during their current terms of office.
2. If the Washington Citizens' Commission on Salaries for Elected Officials fails to timely adopt a new salary schedule, the last one adopted continues in effect.
3. The Washington Citizens' Commission on Salaries for Elected Officials may continue to operate lawfully notwithstanding Washington's gain of a ninth representative in Congress after the 1990 census; pending amendatory legislation commission members must be selected from the pre-1990 congressional districts.
4. A member of the Washington Citizens' Commission may be reappointed to a second term if his or her name is again drawn by lot for the position, or if nominated for a second term pursuant to RCW 43.03.305.
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April 29, 1994
Leonard Nord, Chairman
Washington Citizens' Commission on Salaries for Elected Officials
1210 Eastside Street, MS 43120
Olympia, WA 98504
Cite as: AGO 1994 No. 8
Dear Mr. Nord:
By letter previously acknowledged, you requested our opinion regarding four questions we paraphrase as follows:
1. May the Citizens' Commission on Salaries for Elected Officials decrease the salaries of elected officials during the officials' current terms of office?
2. What salaries are paid to elected officials if members of the Commission fail to adopt a salary schedule within the time set by statute?
3. May the Commission, which is composed in part of members chosen by lot from each of the eight congressional districts existing at the time the members were chosen, continue to operate lawfully now that Washington has nine congressional districts? If so, from which geographical areas are new commission members chosen by lot to be selected?
4. May a member of the Commission who was chosen by lot be reappointed? If so, how, by whom, and in accordance with what criteria is the member to be reappointed?
The Commission (hereafter Commission) does not have authority to reduce the salary of any elected official during that official's current term of office. If the Commission fails to adopt a new salary schedule in the time set by statute, the salaries of elected officials remain at the levels specified in the last schedule properly adopted. Until the Legislature amends RCW 43.03.305, eight members of the Commission must be chosen by lot from the eight congressional districts as they existed before the 1990 reapportionment. No member of the Commission, including persons chosen by lot, is eligible for appointment to more than two terms in office. Our answers are more fully explained in the analysis below.
All of your questions concern the membership and duties of the Commission. The Commission was created in 1986 to set salaries for all legislators, state court judges, and state elected officials. Const. art. 28, § 1 (amend. 78). Before the Commission existed, salaries for these officials were fixed by the Legislature. Former Const. art. 28, § 1.
Composed of eight members whose names are selected randomly from voter registration lists and seven members selected for their experience in the field of personnel management, the Commission must prepare a new salary schedule for state elected officials every two years. Neither the Legislature nor the governor may disapprove of the schedule; it takes effect automatically 90 days after filing by the Commission. Salary schedules are, however, subject to referendum petition by the voters. RCW 43.03.305(1), (2), .310(5); Const. art. 28, § 1.
With the foregoing background, we turn to your specific questions.
May the Citizens' Commission on Salaries for Elected Officials decrease the salaries of elected officials during the officials' current terms of office?
Washington's constitution has always prohibited decreasing the salaries of elected officials during their current terms of office. Article 2, section 25 provides in part:
The legislature shall never grant any extra compensation to any public officer, agent, employee, servant, or contractor, after the services shall have been rendered, or the contract entered into, nor shall the compensation of any public officer be increased ordiminished during his term of office.[]
(Emphasis added.) The Washington Supreme Court has described the purpose of this prohibition in two of its cases as follows:
The command of the Constitution that the salary of no public officer shall be increased or diminished during his term of office, is a wise and salutary mandate. Its purpose is to establish definiteness and certainty in the salaries of public officers and to protect and safeguard the independence, the security, and the efficiency of the occupant of every public office. It assures the people that those who serve them as public officers shall give their services during their terms for the amount of compensation for which they were willing to serve and have been selected, and for which they were expected by the people to serve at the time of their entrance upon the performance of their duties. . . . The benefits which result from the operation of this provision of the Constitution promote sound and orderly administration of government, and this provision may not be dispensed with, circumvented, or ignored.
Everett v. Johnson, 37 Wn.2d 505, 507-08, 224 P.2d 617 (1950), quoting Harbert v. Harrison Cy. Court, 129 W. Va. 54, 62, 39 S.E.2d 177, 185 (1946). InState ex rel. Port of Seattle v. Wardall, 107 Wash. 606, 612-13, 183 P. 67 (1919), the court further observed, with respect to provisions such as article 2, section 25, that:
Other courts have stated that such provisions also have an additional purpose, namely, to prevent the salary-fixing body from rewarding their friends and punishing their enemies, which they were sometimes wont to do, by increasing the salaries of those in favor and decreasing the salaries of those whose actions did not meet with the approval of that body.
The aforementioned portions of the constitution were amended in part by the enactment of article 30, section 1 of the constitution, in Amendment 54 (1968). It provides as follows:
Thecompensation of all elective and appointive state, county, and municipalofficers 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.
Amendment 54 authorized mid-term increases in the salaries of certain public officials, but there is no language in article 30, section 1, that explicitly or implicitly repeals the preexisting constitutional prohibitions against mid-termdecreases in such salaries. We reached this conclusion in AGO 1981 No. 17, in which we stated that the Legislature had no authority to rescind a salary increase that had already gone into effect.
With all the foregoing amendments in mind, we arrive at Amendment 78 to the constitution, the provision that created the Commission and authorized it to set the salaries for certain public officers. That provision, now codified as article 28, section 1 of the Washington Constitution, states that "[s]alaries . . . shall be fixed by an independent commission created and directed by law to that purpose". While it explicitly supersedes several other provisions of the constitution,it does not purport to repeal or amend article 2, section 25, or article 3, section 25. The express mention of several constitutional provisions superseded by Amendment 78 implies that any other provisions not so mentioned were intended to be left unaffected. See, e.g.,Yelle v. Bishop, 55 Wn.2d 286, 295, 347 P.2d 1081 (1959). In other words, we must presume that the drafters of the constitutional amendment were intentionally silent with respect to those provisions of the constitution that prohibit mid-term decreases in the salaries of elected officials, allowing the preexisting prohibitions in those sections to continue in effect.
We note also that the policy concerns that motivated the original drafters of our state constitution to prohibit salary decreases during an officer's term of office still exist, despite the creation of the Commission. That is, the "independence, the security, and the efficiency" of an elected official would be jeopardized if his or her salary were subject to change during the current term of office. SeeEverett v. Johnson, 37 Wn.2d at 507-08;State ex rel. Port of Seattle v. Wardall, 107 Wash. at 612-13.
Information contained in the official voter's pamphlet distributed before the election at which Amendment 78 was approved may be used to determine the purpose and intent of the amendment. SeeEstate of Turner v. Department of Rev., 106 Wn.2d 649, 654, 724 P.2d 1013 (1986). The "statement for" adoption of the amendment noted that "[t]he salaries of elected officials should be based on realistic, objective standards and not on political considerations". Voter's Pamphlet 12 (1986). Salaries of popular incumbents should therefore not be raised, just as salaries of unpopular incumbents should not be lowered. Members of the Commission theoretically are as vulnerable to the temptation to set salaries based on their opinion of the current officeholder as would be the Legislature if it were still setting salaries.
The only way to ensure that salaries will be set at levels appropriate to the duties and demands of the office is to have them apply exclusively to future occupants of that office. Consequently, we conclude that the continued application of the constitutional prohibition on salary decreases during a current term of office is both consistent with, and unchanged by, the creation of a citizens commission that establishes elected officials' salaries.
What salaries are paid to elected officials if members of the Commission fail to adopt a salary schedule within the time set by statute?
RCW 43.03.310(5) states that the Commission "shall file its initial schedule of salaries for the elected officials with the secretary of state no later than the first Monday in June, 1987, and shall file a schedule biennially thereafter". This provision clearly requires the Commission to adopt a salary schedule every two years. If, for some reason, the Commission failed to meet this obligation, however, the question would arise as to the amount that should be paid to the elected officials.
Unless the salary schedule last adopted by the Commission set salaries foronly the next two years, the elected officials would continue in succeeding years to be paid the amount set forth in that schedule. For example, the schedule adopted in 1993 establishes salaries for elected officials "[e]ffective September 1, 1993". See Laws of 1993, 1st Sp. Sess., ch. 26, §§ 1-3, pp. 3059-61. No language in this law limits the time during which these salaries continue in effect; that is, there is no expiration date for the salaries set here. Consequently, this salary schedule will remain in effect until replaced by a new schedule, whether that occurs in two years or at some later time.
May the Commission, which is composed in part of members chosen by lot from each of the eight congressional districts existing at the time the members were chosen, continue to operate lawfully now that Washington has nine congressional districts? If so, from which geographical areas are new commission members chosen by lot to be selected?
Eight of the 15 Commission members are chosen by lot from among the names of registered voters. These eight comprise one member from each congressional district. RCW 43.03.305(1). Washington had eight congressional districts when this statute was enacted in 1986.
Federal law requires that seats in the House of Representatives be apportioned among the states according to their respective numbers. See U.S. Const. art. 1, § 2;United States Dep't of Commerce v. Montana, 503 U.S. ___, 118 L. Ed. 2d 87, 112 S. Ct. 1415 (1992). Because of population growth that was detected during the decennial census in 1990, Washington subsequently gained a ninth congressional seat. Nine new congressional districts were created following the 1990 census, none precisely following the boundaries of any of the old districts in effect at the enactment of RCW 43.03.305.
Your question is whether the creation of this new congressional district makes it impossible to lawfully constitute the Commission. In our opinion, the answer is no. As explained above, the new district was established to ensure that Washington was adequately represented in the House of Representatives. The effect of adding another seat for the Washington delegation is to increase Washington's power, relative to the other states, in the House of Representatives.
However, nothing in RCW 43.03.305(1), or in any other statute we could find, authorizes a change in the membership of the Commission to reflect a change in the number of congressional districts in the state. RCW 43.03.305(1) plainly provides that eight members of the Commission are to be chosen by lot, one from each congressional district. Furthermore, the eight members chosen by law are evidently part of a scheme in which the Legislature intended that the Commission have an odd number of members, with a slight majority constituting the members drawn by lot. This scheme would be unbalanced if the Commission were to seat nine members drawn by lot rather than eight.
The Legislature's failure to amend RCW 43.03.305 to reflect the changed number of congressional districts leads to the problem posed by your third question: From which eight districts are new citizen members to be selected? This question requires us to construe RCW 43.03.305(1). The objective of statutory construction is, of course, to ascertain the Legislature's intent. E.g.,Ski Acres, Inc. v. Kittitas Cy., 118 Wn.2d 852, 827 P.2d 1000 (1992). To understand what the Legislature intended when it enacted the statute in 1986, we must "place ourselves in the light that legislature enjoyed". Linn v. Reid, 114 Wash. 609, 615, 196 P. 13 (1921).
In 1986 Washington had only eight congressional districts. Logically, it must have been those eight districts the Legislature had in mind when it drafted RCW 43.03.305(1). Since the Legislature neither authorized an increase in the number of citizen members to nine (reflecting the increase in the number of congressional districts) nor drew eight new districts to serve as constituencies for the eight citizen members of the Commission, we conclude that, absent further amendment by the Legislature, the congressional districts as they existed in 1986 are the districts from which new citizen members of the Commission are to be drawn.
We recognize that this answer may present practical problems for the secretary of state, who must compile lists of eligible voters from the current congressional districts and reassemble the voters' names to fit the old district boundaries. No other interpretation of the statute, however, is justified. The plain language of the statute does not permit the selection of a citizen member from each of the nine congressional districts, since only eight such members may be chosen. Furthermore, there is no reasoned basis for choosing members from only eight of the nine currently existing congressional districts. Thus, until the Legislature amends the statute, citizen members must be selected from the eight prior districts.
May a member of the Commission who was chosen by lot be reappointed? If so, how, by whom, and in accordance with what criteria is the member to be reappointed?
RCW 43.03.305(4) provides that no person may be appointed to serve more than two four-year terms on the Commission. Your question is whether this provision implies that any member may be reappointed for a second term.
Members of the Commission may be chosen in one of two ways: either they may be selected jointly by the speaker of the House of Representatives and the president of the Senate, or they may be selected by lot. RCW 43.03.305(1), (2). The seven members who are jointly selected by representatives of the Legislature are to have experience in the field of personnel management, and are to be drawn from specified sectors or recommended by particular entities. RCW 43.03.305(2).
The eight remaining members of the Commission are chosen by lot from the list of registered voters in this state. RCW 43.03.305(1). They are selected not for their expertise, but wholly at random.
Names of members chosen in both manners described above are forwarded to the governor, who must appoint these persons to the Commission. RCW 43.03.305(3). The governor has no discretion to refuse to appoint any person selected under RCW 43.03.305(1) or (2).
From this scheme, it is clear that citizen members — those whose names are drawn by lot — may be chosen only by chance. Neither the secretary of state, who selects the members' names, nor the governor, who must appoint any person whose name is forwarded, has any power to establish criteria that citizen members must meet. In other words, the statute provides no authority for anyone to select citizen members in any manner other than randomly.
Given the foregoing provisions, a member of the Commission originally chosen by lot for one of the eight congressional districts could be reappointed only under one of the following two circumstances: (1) if, by unlikely coincidence, his or her name were again drawn randomly from the list of registered voters in the congressional district in question; or (2) if a member who had previously served a term after being selected by lot were selected jointly by the Speaker of the House of Representatives and the President of the Senate, and nominated by them to serve an additional term. In the latter case, such a person could serve a second term but would, because of language previously quoted from RCW 43.03.305(4), be barred from serving a third term.
We trust this opinion will be of assistance to you.
Very truly yours,
CHRISTINE O. GREGOIRE
Assistant Attorney General
Article 3, section 25 of the Washington Constitution independently prohibits increasing or decreasing the salary of statewide elected officials during their terms. The term "public officer" is not specifically defined in the constitution, but has been defined in case law as follows:
(1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office created or authorized by the legislature and by it placed under the general control of a superior officer or body; [and] (5) it must have some permanency and continuity and not be only temporary or occasional.
State ex rel. Brown v. Blew, 20 Wn.2d 47, 51, 145 P.2d 554 (1944), quoting State ex rel. McIntosh v. Hutchinson, 187 Wash. 61, 63-64, 59 P.2d 1117 (1936). All of the elected state officials for whom the Commission sets salaries appear to be "public officers" under this definition and are covered by either article 2, section 25, or article 3, section 25 of the constitution.
The provisions of section 14 of Article IV, sections 14, 16, 17, 19, 20, 21, and 22 of Article III, and section 23 of Article II, insofar as they are inconsistent herewith, are hereby superseded. The provisions of section 1 of Article II, relating to referendum procedures, insofar as they are inconsistent herewith, are hereby superseded with regard to the salaries governed by this section.
An argument could be raised that the prohibition against salary decreases in article 2, section 25, applies only to decreases effected by the Legislature. This argument would be based on the wording of the provision, which may appear to constrain only the actions of the Legislature. Article 2, section 25, provides in part that "[t]he legislature shall never grant any extra compensation . . . nor shall the compensation of any public officer be . . . diminished during his term of office".
The Washington Supreme Court has determined, however, that this provision of the constitution is "self-executing, binding alike upon the authority empowered to fix salaries or compensation of public officers, whether that authority be the legislature, a board or commission, or . . . the legislature with the concurrence of the electorate affected by the increase". State ex rel. Port of Seattle v. Wardall, 107 Wash. at 611. Thus, the Commission may not decrease the salaries of elected officials during their current terms of office.
Although the eight congressional districts, as they were constituted in 1986, were nearly equal in population, their population has since changed at different rates, such that their populations have grown more and more disparate over time. This process can be expected to continue. We express no opinion as to whether the members of the Commission, who are appointed and not elected officers, are required to be chosen from districts substantially equal in population. It certainly would be preferable for the Legislature to clear up all doubts by amending the law as soon as possible.