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Bob Ferguson

AGO 1954 No. 253 - May 6 1954
Attorney General Don Eastvold


1. A city may employ, on a regular basis, an employee whose salary was not specifically budgeted for, if the total salaries item in the budget is sufficient to cover it.

2. An employee working regular hours for part of a year may be properly paid from the lump sum appropriation item designated "extra help."

3. One salaried position specifically designated in the budget may be discontinued and the funds thereby saved transferred to the item budgeted for "extra help."

4. Cities may, by emergency appropriation, provide additional funds for salaries and wages to cover a deficiency in the overall classification for salaries and wages of a particular department.

5. Under the ordinance of the city of Olympia the mayor's control of the garbage department is subject to the action of the commission as a whole.

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                                                                    May 6, 1954

Honorable Hewitt A. Henry
Prosecuting Attorney
Thurston County
301 Court House
Olympia, Washington                                                                                                 Cite as:  AGO 53-55 No. 253

Dear Sir:

            Your letter of April 12, 1954, requested our opinion upon four questions relating to the propriety of certain expenditures for the salary of an employee of the city of Olympia garbage department.  The specific questions are:

             [[Orig. Op. Page 2]]

            1. Is it proper to hire on a regular basis an additional driver not budgeted for, where the total salaries and wages appropriation is sufficient?

            2. Is it proper to pay such additional regular employee out of the "extra help" item?

            3. Is it proper to discontinue a job classification contained in the budget and use those funds to pay an additional employee of another classification, e.g., using the funds budgeted for paying a dump man for an additional truck man?

            4. Is it proper to adopt an ordinance granting an emergency appropriation to the salaries and wages item in such a budget where there is deficiency in the overall classification and none is contemplated?


            Our conclusion is that the questions should be answered in the affirmative.  However, we must observe that all such expenditures are, under Ordinance No. 1934 of the city of Olympia, subject to the control of the commission as a whole.

            Olympia is a city of the third class operating under the commission form of government.  RCW 35.17.010 divides commission cities into three departments with one commissioner in charge of each department.  The mayor is, by statute, the head of the department of public safety, pursuant to RCW 35.17.090 authorizing the distribution of powers and the assignment of duties among the various officers in such cities.  Ordinance No. 1934 assigned to the mayor of Olympia general charge, supervision and control of several departments of city government of which the garbage department is one.  The budget ordinance for the current fiscal year properly itemized estimated expenditures in accordance with the requirements of RCW 35.33.040.  The classifications were identified and segregated as to the general class of salaries and wages for the garbage department.  The salaries budgeted for ten truckmen and one dump man were set forth separately.  In addition there was one item designated as "extra help" for which there was set forth in the budget no position, title nor the name of any specific recipient.  During the course of the fiscal period, certain changes in duty assignments were made which resulted in a reduction of the total outlay for the position known as "dump man."  One additional employee was hired under the classification referred to by the city officials as "truck man."  There being no itemized salary item for this additional truck man in the budget, the question arises whether his salary could be properly paid from the item designated "extra help."

             [[Orig. Op. Page 3]]

            The additional truck man was not employed for the balance of the fiscal year.  According to the mayor, who employed him, this was a temporary expedient to carry the department over a period when the ten truckmen could not properly perform the full burden of duties in that department.  The mayor, as commissioner in charge of that department, therefore directed that the salary for the additional employee be paid from the "extra help" item.  It was the opinion of the commissioner of finance that the extra help item could not be used to pay the salary of any employee for the department who was hired on a "regular" as distinguished from "part-time basis."

            The specific legal question is:

            Under such circumstances may the extra help item in the budget be used for the payment of the salary of an employee of the department working on a full time basis for a limited period of time?

            RCW 35.33.040 provides in part as follows:

            "Within the general class of 'salaries and wages' each salary shall be set forth separately, together with the title or position of the recipient.  * * *"

            It is apparent on its face that this language refers only to the salaries and wages of the employees known to the commissioners at the time the budget is adopted, and it is mandatory only to that extent.  It is the practice, as was done here, to budget an additional item for the payment of the salaries and wages of additional help in positions which may become necessary during the fiscal period.  The obvious intent of such additional items is to render it unnecessary for the commission to amend the budget by emergency appropriations and to avoid the legal pitfalls of being caught without sufficient money to hire such additional help when it becomes necessary.  Such practice does not violate any provision of the budget law.

            The sentence next following the statutory language quoted above provides:

            "* * * Wages for day labor may be given in totals * * *"

             [[Orig. Op. Page 4]]

            This language is permissive only and does not exclude the possibility of including a lump sum appropriation for extra help to be paid on a monthly or periodic basis.

            The establishment of the rate of pay is a discretionary matter within the power of the officer exercising control of the department, which in this case is the mayor.  So long as the total expenditures for salaries and wages do not exceed the total amount provided for in the budget, the mayor may make such adjustments and modifications within the class as may be deemed necessary to carry out the efficient operation of the department, subject only to the express limitations of RCW 35.33.120.

            The purpose of the itemization provision in the budget statute is to assist the legislative body (the commission) in determining whether or not the total amount budgeted for a given class bears a proper relation to the actual expenditures of that department.  It also indicates whether or not there is any material change in a salary and wage structure of a given department proposed for the ensuing fiscal period as compared to past fiscal periods.  There is no prohibition in this statute against including as a separate item a particular appropriation for salaries of persons who may be employed as extra help during the fiscal period.  The purpose of the statute is accomplished when the appropriation ordinance is passed and the regular salaries itemized.  Thereafter, a department head may transfer funds within the same class, and he may discontinue one regular position and apply the saving in salary to the unitemized "extra help" account if, in his discretion, the efficiency of the department would thereby be improved.  He could not, however, eliminate one itemized salary position and use the saving to increase above the budgeted amount, another salary itemized in the budget.  See AGO dated December 4, 1936, to the Prosecuting Attorney of Grays Harbor County, which is attached hereto.

            A deficiency in a wage and salary classification rendering it impossible to pay the full salary and wages of the employee of a particular department within the limits of the appropriation for the fiscal period may constitute a sufficiently emergent situation to sustain a finding of an emergency upon which to base an emergency appropriation supplementing the budget.  It must appear, however, that the commission could not reasonably have foreseen the need for the additional help at the time the budget was adopted.  SeeState ex rel. Porter v. Superior Court, 145 Wash. 551; AGO dated January 7, 1932, to the Prosecuting Attorney of Chelan County.

             [[Orig. Op. Page 5]]

            Finally, we deem it necessary to make certain observations regarding Ordinance No. 1934 of the city of Olympia.  Under that ordinance, the mayor is designated as the head of the garbage department, among others.  Section 1 of that ordinance commences as follows:

            "The Mayor of the City of Olympia shall be the Head of the Department of Public Safety, shall have general charge, supervision and control, subject to the action of the Commission as a whole, of the [various departments including the garbage department]" (Emphasis supplied)

            The ordinance thus assigns to the mayor the garbage department of the city, but expressly limits that authority by the proviso underscored above.

            In our opinion, the language "supervision and control subject to the action of the commission as a whole" is express recognition of the fact that a majority of the commissioners may supersede, revoke or override any action of the mayor relating to the control of that department, including payment of wages and salaries not fixed by the budget.

            We hope that this discussion adequately disposes of the problems presented by your letter.

Very truly yours,

Attorney General

Assistant Attorney General