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Bob Ferguson

AGO 1954 No. 199 -
Attorney General Don Eastvold


City council of a town of the fourth class may, by ordinance, declare an emergency and increase the salary of any appointive officer of such city or town, effective immediately upon the passage of such ordinance.

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                                                                 February 8, 1954

Honorable Maloy Sensney
Prosecuting Attorney
Benton County
Fisk Building
Prosser, Washington                                                                                             Cite as:  AGO 53-55 No. 199

Attention:  Mr. Herbert H. Davis, Deputy

Dear Sir:

            This is in answer to your request of January 21, 1954, for our opinion upon the possibility of increasing the compensation of certain officials of Benton City, a town of the fourth class.

            In our opinion the city council may, by ordinance, declare an emergency and increase the salary of any of the appointive officers.


            The offices of clerk and treasurer have been consolidated.  Likewise, the offices of marshal, street superintendent, and water superintendent have been consolidated.  The 1954 budget was prepared in 1953, setting forth a salary item for each of the offices mentioned.  The question is whether an increase in salary can be awarded to the incumbents of the two consolidated positions mentioned above.  Our attention has been directed to RCW 35.27.130 providing, in part, as follows:

             [[Orig. Op. Page 2]]

            "The clerk, treasurer, marshal, and police justice shall severally receive at stated times a compensation to be fixed by ordinance which compensation shall not be increased or diminished after their election nor during their terms of office."  (Emphasis supplied)

            The statute purports to be applicable to officers in towns of the fourth class.  However, only the office of treasurer is elective, and it alone has a fixed term.  See RCW 35.27.090.  The statute quoted above was a portion of chapter 115, Laws of 1941, which related to both third and fourth class cities.  Certain language which appears to be applicable to fourth class towns cannot, by its own terms, apply to all of the offices mentioned in that section because some of those offices are neither elective nor do they have a definite term.

            InWarnock v. Marysville, 17 Wn. (2d) 515, 520, 136 P. (2d) 188, the supreme court discussed the meaning of this statute and particularly the portion thereof referring to "terms of office," as follows:

            "In our opinion, the dominant purpose of the 1939 act was simply to enlarge the terms of office of such officers as were elective under Rem. Rev. Stat., §§ 9116, 9165.  These included the mayor, clerk, and treasurer of both third and fourth-class cities and towns, and the attorneys for third-class cities,but did not include appointive officials such as attorneys for fourth-class towns, whose appointment and period of service were dependent wholly upon the will and pleasure of the mayor.  The act continuously refers to 'terms of office' and must have had reference to those offices for which a term of years had been provided in prior statutes.  Attorneys for fourth-class towns had no 'term' of office, but simply an appointment which could be terminated by the mayor instantly at any time."  (Emphasis supplied)

            From what has been said above, it is obvious that the positions of clerk, marshal, street superintendent and water superintendent, have no definite term.  Therefore, the limitations of RCW 35.27.130 cannot apply to them.

             [[Orig. Op. Page 3]]

            You have indicated that the positions of clerk and treasurer are consolidated.  Presumably this has been accomplished under authority of RCW 35.27.180.  The effect of such consolidation is indicated in RCW 35.27.190.  If the clerk acts as treasurer, the position is appointive, and there is no fixed term.  On the other hand, if the treasurer acts as clerk, the position is elective and there is a fixed term (four years).  See RCW 35.27.190.  Consequently, the question of whether your consolidated office of clerk-treasurer is subject to the prohibition against increasing compensation as set forth in RCW 35.27.130, depends upon which way the consolidation was effected.

            You are advised that if your position of clerk-treasurer has been established by the absorption of the treasurer's duties by the clerk, the position is appointive, and the incumbent serves at the will of the mayor.  Under these circumstances, his compensation may be increased.  The position of marshal-street-water superintendent is appointive, and since there is no fixed term, the compensation of the incumbent may be increased.

            The rule is well established that towns of the fourth class may, by ordinance, declare an emergency for the purpose of increasing salaries of municipal officials, provided a bona fide emergency exists.  This is, of course, a discretionary matter for the city council to determine.

            If your position of clerk-treasurer is an appointive one, you are advised that the two positions mentioned in your letter are positions in which the salary of the incumbent may be increased by an emergency appropriation.

Very truly yours,

Attorney General

Assistant Attorney General