AGO 1974 No. 13 - Jul 11 1974
COUNTIES ‑- OFFICES AND OFFICERS ‑- FEES ‑- AUTHORITY OF NONCHARTER COUNTY TO PAY CERTAIN MEMBERSHIP DUES FOR ITS OFFICERS
A county, including a noncharter county, may pay the dues required to maintain optional membership in a professional association on behalf of an officer of the county in those cases where the main object of the expenditure is an anticipated direct benefit to the county such as a subscription to periodicals, services, or other valuable rights of commensurate value; however, a county may not pay those dues in a case where membership in the association is required by law as a prerequisite for holding the office in question.
- - - - - - - - - - - - -
July 11, 1974
Honorable Robert K. Leick
Stevenson, Washington 98648
Cite as: AGO 1974 No. 13
By letter previously acknowledged, you have requested an opinion of this office on two questions which we have paraphrased as follows:
(1) Under what circumstances may a county pay the dues required to maintain optional membership in a professional association on behalf of an officer thereof?
(2) May a county pay those dues in a case where membership in the association is required by law as a prerequisite for holding the office in question; e.g., the office of prosecuting attorney relative to membership in the Washington State Bar Association?
We answer your first question in the manner set forth in our analysis and your second question in the negative.
Like most questions pertaining to the powers and duties of
[Orig. Op. Page 2 ]
public officers and agencies, our analysis involves a process of statutory construction. We begin with the premise that noncharter counties1/ may exercise those powers that have been expressly granted to them by the constitution or statutes, or absent such an express grant, those powers which are necessarily implied from the powers which are expressly granted. Pacific Etc. Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947);Sasse v. King County, 196 Wash. 242, 82 P.2d 536 (1938). It is further well settled that the words "necessary" and "essential," as used in the foregoing rule enunciating the doctrine of implied powers, refer to legal rather than to practical necessity. State ex rel. State Board Etc. v. Clausen, 84 Wash. 279, 283, 146 Pac. 630 (1915). To amplify upon this point, implied powers are such as are necessary to carry into effect those powers which have been expressly granted to an agency and which must, therefore, be presumed to have been within the intention of the legislative grant. City of Madison v. Daley, 58 Fed. Rep. 751, 755 (1893). If there is a fair or reasonable doubt as to whether or not a particular power has been granted, it must be denied. Pacific Etc. Ass'n v. Pierce County, supra; 2 McQuillin, Municipal Corporations, § 10.12, page 765.
This office has previously issued a number of opinions regarding the authority of a municipal corporation which is subject to these rules to pay membership dues in various organizations of agencies and individuals, in the absence of express statutory authority. There is a particularly thorough discussion of the subject in our letter of December 20, 1961, to Bogle, Bogle & Gates, attorneys for the Port of Seattle, copy enclosed, in which we disposed of several questions raised by the state auditor relative to the financial transactions of that port district. See, in particular, pages 5 and 6, and pages 23 and 28 thereof. In addition, see our letter opinions to the state auditor dated March 5, 1969, and July 18, 1951, along with AGO 63-64 No. 67 to E. R. Whitmore, Prosecuting Attorney, Chelan County on October 21, 1963, copies of which are also enclosed.
In summary, what we said in those prior opinions is that, generally speaking, such a municipal corporation has the implied power to expend its funds for these purposes in reasonable
[Orig. Op. Page 3]
amounts when the main object of the expenditure is an anticipated direct benefit to the municipality, such as a subscription to periodicals, services, or other valuable rights of commensurate value. The basis of that implied power, when found, is the usual authority of the municipality to acquire such informational materials and/or other benefits through ordinary channels, and our previous opinions have simply recognized the associations or organizations involved as constituting such channels.
Significantly, the legislature has itself given statutory recognition to the same idea. One of the earliest and best known statutes on the subject is RCW 36.32.350, which empowers counties to utilize and pay for the services of the Washington State Association of County Commissioners2/ as a "coordinating agency." Furthermore, our supreme court has interpreted that statute as nonexclusive; i.e., counties may utilize other such coordinating agencies for the same purpose. State ex rel. Cruikshank v. Baker, 2 Wn.2d 145, 97 P.2d 638 (1940).
Our above‑cited opinions have expressly recognized, as an extension of the same power, the authority of a municipality to cause itself (or its designated officers or employees) to be enrolled as a member or members of such associations and to pay reasonable amounts as "dues" for those memberships. Notably, in terms of your question, the specific types of associations we there had in mind were organizations to which the officers or employees in question would not ordinarily belong ‑ or at least not necessarily belong ‑ except for their holding such public office or employment. A previously recognized example in that category would be membership by a port finance officer in a municipal finance officers' association (see letter to Bogle, Bogle & Gates,supra, page 24). Other clearly permissible examples would be the membership of a county or its commissioners in the Washington State Association of Counties, or of its prosecuting attorney in the Washington State Prosecuting Attorneys Association.
Less clear but nonetheless valid examples of such permitted expenditures would be the payment of dues for optional
[Orig. Op. Page 4]
membership by a public attorney, medical officer or accountant in a legal, medical or accounting association such as the American Bar Association. The reasoning of our earlier opinion would support a determination by a board of county commissioners to pay reasonable dues for membership in such organizations as payment for corresponding benefits, under the conditions outlined earlier in this opinion.
This brings us to your second question, which asks:
May a county pay such dues in a case where membership in the association is required by law as a prerequisite for holding the office in question; e.g., the office of prosecuting attorney relative to membership in the Washington State Bar Association?
The key to our negative answer to this question is found in the same reasoning which supports our affirmative answer to your first question. The basis of the implied authority we have found for a public agency to make such expenditures is its demonstrable need to purchase certain benefits in that manner. The antithesis is that, in the absence of any such demonstrable need, there is no basis for implying that power.
A person, in seeking election or appointment to a given public office, offers to the public his qualifications as well as his services, and he is entitled to no corresponding consideration from the public treasury except when and to the extent affirmatively authorized by law. See,James v. Seattle, 22 Wash. 654, 62 Pac. 84 (1900); MacKenzie v. Douglas County, 81 Ore. 442, 159 Pac. 625 (1916);Madden v. Riley, 53 C.A.2d 814, 128 P.2d 602 (1942); and 4 McQuillin, Municipal Corporations, § 12.174. In other words, ". . . If the law does not provide a compensation or make a definite provision that no compensation shall be allowed, the office is deemed to be an honorary one and the services gratuitous. . . ." State ex rel. Jaspers v. West, 13 Wn.2d 514, 519, 125 P.2d 694 (1942).
In the example you have mentioned in your letter, one of the statutory qualifications for the office in question is membership in a particular professional association; i.e., membership
[Orig. Op. Page 5]
by the prosecuting attorney in the Washington State Bar Association.3/ The public obviously has a right to expect that this officer, after his election or appointment, will continue to maintain that membership as a continuing qualification on his right to hold his office. Thus, the county he serves could show no actual need and thus, in our opinion, no implied power to expend its own funds for that purpose. It would follow, therefore, that any such expenditure would have to be regarded as a gratuitous payment of public funds ‑ relieving the officer in question from a personal financial burden imposed by law. As such, the payment would clearly violate Article VIII, § 7 of the Washington state constitution.4/ See,Hwy Com. v. Pac. NW Bell Tel. Co., 59 Wn.2d 216, 367 P.2d 605 (1961).
[Orig. Op. Page 6]
We thus answer your second question, as above stated, in the negative.5/
We trust that the foregoing will be of some assistance to you.
Very truly yours,
ROBERT F. HAUTH
Assistant Attorney General
*** FOOTNOTES ***
1/I.e., counties which have not adopted their own "home rule" charters as permitted by Article XI, § 4 (Amendment 21) of the state constitution.
2/Now known as the Washington State Association of Counties.
3/See, RCW 36.27.010, which provides that:
"No person shall be eligible to the office of prosecuting attorney in any county of this state, unless he is a qualified elector therein, and has been admitted as an attorney and counselor of the courts of this state."
together with RCW 2.48.170, under which,
"No person shall practice law in this state subsequent to the first meeting of the state bar unless he shall be an active member thereof as hereinbefore defined: Provided, That a member of the bar in good standing in any other state or jurisdiction shall be entitled to appear in the courts of this state under such rules as the board of governors may prescribe."
4/"No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation."
5/We have excluded from consideration in this opinion, the question of whether, in a proper case, a county might lawfully pay such membership dues as an agreed part of an officer's or employee's compensation. The reason is that the scope of your inquiry seemed clearly limited to those officers, such as county commissioners and prosecuting attorneys, from whom the law now provides either no compensation or compensation payable in a particular form only such as salary, and we have paraphrased your questions accordingly. Thus, a discussion regarding the possible authority of a county to pay membership dues as additional compensation to an officer or employee would be academic at this time.