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AGLO 1973 No. 57 -
Attorney General Slade Gorton

A proposal to amend House Bill No. 1054 at the September legislative session so as to cause the terminal leave benefits provided for therein to be applicable, retroactively, to employees previously terminated by reason of the state facility to be closed would be unconstitutional.
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                                                                   May 29, 1973
Honorable Duane L. Berentson
State Representative, 40th District
P.O. Box 426
Burlington, Washington 98233
                                                                                                               Cite as:  AGLO 1973 No. 57
Dear Sir:
            This is written in response to your recent letter inquiring as to the constitutionality of a proposed amendment to House Bill No. 1054 ‑ a prospective enactment by which certain rights and benefits would be granted to employees adversely affected by the closure of a state facility or the termination of a state service.
            You have advised us that although this bill failed to obtain passage during the recently completed 1973 regular and first extraordinary sessions of the legislature, it may again be considered at the 1973 2nd extraordinary session which is currently scheduled for September of this year.  Your question is whether any constitutional problem would arise if, in passing this bill in September, the legislature were to amend it so as to cause the employee benefits thereby to be provided to become available to those state employees who are terminated by reason of the closure of a state facility between now and the date of its enactment.
            In our opinion, for the reasons set forth below, such an amendment would be unconstitutional.
            The rights and benefits which would be conferred upon state employees affected by the closure of a state facility or the termination of a state service if House Bill No. 1054 should be enacted are, basically, set forth in § 3 of this bill.  These would include the following:
            (1) A minimum of six months' advance notice of their prospective termination; priority status for employment in other positions where covered by a state civil service system;
            (2) payment of relocation expenses incurred in the movement of household goods in the case of those  [[Orig. Op. Page 2]] employees transferring to other positions by reason of the closure of a facility or the termination of a service ‑ together with an allowance up to five days' leave with pay for the purpose of locating a new residence;
            (3) reimbursement in an amount not exceeding $3,000 for any loss suffered by a transferring employee in connection with the sale of his residence; and, finally,
            (4) with respect to an employee separating from state service as a result of the closure of a facility or the termination of a service, terminal leave pay in an amount equal to one week's salary for each year of consecutive service, together with certain rights to early retirement under the laws governing the public employees' retirement system.
            The constitutional provision that your question involves is, of course, Article II, § 25 (Amendment 35) of our state Constitution which reads as follows:
            "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 or diminished during his term of office.  Nothing in this section shall be deemed to prevent increases in pensions after such pensions shall have been granted."  (Emphasis supplied.)
            In the case of those state employees whose services as such are ended by reason of the closure of a facility or termination of a state service, it will readily be seen from the foregoing summary of § 3 of the bill that the benefits thereby afforded would constitute a form of "compensation" ‑ both with respect to the terminal leave pay allowance and to the benefit of early retirement.1/   Therefore, unless already  [[Orig. Op. Page 3]] provided for by law at the time of rendition of the employment services in exchange for which they are to be provided, they would both amount to extra compensation in violation of this constitutional prohibition.  Accord, Aldrich v. State Employees' Etc., 49 Wn.2d 831, 307 P.2d 270 (1957); see, also AGLO 1973 No. 10 [[to Gary M. Odegaard, State Senator on January 17, 1973, an Informal Opinion, AIR-73510]], copy enclosed.  For this reason, we do not believe that House Bill No. 1054, as above described, could, constitutionally, be made retroactive so as to cover state employees separated from state employment by reason of the closure of a state facility or termination of a state service prior to the enactment of this measure at the September, 1973, legislative session.  Instead, it is our opinion that under Article II, § 25 (Amendment 35), supra, such benefits as would be provided for by this bill can only be afforded to state employees who are still so employed as of its ultimate effective date.2/
             We trust that the foregoing will be of some assistance to you.
Very truly yours,
Attorney General
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/Accord, as to the latter, Bakenhus v. Seattle, 48 Wn.2d 695, 296 P.2d 536 (1956), wherein it was held that a pension granted to a public employee in this state ". . . is not a gratuity but is deferred compensation for services rendered.  . . ."  Although the constitutional provision as above quoted now permits post-retirement increases in pensions previously granted (by virtue of Amendment 35 which was adopted in 1958), it does not permit a post-separation grant of a pension to a former employee who was not eligible to receive it at the time of his separation from covered service.
2/From this it will readily be seen that the constitutional problem discussed in this opinion would not have arisen as to any employees losing their jobs by reason of a closure or termination of a service between now and the September session if the legislature had seen fit to enact this measure on an emergency basis prior to the adjournment of either of its earlier 1973 sessions.