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AGLO 1971 No. 8 -
Attorney General Slade Gorton

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                                                                 January 19, 1971
Honorable Donald W. Moos
Department of Agriculture
General Administration Building
Olympia, Washington 98501
                                                                                              Cite as:  AGLO 1971 No. 8 (not official)
Re:  Fairs Commission ‑ expenses
Dear Mr. Moos:
            In our telephone conversation, followed by your letter dated January 6, 1971, you have asked for our views on the following questions:
            "1. Does the term 'per diem' as used in RCW 15.76.170 refer to compensation rather than the more customary connotation of the term, i.e., subsistence and lodging?
            "2. Should your answer to the first question be compensation, then does the phrase 'actual travel expenses' mean to include all elements of cost irrespective of limits placed by other statutes?
            "3. Should the commission members be bound by statutory limits for daily reimbursement of travel expenses, are they also bound by rules and regulations promulgated by the Office of Program Planning and Fiscal Management as set forth in Section C of the Budget and Accounting Manual?"
            RCW 15.76.170 provides as follows:
            "There is hereby created a fairs commission to consist of the director of agriculture as ex officio member and chairman, and seven  [[Orig. Op. Page 2]] members appointed by the director to be persons who are interested in fair activities; at least three of whom shall be from the east side of the Cascades and three from the west side of the Cascades and one member at large.  The first appointment shall be:  Three for a one year term, two for a two year term, and two for a three year term, and thereafter the appointments shall be for three year terms.
            "Appointed members of the commission shall receive twenty dollars per diem for each day actually spent on commission business plus actual travel expense payable on proper vouchers submitted to and approved by the director, and payable from that portion of the state fair fund set aside for administrative costs under this chapter.  The commission shall meet at the call of the chairman, but at least annually.  It shall be the duty of the commission to act as an advisory committee to the director, to assist in the preparation of the merit rating used in determining allocations to be made to fairs, and to perform such other duties as may be required by the director from time to time."  (Emphasis supplied)
            Very clearly the term "per diem" in that statute applies to per diem compensation as distinquished from a per diem rate in lieu of expenses.  The statute clearly provides for a daily salary or rate of compensation for services rendered, without regard to expenses incurred.  See, State ex rel. Jaspers v. West, 13 Wn.2d 514, 125 P.2d 694 (1942), and cases cited therein.  That conclusion becomes totally inescapable upon reading, in the same paragraph, a separate provision for the reimbursement of "actual travel expense."  In answer to your second question, the term "actual expenses" in a statute such as RCW 15.76.170, usually refers to the reimbursement of expenses, without monetary limitation, incurred in the performance of duty.  See, AGO 61-62 No. 138 [[to Superintendent of Public Instruction on May 22, 1962]], a copy of which is enclosed.  The term is impliedly limited, however, to expenses which are "necessarily" incurred, in "reasonable" amounts.  See, AGO 65-66 No. 76 [[to Prosecuting Attorney, Stevens County on March 7, 1966]], a copy of which is also enclosed.
             [[Orig. Op. Page 3]]
            The answer to your third question appears to be contained in AGO 61-62 No. 138, supra.  We concluded in that opinion that a statute especially prescribing actual expenses for particular officers is a special statute and is not limited by the general statute, RCW 43.03.050, prescribing limitations on per diem rates.  RCW 43.03.050 has been again subsequently amended by section 1, chapter 34, Laws of 1970, 1st Ex. Sess.  The evident purpose of the amendment, however, was to substitute the director of the office of program planning and fiscal management in lieu of each department's head, as the officer who prescribes per diem rates within the limitations imposed in the statute itself.  The statute as amended reads as follows:
            "The director of the office of program planning and fiscal management shall prescribe for all state agencies per diem rates of allowance, not exceeding twenty-five dollars in lieu of subsistence and lodging to elective and appointive officials and state employees while engaged on official business away from their designated posts of duty, but within the state of Washington, and not exceeding thirty-five dollars per day while engaged on official business elsewhere.  The director of the office of program planning and fiscal management may within the limits established herein prescribe and regulate the per diem rates to be allowed in lieu of subsistence and lodging expenses and may prescribe the conditions under which reimbursement for subsistence and lodging may be allowed."
            We do not believe that that statute was intended to have the farther reaching effect of impliedly repealing all of those statutory provisions allowing "actual expenses" to certain officers and employees.  Accord, our memorandum of August 28, 1970, to John Seldon, state auditor's office.
            Your third question asks specifically about the applicability of rules promulgated by the director of the office of program planning and fiscal management regarding the limitation of expenses.  In general, those rules insofar as they place a flat monetary limitation upon the amount of expenses that may be reimbursed, cannot apply to members of the fair commission who are entitled to receive "actual expenses."  AGO 61-62 No. 138, supra.
             [[Orig. Op. Page 4]]
            Other limitations may be reasonably imposed by the office of program planning and fiscal management, however, by virtue of § 6, chapter 282, Laws of 1969 1st Ex. Sess., authorizing the director to ". . . issue rules and regulations to establish uniform standards and business practices throughout the state service, including regulation of travel by officers and employees and the conditions under which per diem shall be paid, so as to improve efficiency and conserve funds.  . . ."  Except for the phrase "conditions under which per diem shall be paid" the quoted provision seems as applicable to members of the fair commission as to any other officers or employees.
            Incidentally, it is our understanding that the views we have expressed in this letter are in accord with the administrative construction of RCW 43.03.050 by the office of program planning and fiscal management.  We trust these views will be of assistance to you.
Very truly yours,
Robert F. Hauth
Assistant Attorney General