AGO 1981 No. 16 - Oct 23 1981
DISTRICTS ‑- SCHOOLS ‑- CERTIFICATED EMPLOYEES ‑- SALARIES ‑- LIMITATION ON SALARY INCREASES UNDER 1981 LEGISLATION
Although a reduction (from 183 to 180) in the number of days in the current (1981-82) school year during which the certificated employees of a certain school district will be required to work, when coupled with a continuation of the same annual salaries as were paid during the previous (1980-81) school year, will result in a "salary increase" in the literal sense as that term is used in § 1, chapter 16, Laws of 1981, such a salary increase would not, by and of itself, trigger the restrictive provisions of the subject legislation.
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October 23, 1981
Honorable Michael E. Patrick
St. Rep., 11th District
13232 S.E. 192nd
Renton, Washington 98055
Cite as: AGO 1981 No. 16
This is written in response to your recent request for our opinion regarding the legality, under chapter 16, Laws of 1981 (SHB 166) of the following course of action now being considered by a certain district: To reduce (from 183 to 180) the number of days in the current (1981-82) school year during which its certificated employees will be required to work while, at the same time, continuing to pay them the same annual salaries as it paid during the previous (1980-81) school year.
As we view it, two distinct questions are thus raised; i.e.,
(1) Will the result of this action be a "salary . . . increase . . ." in the literal sense as that term is used in § 2, chapter 16, Laws of 1981,supra, and
(2) If so, must the contemplated action therefore be deemed to be prohibited by that statute?
[[Orig. Op. Page 2]]
We answer the first of these questions in the affirmative and the second in the negative for the reasons set forth in our analysis.
Chapter 16, Laws of 1981 relates to school employees' salaries and the authority of local school boards to fix and adjust those salaries. The primary operative language of this new law is contained in § 2 which reads, in pertinent part, as follows:
"(1) Every school district board of directors shall fix, alter, allow, and order paid salaries and compensation for all district employees. No school district board of directors may grant salary and compensation increases from any fund source whatsoever in excess of the amount and or percentage as may be provided for employees as set forth in the state operating appropriations act in effect at the time the compensation is payable.
". . .
"(3) For purposes of this section, salary and compensation shall not include the following:
"(a) Payment for unused leave for illness or injury under RCW 28A.58.097,
"(b) Employer contributions for the following employee fringe benefits:
"(i) Old Age Survivors Insurance
"(ii) Workers' Compensation
"(iii) Unemployment Compensation
"(iv) Retirement benefits under the Washington State Retirement System.
". . ."
What will be immediately noted from the above‑underscored second sentence of subsection (1), however, is that this is not an absolute, unqualified, prohibition against any and all pay raises for school district [[Orig. Op. Page 3]] employees. Instead, it is a qualified, conditional limitation, the full effect of which can only be ascertained by resort to other legislative and implementing administrative action. And it is for this reason that we have found it necessary to divide your question into two separate parts.
The threshold question, once again, is whether a reduction (from 183 to 180) in the number of contract days required of the subject employees, when coupled with a retention of their previous years' total annual salaries, would result in a "salary increase" in the literal sense as that term is used in § 2, chapter 16, supra.
In essence, this issue is the same as one which was presented to us several years ago in the context of a provision of the 1977-79 state operating budget act‑-chapter 339, Laws of 1977, 1st Ex. Sess. See, AGLO 1978 No. 28, copy inclosed. Section 14(8) of that act, which dealt with community college employees, read, in pertinent part, as follows:
"(8) Not more than $18,134,000 . . . shall be expended to effect salary increases including increments or their equivalents for faculty and exempt employees of the community college system. Not more than $14,223,000 of this amount shall be expended to effect, beginning July 1, 1977, an average 10% salary increase including increments or their equivalents for faculty and exempt employees of each community college district: PROVIDED, That no district may grant from any fund source any additional salary increase greater than that provided in this act for faculty and exempt employees except that in addition to the increase provided herein, those districts whose actual average faculty salary for 1976-77 is less than that earned from the system's 1976-77 hypothetical schedule may increase the average salary of the faculty and exempt employees in 1977-78 up to the average earned by the district from the hypothetical schedule or 5% whichever is less, as determined from rules and regulations promulgated by the State Board for Community College Education."
[[Orig. Op. Page 4]]
And, in the above‑cited opinion, we dealt with the effect of this statutory language on the following described factual situation:
". . . As you have described the situation, the community college district previously adopted a certain annualized salary schedule for its faculty and exempt employees covering a 1977-78 academic year which consisted of 175 contract days. However, although thus expressed in terms of an annual amount, the salaries were actually paid on the basis of a per diem rate which was contractually defined as '. . . the annual contract amount divided by the annual contract days.' Accord, Article VIII, Section A of the district's 'Master Contract' with its employees covering the period from July 1, 1976, through June 30, 1978. Therefore, for example, if an employee took leave without pay for a given number of days (as distinguished from earned vacation time or compensated sick leave) the result would be a deduction '. . . from the [employee's] annual salary at the per diem rate times the number of days without pay.'
"Now, for the forthcoming 1978-79 academic year it has been proposed that the district, while retaining the same annualized salary schedule under essentially the same Master Contract, nevertheless reduce the number of contract days (i.e., days during which services are required to be rendered by its employees) from 175 to 166. . . ."
In turn, the question which was thus raised, as we phrased it, was as follows:
". . . And your question, . . . is whether this action by the district would result in a 'salary increase' within the meaning of the above‑quoted language of § 14(8), chapter 339,supra."
[[Orig. Op. Page 5]]
We answered in the affirmative, saying, by way of explanation (at pp. 3-4 of our opinion):
"In this case the key words are 'salary increase.' Webster's Third New International Dictionary (unabridged) (1971) defines salary as 'fixed compensation paid regularly (as by the year, quarter, month or week) for services' and it defines increase as the 'act of increasing: as A: addition or enlargement in size, extent, quantity, number, intensity, value, substance. . . .' Here, although the proposal in question would not increase an employee's annual salary it clearly would increase his or her daily salary (i.e., the per diem rate as above defined). To illustrate let us assume, specifically, the case of a faculty member employed by the community college district during the 1977-78 academic year (consisting of 175 contract days) for a total annualized salary of $17,500. In addition, for ease of analysis, we will assume that this employee, although reemployed for the 1978-79 academic year, is not entitled to any incremental increases available under the college's adopted salary schedule‑-with the result that his salary remains the same, $17,500 per year level. But this time, his contract year would consist only of 166 contract days, or nine days less than were required of him for 1977-78.
"Simple arithmetic readily reveals the result. For 1977-78 our hypothetical employee was compensated at the per diem rate of $100 per contract day ($17,500¸175) while his salary for 1978-79 would compute out at $105.40 for each contract day of service he performs ($17,500¸166). Thus, clearly, he would receive in 1978-79 a higher rate of compensation than was received in the previous year for services of him; i.e., a 'salary increase' as defined by Webster's Third New International Dictionary, supra."
[[Orig. Op. Page 6]]
We believe that this same rationale is equally applicable in the instant situation. We therefore conclude that the proposed reduction in contract days which you have described, coupled with a retention of the same annual salaries as before, would, likewise, result in a "salary increase" in the literal sense‑-as that term is used (in this instance) in § 2, chapter 16, Laws of 1981,supra.
In response to the second part of your question, however, this does not mean that the proposed action would therefore be in violation of this 1981 law. Once again, the prohibition contained in the law is qualified and not absolute. Repeated for ease of reference, it reads as follows:
". . . No school district board of directors may grant salary and compensation increases from any fund source whatsoever in excess of the amount and or percentage as may be provided for employees as set forth inthe state operating appropriations act in effect at the time the compensation is payable.
". . ." (Emphasis supplied)
The referenced appropriations act, as of today, is chapter 340, Laws of 1981. What it says, in §§ 90 (for certificated employees) and 91 (for classified personnel) is, basically, that their compensation is to be maintained at levels not exceeding 1980-81 base levels contained in what is referred to as "LEAP Document 2" by more than certain specified percentages.
In the preparation of this opinion, we have carefully read both of these documents (the appropriations act and LEAP Document 2)‑-which actually involve an interplay of legislative and administrative action. On the basis of their respective provisions‑-together with the data upon which LEAP Document 2 is premised‑-we are, however, unable to find any legitimate reason for concluding that such "salary increases" as would result solely from a reduction, [[Orig. Op. Page 7]] from 183 to 180, in the total number of contract days for certificated employees within a given school year would, by and of themselves, trigger the restrictive provision of the subject legislation. Therefore, notwithstanding our affirmative answer to question (1), above, we respond to this portion of your inquiry in the negative.
In so concluding we note, particularly, the following definition from § 88(1) of chapter 340,supra, of "LEAP Document 2" (a copy of which you will also find enclosed):
"'LEAP Document 2' means the computer tabulation of 1980-81 derived base salaries for basic education certificated staff, 1980-81 average salaries for basic education classified staff and 1981-82 and 1982-83 salary increase percentages which was developed by the legislative evaluation and accountability program committee on April 20, 1981, at 2:02 p.m." (Emphasis supplied)
It is out [our] understanding that the 1980-81 "derived base salaries" fixed by this document (which, as will be noted, was already in existence when the appropriation act was passed) were computed in accordance with the number of full-time equivalent (FTE) certificated employees and their respective 1980-81 annual salaries. Both that fact and the nature of the FTE concept serve to explain why a "salary increase" resulting only from the reduction in the number of work days here proposed would not be a salary increase for the purposes of § 2, chapter 16,supra.
An FTE certificated employee for school district reporting and LEAP Document 2 purposes is one who is employed full time for 180or more days during a given school year.1/ Thus, the fact that a particular individual may be [[Orig. Op. Page 8]] employed to work more than 180 days (e.g., 183 or even 220 days) does not change the characterization of that individual as only a single FTE certificated employee. For example, if an FTE certificated teacher who is employed for 183 days in 1980-81 enters into a contract for 180 days during 1981-82, he or she remains, for reporting and derived base salary computation purposes, one FTE certificated employee. Conversely, assuming the reverse (i.e., an increase from 180 days to 183 or more days) the employee likewise also remains one FTE‑-no more and no less.
The net result of the foregoing is that an increase in the total annual salary paid to an FTE certificated employee is detected and reflected in the computation of a school district's certificated employee derived base salary, but a decrease in the employee's annual number of work days‑-from something more that 180 days to 180 days‑-is not. And thus, in short, the control upon certificated employee salary increases, under the law as it now exists, is upon the total annual salary paid to those employees and not upon their daily or hourly rate of pay.
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
PHILIP H. AUSTIN
Deputy Attorney General
ROBERT E. PATTERSON
Assistant Attorney General
*** FOOTNOTES ***
1/See, WAC 392-121-115(2).