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Attorney General

Bob Ferguson

AGO 1964 No. 81 - Jan 28 1964
Attorney General John J. O'Connell


A county official may pay extra compensation to a salaried employee for overtime work provided there has been compliance with the budgetary procedures which must be followed as a prerequisite to payment of any overtime compensation.

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                                                                 January 28, 1964

Honorable Don Miles
State Representative, 22nd District
Route 6, Box 143
Olympia, Washington

                                                                                                                Cite as:  AGO 63-64 No. 81

Dear Sir:

            By letter previously acknowledged, you have requested an opinion of this office on a question which we paraphrase as follows:

            May a county official pay extra compensation to a salaried employee for overtime work which is fee producing?

            We answer your question in the affirmative as qualified in our analysis.


            At the outset it should be pointed out that we have been unable to find any legal authority which would indicate that the right to overtime compensation would depend upon the type of income received by the county.  Therefore, we answer your question without any consideration of the fees which may have been paid to the county because of the work performed.

            Generally, the board of county commissioners has the power to fix the compensation of county employees.  RCW 36.16.070 provides in part:

            "In all cases where the duties of any county office are greater than can be performed by the person elected to fill it, the officer may employ deputies and other necessary employees with the consent of the board of county commissioners.  The boardshall fix their compensation. . ."  (Emphasis supplied.)

             [[Orig. Op. Page 2]]

            It would appear that the express power of the board to fix the compensation of deputies and other employees would necessarily imply the power to provide for overtime pay as part of that compensation.  The board of county commissioners, as the governing body of a county, has those powers which have been expressly granted to it, and those which are necessarily implied from the granted powers.  Sasse v. King County, 196 Wash. 242, 82 P.2d 536 (1938), and cases cited therein.

            There are, however, certain budgetary procedures which must be followed as a prerequisite to the payment of overtime compensation.  These procedures are set forth in chapter 36.40 RCW and more particularly in RCW 35.40.040 through 35.40.100, and have been discussed by our supreme court inState ex rel. Ross v. King County, 191 Wash. 340, 71 P.2d 370 (1937).  See, also,Kerr v. King County, 42 Wn.2d 845, 259 P.2d 398 (1953); AGO 43-44, p. 69 [[1943-44 OAG 69 to Prosecuting Attorney, Yakima County on May 15, 1943]], AGO 45-46, p. 229 [[1945-46 OAG 229 to Prosecuting Attorney, Lewis County on June 25, 1945]], and AGO 45-46 p. 952 [[1945-46 OAG 952 to Prosecuting Attorney, King County on August 2, 1946]]. p. 229, and AGO 45-46 p. 952.

            In addition to the budgetary limitations, there is also a constitutional limitation.  Article II, § 25, (Amendment 35) of the Washington Constitution provides:

            "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 . . ."

            Since this provision applies to a board of county commissioners as well as to the legislature (see,State ex rel. Port of Seattle v. Wardall, 107 Wash. 606, 183 Pac. 67 (1919)), provision for the payment of extra compensation cannot be made after the services have been rendered or the contract entered into.  State ex rel. Eshelman v. Cheetham, 21 Wash. 437, 58 Pac. 771 (1899), and also our informal opinion to the director of highways dated July 20, 1942.

            It is our conclusion, therefore, that a county official may pay extra compensation to a salaried employee for overtime work, provided that the necessary steps are taken prior to the performance of the labor.  This conclusion, of course, does not apply to elected county officials since their compensation is fixed by the legislature and may not be increased during their respective terms of office.  See, Article XI, §§ 5 and 8, of the Washington Constitution.  Copies of the referenced opinions are enclosed.

             [[Orig. Op. Page 3]]

            Our present conclusion is in accord with our informal opinion to the prosecuting attorney of Cowlitz county, dated June 1, 1944, a copy of which also is enclosed.

            We trust that this information will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General