OFFICES AND OFFICERS - COUNTY - COMMISSIONERS - AUTHORITY TO ENACT AN ORDINANCE ALLOWING EMPLOYEES OF THE COUNTY TO COLLECT ACCRUED VACATION UPON TERMINATION OF EMPLOYMENT

OFFICES AND OFFICERS - COUNTY - COMMISSIONERS - AUTHORITY TO ENACT AN ORDINANCE ALLOWING EMPLOYEES OF THE COUNTY TO COLLECT ACCRUED VACATION UPON TERMINATION OF EMPLOYMENT.

The board of county commissioners has the authority to adopt for the county an ordinance containing provisions similar to those of RCW 43.01.041 allowing payment to be made to employees for accrued vacation upon termination of employment.

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                                                                   April 18, 1960

Honorable John Panesko
Prosecuting Attorney
Lewis County
Chehalis, Washington                                                                                        Cite as:  AGO 59-60 No. 112

Dear Sir:

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

            Does a board of county commissioners have the authority to adopt for the county, by resolution or ordinance, provisions similar to RCW 43.01.041 to allow payment to be made for accrued vacation to those whose employment with the county has been terminated?

            We answer this question in the affirmative, but with certain qualifications as set forth in the analysis.

                                                                     ANALYSIS

            Our search of the statutes relating to counties in Title 36 RCW has revealed no express provision granting county employees a specified vacation each year.

            The question then, of whether the county commissioners can grant employees and deputies a certain number of days vacation per year,  [[Orig. Op. Page 2]] must first be determined.  It is the rule that the powers of the county commissioners are limited to those expressly given or necessarily implied.  Sasse v. King County, 196 Wash. 242, 82 P. (2d) 536 (1938).

            RCW 36.16.070 provides in part as follows:

            "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 board shall fix their compensation and shall require what deputies shall give bond . . ." (Emphasis supplied)

            It would appear that the express power of the board to fix the compensation of deputies and employees would necessarily imply the power to provide for a vacation as part of that compensation.

            This conclusion is further supported by RCW 36.32.390 which allows the board to grant to certain part-time employees the same vacations and sick leaves "as are provided for the employees of the county employed on a monthly basis."  RCW 38.40.060, relating to military leaves of absence for officers and employees of the state "or of any county" provides that such leave "shall be in addition to any vacation or sick leave to which the officer or employee might otherwise be entitled."  See, also, the enclosed copy of an opinion of this office to the prosecuting attorney of Franklin county, dated June 20, 1940.

            The statutory provision intended to be adopted by ordinance enacted by the county commissioners provides:

            "Officers and employees referred to in RCW 43.01.040 whose employment is terminated by their death; reduction in force; resignation; dismissal; or by retirement and who have accrued vacation leave as specified in RCW 43.01.040, shall be paid therefor under their contract of employment, or their estate if they are deceased, or if the employee in case of voluntary resignation has provided adequate notice of termination."  (§ 2, chapter 140, Laws of 1955.)

            Since it is our opinion that the county commissioners have the implied power to provide for vacation for county personnel, we feel that the  [[Orig. Op. Page 3]] commissioners likewise possess the implied power to pay such persons for any accrued vacation upon termination of their employment.

            The above rule is qualified, however, since the salary of county officers holding office for a fixed term cannot be increased or diminished during their term of office.

            RCW 36.17.010 provides:

            "The county officers of the counties of this state, according to their class, shall receive a salary for the services required of them by law, or by virtue of their office, which salary shall be full compensation for all services of every kind and description rendered by them."

            Article XI, §§ 5 and 8 and the Twelfth Amendment of the State Constitution specifically provide that salaries of county officers may not be increased or diminished after their election or during their term of office.

            Pursuant to the above statute and constitutional provisions the board of county commissioners would be prohibited from allowing any county officer, as opposed to a deputy or employee who has no fixed term, payment for accrued vacation since such payment would constitute an increase in compensation during his term of office.  Our court has held that the constitutional prohibitions found in Article XI, §§ 5 and 8, are confined to county officers and not to deputies and employees.  Nelson v. Troy, 11 Wash. 435, 39 P. (2d) 974 (1895).  See, also, the enclosed copy of an opinion of this office to the state auditor dated July 22, 1943, which allows a city employee to work during his vacation and to be paid accordingly.

            Therefore, it is our conclusion that a board of county commissioners could enact an ordinance similar to RCW 43.01.041 allowing deputies and employees of the county to collect accrued vacation upon termination of their employment.  This ordinance, however, could not be made applicable to county officers having a fixed term.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

RICHARD M. MONTECUCCO
Assistant Attorney General