OFFICES AND OFFICERS ‑- STATE ‑- HIGHER EDUCATION PERSONNEL BOARD ‑- CIVIL SERVICE ‑- SALARIES ‑- APPROPRIATIONS

OFFICES AND OFFICERS ‑- STATE ‑- HIGHER EDUCATION PERSONNEL BOARD ‑- CIVIL SERVICE ‑- SALARIES ‑- APPROPRIATIONS
 
Section 86, chapter 137, Laws of 1973, 1st Ex. Sess., does not require the higher education personnel board to adopt, and the various affected educational institutions to accept, a revised salary schedule for those classified employees who are under its jurisdiction that will fully implement 50% of the salary increase for those employees proposed in the board's July, 1972, salary survey, where the appropriations contained therein are insufficient to enable those institutions to fund such salary increases as would be payable under that schedule; the board is, however, required to adopt a salary schedule which will bring the employees covered as close to the board's determination of prevailing wages as is possible within the appropriations.
 
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                                                               November 12, 1973
 
Honorable Douglas Sayan
Director
Higher Education Personnel Board
P.O. Box 1729
Olympia, Washington 98501
                                                                                                           Cite as:  AGLO 1973 No. 104
 
Dear Sir:
 
            By letter previously acknowledged you have requested an opinion of this office on two questions which we paraphrase as follows:
 
            (1) Does § 86, chapter 137, Laws of 1973, 1st Ex. Sess., require the Higher Education Personnel Board to adopt, and the various affected educational institutions to accept, a revised salary schedule for those classified employees who are under its jurisdiction (effective January 1, 1974) that will fully implement 50% of the salary increase for those employees proposed in the Board's July, 1972, salary survey updated to July 1, 1973, irrespective of whether the appropriations contained therein are sufficient to enable those institutions to fund such salary increases as would be payable under that schedule?
 
            (2) If the answer to question (1) is in the negative, then what action is now to be taken by the Higher Education Board regarding a January 1, 1974, salary schedule for classified employees under its jurisdiction?
 
            We answer question (1) in the negative, and question (2) in the manner set forth in our analysis.
 
                                                                     ANALYSIS
 
            The higher education personnel law was enacted as chapter 36, Laws of 1969, 1st Ex. Sess., and is codified as chapter 28B.16 RCW.  The purpose of the act is set forth in § 1 (RCW 28B.16.010) as follows:
 
            "The interests of state institutions of higher education and the employees of  [[Orig. Op. Page 2]] those institutions will be furthered by the enactment of a system of personnel administration designed specifically to meet particular needs in connection with employer-employee relations in the state institutions of higher education.  The general purpose of this chapter is to establish a system of personnel administration for the institutions of higher education in the state which is based on merit principles and scientific methods, and which governs the appointment, promotion, transfer, layoff, recuitment, retention, classification and pay plans, removal, discipline, and welfare of employees covered under this chapter."
 
            Overall responsibility for the administration of the personnel system established by this law is vested in the higher education personnel board (hereinafter referred to as the board); and among its rule‑making powers, as set forth in RCW 28B.16.100, is the following with respect to the adoption of salary schedules and compensation plans for classified employees under its jurisdiction:
 
            "(1) The higher education personnel board shall adopt and promulgate rules and regulations, consistent with the purposes and provisions of this chapter and with the best standards of personnel administration, regarding the basis for, and procedures to be followed for, . . . and adoption and revision of salary schedules and compensation plans which reflect not less than the prevailing rates in Washington state private industries and other governmental units for positions of a similar nature and which shall be competitive in the locality in which the institution or related boards are located, such adoption, revision, and implementation shall be subject to approval as to availability of funds by the chief financial officer of each institution or related board for that institution or board, or in the case of community colleges, by the chief financial officer of the state board for community college education for the various community colleges; . . ."  (Emphasis supplied)
 
             [[Orig. Op. Page 3]]
            In addition, RCW 28B.16.110 provides that:
 
            "The salary schedules and compensation plans, adopted and revised as provided in RCW 28B.16.100, shall reflect not less than prevailing rates in private industries and other governmental units for positions of a similar nature in the locality in which the institution or related board is located.  For this purpose periodic wage surveys shall be undertaken by the board with the assistance of the various personnel officers of the institutions of higher education, with one such survey to be conducted each year prior to the convening of each regualr session of the state legislature.  The results of such wage survey shall be forwarded with recommended salary adjustments by the institutions of higher education and related boards, through the state board for community college education acting for the various state community colleges, to the governor and state budget director for their use in preparing budgets to be submitted to the succeeding legislature."  (Emphasis supplied)1/
 
             In the fall of 1969, shortly after its creation, the board initially adopted each of the twenty-eight preexisting salary schedules and compensation plans2/ which were then in effect for those categories of state employees who had come under its jurisdiction by virtue of chapter 36, Laws of 1969, Ex. Sess., supra.  A salary survey was then conducted in July, 1970, following which the findings of that survey were sent to the governor for use in the preparation of the 1971-1973 budget as contemplated by RCW 28B.16.100, supra.  The 1971 legislature, however, did not provide any funding for the increased salaries contemplated by those  [[Orig. Op. Page 4]] findings and so the board continued all of the prior pay plans into this new biennium.  Then, at its special session in 1972, the legislature provided for a 3% increase for all employees within the jurisdiction of the board, effective September 1, 19723/ - following which the board amended the salary schedules and compensation plans for those employees to reflect that increase.  Similarly, a year later when the legislature provided for an additional $40 per month per employee salary increase to take effect on February 1, 1973,4/ the board again revised its salary schedules to encompass that raise.
 
            Both of these revisions, notably, were approved by the affected institutions and related boards as being within their ability to pay.  Accord, RCW 28B.16.100, supra.  In the meantime, however, the board had conducted another salary survey in July, 1972, with the findings of that survey being adopted during the following January for submission to the 1973 legislature in connection with the proposed budget for 1973-75 ‑ along with a comparable survey conducted by the state personnel board under chapter 41.06 RCW.  This 1972 survey, it is to be noted, for the first time contemplated the establishment of a single, consolidated compensation plan for all of the employees under the board's jurisdiction in lieu of the preexisting individual plans for the employees of each institution and related board.
 
            Along with the immediate, $40 per month per employee raises provided for by chapter 8, Laws of 1973, supra, the legislature, in turn, responded to this submission by including within its omnibus appropriation act for the ensuing biennium the two appropriations which have given rise to your present questions.  As contained in § 86, chapter 137, Laws of 1973, Ex. Sess., the first of them reads as follows:
 
            "FOR THE GOVERNOR ‑ SPECIAL APPROPRIATIONS
 
            "General Fund Appropriation:  To provide effective January 1, 1974, sufficient general fund state appropriations as are necessary to implement 50% of the salary increases for state and higher education classified employees as contained in the State Personnel Board and H.E.P.B. July 1972 Salary Survey as updated to July 1, 1973 and for comparable salary increases for employees of judicial agencies . . . . . . . . . . . . $ 13,898,615 (Emphasis supplied)
 
             [[Orig. Op. Page 5]]
            In addition, another appropriation of $11,300,000 was made by this same section to facilitate similar salary increases for those employees whose salaries are paid from special funds ‑ again,
 
            ". . . to implement 50%, effective January 1, 1974, of the salary increase for state and higher education classified employees as contained in the State Personnel Board and H.E.P.B. July 1972 Salary Survey as updated to July 1, 1973. . . . . . . ."
 
            Question (1):
 
            Your first question is whether the board is now required by the terms of these two appropriations to adopt, and the various affected educational institutuions to accept, a revised salary schedule for the classified employees under its jurisdiction (effective January 1, 1974) that will fully implement 50% of its July, 1972, salary survey (updated to July 1, 1973), irrespective of whether the appropriations are sufficient to enable those institutions and related boards to fund such salary increases as would be payable under that schedule.  Our negative answer to this question is based upon the fundamental nature and funcion of an appropration.
 
            In the case of state treasury funds such as those covered by § 86, supra, Article VIII, § 4 (Amendment 11) of the Washington Constitution provides that:
 
            "No moneys shall ever be paid out of the treasury of this state, or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within one calendar month after the end of the next ensuing fiscal biennium, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum."
 
            The ordinary function of an appropriation, then, is simply to fulfill this requirement; it is, as defined in 81 C.J.S., States, § 165 (p. 1223), merely:
 
            ". . . an authority from the legislature, given at the proper time and in legal form to the proper officers, to apply sums of money out of that which may be in the treasury in a given year to specified objects or demands against the state.  An appropriation is legislative sanction for the disbursement of public revenue."
 
             [[Orig. Op. Page 6]]
            Or, as stated in RCW 43.88.070, a part of the state budget and accounting act,
 
            "Appropriations shall be deemed maximum authorizations to incur expenditures . . ."  (Emphasis supplied)
 
            That the two appropriations involved in your question are designed only to serve this function of authorization seems clear from a reading of their respective terms.  In the first case, the wording used by the legislature speaks, simply, of providing sufficient funds to implement 50% of the salary surveys referred to therein, while in the second it speaks of the creation of a "special fund salary increase revolving fund" for this purpose.  Of course, there most certainly is a negative requirement arising by reason of Article VIII, § 4 (Amendment 11), supra, that none of these moneys shall be used for any other purpose ‑ including, for example, the implementation of more than 50% of those salary surveys.  But it is patently a non sequitur to say that because the funds in question are required not to be used for any other purpose, therefore, the appropriations constitute a mandate or directive to the board to establish, or the affected institution to accept, a revised salary schedule designed to accomplish their stated object irrespective of whether the appropriations are sufficient to enable those institutions and related boards to fund such salary increases as would be payable under that schedule.
 
            Question (2):
 
            Your second question assumes the foregoing answer to question (1) and asks us, in view of that answer, ". . . what action is now to be taken by the Higher Education Board regarding a January 1, 1974, salary schedule for classified employees under its jurisdiction?"
 
            Under RCW 28B.16.100 and 28B.16.110, supra, the board has a continuing statutory responsibility to establish salary schedules for the employees who are under its jurisdiction which will
 
            ". . . reflect not less than the prevailing rates in Washington state private industries and other governmental units for positions of a similar nature . . ."
 
            Implementation of those schedules, however, is made contingent upon the availability of funds.  Thus, nonavailability of funds can result in the final adoption of a compensation plan which actually reflects something less than the prevailing rates as determined by the board ‑ as has, in fact, often occurred in the past.  From this it follows that while the ultimate goal remains at all times the adoption and implementation  [[Orig. Op. Page 7]] of compensation plans for all classified employees that will reflect the prevailing wage rates, in any case where there is a demonstrable lack of sufficient funds to accomplish this fully the duty of the board is to come as close to this ultimate goal as is possible with the funds which are available.
 
            Accordingly, since the appropriations in § 86, supra, merely impart legal authorization to incur expenditures and do not require the board to take specific action contrary to its own best judgment in pursuing the intent of RCW 28B.16.100 and 28B.16.110 with whatever funds the legislature has made available by these appropriations, it is our opinion, in direct answer to your second question, that at the present juncture the board's responsibility is simply to adopt a revised salary schedule which will bring the employees covered as close to the board's determination of prevailing wages as is possible.  In computing the funds available, we should remind you, as pointed out in our answer to your first question, that the moneys provided by § 86, chapter 137, supra, can only be used to fund a schedule implementing 50% of the salary surveys referred to therein.  Therefore, if the board adopts a schedule which is in excess of a 50% implementation, then the funds provided by that appropriation can only be used to fund so much of the resulting salary increases as are within this 50% limitation and cannot be used for any salary increase increments in excess of that percentage.
 
            We trust the foregoing will be of assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
 
EDWARD B. MACKIE
Deputy Attorney General
 
 
K. W. ELFBRANDT
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/For Higher Education Personnel Board rules relating to this function, refer to WAC 251-08-010 through 251-08-060.
 
2/I.e., one each such preexisting plan as theretofore adopted for classified empolyees of the University of Washington, Washington State University, the three then existing four year state colleges, the state board for community colleges, and each of the twenty-two community colleges under the jurisdiction of that state board.
 
3/See, § 30, chapter 155, Laws of 1972, Ex. Sess.
 
4/See, § 2, chapter 8, Laws of 1973.