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AGLO 1978 No. 17 - May 30 1978
Attorney General Slade Gorton


An individual who was serving as a member of the state House of Representatives at the time chapter 157, Laws of 1977, 1st Ex.Sess. was enacted may lawfully be elected, in November of 1978, to fill the then existing remainder of an unexpired term in the office of public utility district commissioner.

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                                                                   May 30, 1978

Honorable William N. Paris
State Representative, 18th Dist.
620 Oregon Way
Longview, Washington 98632                                                                                                               Cite as:  AGLO 1978 No. 17

Dear Sir:

            This is written in response to your recent request for our opinion on a question which we paraphrase as follows:

            In view of the provisions of § 1, chapter 157, Laws of 1977, 1st Ex. Sess., and Article II, § 13 of the Washington State Constitution, may an individual who was serving as a member of the House of Representatives at the time chapter 157,supra, was enacted lawfully be elected, in November of 1978, to fill the then existing remainder of an unexpired term in the office of public utility district commissioner?

            We answer your question the the affirmative.

             [[Orig. Op. Page 2]]                       ANALYSIS

            Article II, § 13 of the Washington Constitution provides that:

            "No member of the legislature, during the term for which he is elected, shall be appointed or elected to any civil office in the state, which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected."

            Your question involves the interrelationship between this constitutional provision and an amendment to RCW 54.12.080 which was contained in § 1, chapter 157, Laws of 1977, 1st Ex.Sess.  Set forth in bill form for ease of understanding, this amendment read as follows:

            "Section 1. Section 4, chapter 207, Laws of 1951 as last amended by section 5, chapter 106, Laws of 1969 and RCW 54.12.080 are each amended to read as follows:

            "Each district commissioner of a district operating utility properties ((serving more than two thousand customers)) shall receive a salary ((of one hundred fifty dollars per month.))during a calendar year which shall depend upon the total gross revenue of the district from its distribution system and its generating system, if any, for the fiscal year ending June 30th prior to such calendar year, based upon the following schedule:

                                                REVENUE                                         SALARY

                                    OVER $15 million                    $500 per month

                                    $2 to 15 million             $350 per month

            "Commissioners of other districts shall serve without salary unless the district provides by resolution for the payment thereof, which however shall not exceed ((one))two hundred ((fifty)) dollars per month for each commissioner:  PROVIDED, That a commissioner serving a term of office on the effective date of this 1977 amendatory act in a district serving more than two thousand customers but with less than two million dollars gross annual revenue shall receive a salary of two hundred dollars per  [[Orig. Op. Page 3]] month through completion of the present term of office.  In addition to salary, all districts may provide by resolution for the payment of per diem compensation to each commissioner at a rate not exceeding thirty-five dollars for each day or major part thereof devoted to the business of the district, and days upon which he attends meetings of the commission of his district or meetings attended by one or more commissioners of two or more districts called to consider business common to them, but such per diem compensation paid during any one year to a commissioner shall not exceed five thousand dollars.  Per diem compensation shall not be paid for services of a ministerial or professional nature.

            "Each district commissioner shall be reimbursed for reasonable expenses actually incurred in connection with such business and meetings, including his subsistence and lodging and travel while away from his place of residence.

            "Any district providing group insurance for its employees, covering them, their immediate family and dependents, may provide insurance for its commissioner with the same coverage."

            By this legislation it is thus clear that pay increases were granted to all incumbent public utility district commissioners as of September 21, 1977, when the amendment took effect.  Because of that fact it is equally clear that Article II, § 13, supra, operates to restrict the eligibility of a member of the House of Representatives who was then serving (i.e., when the pay increase was enacted) to be either elected or appointed to the office of public utility district commissioner.  The question to be answered, however, involves the extent of that constitutional restriction.

            Under the provisions of another section of the constitution, Article II, § 5, the terms of all members of the House of Representatives who were in office when chapter 157,supra, was enacted began on January 10, 1977, and will end on January 8, 1979.  Conversely, the tenure of any person who is elected, on  [[Orig. Op. Page 4]] November 7, 1978, to the remainder of a then existing unexpired term of office as a public utility district commissioner will commence upon formal certification of the election results‑-or approximately thirty days after the date of the election itself.  See RCW 54.12.010 and RCW 29.62.120.  Therefore, if an incumbent member of the House of Representatives were to be thus elected to the office of public utility district commissioner, there would be an overlap of approximately six weeks in duration as between the remainder of his or her present term as a legislator and the term as a public utility district commissioner which would thereby be filled.

            All of this is critical because of the manner in which Article II, § 13 of the constitution,supra, was interpreted and applied by the state supreme court inState ex rel. O'Connell v. Dubuque, 68 Wn.2d 553, 413 P.2d 972 (1966).  In that case, for reasons set forth in detail therein, the court reversed its earlier ruling inState ex rel. Pennick v. Hall, 26 Wn.2d 172, 173 P.2d 153 (1946) and held that the prohibition in this section of the constituion is only applicable where there would be a "substantial overlap" as between a person's term of office as a legislator (i.e., the term which he was serving when the compensation increase was granted) and the "other" term which he would be serving if appointed or elected to an office which was the beneficiary of a pay increase.

            In so ruling the court did not purport to define what it meant by its reference to a substantial overlap.1/   Nevertheless, giving effect to the apparent spirit of the court's decision it would be our opinion that an overlap of such short and inconsequential duration as the approximately six-week time period above described would not constitute a substantial overlap so as to require a negative answer to your present question.  Accordingly, instead, we answer that question in the affirmative.

             [[Orig. Op. Page 5]]   We trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/In fact, there was no overlap at all under the actual factual circumstances there involved‑-since what the Dubuque case involved was the constitutional eligibility of incumbent legislators to seek reelection to their own offices in the light of a statutory pay raise for all legislators.