Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1975 No. 36 -
Attorney General Slade Gorton


Under Article II, § 25 (Amendment 35) of the state constitution, a retroactive pay increase for college and university classified employees would be unconstitutional; however, the higher education personnel board may implement § 2, chapter 9, Laws of 1975 by providing for pay raises to take effect as of March 1, 1975, for those personnel still employed in the positions covered on and after the date of the board's action granting the raises.

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                                                                  March 28, 1975

Higher Education Personnel Board
1202 Black Lake Blvd.
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 36

Attention:  !ttHonorable Douglas E. Sayan


            By recent letter you have directed our attention to the state legislature's enactment of chapter 9, Laws of 1975 (Substitute House Bill No. 111), § 2 of which contains the following appropriation item:

            "Sec. 2. . . .  To provide effective March 1, 1975, sufficient general fund appropriations as are necessary to implement the salary increase for state classified and higher education classified employees as contained in the State Personnel Board and Higher Education Personnel Board for July 1974 Salary Survey and for comparable increases for state employees who are exempt from the classified service:  PROVIDED, That an additional sum of $15 per month above the 1974 salary surveys is added for each employee in range 13 and below under the 1974 State Personnel Board classifications as of March 1, 1975 and for each employee in range 21 and below under the 1974 Higher Education Personnel Board classifications as of March 1, 1975:  PROVIDED FURTHER, That $2,102,445 of this amount shall be from federal sources $12,014,981

           . . ."

            You have further advised us that the governor signed this measure into law on March 17, 1975.  Thereupon, you have asked for our opinion on the following question:

            Under what conditions may the higher education personnel board grant retroactive benefits to classified employees effective March 1, 1975?

             [[Orig. Op. Page 2]]   We respond to this inquiry in the manner set forth in the following analysis.


            As indicated in AGLO 1973 No. 10 [[to Gary M. Odegaard, State Senator on January 17, 1973 an Informal Opinion AIR-73510]], copy enclosed, the legality of retroactive pay raises for state employees is wholly governed by Article II, § 25 (Amendment 35) of our state constitution which provides as follows:

            "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, nor shall the compensation of any public officer be increased or diminished during his term of office.  Nothing in this section shall be deemed to prevent increases in pensions after such pensions shall have been granted."  (Emphasis supplied.)

            What this provision means, in simplest terms, is that a purely retroactive pay increase for state employees would be unconstitutional.  By this, we mean a salary increase payable solely for services already rendered by the employee at the time the particular increase is granted.

            On the other hand, if an employee is required to continue in the service of his employer for some period of time after a pay raise is granted in order to qualify for the receipt of that raise, the constitutional prohibition against extra compensation for services already rendered would not be violated.  Accord,Aldrich v. State Employees' Etc., 49 Wn.2d 831, 307 P.2d 270 (1957).  In addition, as discussed at some length in AGO 1974 No. 19 [[*sic (to Gary Grant, State Senator on September 18, 1974)]], copy enclosed, although a purely retroactive pay increase may not constitutionally be granted to state or municipal employees ‑ it is not unconstitutional for an employer and its employees to agree, at the commencement of labor negotiations, that the wage rate to be paid for services performed during negotiations will be that which is ultimately agreed upon as a result thereof.  Accord,Christie v. The Port of Olympia, 27 Wn.2d 534, 179 P.2d 294 (1947).

            What this means, in terms of the situation giving rise to your immediate question, is this:

            (1)  If any classified employees under the jurisdiction of the higher education personnel board were, during the period between March 1, 1975, and the date that the pay raises provided for in § 2, chapter 9, supra, become effective, covered by an agreement under which their salaries for that period were to be those ultimately fixed as a result of then pending labor  [[Orig. Op. Page 3]] negotiations with their employer and the board, and if the salary increases provided for by the board under this recent legislative appropriation constitute "salaries fixed in accordance with that agreement," those increased salaries may, constitutionally, be paid for the services which were rendered by the employees during that period.

            (2) In all other cases, however, such salary increases as are thus provided for by the higher education personnel board to take effect as of March 1, 1975, may only be paid, constitutionally, to those personnel still employed in the positions covered on and after the date of the board's action granting the raises; i.e., as we understand it in this case, March 20, 1975.1/

            We trust the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/In addition, of course, those salary increases may also be paid to persons newly employed on or after March 20, 1975, because, as to them, there will simply be no issue of any possible retroactivity.