AGO 1989 No. 5 - Feb 23 1989
SCHOOL DISTRICTS ‑- OFFICES AND OFFICERS ‑- COMPENSATION ‑- STATE CONSTITUTION
1. Currently serving school directors may lawfully adopt a resolution to receive compensation of fifty dollars or less per day as authorized by RCW 28A.57.327, but they may not constitutionally receive the compensation authorized until the beginning of their next respective terms of office.
2. If RCW 28A.57.327 were amended to make school director compensation automatic, with no discretionary act of the local board of directors involved, there would be no constitutional bar to the receipt of such compensation on a midterm basis.
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February 23, 1989
Honorable Ken Jacobsen
7307 ‑ 40th Avenue NE
Seattle, WA 98115
Cite as: AGO 1989 No. 5
Dear Representative Jacobsen:
By letter previously acknowledged, you have requested the opinion of this office on the following questions:
(1) May currently serving school directors by duly adopted resolution receive compensation of fifty dollars or less per day when attending meetings or performing services on behalf of the school district during their current terms of office?
(2) If RCW 28A.57.327 were amended to make school director compensation automatic, what effect would this have on your response to question 1?
We answer your first question in the negative and your second question in the manner set forth in our analysis.
School districts are municipal or quasi-municipal corporations. RCW 28A.58.010. They are created by the Legislature and can exercise only those powers expressly granted [[Orig. Op. Page 2]] and those impliedly granted or incident to the declared objects and purposes of the district. Noe v. Edmonds Sch. Dist., 83 Wn.2d 97, 515 P.2d 977 (1973).
Article 30, section 1 of the state constitution provides in part:
The compensation of all elective and appointive state, county, and municipal officers who do not fix their own compensation, including judges of courts of record and the justice courts may be increased during their terms of office to the end that such officers and judges shall each severally receive compensation for their services in accordance with the law in effect at the time the services are being rendered.
Article 11, section 8 deals with salaries and states as follows:
The salary of any county, city, town, or municipal officers shall not be increased except as provided in section 1 of Article XXX or diminished after his election, or during his term of office; nor shall the term of any such officer be extended beyond the period for which he is elected or appointed.
The governing body of a school district is known as the board of directors. RCW 28A.57.312. Directors are elected for four year terms in the manner prescribed by chapter 28A.57 RCW. Because school districts are municipal corporations, members of the board of directors are elective municipal officers, thus placing them within the scope of article 30, section 1 and article 11, section 8 of the state constitution.
Although serving as elected municipal officers, school directors traditionally have received no salary or compensation for services performed on behalf of the district. Recognizing this as an inequity, the Legislature in 1987 declared the policy of the state to be to:
(1) Ensure, for the sake of educational excellence, that the electorate has the broadest possible field in which to choose qualified candidates for its school boards;
(2) Ensure that the opportunity to serve on school boards be open to all, regardless of financial circumstances; and
(3) Ensure that the time‑consuming and demanding service as directors not be limited to those able or [[Orig. Op. Page 3]] willing to make substantial personal and financial sacrifices.
Laws of 1987, ch. 307, § 1, p. 1082.
Along with this statement of intent, the 1987 Legislature added a new section to chapter 28A.57 RCW:
Each member of the board of directors of a school district may receive compensation of fifty dollars per day or portion thereof for attending board meetings and for performing other services on behalf of the school district, not to exceed four thousand eight hundred dollars per year, if the district board of directors has authorized by board resolution, at a regularly scheduled meeting, the provision of such compensation. A board of directors of a school district may authorize such compensation only from locally collected excess levy funds available for that purpose, and compensation for board members shall not cause the state to incur any present or future funding obligation.
Any director may waive all or any portion of his or her compensation under this section as to any month or months during his or her term of office, by a written waiver filed with the district as provided in this section. The waiver, to be effective, must be filed any time after the director's election and before the date on which the compensation would otherwise be paid. The waiver shall specify the month or period of months for which it is made.
The compensation provided in this section shall be in addition to any reimbursement for expenses paid to such directors by the school district.
Laws of 1987, ch. 307, § 2, p. 1082 (codified as RCW 28A.57.327).
As we saw in article 30, section 1, compensation of municipal officers may be increased during their terms of office if they do not fix their own compensation. If they do fix their own compensation, they may not increase their compensation during their current terms of office. Const. art. 11, § 8. RCW 28A.57.327 provides that the district board of directors must authorize the payment of compensation by board resolution.
In AGO 1969 No. 2, we addressed a similar question pertaining to public utility district commissioners. As we stated in that opinion:
[[Orig. Op. Page 4]]
In order to say that the commissioners of a public utility district might provide themselves with a mid-term increase in their compensation, it would be necessary to read the constitutional amendment in question as if it said that pay increases during their terms of office might be granted to "municipal officers who do not fix their own compensation, and, as well, those who do fix their own compensation within maximums established by the legislature."
AGO 1969 No. 2, at 5. Also addressed in that opinion was a statute very similar to RCW 28A.57.327, which provided for payment to fire district commissioners not to exceed ten dollars per day or thirty dollars per month for attendance at board meetings and performance of other services on behalf of the district. Similarly, such payments were to be fixed by resolution. We stated:
[The authority granted by this statute is such as to enable a board of fire commissioners to grant its members an increase in their compensation (either from none to some or from a fixed to a higher rate) . . . .
AGO 1969 No. 2, at 6.
InState ex rel. Wyrick v. Ritzville, 16 Wn.2d 36, 132 P.2d 737 (1942), the court considered whether the constitution prohibited payment of compensation in the first instance where no compensation previously attached to positions on the Ritzville City Council. In finding a constitutional violation, the court stated:
It is as much in violation of the spirit and purpose of the constitution to permit payment of compensation to an officer during his term of office, where previously the office carried no compensation, as it is to permit the amount of compensation, previously fixed, to be increased and such increase of compensation paid to one who, at the time of the increase, is holding office under an unexpired term.
State ex rel. Wyrick v. Ritzville, 16 Wn.2d at 39.
In 1983 we again addressed the provisions of article 30, section 1. AGO 1983 No. 6 concerned resolutions adopted by commissioners of public hospital districts. The Legislature had amended RCW 70.44.050 to allow for a compensation increase from $25 to $40 per day. We found that adopting a resolution increasing the daily rate from $25 to $40 would be fixing compensation under article 30, section 1, stating:
[[Orig. Op. Page 5]]
By the passage of such a resolution, the commissioners, in our judgment, would clearly be increasing their own compensation. Accordingly, any such increases may not constitutionally take effect until the commencement of each commissioner's next ensuing term of office.
AGO 1983 No. 6, at 2.
In your letter, you question whether choosing to accept any payment for the first time is the same as increasing one's compensation while in a current term of office. We believe it is. RCW 28A.57.327 sets limits on the amount of compensation that may be paid to school district directors. However, the compensation must be established by board resolution. Passage of the resolution is an establishment of compensation.
As you also pointed out in your letter to us, if we find that school directors fix their own compensation thereby making them ineligible to receive the monies until they are next elected, this has placed school boards in the awkward situation where some directors are receiving allowable compensation while others must await the beginning of their next ensuing term. This appears to be in keeping with section 1, chapter 307, Laws of 1987, in which the Legislature stated its intention that the field of candidates for school board positions be broadened and that the opportunity to serve on school boards be opened to all regardless of financial circumstances. The law appears to target future school board directors rather than those currently serving.
In summary, we conclude that the board of directors of a school district are municipal officers who fix their own compensation. Accordingly, they may not increase their own compensation during their current terms of office pursuant to article 30, section 1 and article 11, section 8 of the state constitution. Thus, we answer your first question in the negative.
We turn now to your second question, which is repeated here for ease of reference:
If RCW 28A.57.327 were amended to make school director compensation automatic, what effect would this have on your response to question 1?
RCW 28A.57.327 provides that monies for compensation of school directors may be paid only from locally collected excess levy funds. We assume that in asking your second question, it is your intention that school directors would automatically receive compensation of fifty dollars per day unless they decided to [[Orig. Op. Page 6]] waive the monies, or unless the district lacked excess levy monies to fund compensation.
In 1974, we addressed this issue in an opinion relating to legislatively granted salary increases for county commissioners. That opinion noted that in AGO 1969 No. 2, we had advised that members of a board of county commissioners were not precluded from receiving mid-term salary increases granted by the Legislature. We then advised:
Neither the spirit nor the letter of the constitution is violated by the payment to a county commissioner of a mid-term salary increase provided for by the legislature ‑ as distinguished from one which is granted by the commissioners themselves. In the one case, the new salary is fixed by a state law enacted by the legislative authority of the state; in the other, it is fixed by a county ordinance or resolution requiring the approval of the commissioners themselves for passage.
AGO 1974 No. 9, at 5.
Our opinion remains the same as it relates to school directors. Were the Legislature to amend RCW 28A.57.327 to provide for compensation in the amount of fifty dollars per day (or some other amount) without the necessity for school board resolution approving the compensation, directors could receive the compensation without violating article 30, section 1 or article 11, section 8. For constitutional purposes, the important thing is to remove the salary increase entirely from the discretion of the local board of directors. So long as the Legislature and not the local board is deciding on the increase, article 30, section 1 permits mid-term increases in compensation.
We trust the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
MEREDITH WRIGHT MORTON
Assistant Attorney General