AGO 1987 No. 6 - Feb 27 1987
STATUTES ‑- APPROPRIATIONS ‑- COMMUNITY COLLEGES ‑- USE OF BUDGET ACT TO LIMIT DELEGATED AUTHORITY TO FIX COMPENSATION
1. The Legislature may not, through the use of conditions in its biennial appropriation act and without amending permanent statute, eliminate or limit the authority of community college districts to grant salary increases to district employees.
2. The Legislature may use conditions in the biennial appropriation act to limit the use of the funds appropriated in the act, including limits on their use for community college employee salary increase purposes, so long as the legislature does not impair vested contract rights.
3. The Legislature could establish authority to control community college employee salary increases through the biennial budget act, by amending current statutory law.
4. The State Board for Community College Education currently has only a minor role in the enforcement of salary policy for community college employees.
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February 27, 1987
Honorable Daniel K. Grimm, Chair
House Ways and Means Committee
426 House Office Building
Olympia, Washington 98504
Cite as: AGO 1987 No. 6
Dear Representative Grimm:
By letter previously acknowledged your have asked our opinion on four questions, which we have paraphrased as follows:
1. May the Legislature, through the use of conditions in its biennial appropriation act and without amending permanent legislation, eliminate or limit the authority of community college districts to grant salary increases to their faculty and other employees during the biennial budget period?1/
[[Orig. Op. Page 2]]
2. May the Legislature, through the use of conditions in its biennial appropriation act and without amending permanent legislation, prevent community college districts from using funds appropriated in the act for the purpose of granting salary increases to college faculty or other college employees?2/
3. Assuming a negative answer to either of the first two questions, what statutory changes could the Legislature make to establish or clarify its authority to use the appropriation act to set salary policy for community college personnel?
4. What authority does the State Board for Community College Education presently have to enforce the state salary policy expressed in an appropriation act?
We answer your first question in the negative, your second question in the qualified affirmative, and your third and fourth questions in the manner indicated in the analysis below.
May the Legislature, through the use of conditions in its biennial appropriation act and without amending permanent legislation, eliminate or limit the authority of community college districts to grant salary increases to [[Orig. Op. Page 3]] their faculty and other employees during the biennial budget period?
As you have noted in your letter to us, the Legislature has established a system of community college districts (RCW 28B.50.040), each governed by a community college board of trustees (RCW 28B.50.100). Current statutory law gives the board of trustees of each community college broad authority to appoint administrative officers, faculty, and other employees and to fix their salaries and duties. The specific language is found in subsection (3) of RCW 28B.50.140, which reads:
Each community college board of trustees:
. . .
(3) Shall employ for a period to be fixed by the board a college president for each community college, a director for each vocational-technical institute or school operated by a community college, a district president, if deemed necessary by the board, in the event there is more than one college and/or separated institute or school located in the district, members of the faculty and such other administrative officers and other employees as may be necessary or appropriate and fix their salaries and duties;3/
. . .
In addition, you have drawn our attention to RCW 28B.52.030 and 28B.52.035, authorizing the academic employees in a community college district to select employee representative organizations and to negotiate with the district concerning a number of matters, specifically including salaries and salary schedules. Those two sections read:
Representatives of an employee organization, which organization shall by secret ballot have won a majority in an election to represent the academic employees within its community college district, shall have the right, after using established administrative channels, to meet, [[Orig. Op. Page 4]] confer and negotiate with the board of trustees of the community college district or its delegated representative(s) to communicate the considered professional judgment of the academic staff prior to the final adoption by the board of proposed community college district policies relating to, but not limited to, curriculum textbook selection, in-service training, student teaching programs, personnel, hiring and assignment practices, leaves of absence, salaries and salary schedules and noninstructional duties.
At the conclusion of any negotiation processes as provided for in RCW 28B.52.030, any matter upon which the parties have reached agreement shall be reduced to writing and acted upon in a regular or special meeting of the boards of trustees, and become part of the official proceedings of said board meeting. The length of terms within any such agreement shall be for not more than three fiscal years. These agreements will not be binding upon future actions of the legislature.
Since the establishment of the state community college system some twenty years ago, community colleges are part of the state system of higher education and have been held to be state agencies. Centralia College Educ. Ass'n v. Board of Trustees, 82 Wn.2d 128, 508 P.2d 1357 (1973). Although community college districts do have "local" (i.e., non-appropriated) funds, all of them operate primarily with money appropriated to them by the Legislature. See,e.g., Laws of 1985, 1st Ex. Sess., ch. 6, § 602, p. 2369. (appropriating a biennial total of nearly $500 million to the State Board of Community College Education for the community college system).
Your first question, given the statutory authority granted to the community college district boards of trustees to set salaries and to enter into binding contracts with faculty concerning salaries, and given that community colleges function primarily upon funds appropriated by the Legislature, is whether the Legislature can, by means of language inserted in the biennial appropriation act, and without amending these permanent statutes, eliminate or limit the authority of the local trustees to grant salary increases to college faculty and other employees. We conclude that the [[Orig. Op. Page 5]] Legislature may not do so, because of two different provisions in the Washington State Constitution.
The first and most directly applicable is article 2, § 37, which reads: "No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length." The State Supreme Court has described the purposes of this constitutional provision as (1) to avoid the uncertainty created by the need to refer to existing law to understand the effect of the new enactment, (2) to apprise those who are affected by an existing law of any important changes in it, and (3) to clearly disclose the status of existing law and the effect of a proposed amendment upon it. See Washington Educ. Ass'n v. State, 93 W.2d 37, 604 P.2d 950 (1980);Flanders v. Morris, 88 Wn.2d 183, 558 P.2d 769 (1977).
These two cases involved attempts by the Legislature to limit the effect of permanent law by conditions inserted in an appropriation act. In the earlier case,Flanders v. Morris, the Legislature had inserted language in the 1975-1977 appropriation act limiting eligibility for the state's general assistance (welfare) program in various ways not incorporated in the permanent statutes establishing that program. Specifically, the Legislature attempted to limit general assistance to married couples or single persons over fifty years of age without amending chapter 74.08 RCW (which contained no such eligibility requirements). The language in question was invalidated by a unanimous court as violating both article 2, § 37 and article 2, § 19 of the state constitution discussed below. The court noted:
An appropriations bill which "defines no rights" certainly cannot abolish or amend existing law. It cannot add restrictions to public assistance eligibility and still be said to define no rights. The proper legislative procedure is to enact separate, independent, properly titled legislation.
Flanders v. Morris, 88 Wn.2d at 188. The court observed that a serious problem is caused by attempting to amend permanent legislation in the appropriation act, in that members of the public are not on sufficient notice that a codified statute has been amended in the uncodified biennial appropriation act. 88 Wn.2d at 189.
Washington Education Association applied the same principles to facts even closer to those discussed in your question. In the [[Orig. Op. Page 6]] 1979 appropriations bill, the Legislature placed the following limitations upon its appropriation to the Superintendent of Public Instruction for "basic education" funding: "No district may grant from any fund source whatsoever any percentage salary increase greater than that provided in sections 100, 102, 103, and 106 of this act." Laws of 1979, 1st. Ex. Sess., ch. 270, § 100(1), p. 2160.
The State Supreme Court struck down this provision as violating article 2, § 37. The court interpreted the provision as an attempt to amend RCW 28A.58.010, which granted school district directors the authority to fix the salaries of school district employees. Again, the court discussed the problem of adequate notice that permanent statutes (which by their terms granted broad authority to school district boards of directors to fix salaries) had been impliedly amended by an uncodified appropriation act purporting to limit that same authority.
These two cases dictate a negative answer to your first question. The Legislature has granted broad authority to community college districts to fix the salaries of their employees, including faculty members. Districts have further been granted statutory authority to engage in collective bargaining over salaries. Any attempt by the Legislature to limit or circumscribe that authority without amending the permanent statutes would be invalidated on the same bases as these 1975 and 1979 attempts.
The Legislature could comply with article 2, § 37 by the relatively simple device of following its requirements: setting forth such statutes as RCW 28B.50.140, RCW 28B.52.030, and 28B.52.035 (and perhaps other statutes)4/ and inserting in those statutes appropriate amendatory language reflecting the Legislature's intention to limit that authority.5/
In theory, the Legislature could amend permanent statutory language in the course of an appropriation act by doing so explicitly and following the procedural requirements of article 2, § 37.
[[Orig. Op. Page 7]]
At the same time, the Legislature would have to be careful not to violate a second provision, article 2, § 19: "No bill shall embrace more than one subject, and that shall be expressed in the title." This provision has been described as preventing two different types of questionable legislation: the "double subject" bill and the "hidden subject" bill.
Again,Flanders v. Morris is the recent leading case, and provides a succinct restatement of the rationale for this provision:
Article 2, section 19 of our state constitution has a dual purpose: (1) to prevent "logrolling", or pushing legislation through by attaching it to other necessary or desirable legislation, and (2) to assure that the members of the legislature and the public are generally aware of what is contained in proposed new laws. . . .
Flanders v. Morris, 88 Wn.2d at 187. The opinion cites State ex rel. Washington Toll Bridge Auth. v. Yelle, 54 Wn.2d 545, 342 P.2d 588 (1959) to the effect that "appropriation bills would be peculiarly vulnerable to this legislative evil." 54 Wn.2d at 551. As noted earlier,Flanders v. Morris invalidated a legislative attempt to amend welfare eligibility in the legislative act as violating the "hidden subject" and "double subject" provisions as well as the implied amendment provisions of the state constitution.
To comply with article 2, § 19, such legislation would have to meet further requirements: it would have to be in a bill containing only one subject reflected in the title. The typical title given to a biennial appropriation act, such as an "act relating to the budget", (see Laws of 1985, 1st Ex. Sess., ch. 6) would not be adequate because such a bill would contain a second, hidden subject: the salary-setting authority of state community college districts.
It does appear, however, that the Legislature could combine appropriation provisions with provisions amending permanent statutes without violating article 2, § 19, if it could find a title encompassing one subject and broad enough to describe the contents of the bill with sufficient specificity to give the general public notice of the bill's contents.
The use of a very broad title for a bill that otherwise might be interpreted to contain more than one subject was recently condoned inState Fin. Comm. v. O'Brien, 105 Wn.2d 78, 711 P.2d 993 [[Orig. Op. Page 8]] (1986). As the court inState Fin. Comm. bluntly observed: "Examining the title it admittedly is broad in scope, but so be it." 105 Wn.2d at 80. This office reached a similar conclusion in AGO 1974 No. 4, in which we advised that the Legislature could include an expansion of the substantive authority granted to school districts in an act also containing one or more appropriation items, by drafting a bill title broad enough to include more than a mere appropriation. AGO 1974 No. 4, at 14-15 (copy attached).
Unless the provisions of these two sections of the constitution are satisfied, any attempt by the Legislature to limit the effect of permanent law by language inserted in the appropriation act is fruitless. To comply with article 2, § 37, the Legislature would have to adopt explicit amendments to the permanent legislation granting salary-setting authority to community college districts.
To summarize, we answer your first question in the negative because it would not be constitutionally possible for the Legislature to limit the authority of the community college districts to grant salary increases to faculty and other employees through the device of language contained in an appropriation act and without amending permanent statutes granting discretion to the districts. The Legislature could accomplish your proposed purpose through the appropriation act only by (1) explicitly amending and citing in full any permanent statutes proposed to be amended and (2) by attaching to the bill a title broad enough to encompass a single subject and to incorporate the permanent statutory changes as well as the appropriation provisions.
May the Legislature, through the use of conditions in its biennial appropriation act and without amending permanent legislation, prevent community college districts from using funds appropriated in the act for the purpose of granting salary increases to college faculty or other college employees?
As noted earlier, community college districts operate partly from funds appropriated by the Legislature and partly from local funds that have not been made subject to legislative appropriation. We discussed the status of these local funds in AGLO 1975 No. 3, at 6-7 (copy attached).
[[Orig. Op. Page 9]]
Your second question contemplates a more modest goal than the first. Rather than limiting the authority of community college districts to grant salary increases, this question only contemplates limitations upon the use of legislatively appropriated funds for salary increase purposes.
With a qualification noted below, the Legislature can accomplish this more limited purpose within the appropriation act and without amending permanent statutes. Suppose, for instance, that the following condition and limitation were attached to an appropriation to the state community college system:
No portion of the money appropriated in this section shall be used by any community college district for the purpose of funding all or any part of an increase of salary or benefits granted by said district to its academic employees.
This provision does not purport to amend RCW 28B.50.140 or the negotiations provisions in chapter 28B.52 RCW. The proposed language would leave intact the authority of individual boards of trustees to grant salary increases, either by unilateral action or pursuant to negotiations with employee representatives. Districts would be free to grant such salary increases but would be restrained from using legislatively appropriated funds to pay for them. This language would not violate article 2, § 37 of the state constitution because it would not be an attempt to limit or amend the statutory authority granted to community colleges in permanent statutes. Rather it would be a condition upon an appropriation of funds by the Legislature to state institutions‑-an exercise of the Legislature's authority to determine how much money it will appropriate for which purposes and upon what conditions.
By the same reasoning, language of this type would not violate article 2, § 19. The limitations upon the use of an appropriation would not constitute an improper "hidden" subject nor would they render the entire appropriation act invalid as containing multiple subjects. Indeed, the limitation is in form similar to other limitations typically included in appropriation acts. The limitation mainly serves to clarify the object of the appropriation. See Const. art. 8, § 4.
Of course, such a provision would not accomplish all your apparent purposes, in that it would leave unchecked the legal authority of community college districts to grant salary increases and to enter into binding contracts granting such increases. Even [[Orig. Op. Page 10]] if the Legislature could temporarily prevent the use of legislatively appropriated funds to pay for the salary increases, the practical effect would still be to leave the community colleges legally committed to pay for the increases. Local funds used to pay for salary increases would, therefore, not be available to pay for other college operations.
This point leads to an important qualification to our generally affirmative answer to your second question. That qualification arises out of the implications of Carlstrom v. State, 103 Wn.2d 391, 694 P.2d 1 (1985).
InCarlstrom, the State Supreme Court construed the authority granted in RCW 28B.52.035 (negotiations with community college faculty) in light of 1981 appropriation acts and a two-year agreement between Community College District 16 and the Washington Federation of State Employees (representing the faculty of Yakima Valley Community College). The agreement provided for certain salary increases but also contained a provision that the agreement was "subject to all present and future acts of the legislature."
The agreement had provided for a 7.2 percent salary increase for community college faculty for 1981-82 and 7 percent increase for 1982-83. This increase had been funded by the original appropriation act for the 1981-83 biennium. Laws of 1981, ch. 340, § 14, p. 1618.
The 1982 session of the Legislature, however, amended the original operating budget, reducing the total appropriation for salary increases and providing that the 7 percent increase be deferred to June 30, 1983. Laws of 1982, 1st Ex. Sess., ch. 50, § 12, p. 1395.
The question inCarlstrom was whether the 1982 budget amendments were effective to defer the 7 percent increase for Yakima Valley Community College faculty members, in light of the agreement making the increase effective for the 1982-83 academic year and especially in light of the provision in the agreement that it was "subject to all present and future acts of the legislature." The court held that the provision in question was not explicit enough to make the 1982-83 salary increase contingent upon legislative appropriation. Thus, the court held the community college salary increase was a binding contract, which the Legislature could not impair without violating state and federal constitutional provisions prohibiting the impairment of contract. U.S. Const. art. 1, § 10; Const. art. 1, § 23.
[[Orig. Op. Page 11]]
Similarly, the court held that the final sentence of RCW 28B.52.035 ("these agreements will not be binding upon future actions of the legislature") did not amount to a reservation of the right of the Legislature to amend or alter the provisions of a contract. The court held this provision reserved legislative power only to modifyfuture contracts. Carlstrom v. State, 103 Wn.2d at 398.
RCW 28B.52.035 has not been amended by the Legislature since theCarlstrom decision. UnderCarlstrom, community colleges are bound to honor contracts they have entered into for salary increases, and the Legislature is constitutionally without power to prevent the community colleges from living up to those contractual agreements.6/
To summarize our answer to the second question, the Legislature is generally free, when making appropriations in an appropriation act, to limit the use to which the money appropriated can by put by state agencies and institutions. These limitations ordinarily would include the authority of the Legislature to prevent the use of funds appropriated to pay salary increases granted by community college districts. Under some circumstances, however, courts might possibly construe a legislative refusal to appropriate funds for salary increases as an impairment of community college contract obligations.
In your second question as originally posed, you asked about several types of specific conditions that the Legislature might place in an appropriation act. With the background of our answers to your first two question in mind, we briefly discuss those issues.
First, you have asked whether a condition could restrict the total amount of appropriated funds that a community college district could use for faculty salary increases. An affirmative [[Orig. Op. Page 12]] answer is implied by our answer to question 2, subject to the qualification discussed in that answer.
Second, you have asked whether the Legislature could restrict the amount, percent, or type of salary increase that a district could give to an individual or group of faculty members from appropriated funds. The Legislature could probably do this, but it would have to draft very carefully to avoid both implied amendments to permanent statutes and a "hidden subject" in the appropriation act.
Third, you have asked whether the Legislature could apply restrictions to a district's use of non-appropriated as well as appropriated funds. A negative answer to this proposal is dictated by our answer to question 1. Any attempt to limit the use of non-appropriated funds would almost certainly be a "hidden subject" in an appropriation act.
Fourth, you have asked whether the Legislature could provide salary increase funding only to community college districts which had not granted any salary increases in excess of those authorized in the appropriation act. In theory this would be possible. From the way you phrase this issue, the appropriation condition apparently would be drafted to limit community colleges in future contracts (i.e., contracts negotiated after the appropriation act takes effect), a provision which would seem to avoid any Carlstrom problems. However, there are practical and legal difficulties in attmpting to withdraw an appropriation from a community college district that, for one reason or another, might renege on its promise to comply with the limitation.
Finally, you have asked whether the Legislature could restrict the granting of salary increases provided by negotiated contracts or traditional salary schedules in the form of "merit increments" or "step increases", however defined. While it might be posssible to draft a condition upon the use of appropriated funds along these lines, it would be impractical because the question implies a desire to amend the underlying authority of community college districts to determine both the amount and the form of salary increases. This option could also present "double" or "hidden" subject problems, depending on the specific language.
[[Orig. Op. Page 13]]
Beyond these brief comments, we defer detailed discussion of these issues until we have specific proposed language.
Assuming a negative answer to either of the first two questions, what statutory changes could the Legislature make to establish or clarify its authority to use the appropriation act to set salary policy for community college personnel?
Given our answers to your first two questions and especially our discussion of article 2, §§ 19 and 37, if the Legislature wishes to amend the authority it granted to community college districts in salary setting, it must amend the authority explicitly by adopting legislation modifying the language that granted the authority.
As you note, that authority derives from two different statutes. RCW 28B.50.140(3) authorizes each community college board of trustees to appoint employees and "fix their salaries and duties." If the Legislature wishes to withdraw the power granted in that subsection or to limit the way in which districts may implement it, the Legislature must amend that statutory language.
The language could, of course, be amended in a number of ways. To start with the most extreme options, the Legislature could simply strike from the statute the authority of community college trustees to fix the salaries of community college employees. The Legislature could assume this function itself or set up some alternative statutory scheme for the establishment of community college employee salaries (as has been done in the case of classified employees‑-see footnote 3, above).
A more modest approach would be to follow the course already used by the Legislature in connection with salaries for school district employees. In 1984, the Legislature added the following sentences to RCW 28A.58.095:
No school district administrative group or administrative bargaining unit, or other nonbargaining unit employees as defined in RCW 41.59.020(4), and 41.56.030 may receive a total annual salary and compensation increase in excess of the amount and/or percentage as set forth in the state operating appropriations act. [[Orig. Op. Page 14]] Laws of 1984, ch. 245, § 1, p. 1238. The constitutionality of this provision was impliedly upheld in Service Employees Int'l Union, Local 6, v. Superintendent of Pub. Instruction, 104 Wn.2d 344, 351-52, 705 P.2d 776 (1985). Under this scheme, the Legislature could modify the virtually unlimited authority of community college districts to grant salary increases by limiting those increases to amounts or percentages contained in the biennial appropriation act.
Much the same must be said about the provisions in chapter 28B.52 RCW that authorize community college districts to enter into binding agreements with faculty unions. As long as RCW 28B.52.030 and 28B.52.035 read as they presently do, the Legislature is without authority to control salary increases granted by such contracts, because it has entirely delegated that authority to the district boards of trustees. Again, the Legislature could amend that authority by eliminating it entirely or by assigning some other agency or officer the authority to negotiate with community college faculties on salary matters. Or, again, the Legislature could amend RCW 28B.52.035 along the lines suggested by the State Supreme Court in Carlstrom (103 Wn.2d at 398). The final sentence of the statute could be changed to read "these agreements shall be subject to subsequent modification by the legislature." The most practical limited solution might be to add to RCW 28B.52.035 language similar to that in RCW 28A.58.095, restricting the amount of salary increase provided for in any community college district-faculty union agreement to the amounts or percentage increases set forth in the state operating appropriation act.
Still other legislative solutions are possible, which we do not discuss for lack of time. As always, this office is available to give technical assistance to the Legislature or to evaluate specific drafting proposals.
What authority does the State Board for Community College Education presently have to enforce the state salary policy expressed in an appropriations act?
The State Board for Community College Education was created by RCW 28B.50.050, and its powers and duties are generally enumerated in RCW 28B.50.090.
[[Orig. Op. Page 15]]
We find nothing in that statute granting the State Board for Community College Education explicit authority over salary policy in individual community college districts. The opening sentence of RCW 28B.50.090 provides that "[t]he college board shall have general supervision and control over the state system of community colleges." Subsection (1) of RCW 28B.50.090 gives the state board a certain role in reviewing the budgets prepared by community college boards of trustees and submitting a budget for the system to the Governor as provided in RCW 43.88.090. Even this general authority must be read together with the explicit authority (noted throughout this opinion) of individual community college boards of trustees to fix employees' salaries. The remainder of the statutes governing the State Board for Community College Education concern coordination of programs among community colleges, establishment of certain academic and program standards, and management of community college real property.
We have also reviewed the current biennial operating budget and can find nothing in it either establishing specific policies for salary increases for community college employees or assigning to the state board any responsibility for developing or carrying out such policy. Laws of 1985, 1st Ex. Sess., ch. 6.7/
The Legislature is, or course, free to assign additional responsibilities to the state board in connection with salary setting of community college employees. Such changes would take effect in the form of amendments to the statutory authority of the board and, again, this office is available to comment on specific proposals as they may arise.
[[Orig. Op. Page 16]]
We trust that the foregoing will [be] of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
JAMES K. PHARRIS
Sr. Assistant Attorney General
*** FOOTNOTES ***
1/We understand that you are asking about hypothetical or possible future legislation in this question and not about the constitutionality of any current legislative language. For instance we note that the 1986 Legislature included conditions and limitations in the supplemental budget (Laws of 1986, ch. 312 § 608), and we presumed the constitutionality of all of those provisions in accordance with our long-standing policy in that respect. Nothing in our analysis should be read as applying to the 1986 budget limitations, which take quite a different form from those under discussion in the opinion.
2/Your second question as originally posed contained several subquestions relating to particular types of conditions or restrictions the Legislature might use. To make our answer clear we have eliminated the subissues from the question, but we do discuss them in the analysis portion below.
3/However, authority over classified salary schedules is expressly vested in Higher Education Personnel Board by RCW 28B.16.100 (16) and (18).
4/Our brief search did not reveal any other statutes directly affecting the authority of community college districts to fix employees' salaries but caution would dictate a more thorough search before legislation would be undertaken.
5/Possible types of amendments will be discussed below in our answer to your third question.
6/It is not clear whether the courts would go further than Carlstrom in holding that the Legislature is not only restrained from impairing community college collective bargaining agreements but is actually obligated to appropriate the necessary funds to permit the colleges to honor the contracts. So long as community colleges have local funds available to meet their contractual salary obligations, such a holding is unlikely.
7/You noted in your letter RCW 43.88.290, which prohibits state agencies and employees from negligently overexpending or overencumbering an appropriation or from expending funds contrary to the terms, limits, or conditions on an appropriation. This provision would prevent a state board employee or district employee from overexpending appropriated funds, but it does not affect the salary-setting authority of community college districts. If the Legislature were to place valid terms or conditions upon future appropriations to the community college system, RCW 43.88.290 would require state board and district employees to follow those terms and conditions.