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AGO 1980 No. 13 - May 22, 1980
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- CITY ‑- TERMS ‑- SALARIES ‑- EFFECT OF RCW 29.04.170 ON TERMS AND SALARIES OF CITY OFFICERS 

(1) In the case of a city councilman, city treasurer, or city clerk elected in November, 1975, to fill a four-year term commencing on the second Tuesday in January, 1976, that term actually ended at midnight on December 31, 1979, as a consequence of the legislature's enactment of RCW 29.04.170. 

(2) As a result of this shortening of the terms of office involved, the incumbent officials holding those offices were not entitled to a full year's salary for each of the four years initially encompassed in their respective terms since the last year of their terms was shortened by approximately two weeks. 

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                                                                   May 22, 1980 

Honorable Robert V. Graham
State Auditor
Legislative Building
Olympia, Washington 98504

Cite as:  AGO 1980 No. 13                                                                                                                

 Dear Sir: 

            By letter previously acknowledged, you made note of RCW 29.04.170, codifying § 1, chapter 126, Laws of 1979, 1st Ex. Sess., and requested our opinion on two related questions which we paraphrase as follows:

             (1) In the case of a city councilman, city treasurer, or city clerk elected in November, 1975, to fill a four-year term commencing on the second Tuesday in January, 1976, did that term actually end at midnight on December 31, 1979, as a consequence of the legislature's enactment of RCW 29.04.170? 

             [[Orig. Op. Page 2]

            (2) If question (1) is answered in the affirmative, were the incumbent officials involved nevertheless entitled to a full year's salary for each of the four years initially encompassed in their respective terms even though the last year of those terms was thus shortened by approximately two weeks? 

            We answer question (1) in the affirmative and question (2) in the negative.

                                                                     ANALYSIS 

            RCW 29.04.170, which was enacted by § 1, chapter 126, Laws of 1979, 1st Ex. Sess., and took effect on September 1, 1979, reads as follows: 

            "(1) The legislature finds that certain laws are in conflict governing the election of various local officials.  The purpose of this legislation is to provide a common date for the assumption of office for all the elected officials of counties, cities, towns, and special purpose districts where the ownership of property is not a prerequisite of voting.  It is also the purpose of this legislation to remove these conflicts and delete old statutory language concerning such elections which is no longer necessary.
 

            "(2) For elective offices of counties, cities, towns, and special purpose districts where the ownership of property is not a prerequisite of voting, the term of incumbents shall end and the term of successors shall begin after the successor is elected and qualified, and the term shall commence immediately after December 31st following the election, except as follows:

            "(a) Where the term of office varies from this standard according to statute; and 

             [[Orig. Op. Page 3]]

            "(b) If the election results have not been certified prior to January 1st after the election, in which event the time of commencement for the new term shall occur when the successor becomes qualified in accordance with RCW 29.01.135.

            "(3) For elective offices governed by this section, the oath of office shall be taken as the last step of qualification as defined in RCW 29.01.135 but may be taken either:
 

            "(a) Up to ten days prior to the scheduled date of assuming office; or

 

            "(b) At the last regular meeting of the governing body of the applicable county, city, town, or special district held before the winner is to assume office."
 

            Question (1): 

            Your first question involves the effect of this 1979 enactment on the then existing four-year terms of office of a hypothetical city councilman, city treasurer or city clerk who was elected in November, 1975, to fill a four-year term commencing on the second Tuesday in January, 1976.  Did that term actually end at midnight on December 31, 1979, as a consequence of the subject legislation?  We answer in the affirmative on the basis of the express language of subsection (2) of the law. 

            First, in the case of those city officers whose terms are fixed by a local charter provision or ordinance, it is clear that any such charter provision or ordinance must give way to state law in the event of conflict.  See, Wash. Const., Art. XI, §§ 10 and 11.  Moreover, there is no doubt as to the power of the legislature which creates (or provides for the creation of) an office,

            ". . . to abolish it or to change it, and the legislature may shorten or lengthen the term of the office itself, in the absence of constitutional inhibition . . ." 

            See, 63 Am.Jur.2d, Public Officers and Employees, § 147, and cases cited therein; and also,Bogue v. Seattle, 19 Wash. 396, 53 Pac. 548 (1898). 

             [[Orig. Op. Page 4]]

            Therefore, in the case of any city officers whose terms are fixed by a local charter provision or ordinance, it necessarily follows that the effect of the legislation here in question was to shorten their then existing terms by approximately two weeks.  Instead of ending on January 14, 1980, as originally contemplated, those terms ended at midnight on December 31, 1979. 

            We also reach the same result in the case of city elected officials whose terms are fixed by statute.  Even though subsection (2)(a) of RCW 29.04.170, supra, states an exception where ". . . the term of office varies from this standard according to statute . . .," because of further amendments contained in other sections of chapter 126, Laws of 1979, 1st Ex. Sess.,supra, there are (with one very limited exception) no longer any conflicting statutes covering the terms of elected officials in any class of city.1/   See, §§ 11 and 12, amending RCW 29.13.023 and 29.13.024 (both relating to elections in first class cities); § 14, amending RCW 29.13.050 (city, town and district officers generally); § 17, amending RCW 35.17.020 (cities organized under the commission form of government); § 19, amending RCW 35.18.020 (cities operating under the council-manager form of government); § 21, amending RCW 35.23.040 (second class cities); § 22, amending RCW 35.24.050 (third class cities); § 23, amending RCW 35.27.090 (fourth class municipalities); and, finally, § 25, amending RCW 35A.29.090 (cities organized under the Optional Municipal Code).  As a result, each of those other statutes fixing the terms of office of city elected officials now coincides with RCW 29.04.170,supra, itself.  And, as above noted, the act by which all of these changes in state law were made took effect on September 1, 1979, well prior to the initial (December 31, 1979) termination date specified therein.

              [[Orig. Op. Page 5]]

            Question (2): 

            Having thus answered your first question, we turn, now, to your second.  As above paraphrased, this question asks: 

            If question (1) is answered in the affirmative, were the incumbent officials involved nevertheless entitled to a full year's salary for each of the four years initially encompassed in their respective terms even though the last year of those terms were thus shortened by approximately two weeks? 

            The underlying assumption upon which this question is based is that, as is customary in the case of most state or municipal elected officials, a specifiedannual salary has been fixed by law (i.e, statute, charter provision or ordinance) for each of the various offices affected by RCW 29.04.170, supra.  See,e.g., Seattle City Charter, Article XVII, § 1 and related ordinances;cf., RCW 43.03.010 which (although not here in point) similarly specifies the "annual salaries" of various state elected officials including the governor, lieutenant governor and attorney general.  It is our opinion, however, that the term "annual salary" as used in such provisions merely denotes a salary payable at a specified annual rate.  In fact, for convenience, it may actually be paid in monthly, bi-weekly, or even weekly increments.  See,e.g., RCW 35.23.220 in the case of second class cities; and also, RCW 36.17.040 and 36.17.042 in the case of counties.  But for each full year that an incumbent serves, the total of those increments will be equal to the prescribed "annual salary" attached to the particular office during that year.

             And therein, in our judgment, lies the solution to the problem here presented.  Simply stated, a public officer whose "annual" salary is actually payable in monthly or other specified periodic increments does not have a contractual or other legal right to any salary except that which is payable for each of those specified periods.  At the end of each of those periods, the officer becomes entitled to be paid the prescribed portion or increment of his salary which is due for the  [[Orig. Op. Page 6]] particular period.  See,State ex rel. McMillan v. Miller, 108 Wash. 390, 184 Pac. 352 (1919).  But if he or she ceases, for any reason, to hold the office in question, no further incremental salary payments will be due and owing. 

            Most certainly, an incumbent elected official who dies, resigns or is removed from office during (rather than at the end of) a particular year of his or her term is only to be paid for that portion of the year which transpired before the date of death, resignation or removal.  We can, however, conceive of no legitimate basis for applying any different rule where the same incumbent leaves office during (rather than at the end of) a given year of his or her term as initially defined because of either (a) the abolition of the office, per se, or (b) as here, the shortening of its term by legislative action.  In this instance, the final "official year" of the affected terms was shortened by the legislature by making that year end on December 31, 1979, instead of mid-January, 1980.  And therefore, the last period of service for which the incumbents were entitled to be paid was the pay period ending December 31, 1979. 

            Finally, we should note that this analysis or treatment of the issue does not run afoul of any constitutional prohibitions against decreasing salaries during an elected official's term of office.2/   In the case here posited (and in accordance with our answer to your first question) the term itself was shortened, relieving the incumbents involved of both their responsibilities and their rights with respect to the offices held‑-except as those incumbents may have been reelected to fill new terms commencing on January 1, 1980.  Accord,Crawford v. Hunt, 41 Ariz. 229, 17 P.2d 802 (1932); and see also, in general, 67 C.J.S., Offices, § 230 at page 734 and cases cited therein for the following proposition: 

            ". . .  A prohibition against the change of the compensation of an officer during his term does not prevent the passage of a statute abolishing an office created by the legislature, and even a constitutional office may  [[Orig. Op. Page 7]] be abolished by a new constitution or by an amendment to an existing one, notwithstanding the compensation of an officer may be thereby affected. . . ." 

            Having thus answered your first question in the affirmative, we must, therefore, answer your second in the negative.  It is hoped that the foregoing will be of assistance to you. 

Very truly yours,
SLADE GORTON
Attorney General 

PHILIP H. AUSTIN
Deputy Attorney General 

ROBERT F. HAUTH
Senior Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

1/The single possible exception involves the initial terms only of elected officials in newly established code cities.  See, RCW 35A.02.050.  Whether inadvertently or otherwise, this statute was not amended by chapter 126,supra, and thus continues to specify the second Monday in January as the final day of thoseinitial terms. 

2/E.g., Wash. Const., Art. II, § 45 or Article XI, § 8.

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