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Applicability of RCW 41.04.190 to Insurance Benefits Provided to Water District Commissioners Pursuant to RCW 57.04.190

AGO 1992 No. 8 -
Attorney General Ken Eikenberry

DISTRICTS--WATER--COMMISSIONERS--OFFICES AND OFFICERS--COMPENSATION--INSURANCE--Applicability of RCW 41.04.190 to Insurance Benefits Provided to Water District Commissioners Pursuant to RCW 57.04.190

RCW 41.04.190 provides that insurance benefits are not additional compensation for county elected officials.  RCW 41.04.190 does not apply to insurance benefits provided to water district commissioners pursuant to RCW 57.08.100.

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                                                                    June 1, 1992

Honorable Phil Talmadge
State Senator, District 34
5251 California Avenue SW
Seattle, Washington  98136
                                                                                                                   Cite as:  AGO 1992 No. 8

Dear Senator Talmadge:

            By letter previously acknowledged, you have asked for our opinion on a question we paraphrase as follows:

            Does RCW 41.04.190, which provides that insurance benefits are not additional compensation for county officials, apply to RCW 57.08.100, which authorizes certain water districts to provide insurance benefits to their commissioners?

            The answer is no.

                                                                BACKGROUND

            Water districts have long been authorized to provide health and/or group insurance benefits to their employees.  RCW 57.08.100; Laws of 1961, ch. 261, § 2, p. 2206.  Term life insurance benefits for employees were added in 1973.  Laws of 1973, ch. 24, § 2, p. 79.  Social security benefits for employees were provided in 1981.  Laws of 1981, ch. 190, § 6, p. 865.

            In 1991 the Legislature amended RCW 57.08.100 to expand the insurance coverage to some water commissioners:

                        A water district with five thousand or more customers providing health, group, or life insurance to its employees may provide its commissioners with the same coverage:  PROVIDED, That the per person amounts for such insurance paid by the district shall not exceed the per person amounts paid by the district for its employees.

Laws of 1991, ch. 82, § 5, p. 488.  In short, water districts with 5,000 or more customers that provide insurance benefits to their employees may provide the same benefits to their commissioners.

            Although a water district may provide insurance coverage to its commissioners, there is an issue about when such benefits may be made available.  Article 11, section 8 of the Washington Constitution directs that:

                        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.

In addition, article 30, section 1 provides as follows:

                        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 rendered.

Read together, these two provisions allow increases in compensation during the current term to only those officers who do not set their own compensation.  Otherwise, they must complete their term of office before receiving any increase in compensation.

            In AGO 53-55 No. 355 we considered whether health and welfare benefits given to elective officials, during their present term of office, constituted additional compensation in violation of article 11, section 8.  In that opinion, we concluded:

            The term "compensation" as used in Article XI, §8 of the Washington Constitution, forbidding an increase in compensation to elected municipal officials during their term of office, is "broad enough to include any kind of remuneration from the public treasury for a public officer, whether by way of what is called salary or otherwise."  State ex rel. Funke v. Board of Commissioners, 48 Wash. 461,465, 93 Pac. 920 (1908).  Therefore, if elective officials were to receive its benefits during the current term, the health and welfare plan would constitute additional compensation in violation of Article XI, §8 of the Washington Constitution.

AGO 53-55 No. 355, at 3.

            Counties, municipalities, and special purpose districts may also provide health insurance for their employees.  RCW 41.04.180 permits

            any county, municipality, or other political subdivision of the state . . . may . . . whenever funds shall be available for that purpose provide for all or a part of hospitalization and medical aid for its employees and their dependents . . . .

This statute also directs that any county may provide those insurance benefits to county elected officials on the same basis as provided to county employees.  RCW 41.04.180 (emphasis added).  There is no reference in the statute to providing insurance benefits to elected municipal or special purpose district officials.

            In addition, RCW 41.04.190 provides, in pertinent part:

                        The cost of any such group policy or plan to any such public agency or body shall not be deemed additional compensation to the employees or elected county officials covered thereby . . . .

(Emphasis added.)

            The plan referred to in RCW 41.04.190 is that authorized in RCW 41.04.180.

                                                                    ANALYSIS

            The thrust of your question is whether the provision of RCW 41.04.190, that the cost of the policy of the plan is not additional compensation, applies to water district commissioners.  In our judgment the answer to this question is no.  RCW 41.08.180 authorizes any county, municipality or other political subdivision to provide certain health benefits for their employees.  It does not generally authorize the principal supervising officials of these units to provide themselves with this benefit.  The exception is a county (as contrasted with a municipality of other political subdivisions of the state).  RCW 41.04.180 states:

            And provided further, That any county may provide such hospitalization and medical aid to county elected officials and their dependents on the same basis as such hospitalization and medical aid is provided to other county employees and their dependents[.]

(Emphasis added.)  In RCW 41.04.180 the term "county elected officials" refers to a county and not to political subdivisions such as a water district.  This is confirmed by the fact that the Legislature amended RCW 57.08.100 in 1991 to grant similar authority to water districts.  Laws of 1991, ch. 82, § 5, p. 488.

            RCW 41.04.190 uses the same term--"county elected official".  It provides that the cost of the benefit "shall not be deemed additional compensation to the . . . elected county officials".  On its face, the phrase "county elected official" refers to elected officials of the county and not to political subdivisions of the state such as a water district.

            Thus, RCW 41.04.190 has no application to the water district commissioners' insurance benefits established in RCW 57.08.100.  The express mention of one thing in statute implies the exclusion of all things omitted.  Kreidler v. Eikenberry, 111 Wn.2d 828, 766 P.2d 438 (1989).

            This interpretation is confirmed by the legislative history of RCW 41.04.190.  Prior to 1983 RCW 41.04.190 directed that the cost of the policy or plan to any such public agency or body was to be considered additional compensation to the employees or elected county officials thereby covered.  Laws of 1965, ch. 57, § 2, p. 1192.  In 1983 RCW 41.04.190 was amended by the insertion of the word "not" so that the statute which provides for insurance benefits to employees and elected county officials now directs that these benefits do not constitute additional compensation.  Laws of 1983, 1st Ex. Sess., ch. 37, § 1, p. 1667.  As we stated in AGO 1988 No. 27, by amending RCW 41.04.190 the Legislature clearly intended to authorize county commissioners to accept increases in health benefits during their current term of office.[1]

            Furthermore, a new section was to be added to RCW 41.04.190 which directed:

                        The local government committees of the senate and house of representatives shall study compensation and other benefits provided to officials of special purpose districts and report their findings and any recommendations to the senate and house of representatives on or before January 1, 1984.

Laws of 1983, 1st Ex. Sess., ch. 37, § 2, p. 1668.  The section was never codified.  The legislative study confirms our view that the 1983 amendment to RCW 41.04.190 is limited to county elected officials and not officials of other political subdivisions.

            The legislative history of the 1983 amendment to RCW 41.04.190 also confirms our view.  The 1983 amendment was proposed as Senate Bill 3079.  Initially, SB 3079 proposed to extend the insurance benefits to officials as well as employees of special purpose districts:

            The . . . district may provide such insurance for its commissioners if the premiums for the insurance are paid by the individual commissioners who elect to receive it.  Insurance under this section shall not be considered to be compensation.

Senate Journal, 48th Legislature (1983), at 1643.  Under this provision the commissioners, not the districts, would pay the insurance premiums; consequently, the benefits would not be considered compensation.

            A proposed amendment to SB 3079 would have expanded it beyond county elected officials:

            The cost of any such group policy or plan to any such public agency or body shall not be deemed additional compensation to the employees or elected ((county)) officials covered thereby ((for services rendered)), and any officer authorized to disburse such funds may pay in whole or in part to any such insurance carrier or health care service contractor the amount of the premiums due pursuant to any such contract.

Senate Journal, 48th Legislature (1983), at 1644.  This amendment to RCW 41.04.190 would have made that statute applicable to all county, municipal, and special purpose district elected officials.

            The final bill limited the definition of additional compensation to county elected officials and directed the local government committees of the Senate and House of Representatives to study compensation and other benefits provided to officials of special purpose districts and to report findings and recommendations to the Legislature by January 1, 1984.  Laws of 1983, 1st Ex. Sess., ch. 37, § 2, p. 1668.  Consistent with this is the following colloquy.

                                                            POINT OF INQUIRY

                        Mr. Moon yielded to question by Ms. Miller.

                        Ms. Miller:  "Representative Moon, as the bill stands now, would the water and sewer commissioners be able to participate in the group health programs for their districts if they paid for the premiums?"

                        Mr. Moon:  "No, they would not at this time be able to participate, but they would, hopefully after we have a study of this and are presented a bill at the next session and get it passed."

                        Ms. Miller:  "Then you propose to make that part of the study on compensation?"

                        Mr. Moon:  "That would be part of the compensation and salaries."

House Journal, 48th Legislature (1983), at 1851.

            This is further supported by the background note on SSB 3079 in the Final Legislative Report, 48th Legislature (1983), at 200:

            It is not clear whether insurance benefits for county elected officials and employees may be considered compensation.  The Legislature has not studied the whole issue of compensation and benefits of special district officials in recent years.  The compensation and benefit provisions are not uniform or comparable between the many special purpose districts.

            These excerpts indicate that the Legislature intended to review compensation and benefits for special purpose district officials prior to enacting legislation authorizing the districts to provide insurance benefits to commissioners.  The result of this was that RCW 41.04.190 was revised to provide that insurance benefits were not to be deemed additional compensation to employees and county elected officials only.  Laws of 1983, 1st Ex. Sess., ch. 37, § 1, p. 1667.  Presumably, after the local government committees had presented their reports to the Legislature, further amendments would be made to the statute.[2]

            We trust the foregoing will be of assistance to you.

                                    Very truly yours,

                                    KENNETH O. EIKENBERRY
                                    Attorney General

                                    MARY JO DIAZ
                                    Assistant Attorney General

KOE/MJD:aj

An addendum, AGO 1992 No. 8A, to this opinion, can be found at this link: [AGO 1992 No. 8A] 

    [1]       Because it is beyond the scope of your question, and also because of our duty to defend duly enacted statutes against constitutional challenges, we do not here address the question of whether the Legislature may lawfully, in a statute, define and limit the meaning of a constitutional term such as "additional compensation" as used in article 11, section 8 of the Washington Constitution.

    [2]       We also note that during the 1992 legislative session, while this opinion was pending, House Bill 2451 was introduced proposing to amend RCW 41.04.190 as follows:

            The cost of ((any such)) a group policy or plan to ((any such)) a public agency or body ((shall)) is not ((be deemed)) additional compensation to the employees or elected ((county)) officials covered thereby ((, and)).  The elected officials to whom this section applies include but are not limited to commissioners elected under chapters 52.14, 53.12, 54.12, 56.12, 57.12, and 70.44 RCW.

(Bill draft form.)  The bill did not pass.