CHAPTER 49, LAWS OF 1965, EX. SESS.

DISTRICTS ‑- SCHOOLS ‑- CERTIFICATED EMPLOYEES ‑- TRANSFER BETWEEN DISTRICTS ‑- RETENTION OF BENEFITS ‑- WAIVER ‑- PROSPECTIVE APPLICATION ‑- CHAPTER 49, LAWS OF 1965, EX. SESS.

(1) Under § 3, chapter 49, Laws of 1965, Ex. Sess., a certificated employee of a school district who transfers to another district which has adopted a salary schedule based upon seniority and occupational status, must be granted a salary equal to that of a person of the same status and seniority in the district.

(2) The benefits guaranteed to a transferring teacher under § 3, chapter 49, Laws of 1965, Ex. Sess., may not be waived or relinquished.

(3) Chapter 49, Laws of 1965, operates prospectively only; therefore, a contract executed before the effective date of the act is not governed by the provisions of the new act.

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                                                                  March 24, 1966

Honorable Norwood Cunningham
State Representative, 30th District
750 Alvord Avenue
Kent, Washington                                                                                                                Cite as:  AGO 65-66 No. 79

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on several questions relative to chapter 49, Laws of 1965, Ex. Sess., which we have divided and paraphrased as follows:

            (1) What salary benefits, if any, are guaranteed to transferring teachers under § 3, chapter 49, Laws of 1965, Ex. Sess.?

            (2) To what extent, if any, can a school teacher who transfers to another district in this state waive or relinquish the benefits guaranteed to him by chapter 49, Laws of 1965, Ex. Sess?

            (3) Is a contract executed before the effective date of  [[Orig. Op. Page 2]] chapter 49, Laws of 1965, Ex. Sess., by a teacher transferring to a new district, governed by the provisions of the new act?

            We answer your first two questions in the manner set forth in our analysis; your third question in the negative.

                                                                     ANALYSIS

            In order to place your questions in the proper context it is necessary to examine briefly the law relating to the powers and duties of school district boards of directors, with particular reference to compensation, salaries, and fringe benefits of certificated employees.

            Initially, it must be borne in mind that a school district is a municipal corporation and, as such, has only those powers expressly granted by the legislature, those necessarily or fairly implied in or incident to the powers granted, and those essential to the declared objects and purposes of the municipal corporation.  Seattle High School Ch. No. 200 v. Sharples, 159 Wash. 424, 293 Pac. 994 (1930);Juntila v. Everett School District No. 24, 178 Wash. 637, 35 P.2d 78 (1934).  The governing body of the district, empowered to exercise the foregoing powers, is, of course, the elected board of directors.  (RCW 28.58.080)State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P.2d 94 (1934).

            With regard to salaries, RCW 28.58.100 (1) provides that

            "Every board of directors, unless otherwise specially provided by law, shall:

            "(1) Employ for not more than one year, and for sufficient cause discharge teachers, and fix, alter, allow and order paid their salaries and compensation;"

            Certain other benefits, including "leave benefits" are allowed to certificated and other employees by RCW 28.58.100.  In addition, boards of directors are authorized to enact all reasonable rules and regulations for the government of the schools.  RCW 28.58.110.  Under these general powers boards of directors usually prescribe general terms and conditions of employment which are incorporated in all of their teachers' contracts.  Such school board policies allow certain benefits  [[Orig. Op. Page 3]] on the basis of seniority (which is in turn based upon years of service) and/or on the basis of occupational status (related to educational qualifications and background).  The benefits thus granted do usually, but not necessarily, include the right to a certain grade in a salary schedule, and similar benefits.

            Prior to the enactment of chapter 49, Laws of 1965, Ex. Sess.,supra, a teacher transferring from one school district to another had no assured means of retaining these rights.  They were entirely the subject of negotiation between the teacher and the district to which he transferred.

            Against this background the legislature enacted § 3, chapter 49, Laws of 1965, Ex. Sess.,supra, expressly guaranteeing certain benefits to certificated employees who transfer from one school district to another within this state.  Section 3 reads as follows:

            "When any faculty member, instructor, teacher, or other certificated employee or instructor leaves one public school, community college, or school district within the state and commences employment with another public school, community college or school district within the state, he shall retain the same seniority, leave benefits and other benefits that he had in his previous position.  If the public school, community college or school district to which the person transfers has a different system for computing seniority, leave benefits and other benefits, then the employeeshall be granted the same seniority, leave benefits and other benefits as a person in that district who has similar occupational status and total years of service."  (Emphasis supplied.)

            The benefits expressly guaranteed by this statute to a transferring teacher are phrased in terms of ". . . seniority, leave benefits and other benefits . . ."  By "leave benefits" it is clear that the legislature was referring to benefits conferred by RCW 28.58.100,supra.  However, the terms "seniority" and "other benefits" are nowhere defined in this statute or by internal reference in it, and the legislative meaning is not entirely clear.  We are therefore required to  [[Orig. Op. Page 4]] resort to rules of statutory construction, bearing in mind that the primary rule of statutory construction is to ascertain and give effect to the intent of the legislature.  Martin v. Aleinikoff, 63 Wn.2d 842, 389 P.2d 422 (1964).

            The rules of statutory construction which seem pertinent in this case are:

            1. Legislative intent is to be deduced wherever possible from what the legislature has said in the words of the statute.  Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948).

            2. Words used by the legislature in the absence of any contrary apparent intent are to be taken in their usual and ordinary sense.  Featherstone v. Dessert, 173 Wash. 264, 22 P.2d 1050 (1933).

            3. The rule of "ejusdem generis."

            "Where general words in a statute follow specific words, designating special things, the general words are, as a rule, limited to cases of the same general nature as those which are specified.  In re Hoss' Estate, 109 P. 1071 [[109 Pac. 1071]], 59 Wash. 360."

            See, also,Miller v. Pasco, 50 Wn.2d 229, 310 P.2d 863 (1957); King County Water Dist. No. 68 v. Tax Commission, 58 Wn.2d 282, 362 P.2d 244 (1961); State v. Sterling Theatres Co., 64 Wn.2d 761, 394 P.2d 226 (1964).

            4. In construing the meaning of a doubtful statute, resort may be had to the legislative history of a bill.  Ayers v. Tacoma, 6 Wn.2d 545, 108 P.2d 348 (1940).

            5. Resort may also be had to temporary circumstances existing at the time the bill was enacted, and the evils which it was designed to prevent.  Seattle v. Reed, 6 Wn.2d 186, 107 P.2d 239 (1940); State v. Houck, 32 Wn.2d 681, 203 P.2d 693 (1949).

            The words "seniority" and "benefit" are defined as follows:

            1.         "Seniority" ‑ "1. the state or quality of being senior; precedence in birth, rank, etc.  2. status, priority,  [[Orig. Op. Page 5]] or precedence achieved by length of service in a given job, as in determining an employee's eligibility for promotion."

            2.         "benefit" ‑ "2. anything contributing to an improvement in condition; advantage."  (Webster's New World Dictionary, College Edition.)

            Although none of the words used, in context, necessarily connote the idea of salary, when we apply the statute to the salary policies of school districts in actual practice, the same result would seem to follow necessarily in most districts.

            What the legislature actually said is that a teacher transferring from one district to another, who has a certain occupational status and total years' service, is entitled to ". . . the same seniority1/ . . ." (emphasis supplied) as is a person in the "receiving" district who has similar occupational status and total years of service.  What the legislature clearly intended was to give to teachers an assurance that they will not be unduly prejudiced nor discriminately treated upon transferring between districts; that upon so transferring they will be accorded the same treatment as any other teacher in the district to which they transfer, under board policies granting benefits based upon the factors mentioned in the statute.

            With regard to the specific benefits expressly guaranteed, seniority is not salary, nor does it necessarily result in a certain salary.  It is, according to ordinary definition, an occupational status resulting from years of service.  With a certain grade of seniority usually come such incidental benefits as promotional rights, retention rights,  [[Orig. Op. Page 6]] preference on rehiring, assignments, and a host of other incidental benefits fixed or suggested by board policy.  More importantly, with a certain degree of seniority may also be guaranteed a certain place on a salary schedule; or such guaranteed salary rate may be scheduled only on the basis of combined seniority and qualifications; or, on the other hand, such guaranteed salary rate may conceivably be scheduled only on the basis of combined (1) seniority, (2) educational qualifications and (3) other factors.

            According to the information we have received from both the state superintendent's office and the Washington state school directors' association, the vast majority of school boards in this state actually adopt, as board policy, fixed salary schedules based entirely upon the combined factors of (a) seniority (which is in turn based entirely upon years of service), and (b) occupational status.  From that it can be safely said that in most school districts a transferring teacher on being hired is guaranteed a certain scheduled salary rate, based upon his length of prior service and his occupational status.  However, in other districts, an individual teacher must look to the actual policy fixed by the board of the "receiving" district to determine what benefits, if any, in addition to leave benefits, are in fact attached to the statutory formula in that district.  Of course, the same holds true in all districts with regard to incidental benefits other than salary, inasmuch as these incidental benefits may vary from district to district.

            With regard to your second question, once it is found that a right to a certain salary or other specific benefit is guaranteed to a teacher by virtue of § 3, chapter 49, Laws of 1965, Ex. Sess., supra, this right cannot in our opinion be waived or relinquished by him.  Obviously, a right "guaranteed" to teachers imposes the corresponding duty upon the board of directors of a school district to grant such benefits.

            The district cannot provide less than the statute demands, nor can the teacher accept less; otherwise, nothing would have been accomplished by the passage of the new act.  In construing a statute, it must be presumed that in enacting it the legislature had some significant purpose or object, and did not intend to indulge in a vain or useless act.  See,Guinness v. State, 40 Wn.2d 677, 246 P.2d 433 (1952).  As we have pointed out, under the law and the administrative procedure in existence before the effective date of the new act, all such benefits as were not actually fixed by law  [[Orig. Op. Page 7]] were simply subject to being negotiated between the transferring teacher and the board of directors of the receiving school district.  Thus, to be effective, the statute must be construed as removing such benefits from the field of negotiation.  See,Guinness v. State, supra; also, State ex rel. Bell v. Superior Court, 196 Wash. 428, 83 P.2d 246 (1938).2/

             For ease in reading we restate your third question as follows:

            Is a contract executed before the effective date of chapter 49, Laws of 1965, Ex. Sess.,supra, by a teacher transferring to a new district, governed by the provisions of the new act?

            Answering your third question in the negative, it is our opinion that contracts signed prior to the effective date of chapter 49, Laws of 1965, Ex. Sess.,supra, are governed by the law in existence at the time the contracts were executed rather than by the provisions of the 1965 law.

            As a general rule, duly enacted or amended statutes are presumed to operate prospectively.  Pape v. Department of Labor & Ind., 43 Wn.2d 736, 740, 741, 264 P.2d 241 (1953):

            "Laws may operate either prospectively or retrospectively, or both.  A prospective law is one which is to operate in the future‑-that is, is applicable only to cases arising after its enactment.  A retrospective law is one which is made to operate upon some subject, contract, or crime which existed before the passage of the law.  3 Bouvier's Law Dictionary (Rawle's Third Rev.), 2754 and  [[Orig. Op. Page 8]] 2950.  A retrospective law, in the legal sense, is one which takes away or impairs vested rights acquired in the existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.  50 Am.Jur. 492, Statutes, § 476.

            "The question whether a statute operates retrospectively, or prospectively only, is one of legislative intent.  In determining such intent, the courts have evolved a strict rule of construction against a retrospective operation, and indulge in the presumption that the legislature intended statutes or amendments thereto to operate prospectively only.  50 Am.Jur. 495, Statutes, § 478.  It is not necessary, however, that the statute expressly state that it shall operate retrospectively, if such intention can be obtained from the purpose and method of its enactment."

            See, also, in this regardHammack v. Monroe St. Lbr. Co., 54 Wn.2d 224, 339 P.2d 684 (1959);Fay v. Allied Stores Corp., 43 Wn.2d 512, 262 P.2d 189 (1953);Moran v. Seattle, 179 Wash. 555, 38 P.2d 391 (1934); Sterrett v. White Pine Sash Co., 176 Wash. 663, 30 P.2d 665 (1934); 2 Sutherland, Statutory Construction, (3rd ed.) §§ 2201-2212.

            The only exception to this rule is recognized in instances where the legislature clearly indicates, expressly or by implication, that a retroactive effect was intended.  State v. Ladiges, 63 Wn.2d 230, 386 P.2d 416 (1963).  Chapter 49, Laws of 1965, Ex. Sess., supra, contains no language expressly or impliedly evidencing any intent that the statute should have a retroactive effect.  Furthermore, to grant to a teacher presently under a contract with a school district additional contractual rights and benefits, without any corresponding consideration moving from the teacher to the district would be a violation of Article II, § 25 (Amendment 35) of the Washington state constitution which provides as follows:

            "The legislature shall never grant any extra compensation to any public officer,  [[Orig. Op. Page 9]] 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."

            See, in this regard, AGO 63-64 No. 97 [[to Cliff Yelle, State Auditor on April 8, 1964]], a copy of which is attached.  The supreme court has established a rule of statutory construction to the effect that where a statute is open to two alternative constructions, one of which would render it unconstitutional, the constitutional alternative must be chosen.  See,Soundview Pulp Co. v. Taylor, 21 Wn.2d 261, 150 P.2d 839 (1944).  We must presume therefore that the legislature did not intend to allow § 3, chapter 49, Laws of 1965, Ex. Sess., supra, to be construed retroactively.

            We trust the foregoing will be of assistance to you.