CITIES AND TOWNS ‑- FIRST CLASS ‑- HEALTH AND WELFARE PLAN

CITIES AND TOWNS ‑- FIRST CLASS ‑- HEALTH AND WELFARE PLAN

A city of the first class may provide health and welfare for its employees if the city charter so provides.  Health and welfare benefits given to elective officials during their present term of office constitute additional compensation and would violate Article XI, § 8 of the Washington Constitution.

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                                                                December 6, 1954

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 53-55 No. 355

Attention:  Mr. A. E. Hankins

Dear Sir:

            We have your letter of November 23, 1954, in which you ask the following questions:

            1. May a city of the first class provide a health and welfare plan for its employees?

            2. Would payment of such benefits for elected officials violate Article XI, § 8 of the Washington Constitution?

            It is our opinion, as to the first question, that if the charter of the first class city provides for a health and welfare plan, the city may provide the same for its employees.

            On the second question, it is our opinion that the plan would be additional compensation to all employees, and violate Article XI, § 8 of the Washington Constitution when applied to elective officials.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            The general rule as to municipalities is that they have no power not expressly conferred upon them by the legislature or reasonably implied therefrom.  State ex rel. Elwood v. Lovering, 78 Wash 624, 139 Pac. 617 (1914); Seattle High School Ch. No. 200 v. Sharples, 159 Wash. 424, 428, 293 Pac. 994 (1930).  A rule of strict construction is generally applied to the powers granted to cities.  Any doubt concerning the existence of the power is resolved by the courts against the corporation, and the power is denied.  State ex rel. Winsor v. Mayor and Council, 10 Wash. 4 (1894).  However, the rule may be different when considering cities of the first class.  The court inAyers v. Tacoma, 6 Wn. (2d) 545, 108 P. (2d) 348 (1940) construingState ex rel. Ennis v. Superior Court, 153 Wash. 139, 279 Pac. 601 (1929) said at page 553 as follows:

            "The opinion continues by stating that the rule announced in Dillon on Municipal Corporations, § 89, to the effect that ' "any fair or reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied," 'should not be followed in determining a question involving the power of a city of the first class under its charter, as subject to and controlled by general laws."

            It would appear, from the above citation, that a city of the first class has a greater freedom in these matters than do other municipalities.  Ayers v. Tacoma, supra, held that a first class city may establish a pension fund for its employees under its charter.  The court here based its conclusion upon the fact that there were no statutory provisions forbidding such action, and that under the broad powers conferred on it by Article XI, § 10 of the Washington Constitution, the city had provided for such a plan by its charter.

            The health and welfare proposal here would appear to come within the same rule.  If the city charter so provides, the city may pass an ordinance providing for a health and welfare plan for its employees.

            The plan apparently constitutes additional compensation for all the employees  [[Orig. Op. Page 3]] involved.  An opinion of the Attorney General 47 OAG 18 [[ to Tom Montgomery, State Representative on March 1, 1947]], construing RCW involved.  An opinion of the Attorney General 47 OAG 18, construing RCW 35.23.460 as proposed, said that group insurance provided at the expense of tax revenues would constitute an additional element of compensation to municipal employees.

            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.

Very truly yours,

DON EASTVOLD
Attorney General

EDWARD M. LANE
Assistant Attorney General