CITIES AND TOWNS ‑- SALARIES ‑- ORDINANCES ENACTED BY INITIATIVE

CITIES AND TOWNS ‑- SALARIES ‑- ORDINANCES ENACTED BY INITIATIVE

An initiative ordinance providing for the classification of police and firemen under a pay adopted by the council does not prevent the council from fixing their salaries under a charter provision so authorizing, and only prevents the council from changing such classification except by popular vote as provided by another charter provision.

                                                              - - - - - - - - - - - - -

                                                              September 27, 1956

Honorable Edward F. Harris
State Representative, 7th District
South 1618 Cedar Street
Spokane, Washington

                                                                                                              Cite as:  AGO 55-57 No. 322

Dear Sir:

            You have requested the opinion of this office on certain questions pertaining to the salaries of policemen and firemen under a flexible pay plan ordinance enacted by the city council of the City of Spokane and a subsequent initiative ordinance.  The legally relevant facts and circumstances from which your problems arise are set forth below.  With regard to those facts and circumstances, you have asked certain questions which we paraphrase as follows:

            1. Did the initiativefreeze certain officers' salaries at step E of their respective grades as of January 1, 1956?

            2. Does the city council, regardless of the initiative, have the power to adjust and change the affected salaries?

            3. Does the flexible pay plan continue to operate as to the officers affected by the initiative ordinance?

            4. Does the alleged conflict between the flexible pay plan and the initiative ordinance create a justiciable issue sufficient to support a declaratory judgment action?

             [[Orig. Op. Page 2]]

            5. If it is found that the salaries are frozen, would a mere provision in a pay initiative reserving a right of adjustment to the city council accomplish its purpose?

            6. Is a charter amendment the only remedy?

            We answer question 1 in the negative.  The answers to the remaining questions will appear in the following analysis.

                                                                     ANALYSIS

            On June 17, 1955, the city council of Spokane adopted a flexible pay plan for all of its employees.  This plan established each employee or groups of employees in certain range numbers.  Within each range number there were provided six pay steps, A through F, and the plan provided that the beginning employee would start in step A in his respective range.  Each year he would automatically advance to the next step until he reached step E.  Thereafter he could go into step F upon recommendation of his department head.  The plan called for constant adjustment of the range numbers and steps to fit changing times, so that when a change in the cost of living required it, ranges could be altered to the next higher or next lower step.

            A year ago the policemen and firemen circulated an initiative petition affecting their salaries as of January 1, 1956.  This initiative provided for salaries payable on the base of certain range and step in the flexible pay ordinance and provided in part as follows:

            "An ordinance increasing and establishing the salaries of the several officers and employees of the Fire and police Departments of the City of Spokane who have completed their fourth year of employment in said departments on or before January 1, 1956.

            "* * *

            "NOW, THEREFORE, The City of Spokane does ordain:

            "That, if the Pay Plan, 1956, prepared by the Public Administration Service and accepted by the Spokane City Council on June 17, 1955, is actually placed in force in the Spokane Police and Fire Department as of January 1, 1956, Police Patrolmen and Fire Fighters who shall have completed 4 years of service in their respective departments  [[Orig. Op. Page 3]] on or before January 1, 1956 are to be placed in Range 15, Salary Step E of said Pay Plan increasing their present salaries to $384.00 per month and that all other officers and employees of the Police and Fire Departments who have completed 4 years of service on or before January 1, 1956 be placed in and paid the salary specified in Salary Step E in their respective Salary Ranges as set out in said Pay Plan, 1956."

            "PROVIDED, HOWEVER, that if said pay plan is not actually placed in force on January 1, 1956 all of the officers and employees of said departments who have completed 4 years of service as provided above will be granted the same increased salary as of January 1, 1956 they would have received if said Pay Plan had been placed in force and effect and said officers and employees were placed in the salary ranges and pay steps as provided above."

            When the initiative was passed by the people in the fall of 1955, the city council brought all of the other employees of the two departments not covered by the initiative into line in the pay plan, so that employees with three years of service would go into step E when they completed their fourth year.

            At the present time the city council is doing preparatory work for its next budget.  The council has indicated by letter to all city departments that the anniversary increases to be granted under the flexible pay plan will not apply to those firemen and policemen affected by the aforementioned initiative ordinance.  This position of the council is based on the opinion of the corporation counsel that, under the charter of the City of Spokane, the initiative ordinance had the effect of removing from the city council all power to change any salaries fixed thereby.

            With reference to your first question, Article IX, § 89 of the Spokane City Charter provides as follows:

            "REPEAL OR AMENDMENT OF ORDINANCES PASSED BY THE PEOPLE:  No ordinance which has been passed by the Council upon a petition, or adopted by popular vote, under the provisions of this article, shall be repealed or amended, except by popular vote."

            Article IV, § 26 of the Spokane City Charter provides:

             [[Orig. Op. Page 4]]

            "EMPLOYEES, COMPENSATION: The Council shall fix the compensation of all officers, assistants and employees, and may change the same."

            At the outset we are confronted with the question of whether or not these two charter provisions are inconsistent in so far as they apply to the particular problem presented.  Obviously, Article IX, § 89 only can affect Article IV, § 26 if the ordinance fixed salaries and was adopted by popular vote.  It was adopted by popular vote, so the determination of your question is whether or not it was intended as a salary ordinance.  If so, it could only be changed in the same manner as it was enacted.  See discussion in 33 A.L.R. (2d) 1127 in which the Washington cases on the subject are discussed.

            If we are to interpret the initiative as a salary ordinance, it follows, as the corporation counsel has concluded, that it can only be changed by initiative.  However, with due deference to that opinion, and the fact that considerable weight should be accorded thereto in interpreting the ordinances of Spokane, we believe that a fair interpretation of the initiative leads to the conclusion that it was primarily intended to provide for the classification for pay scale purposes of the city's police or firemen.

            This is clearly indicated by the first paragraph of the ordaining part of the ordinance which specifically provides that those police and firemen "who shall have completed four years of service . . . are to be placed in Range 15, salary step E of said pay plan."  The only reference to amount is the amount fixed in that range and step.

            The proviso in the last paragraph further confirms this interpretation by providing that if the pay plan is not placed in force on January 1, 1956, then these employees will be granted the same increased salary as "if said pay plan had been placed in force and effect and said officers and employees were placed in the salary ranges and pay steps" as provided in the pay plan.

            We believe there is a side difference between an ordinance specifically fixing salaries, and one, as here, which provides for the classification, for pay purposes, of public service employees meeting certain requirements.  Here, we believe that the restriction placed on the council by Article IX, § 89 is that it cannot change the classification of Range 15, salary step E, as applied to members of the police and fire departments completing four years service.

             [[Orig. Op. Page 5]]

            With the pay plan in effect, the salary to be paid these employees is governed by the salary attached to the range and step, and the other provision of the pay plan including any increase for merit applicable to all employees in that range and step.  In other words, police and firemen with four years service are classified in Range 15, salary step E, and are entitled to the same increases applicable to any other city employee in the same classification.

            We deem the initiative to be simply a specification of classification for pay purposes and not an ordinance fixing salaries by initiative.  The council of the city of Spokane is free to adopt the pay plan and the salary schedules attached thereto, but cannot change the classification to which police and firemen are entitled by the initiative without an amendment likewise adopted by popular approval.

            We are therefore of the opinion that far from requiring that the salaries of the policemen and firemen affected be frozen at step E, it is actually the intent of the initiative that the policemen and firemen be classified and eligible for such pay increases as may be granted to other employees in the same classification.

            In view of what we have said in the foregoing paragraphs it is not necessary to discuss your remaining questions in detail.  With reference to question 2, the city council has no power to act "regardless of the initiative" but it may change the affected salaries in accordance with the flexible pay plan.  As for question 3, the flexible pay plan continues to operate as to the officers under the initiative ordinance.  With respect to question 4, we may say in passing that in our opinion there is without question a justiciable issue here sufficient to support a declaratory action should our opinion be deemed unacceptable.

            In view of our answers to the foregoing questions, it is unnecessary for us to discuss questions 5 and 6.

            We trust that the foregoing will prove helpful.

Very truly yours,

DON EASTVOLD
Attorney General

MITCHELL DOUMIT
Assistant Attorney General