COMPENSATION FOR SERVICE AS MEMBERS OF HEARING TRIBUNAL

OFFICES AND OFFICERS ‑- STATE ‑- WASHINGTON STATE HUMAN RIGHTS COMMISSION ‑- COMPENSATION FOR SERVICE AS MEMBERS OF HEARING TRIBUNAL

The Washington State Human Rights Commission has the power to compensate persons for service as members of hearing tribunals appointed under the law against discrimination, including members of the commission itself who serve as members of a hearing tribunal in accordance with RCW 49.60.250.

However, because of Article XXX, § 1, (Amendment 54) of the state constitution, the compensation of tribunal members who are also commissioners cannot be increased during their respective terms of office as members of the Human Rights Commission.

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                                                               November 29, 1977

Honorable Bill W. Hilliard
Executive Secretary
Human Rights Commission
402 Evergreen Plaza Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1977 No. 54

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on the following questions:

            "1. Does the Washington State Human Rights Commission have the power to compensate persons for service as members of hearing tribunals appointed under the law against discrimination?

            "2. If so, can this include members of the commission who serve as members of a hearing tribunal?

             [[Orig. Op. Page 2]]

            "3. Does the executive conflict of interest act, chapter 42.18 RCW, or other law, prevent commissioners from being compensated for service as members of the hearing tribunals?"

            We answer your first two questions in the affirmative and your third in the manner set out in our analysis.

                                                                     ANALYSIS

            By its enactment of the law against discrimination, chapter 49.60 RCW, the legislature created the Washington State Human Rights Commission and gave it "general jurisdiction and power"1/ to eliminate discrimination and prevent unfair practices as defined in the law.2/   One of the authorized means of doing this is to process complaints of unfair practices.  If a complaint is not dismissed for lack of "reasonable cause" after investigation or is not settled through conciliation it is then to be administratively adjudicated before a three‑member hearing tribunal appointed by the chairman of the commission.  This tribunal is to be composed either of "members of the [commission]3/ or of a panel of hearing examiners."  RCW 49.60.250.  In practice, however, you have advised us that:

            ". . . hearing tribunals have been composed of citizen volunteers with commissioners occasionally serving. . . ."

            In addition you have informed us that:

            "Tribunal members have been paid per diem (subsistence) and travel expenses pursuant to general statutes (RCW 43.03.050 and 43.03.060) but have never been compensated.  The reason why tribunal members have never been compensated has been lack of funds for this purpose, not, in the view of the Commission, lack of authority."

             [[Orig. Op. Page 3]]

            In response to a request from the commission, however, the 1977 legislature included funds for compensating tribunal members in the state budget for the 1977-79 biennium.  The commission, then, in July, adopted the following regulation:

            "WAC 162-08-212  COMPENSATION AND EXPENSES OF TRIBUNAL MEMBERS.  (1)Compensation.  Tribunal chairpersons shall be compensated for their services at the rate of $25.00 per hour and tribunal members other than the chairperson shall be compensated at the rate of $15.00 per hour.  Alternate tribunal members shall be compensated at the rate of $15.00 per hour for any time expended in attendance with the tribunal at the direction of the chairperson of the commission."

            Question (1):

            Your first question is whether the commission is correct in its belief that it has the power to compensate tribunal members.  The governing statute, in our opinion, is RCW 49.60.120 which provides, in material part, as follows:

            "The [commission] . . . shall have the functions, powers and duties:

            "(1) To appoint an executive secretary and chief examiner, and such investigators,examiners, clerks, and other employees and agents as it may deem necessary, fix their compensation within the limitations provided by law, and prescribe their duties.

            ". . ."  (Emphasis supplied)

            An initial question is whether RCW 49.60 120(1), supra, applies at all to hearing tribunal members because of the fact that under RCW 49.60.250 they are appointed by the chairman of the commission, acting alone, and not by the whole commission.  A negative answer to that question, however, would render meaningless the word "examiners"4/ and would be contrary to the  [[Orig. Op. Page 4]] administrative and legislative understanding next discussed.  We therefore reject such an interpretation which, of course, would require the conclusion that no tribunal members can be compensated, whether or not they are also members of the commission.

            Any doubt that we might otherwise have as to the adequacy of RCW 49.60.120(1) to authorize the compensation of tribunal members is removed by two facts:  First, the commission's regulation (WAC 162-08-212,supra) is itself an authoritative ruling on the point by the agency with statutory authority to adopt rules to carry out the provisions of the law against discrimination.  RCW 49.60.120(3).  See also,Lindsay v. City of Seattle, 86 Wn.2d 698 at 711-712, 548 P.2d 320 at 329 (1976); cf. AGO 1976 No. 17 [[to Alan Bluechel, State Senator, on September 28, 1976]].  Second, our review of the appropriate budget documents confirms your assertion that the legislature did intend to provide the commission with funds to compensate hearing tribunals this biennium.5/   We therefore answer your first question in the affirmative.  The amount of compensation to be paid is to be fixed by the commission, within the limitations of its appropriation.

             [[Orig. Op. Page 5]]

            Question (2):

            Your second question is whether the power to compensate hearing tribunal members includes members of the Human Rights Commission itself who serve as tribunal members;i.e., whether that power was intended by the legislature to extend to all tribunal members or only to those tribunal members who are not commissioners.6/

             Once again the statute on appointments and compensation (RCW 49.60.120, supra) reads as follows:

            "The [commission] . . . shall have the functions, powers and duties:

            "(1) Toappoint an executive secretary and chief examiner, and such investigators, examiners, clerks, and other employees and agents as it may deem necessary, fix their compensation within the limitations provided by law, and prescribe their duties.

            ". . ."  (Emphasis supplied)

            The statute does not authorize the human rights commissioners to compensate themselves as commissioners.  Commissioners do not appoint themselves; they are appointed by the Governor.  RCW 49.60.050.  Nor has the legislature provided directly for the compensation of commissioners.  They are authorized subsistence and travel expenses only.  RCW 49.60.070.  Therefore, it necessarily follows that the commissioners, as such, serve without compensation.  But the question presented is whether they may nevertheless be compensated when, as authorized by RCW 49.60.250,supra, they serve as members of a hearing tribunal.

            The first issue to be considered is whether the word "examiners" in RCW 49.60.120(1) is tied only to the term "hearing examiners" in RCW 49.60.250, thus manifesting an intention to exclude from compensation those tribunal members who are commissioners.  RCW 49.60.250 says that:

            ". . .  The chairman of the [commission] . . . shall thereupon appoint a hearing tribunal of three persons, who shall be members of the [commission] . . . or a panel of hearing examiners . . ."

             [[Orig. Op. Page 6]]

            However, the authority to compensate extends to "other employees and agents," as well as to examiners and the other named positions and classes of appointees.  The literal meaning of RCW 49.60.120(1), supra, as we have already indicated, is that the commission can compensate all persons whom it can appoint.  And, as we have already concluded, this includes hearing tribunal members (reserving for the moment the status of those who are commissioners), although tribunal members are appointed by the chairman of the commission, acting alone.

            We turn, then, to the more crucial inquiry which, as we view it, is whether commissioners perform a separate function when they serve as tribunal members.  Or, instead, is their performance as tribunal members merely an exercise of their functions as human rights commissioners?  The answer to this question requires a somewhat more detailed examination of the nature of a hearing tribunal and its relationship to the commission.7/

            The following language from RCW 49.60.2508/ is all that the law against discrimination says about the appointment of hearing tribunals:

            ". . .  The chairman of the [commission] . . . shall thereupon appoint a hearing tribunal of three persons, who shall be members of the [commission] . . . or a panel of hearing examiners, acting in the name of the [commission] . . ., to hear the complaint and shall cause to be issued and served in the name of the [commission] . . . a written notice . . . requiring the respondent to answer the charges of the complaint at a hearing before such tribunal, at a time and place to be specified in such notice.

            ". . .  No member or employee of the [commission] who previously made the investigation or caused the notice to be issued shall participate in  [[Orig. Op. Page 7]] the hearing except as a witness, nor shall he participate in the deliberations of the tribunal in such case. . . ."

            From this we see that:

            (1) A hearing tribunal "act[s] in the name of the [commission]."

            (2) Commissioners are not automatically tribunal members; they must be appointed to the position.

            (3) Commissioners cannot be appointed to a tribunal by the commission, or by themselves individually.  Tribunal members are appointed by the chairman of the commission.  The chairman is not eligible to serve as a tribunal member because he or she also causes the notice of hearing to be issued.

            (4) Commissioners have no duty to serve as tribunal members; they are simply eligible for appointment.

            (5) It is unlawful for a commissioner who has not been appointed to a tribunal to participate in the deliberations of the tribunal, or to participate in the hearing except as a witness.

            The functions of a hearing tribunal are then spelled out in later paragraphs of RCW 49.60.250 as follows:

            ". . .

            "If, upon all the evidence, the tribunal finds that the respondent has engaged in any unfair practice it shall state its findings of fact and shall issue and file with the [commission]. . . and cause to be served on such respondentan order requiring such respondent to cease and desist from such unfair practice and to take such affirmative action, including, (but not limited to) hiring, reinstatement or upgrading of employees, with or without back pay, an admission or restoration to full membership rights in any respondent organization, or to take such other action as, in the judgment of the tribunal, will effectuate the purposes of this chapter, and including a requirement for report of the matter on compliance.

             [[Orig. Op. Page 8]]

            "If, upon all the evidence, the tribunal finds that the respondent has not engaged in any alleged unfair practice, it shall state its findings of fact and shall similarly issue and file an order dismissing the complaint.

            ". . ."  (Emphasis supplied)

            Thus, in summary, the tribunal determines issues of fact, applies the law, judges whether unfair practices have been committed, and issues an order disposing of the case.  The tribunal exercises its own discretion as to the appropriate remedy when unfair practices are found.  The order of a tribunal is issued to the parties andfiled with the commission.  Thus, the tribunal's product is not the commission's document until it is filed with the commission.

            The rules of the commission (chapter 162-08 WAC) also bear upon the functions of a tribunal.  Thus, we note that tribunal members can be removed only for cause on motion of a party made before the tribunal has made any ruling involving discretion.  WAC 162-08-215, 162-08-217.  The rules also specify that the commission is a party to the hearing before the tribunal.9/   This is so because RCW 49.60.250 provides, in its second paragraph:

            ". . .  The case in support of the complaint shall be presented at the hearing by counsel for the [commission] . . .:"

            The commission is not empowered to review or revise the decision or order of the hearing tribunal.  Instead, appeal from a tribunal order is to the superior court under the administrative procedure act, RCW 34.04.130.

            From all of this it appears that a hearing tribunal, once appointed, exists independently of the commission and its members and is not subject to any direction or correction by them.  We therefore conclude that the position of hearing tribunal member is separate from the position of human rights commissioner.

             [[Orig. Op. Page 9]]

            Commissioners are eligible for appointment as tribunal members, but they are under no duty to accept the appointment.  When commissioners serve as tribunal members their actions are those of the tribunal and not of the Human Rights Commission.10/   Accordingly, it follows that the compensation of a person serving as a hearing tribunal member should be determined for that position without regard to whether the person is compensated for a separate office held at the same time.  And, therefore, it is our opinion that the authority to compensate hearing tribunal members for their service as such may include commissioners serving as tribunal members to the same extent as other tribunal members are now compensated under WAC 162-08-212, supra.

            Question (3):

            Turning to your third question, we first find nothing in the executive conflict of interest law (chapter 42.18 RCW) which would in any way prevent the payment of compensation to human rights commissioners for their service as hearing tribunal members.

            It is most certainly true that this law does prohibit certain conflicts of interest in the executive branch of state government.  Moreover, both the Human Rights Commission and its hearing tribunals are "agencies" covered by the act.  See RCW 42.18.030.  And, under the special definition in RCW 42.18.130, both the commissioners themselves and human rights tribuanl members are "state employees" for purposes of the act.  However, the executive conflict of interest act does not prevent the service of commissioners as tribunal members.  This, as we have seen, is expressly authorized by RCW 49.60.250.  In addition, an employee's interest in his or her own compensation from the state itself is simply not the kind of interest that this act was intended to regulate.  See RCW 42.18.190, 42.18.010.

            There is, however, another "law" that could prevent, temporarily, the compensation of hearing tribunal members who are commissioners.  We have reference to the constitutional prohibition against raising the compensation of certain officers during their terms of office.  Washington Constitution, Article XXX, § 1, (Amendment 54) reads as follows:

             [[Orig. Op. Page 10]]

            "The compensation of all elective and appointive state, county, and municipal officerswho do not fix their own compensation, . . . 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 being rendered.

            "The provisions of section 25 of Article II (Amendment 35), . . . insofar as they are inconsistent herewith are hereby repealed."  (Emphasis supplied)

            The referenced Article II, § 25 says:

            ". . . nor shall the compensation of any public officer be increased or diminished during his term in office. . . ."

            The effect of this constitutional provision is thus to limit the former general prohibition against raising the compensation of a public officer during his or her term so that it now applies only to officers who "fix their own compensation."

            Article II, § 25 (as now limited by Amendment 54) applies to all state officers, not just to legislators.  City of Everett v. Johnson, 37 Wn.2d 505, 224 P.2d 617 (1950).  Also, providing compensation for the first time for an office that was previously uncompensated is an "increase" in compensation for purposes of the constitutional provision.  State ex rel. Livingston v. Ayer, 23 Wn.2d 578, 161 P.2d 429 (1945).  Adding new duties does not alone justify increasing the compensation for an office.  AGO 53-55-137 [[to T. Hall, State Senator, on September 22, 1953]].  An officer is covered by the prohibition if he or she is a voting member of a body of officers who fix the compensation.  AGO 1968 No. 36 [[to Ernest H. Campbell, Associate Director, Government Research and Services, on December 5, 1968]].  The courts have not hestitated to strike down schemes, including the creation of dual offices, that were designed to get around the prohibition.  State ex rel. Troy v. Yelle, 27 Wn.2d 99, 176 P.2d 459 (1947); State ex rel. Livingston v. Ayer, 23 Wn.2d 578, 161 P.2d 429 (1945).

            We do not see in the present circumstances any element of subterfuge to avoid the effect of the foregoing constitutional prohibition against increasing compensation during a term of office.  As we understand it, the purpose of the commissioners and the legislature in now providing compensation for tribunal members was to insure an adequate supply of tribunal memberswho are not commissioners.  The issue is simply whether the  [[Orig. Op. Page 11]] constitution prevents tribunal members who are commissioners from receiving the new compensation during their respective terms of office as commissioners because they are members of the same body which fixed the compensation.