CONSTITUTIONAL LAW - AMENDMENT - COMPENSATION OF DISTRICT AND COUNTY OFFICERS - INCREASES

CONSTITUTIONAL LAW - AMENDMENT - COMPENSATION OF DISTRICT AND COUNTY OFFICERS - INCREASES.

(1) Pursuant to RCW 54.12.080, the commissioners of a public utility district "fix their own compensation" within the meaning of the constitutional amendment contained in H.J.R. No. 13; accordingly, these officials continue to be prohibited from receiving a mid-term increase in their compensation.

(2) Under RCW 52.12.010, the commissioners of a fire protection district fix their own compensation within the meaning of the constitutional amendment contained in H.J.R. No. 13; accordingly, these officials continue to be prohibited from receiving a mid-term increase in their compensation.

(3) Pursuant to RCW 53.13.250, the commissioners of a port district do not fix their own compensation, within the meaning of the constitutional amendment contained in H.J.R. No. 13.

(4) Except to the limited extent provided for by RCW 41.04.180, relating to group hospitalization and medical aid coverage, the members of a board of county commissioners do not fix their own compensation, within the meaning of the constitutional amendment contained in H.J.R. No. 13; accordingly, these officials are entitled to receive the salary provided for by the law in existence at the time their services are rendered, for all services rendered after the effective date of HJR No. 13, but they may not, during their terms of office, receive an increase in the amount of the county's payment for group hospitalization or medical aid coverage.

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                                                                 January 20, 1969

Honorable Robert V. Graham
State Auditor
Legislative Building
Olympia, Washington 98501

                                                                                                                   Cite as:  AGO 1969 No. 2

Dear Sir:

            This is written in response to your recent request for an opinion of this office as to the applicability of H.J.R. No. 13 to county commissioners and the commissioners of a public utility district, a fire protection district, and a port district.  Specifically, you have asked the following questions:

             [[Orig. Op. Page 2]]

            (1) Do public utility district commissioners "fix their own compensation" within the contemplation of the constitutional amendment contained in H.J.R. No. 13?

            (2) Do fire district commissioners "fix their own compensation" within the contemplation of the constitutional amendment contained in H.J.R. No. 13?

            (3) Do port district commissioners "fix their own compensation" within the contemplation of the constitutional amendment contained in H.J.R. No. 13?

            (4) Do county commissioners "fix their own compensation" within the contemplation of the constitutional amendment contained in H.J.R. No. 13 when they provided hospitalization and medical aid for themselves and their dependents as authorized in RCW 41.04.180?

            We answer questions (1) and (2) in the affirmative, question (3) in the negative and question (4) in the manner set forth in our analysis.

                                                                     ANALYSIS

            The constitutional amendment contained in H.J.R. No. 13, which was approved by the voters at the recent state general election, reads as follows:

            "The compensation of all elective and appointive state, county, and municipal officerswho 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 being rendered.

            "The provisions of section 25 of Article II (Amendment 35), section 25 of Article III (Amendment 31), section 13 of Article IV, section 8 of Article XI, and section 1 of Article XXVIII (Amendment 20) insofar as they are inconsistent herewith are hereby repealed."  (Emphasis supplied.)

             [[Orig. Op. Page 3]]

            In AGO 1968 No. 36, copy enclosed, we said of this provision:

            "If a state, county or municipal officer (serving a fixed term) is one of those '. . . who . . . fix their own compensation . . .,' then the prohibitions against mid-term pay increases contained in such constitutional provisions as Article XI, § 8, supra, continue to apply. . . .

            ". . .

            ". . . the clear import and purpose of the qualification contained in H.J.R. No. 13, was (as indicated in the proponents' official argument) only to prevent those officers having the power to raise their own salaries from doing so with immediate (mid-term) effect. . . ."

            Our purpose here, in answering your questions, is to determine whether, and to what extent, the various district and county commissioners to whom you have referred come within this category of "officers having the power to fix their own salaries" (or other authorized form of compensation).  In order to make this determination, we must examine and analyze each of the statutes or constitutional provisions relating to the compensation of these officers.

            (1)Public utility district commissioners:

            RCW 54.12.080 contains the following provisions with respect to the compensation and expenses of public utility district commissioners:

            "District commissioners shall serve without compensation, except that a district may provide by resolution for the payment of compensation to each of its commissioners at a rate not exceeding twenty-five dollars for each day or major part thereof devoted to the business of the district, and days upon which he attends meetings of the commission of his own district or meetings attended by one or more commissioners of two or more districts called to consider business common to them:Provided, That the total of such per diem compensation paid to such commissioner during any one  [[Orig. Op. Page 4]] year shall not exceed three thousand five hundred dollars:Provided, further, That any district may provide by resolution for the additional payment of a salary to each of its commissioners not exceeding one hundred fifty dollars per month.  Also, any district providing group insurance for its employees, covering them, their immediate family and dependents, may provide insurance for its commissioners with the same coverage:Provided, further, That commissioners may not be compensated for services performed of ministerial or professional nature.  Each commissioner shall be reimbursed for reasonable expenses actually incurred in connection with such business and meetings, including his subsistence and lodging and travel while away from his place of residence."

            The manner in which the district acts to provide such compensation for its commissioners is spelled out in RCW 54.12.010 as follows:

            "A majority of the persons holding the office of public utility district commissioner at any time shall constitute a quorum of the commission for the transaction of business, and the concurrence of a majority of the persons holding such office at the time shall be necessary and shall be sufficient for the passage of any resolution, but no business shall be transacted, except in usual and ordinary course, unless there are in office at least a majority of the full number of commissioners fixed by law."

            Therefore, clearly, the commissioners of a public utility district do have the power to "fix" or to raise their own compensation1/ - at least so long as the compensation previously  [[Orig. Op. Page 5]] payable to them (by their prior resolution) was less than the applicable maximum specified in the statute.  Furthermore, the fact that the legislature has imposed these statutory maximum limitations on the amount of compensation which the commissioners of a public utility district may fix for themselves does not, in our opinion, serve to alter this fact, or the legal conclusion to be drawn therefrom.

            In order to say that the commissioners of a public utility district might provide themselves with a mid-term increase in their compensation, it would be necessary to read the constitutional amendment in question as if it said that pay increases during their terms of office might be granted to "municipal officers who do not fix their own compensation, and, as well, those who do fix their own compensation within maximums established by the legislature."  If this is what the legislature, in proposing the amendment, had in mind, it simply did not use the language necessary to express this intent and, of course, it is a well-established principle that a legislative intention, not expressed in some appropriate manner, has no legal existence.  See,State ex rel. Gebhardt v. Superior Court, 15 Wn. 2d 673, 131 P. 2d 943 (1942).2/

             (2) Fire protection district commissioners:

            The governing statute, with respect to the commissioners of a fire protection district, is RCW 52.12.010, which reads as follows:

            "The affairs of the district shall be managed by a board of fire commissioners composed of three resident electors of the district.  The members may each receive not to exceed ten dollars per day or thirty dollars per month for attendance at board meetings and for performance of other services  [[Orig. Op. Page 6]] in behalf of the district to be fixed by resolution and entered in the minutes of the proceedings of the the [sic] board.  In addition, they shall receive necessary expenses incurred in attending meetings of the board or when otherwise engaged on district business, and may participate in insurance available to all firemen of the district: Provided, That in any district which has a fire department employing personnel on a full time, fully paid basis, fire commissioners, in addition to expenses as aforesaid, may each receive not to exceed fifteen dollars per day or seventy-five dollars per month for attendance at board meetings and for performance of other services on behalf of the district to be fixed by resolution and entered in the minutes of the proceedings of the board.

            ". . ."

            Again, as in the case of public utility district commissioners, the authority granted by this statute is such as to enable a board of fire commissioners to grant its members an increase in their compensation (either from none to some or from a fixed to a higher rate), so long as the compensation previously fixed was less than the statutory maximum.  Accordingly, for the same reasons as pertain to public utility district commissioners, it is our opinion that the members of a board of fire commissioners are "municipal officers who . . . fix their own compensation," within the meaning of H.J.R. No. 13.

            (3)Port district commissioners:

            Here, we have a somewhat different situation.  RCW 53.12.250 first classifies the various port districts into three categories, dependent upon population, as follows:

            (Category 1): Districts having a population of less than 100,000 persons, but at least 1,000 persons;

            (Category 2): Districts having a population of less than 350,000 persons, but at least 100,000 persons; and

            (Category 3): Districts having a population of 350,000 persons or more.

             [[Orig. Op. Page 7]]

            In each case, the port commissioners may initially provide, by resolution, for the amount of per diem compensation, or salary, which they shall be paid, within statutorily established maximum limits namely, not more than twenty-five dollars per day, in the case of category (1) districts; not more than three thousand six hundred dollars per year in the case of category (2) districts; and not more than five thousand dollars per year in the case of category (3) districts.  However, the statute then expressly provides (likewise, in each instance) that the question of per diem compensation or salary for the commissioners,

            ". . . must be submitted for approval to the electors, at the next succeeding general election. . . ."

            and further, that:

            ". . . The proposition shall be clearly stated on the ballot and in such a manner as to permit a vote for or against it.  If a majority of the votes cast on the proposition favor it, thereafter the commissioners shall receive such per diem [or salary, as the case may be] . . ."

            Thus, in substance, the commissioners of a port district are merely empowered to propose increases in their per diem compensation or salary.  However, they are not entitled to receive any proposed increases until after a majority of the voters voting on the proposition cast votes in favor of it.  Furthermore, the only action which can be taken by the commissioners in the event that the proposition is not approved by the voters is to thereafter resubmit the proposition.  In other words, the commissioners have no power, analogous to that of the legislature in relation to the governor, to "override" the people's veto.

            Because of this unique feature of RCW 53.12.250, supra, we are persuaded that the commissioners of a port district are not "municipal officers who . . . fix their own compensation," within the meaning of H.J.R. No. 13.  Therefore, under the constitutional amendment, these commissioners (with the approval of their voters as provided for in the statute) may now be granted mid-term compensation increases.

            In thus concluding, we have not overlooked the final sentence of RCW 53.12.250, itself which reads:

             [[Orig. Op. Page 8]]

            "Any resolution adopted under the provisions of this section relating to per diem or salaries of commissioners shall not increase or diminish the compensation of any commissioner for the remainder of his term of office."

            However, as we indicated in AGO 1968 No. 36, supra, the constitutional amendment contained in H.J.R. No. 13 does not merely repeal or qualify the several sections of the state constitution which are set forth in the second paragraph of the amendment, and which previously barred mid-term pay increases for all state, county and municipal officers serving fixed terms.  In addition, we said, the constitutional amendment has the affirmative aspect of granting to all persons holding elective and appointive state, county and municipal office ". . . who do not fix their own compensation" a constitutional right to receive, for all official services rendered after the effective date of the amendment, the salary payable under the state law or municipal ordinance in effect when such services are rendered.

            By the same token, the amendment itself contains the requisite grant of authority to the various state and municipal salary fixing bodies to provide for compensation increases effective during the terms of offices of each of these officers ". . . who do not fix their own compensation."  Thus, we said in this prior opinion, the constitutional amendment takes precedence over any existing municipal charter provisions or statutes which are inconsistent therewith e.g., RCW 35.23.220 (pertaining to second class cities), RCW 35.24.090 (third class cities), and RCW 35.27.130 (fourth class cities).  Based upon this reasoning, we may now add the concluding paragraph of RCW 53.12.250,supra, to this list of statutes which must give way to the constitutional right which was granted to all qualified state, county and municipal officers by the constitutional amendment.

            (4)County commissioners:

            Article XI, § 8 of our state constitution provides that:

            "The legislature shall fix the compensation by salaries of all county officers, . . ."

            In the case of county commissioners, these salaries are presently such as were provided for by the 1967 legislature through  [[Orig. Op. Page 9]] its enactment of § 2, chapter 77, Laws of 1967 (RCW 36.17.020).  Therefore, in so far as their statutory salaries are concerned, county commissioners are not "officers who . . . fix their own compensation."