CONSTITUTIONALITY OF A CITY ORDINANCE AUTHORIZING VACATIONS FOR EMPLOYEES

CONSTITUTIONALITY OF A CITY ORDINANCE AUTHORIZING VACATIONS FOR EMPLOYEES.

A city ordinance providing that a vacation is part of the compensation of an employee and that the employee may collect vacation pay upon termination of employment is constitutional.

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                                                                    June 6, 1951

Honorable Cliff Yelle
State Auditor
Olympia, Washington                                                                                                         Cite as:  AGO 51-53 No. 60

Attention:  Mr. A. E. Hankins

Dear Sir:

            On March 22, 1951, you wrote this office as follows:

            "We are enclosing copy of an ordinance enacted by the Town of Elma.  Section 4 of this ordinance is, in effect, a provision that an employee may be paid for his accrued vacation time after severance of services.

            "We would appreciate an opinion as to the authority and legality of the enactment of such a provision by a city or town.

            "In connection with this request, we would like to point out the Supreme Court caseBonsall vs. Case, 172 Wash. 243; also, Everett vs. Johnson, page 473 of the Advance Sheets of Washington Decisions, Volume 137, No. 17, dated December 13, 1950, and in addition, Article 2, Section 25 of the State Constitution."

             [[Orig. Op. Page 2]]

            Section 4 of the ordinance in question reads:

            "That the permanent employees shall receive as a part of their compensation a vacation period of one working week with pay at regular wage for each six months of service.  That said vacation period cannot be accumulated for more than two working weeks; and that the vacation is to be taken at a time agreeable to the Mayor.  That said vacation period shall be a right of the employees and in any event that the employee ceases to work for the Town, he shall be credited with the vacation period earned.  That in the above computation, only a full six months period shall be figured."

            We are of the opinion that section 4 is constitutional.

                                                                     ANALYSIS

            Section 25, Article II, Washington Constitution, reads in part as follows:

            "The legislature shall never grant any extra compensation to any public officer, agent, servant, or contractor after the services shall have been rendered or the contract entered into, * * *" (Emphasis supplied)

            Also in point is the 7th section of Article VIII of the Washington Constitution:

            "No county, city, town, or other municipal corporation shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, association, company, or corporation, * * *"

            Upon first impression, section 25, supra, appears to merely restrict the powers of the legislature.  However, it has not been accordingly construed.  In the case ofState ex rel. Eshelman v. Cheetham, 21 Wash. 437, 58 Pac. 771, the court held that section 25, supra, prohibited the granting of extra compensation to senate employees subsequent to the rendition of services.  The court, inBonsall vs. Case, supra, relying upon the Eshelman decision,  [[Orig. Op. Page 3]] refused to sanction the granting of retroactive compensation to a former deputy state auditor.  The case ofChristie v. The Port of Olympia, 27 Wn. (2d) 535; 179 P. (2d) 294, involved a municipal corporation and the granting of back pay to employees.  It was held that section 25, supra, did not apply, as the facts showed there was no "extra compensation" involved.  It would seem, however, that this case is possible authority that section 25,supra, is applicable to a municipal corporation in the proper case.  The recognized rule is that a municipal corporation can enjoy no authority not possessed by the legislature.  37 Am.Jur., Municipal Corporations, section 116.  See also, the excellent discussion on an analogous point in Everett vs. Johnson, supra.  In line with former opinions issued by this office, we conclude section 25,supra, is a constitutional limitation placed upon the powers of municipalities, agencies and subdivisions of the state, as well as the legislature.

            You have cited to usState ex rel. Bonsall vs. Case, 172 Wash. 243; 19 P. (2d) 927.  The facts in this case show one Bonsall to have been a deputy state auditor.  Section 133, chapter 7, Laws of 1921, p. 67, authorizes the granting of a yearly fourteen days' vacation with full pay to state employees.  Bonsall ceased working for the state auditor January 11, 1933.  As he had not taken his leave of absence within the past year, he applied for his vacation pay January 10, 1933.  The State Treasurer refused to honor the warrant issued by the Auditor in satisfaction of the claim.  In the suit that followed the court sided with the Treasurer and held there was no statutory authority allowing vacation pay to a former state employee.  On page 245 of the opinion appears:

            "The statute, by its express language, would appear to contemplate that the one receiving a vacation on pay must be a subordinate officer or employee at the time the vacation was taken."

            As Bonsall was no longer an employee of the state, no moneys could be granted to him without violating section 25, supra.

            We do not feel that the Bonsall decision, supra, is applicable to the problem at hand.  The state vacation statute, section 133, chapter 7,supra, did not provide that the vacation, or pay therefor, was to be part of the employee's regular compensation.  Section 4 of the Elma Ordinance provides that the employees "shall receive as part of their compensation a vacation," and that the "vacation period shall be a right of the employees."  (Emphasis supplied)

            Nor isEverett v. Johnson, supra, decisive.  This decision is based upon the latter part of section 25, supra, which reads:

             [[Orig. Op. Page 4]]

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

            The court specifically found Johnson to be a public officer.  Under the constitution he could receive no increase in salary during his term of office.  The problem confronting us is the constitutionality of an ordinance authorizing payment of vacation compensation to a former employee, the emolument having accruedbefore the termination of the employment.  This opinion is accordingly restricted.

            Christie v. Port of Olympia, supra, while distinguishable on its peculiar facts, is helpful herein.  In this case, longshoremen along the Pacific Coast were demanding higher wages and threatening to strike therefor.  The port district promised the employees' union that if the workers would remain on the job, they would be paid at a wage rate subsequently to be determined by the war labor board.  The board fixed a retroactive wage scale.  Our court held that the employees were entitled to this back pay and that to so compensate them would not violate either Article VIII, section 7, nor Article II, section 25, of the State Constitution.  On pages 543 and 544 of the opinion the following appears:

            "The respondent [plaintiff] contends that payments made by a port commission in accordance with such a contract would be a gift of public moneys, in violation of Art. VIII, § 7, of the state constitution, * * *"

            "It is further contended that, at all events, the making of the payments provided in the alleged contract would be a literal violation of Art. II, § 25, of the state constitution, * * *"

            "We think there is no merit in these contentions.  The payments contemplated are neither gifts nor 'extra compensation.'  Assuming for the present that the contract was legally made, the payments represent compensation which accrued in strict pursuance to a contract made before the work was done.  * * *" (Emphasis supplied)

             [[Orig. Op. Page 5]]

            Section 4 of the Elma Ordinance should merely be treated as granting pay raises to the employees of the city.  Nothing indicates that these additional emoluments are to be retroactive.  Hence, though the ordinance allows compensation for accrued vacation time to an individual whose employment has ceased, it does not amount to the granting of a gift or extra compensation.  As said in theChristie case, supra:

            "* * * the payments represent compensation which accrued in strict pursuance to a contract [ordinance here] made before the work was done. * * *"

            We, therefore, conclude that section 4 of the ordinance is constitutional.

Very truly yours,

SMITH TROY
Attorney General

ROBERT A. COMFORT
Assistant Attorney General