COUNTIES ‑- CITIES AND TOWNS ‑- MUNICIPAL CORPORATIONS ‑- FORMATION OF CITY-COUNTY

COUNTIES ‑- CITIES AND TOWNS ‑- MUNICIPAL CORPORATIONS ‑- FORMATION OF CITY-COUNTY

Retention or dissolution of existing municipal corporations upon formation of a city-county under Article XI, § 16 (Amendment 58) of state constitution; conditions applicable for the election of freeholders to frame a city-county charter; retention or nonretention of certain county elected officials; assumption of existing intergovernmental contracts by a newly formed city-county; ability of a city-county to make contracts under the interlocal cooperation act; power of a city-county to impose an income tax; eligibility of a city-county for state funds which are statutorily distributable to counties or cities; legality of a city-county two year zoning moratorium; retirement coverage for employees of a newly formed city-county.

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                                                                 January 31, 1975

Honorable James E. Carty
Prosecuting Attorney
Clark County
301 Court House
Vancouver, Washington

                                                                                                                   Cite as:  AGO 1975 No. 2

Dear Sir:

            By letter previously acknowledged you have requested our opinion on a number of questions pertaining to county-city consolidation under Article XI, § 16 (Amendment 58) of the state constitution, the full text of which you will find attached hereto as an appendix to this opinion.  We will set forth your questions within the body of this response, reordered for ease of discussion, along with the language of the constitution which is particularly relevant to each question.

                                                                     ANALYSIS

            Article XI, § 16 (Amendment 58) of the constitution, as approved by the voters at the 1972 state general election, provides for the formation of a combined  [[Orig. Op. Page 2]] city-county municipal corporation in any county, regardless of population, upon approval of a "home rule" charter so providing by a majority of the voters of the county voting on that proposition.  The resulting governmental body, to be known as a "city-county," will, however, still be "subject to the constitution and laws of this state" in essentially the same manner as is a charter city under Article XI, § 10 (Amendment 40) of the constitution or a charter county under Article XI, § 4 (Amendment 21).  In the words of our state supreme court in Winkenwerder v. Yakima, 52 Wn.2d 617, 328 P.2d 873 (1958), what this means is that such a combined city-county will possess as broad legislative powers within its jurisdiction as the state, subject only to the limitation that its ". . . action cannot contravene any constitutional provision or any legislative enactment."

            Question (1):

            First you have asked:

            In a city-county consolidation could the charter be written in such a manner that all municipal corporations remain in existence and retain all their present jurisdiction?

            Answer:

            Where an existing eligible city elects to frame its own charter under Article XI, § 10 (Amendment 40), or a county does so under Article XI, § 4 (Amendment 21), that action will have no effect upon the status of other municipal corporations located within the boundaries of such city or county.  In the case of a combined "city-county," however, a different possible result is contemplated.  As stated in the fourth paragraph of Article XI, § 16 (Amendment 58),

            "Municipal corporations may be retained or otherwise provided for within the city-county.  The formation, powers and duties of such municipal corporations shall be prescribed by the charter."

            On the basis of this express language we answer your initial question, as it is literally worded, in the affirmative.  Logically, however, a city-county charter would at least provide for a merger of the county itself and one or more of its cities ‑ for that, presumably, would be the underlying  [[Orig. Op. Page 3]] purpose for the charter's adoption.  Otherwise, the proper course of action would simply be the adoption of a county charter under Article XI, § 4 (Amendment 21) instead.  Thus, as a practical matter, the question of whether to retain or otherwise provide for existing municipal corporations will most likely only involve an exercise of discretion with respect to (a) the decision as to whether or not to absorb all cities, or only some, into the new governmental entity and (b) the fate of the various other categories of special purpose taxing districts existing within a city-county at the time of its formation.

            Question (2):

            Next you have asked:

            If there is a city-county consolidation, what happens to special districts such as public utility, sewer, water, health, drainage, diking, fire, schools, library, port, etc.?  Is it possible for these districts to be consolidated under one governmental body under the charter?  Or would statutory dissolutionment procedures be required in order for a consolidated city-county to take over the functions of special districts?

            Answer:

            The answer to this question is also largely to be found in the fourth paragraph of Amendment 58, as quoted above.  As an alternative to retaining such lesser municipal corporations, they may be "otherwise provided for" in the city-county charter.

            If the charter is silent on the subject, then the result, presumably, will be their retention ‑ subject to all existing laws respecting their powers and duties and the means for their dissolution.  But if the charter expressly provides for their elimination, with an absorption of their functions, properties, etc., by the new "city-county," the result will be their dissolution by operation of the charter itself.

            At least this will be the case with respect to everything except school districts.  As to the latter, however, Article IX, § 2 of the constitution continues to provide that:

             [[Orig. Op. Page 4]]

            "Thelegislature shall provide for a general and uniform system of public schools. . . ."  (Emphasis supplied.)

            Thus, if the legislature were to mandate the continued operation of school districts even within a combined "city-county," that action would seemingly have the effect of overriding any charter provision to the contrary ‑ assuming compliance by the legislature with the second paragraph of Amendment 58, which provides that:

            "No legislative enactment which is a prohibition or restriction shall apply to the rights, powers and privileges of a city-county unless such prohibition or restriction shall apply equally to every other city, county, and city-county."

            Question (3):

            Next to be considered is your related question as to what happens to an incorporated city which does not want to be included in the city-county consolidation; in other words, if a majority of its voters do not approve of the city-county consolidation.

            Answer:

            With respect to the establishment of a "city-county" as a municipal corporation, Amendment 58 provides that:

            ". . .  No such 'city-county' shall be formed except by a majority vote of the qualified electors voting thereon in the county. . . ."

            No distinction is thus drawn between those electors who reside in the various cities and town in the county and those who reside in unincorporated areas.  All are entitled to vote, and if a majority approve, the city-county is formed.  Accordingly, it follows that the formation of a city-county is not predicated upon the separate majority votes of the voters of incorporated cities or towns participating in the election.

            Because of this, we would further conclude that the proposed charter may not provide for its adoption only upon  [[Orig. Op. Page 5]] an affirmative vote of the participating electors in each of the existing jurisdictions, for such a condition would constitute an impermissible qualification of the language of the amendment.  Conceivably it could, however, specify that any cities in which the voters fail to approve of the charter would be retained instead of being absorbed into the city-county structure.

            Question (4):

            This question also relates to an election issue, and asks:

            Is a petition of ten percent of the voters who voted in the last general election a necessary prerequisite for a freeholders election?

            Answer:

            As you will note, the second sentence of Amendment 58 provides that:

            ". . .  Registered voters equal in number to ten (10) per cent of the voters of any such county voting at the last preceding general election may at any time propose by a petition the calling of an election of freeholders. . . ."

            In our opinion this procedure constitutes the exclusive method of calling an election of freeholders to frame a combined "city-county" charter, and on that basis, we answer your question in the affirmative.

            We have, in so concluding, not overlooked a further provision of Amendment 58 which states that

            ". . .  Except as otherwise provided in this section, the provisions of section 4 applicable to a county home rule charter shall apply to a city-county charter. . . ."

            Arguably, this language might be said to invoke so much of Article XI, § 4 as provides, as an alternative to the petition method for calling an election of freeholders, that for the purpose of framing a "home rule" county charter,

             [[Orig. Op. Page 6]]

            ". . . the legislative authority of such county may cause an election to be had, at which election there shall be chosen by the qualified voters of said county not less than fifteen (15) nor more than twenty-five (25) freeholders thereof, as determined by the legislative authority, who shall have been residents of said county for a period of at least five (5) years preceding their election and who are themselves qualified electors, whose duty it shall be to convene within thirty (30) days after their election and prepare and propose a charter for such county. . . ."

            From this it might then be postulated that Amendment 58, also contemplates the use of this alternative method for calling an election of freeholders to frame a combined "city-county" charter.  To so conclude, however, would seem to us to involve a broad if not loose interpretation of the term "charter," allowing it to incorporate electoral and other procedures for its initial adoption.  Moreover, this approach also disregards the language in Amendment 58 which immediately precedes that last quoted above and states that:

            ". . .  The provisions of section 4 of this Article with respect to a petition calling for an election of freeholders to frame a county home rule charter, the election of freeholders, and the framing and adoption of a county home rule charter pursuant to such petition shall apply to a petition proposed under this section for the election of freeholders to frame a city-county charter, the election of freeholders, and to the framing and adoption of such city-county charter pursuant to such petition. . . ."

            This passage, also incorporating § 4 by reference, carefully lists the precharter procedural matters which are to be governed by that section.  They include those relating to a petition calling for an election of freeholders, but not those relating to the calling of such an  [[Orig. Op. Page 7]] election by action of the legislature authority of the county.1/

             Finally, our conclusion that Amendment 58 allows an election of freeholders only by petition of an requisite number of registered voters is supported by reference to the legislative history of the amendment during its initial passage through the 1971 legislature in the form of HJR No. 21.  Prior to the vote in the Senate on amendments to the original proposal with which the House subsequently concurred, the following exchange occurred:2/

            "Senator Guess:  'Then will you describe to the body how the charter is proposed?' "Senator Whatzel:  'Yes.  There is only one method and that is the method that is set forth in this constitutional provision.  Registered voters in the county equal to ten  [[Orig. Op. Page 8]] percent at the last general election must sign a petition to the county legislative authority calling for an election of freeholders.  At that time the county legislative authority sets an election of freeholders, following the same procedures that are in the Constitution for a county charter.  The freeholders then frame a charter which is like a constitution or a governing document for the combined municipality.  This then goes back and is submitted to all the voters in the county to accept or reject.'"

            Question (5):

            This question involves the governmental structure of a combined city-county, and asks:

            Would any elected officials be required besides the members of the legislative body?  Apparently there is some authority for the proposition that the office of the prosecuting attorney be retained:  Could the city-county charter abridge any of the provisions of chapter 36.27 RCW with respect to a prosecuting attorney?

            Answer:

            The pertinent language of Amendment 58 with respect to this question appears in its first paragraph, as follows:

            ". . .  The charter shall designate the respective officers of such city-county who shall perform the duties imposed by law upon county officers. . . ."

            Thus, at one end of the spectrum the charter could provide for a continuation of some or all existing elective county officers ‑ while at the other it could eliminate them all and substitute an entirely new governmental structure under which only the members of the legislative body would be required to be elected.3/

             [[Orig. Op. Page 9]]

            Because the prosecuting attorney is one of those county officers thus referred to, it thus readily follows that his office could be abolished by a city-county charter framed thereunder.  Accord, the third paragraph of Amendment 58, which expressly declares the provisions of Article XI, § 5, relating to county officers, to be inapplicable to a city-county.

            In this regard, notably, Amendment 58 is to be contrasted with Article XI, § 4 (Amendment 21),supra, involving the establishment of charter counties, which states, in its next to last paragraph, that:

            ". . .  All the powers, authority and duties granted to and imposed on county officers by general law,except the prosecuting attorney, the county superintendent of schools, the judges of the superior court and the justices of the peace, shall be vested in the legislative authority of the county unless expressly vested in specific officers by the charter. . . ."  (Emphasis supplied.)

            It is this provision, dealing with a different subject, which, presumably, has led to your confusion as to the potential effect upon the office of prosecuting attorney of the establishment of a combined city-county under Amendment 58.

            However, it is also to be noted from the language of Amendment 58 which we have last quoted above that whatever officers are designated in a city-county will be required to ". . . perform the duties imposed by law upon county officers . . ."  Therefore, if the office of prosecuting attorney should be abolished by a city-county charter, the charter will then also have to contain some provision with respect to the manner in which the prosecutor's duties ‑ including those involving criminal prosecutions for the state ‑ are henceforth to be performed.4/

             [[Orig. Op. Page 10]]

            Question (6):

            Next you have asked:

            Would all intercounty, intracounty and interstate agreements made by either the county or any city or municipal corporation affected by a city-county charter need to be ratified by the new city-county legislative body?

            Answer:

            This question assumes that at the time of creation of a city-county, the county and the various other municipalities affected by this action are bound, contractually, to certain other governmental entities which, presumably, are not involved in the action and, accordingly, remain in existence.  The issue raised is whether the resulting new municipality, i.e., the city-county, automatically succeeds to the rights and obligations of its predecessors (the effected county and other municipalities) or whether, instead, some act of ratification is necessary.

            Unfortunately, this is a subject upon which the provisions of Amendment 58 are wholly silent.  On the other hand, because they are silent it logically follows that the entire matter could be covered by an implementing statute enacted by our legislature ‑ and most probably, this should be done.  Cf., our answers to questions (7), (9) and (11), below, in which we likewise will be indicating a probable need for legislation in order to make the provisions of Amendment 58 fully workable within the confines of various existing statutes involving such things as the distribution of state funds to cities and counties and the coverage of county or city employees under the various state retirement programs.

            In the absence of any such implementing legislation, however, we can, nevertheless, provide you with certain guidance in connection with this question.  Because the establishment of a city-county results in a termination of the existence of the county and of the other municipalities involved which are not preserved or retained by the charter, the concept is very much analogous to a consolidation of cities or other municipalities.  Ordinarily, in the absence of constitutional or statutory restrictions or similar limitations to the contrary, the courts have consistently held in the case of consolidation that the emerging new municipal corporation will succeed to the contractual rights and  [[Orig. Op. Page 11]] liabilities of its predecessors.  Mount Pleasant v. Beckwith, 100 U.S. 514 (1879); Forsyth v. Seattle, 73 Wash. 515, 132 Pac. 224 (1913); City of Columbia v. J.H. Sanders, Jr., 231 S.C. 61, 97 S.E.2d 210 (1957); Kocsis v. Chicago Park District, 362 Ill. 24, 198 N.E. 847 (1935).

            In addition, and obviously also bearing on this proposition, the courts have generally held that such constitutional provisions as our own Article I, § 23, prohibiting the passage of laws impairing the obligation of contracts, are applicable to intergovernmental contracts as well as those involving private parties.  See, 5 McQuillin, Municipal Corporations, § 19.39 (1969 Rev. Vol.);Tennessee Valley Authority v. Lenoir City, 72 F.Supp. 457 (1947); also,Hoquiam v. Grays Harbor County, 24 Wn.2d 533, 166 P.2d 461 (1946), a case in which our own supreme court appears to have recognized such an application of the rule, sub silentio.

            In applying the foregoing, however, care must be taken to distinguish between the following:

            (1) Those contracts in which a city-county, as such, may lawfully enter into; and

            (2) Any contracts which, although lawful for the predecessor municipality involved, are for some reason not legal for a city-county to enter into.

            While the only example of the latter which immediately occurs to us would be contracts under the provisions of the interlocal cooperation act which is inapplicable to a combined city-county as discussed in our answer to question (7) below, absent a legislative amendment to that act, there could, conceivably be others.  In addition, within this second category of contracts a further distinction may well also be in order ‑ a distinction between contracts which are wholly executory and those which have been performed, in whole or in part, prior to the formation of the successor city-county.

            In the absence of legislation to the contrary ‑ legislation which, itself, would have to be tested against the restraints of Article I, § 23,supra ‑ it seems highly probable to us that a court would hold a city-county to be automatically bound by, and likewise to succeed to the rights  [[Orig. Op. Page 12]] of its predecessor under, all of their preexisting contracts which could, because of their subject matter, lawfully be entered into by a city-county on its own.  Ratification would be neither necessary nor appropriate with respect to such contracts.  Moreover, it seems to us that this would be so irrespective of whether the other party or parties to the contract were nonaffected governmental bodies or private persons.5/

             In the case of contracts which, although lawful in the case of the predecessor municipality, are not legal for the new city-county, a somewhat more difficult question is presented.  But for the requirements of Article I, § 23, supra, we would be inclined to conclude that a city-county would not, automatically or otherwise, become a party to these contracts purely as a consequence of its formation.  But where such a conclusion would result in the violation of this constitutional prohibition against the impairment of contractual obligations, it must, of necessity, be avoided.

            This leads us to conclude that in those instances in which the contract has been fully or partially performed by the other party or parties involved, the resulting obligation upon the part of the predecessor county or other affected municipality will, in some manner, have to be discharged by the new city-county ‑ either through performance under the contract or by means of the payment of monetary restitution in some appropriate form.  On the other hand, where the contract is wholly executory it seems less likely to us that a court would insist upon that result but, instead, would possibly find a way to permit if not ordain recision, at least in the case of intergovernmental contracts such as are involved in your immediate question, even though Article I, § 23,supra, applies.  In the final analysis, however, this is probably something that can only be determined on a case‑by-case basis, with each case being dependent upon its own peculiar facts, unless, as we have heretofore recommended, the whole matter is covered by clarifying legislation.

             [[Orig. Op. Page 13]]

            Again, however, ratification would not be involved, for a contract which a city-county cannot lawfully execute cannot be "ratified" by it.  If the contract is legally binding upon this new municipality, it will have to be officially recognized and performed or otherwise discharged in some appropriate manner ‑ but this should not be referred to as a ratification.

            Question (7):

            Could a consolidated city-county government under the purview of RCW 39.34.020 make contracts as to mass transit, zoning, taxing, etc., with a regional body like CRAG?

            Answer:

            In presenting this question you have advised us that CRAG stands for the Columbia Region Association of Governments, and is composed of more Oregon counties than Washington counties.  The reference in your inquiry to chapter 39.34 RCW is to a law known as the interlocal cooperation act which enables certain local governmental bodies, in concert with each other and with state and federal agencies, to enter into agreements which will enhance the capacity of each to provide necessary services and facilities within their geographic areas.  Thus, the issue which must be explored is that of whether a "city-county" established under Amendment 58 would constitute such a local governmental body.

            In RCW 39.34.020 the term "public agency" identifies those entities permitted to enter into contracts under that act.  This statute contains no express reference to a city-county but, instead, provides that:

            "For the purposes of this chapter, the term 'public agency' shall mean any city, town, county, public utility district, port district, fire protection district, school district, air pollution control authority, Indian tribe recognized as such by the federal government, or metropolitan municipal corporation of this state; any agency of the state government or of the United States; and any political subdivision of another state."

             [[Orig. Op. Page 14]]

            Moreover, it is significant to note that the statute's inclusion of air pollution control authorities is the result of an amendment passed in 1973 ‑after approval of Amendment 58 by the voters in 1972, an action of which the 1973 legislature must be presumed to have been aware.  See,Benn v. Grays Harbor County, 102 Wash. 620, 173 Pac. 632 (1918).  Had the legislature intended that combined city-counties should also be included, it would have been a relatively easy thing for it to have added them as well, but it did not and has not yet done so.  Accordingly, their absence from the extensive list of other governmental bodies set forth in that statute gives rise to a strong inference of intentional omission by the legislature under the canon of construction, expressio unius est exclusio alterius.  Knowles v. Holly, 82 Wn.2d 694, 513 P.2d 18 (1973); Wn. Nat. Gas Co. v. Public Util. Dist., 77 Wn.2d 94, 459 P.2d 633 (1969).

            This, however, does not end our consideration of your question, for the language of Amendment 58 provides, among other things, that:

            ". . .  Every such city-county shall have and enjoy all rights, powers and privileges asserted in its charter, and in addition thereto, such rights, powers and privileges as may be granted to it, or to any city or county or class or classes of cities and counties. . . ."

            From this it might be argued, superficially, that no amendment of RCW 39.34.020,supra, was necessary.  But such an argument, in our opinion, would not be valid because it would, essentially, overlook the necessity for correlative authority on the part of other public agencies, as above defined, to enter into contracts with a "city-county."  Without an express inclusion of such municipalities in the definition of that term, that requisite authority does not exist ‑ irrespective of the authority of a city-county itself.

            Hence, in summary, for the above stated reasons we must answer this question in the negative insofar as any future contracts are concerned ‑ until and unless the legislature again amends RCW 39.34.020, supra, so as expressly to include city-counties.

             [[Orig. Op. Page 15]]

            Question (8):

            Next you have asked:

            May a consolidated city-county impose an income tax?

            Answer:

            This question arises by reason of so much of the final paragraph of Amendment 58 as provides that:

            "The authority conferred on the city-county government shall not be restricted by the second sentence of Article 7, section 1, or by Article 8, section 6 of this Constitution."

            That sentence in turn, contains the so-called "uniformity" clause6/ which has caused our court, in past, to invalidate various legislative efforts to establish agraduated net income tax in this state.  See, Culliton v. Chase, 174 Wash. 363, 25 P.2d 81 (1933); Jensen v. Henneford, 185 Wash. 209, 53 P.2d 607 (1936); andPower, Inc. v. Huntley, 39 Wn.2d 191, 235 P.2d 173 (1951), all holding that income is a form of property for the purposes of our constitutional limitations upon property taxation.  With the elimination of this clause of Article VII, § 1 in the case of city-counties formed under Amendment 58, it thus follows that such governmental bodies, in the exercise of their legislative authority, could provide for a city-county graduated net income tax.

            In so advising you, however, we should hasten to add that this possibility is far more theoretical than practical.  Even though not subject to the uniformity clause of Article VII, § 1, any such tax would be subject to the one percent rate limitation (without voter approval) of Article VII, § 2 (Amendment 55) since this constitutional limitation upon property taxation, unlike the "uniformity" clause has not been rendered inapplicable to charter city-counties by the terms of the provision of the constitution under which they are authorized to be formed.

             [[Orig. Op. Page 16]]

            Question (9):

            This inquiry, along with certain preliminary remarks included in your letter, reads as follows:

            "It is my understanding that the cities receive money from the State of Washington on a per capita basis.  The per capita basis for the cities is updated annually.  The update for the county takes place once every ten years.  (a)  Would a combined City-County receive funds from the State of Washington at the highest city rate or receive funds from the lower county rate? (b) Could the combined City-County decide to receive one type at the higher city rate then shift to a county rate if that exceeds the city rate?  (c)  Would a combined City-County government be qualified to have the annual update of the population as allowed the cities presently?"

            Answer:

            We begin our response to this set of questions by reviewing the statutory basis for population determinations when such data is relevant to the distribution of state funds to cities and counties.

            Insofar as cities are concerned, chapter 43.62 RCW provides forannual population determinations, for fund distribution purposes, by the state planning and community affairs agency.  However, by virtue of RCW 43.41.050 and RCW 43.41.110(7), this function is now performed by the office of program planning and fiscal management (OPP&FM).

            The comparable provision for counties is found in RCW 36.13.100 which provides, in pertinent part, as follows:

            "Whenever any funds are allocated to counties on the basis of population, the population of the respective counties shall be determined by the most recent census, estimate or survey by the federal bureau of census or any state board or commission authorized to make such a census, estimate or survey. . . ."

             [[Orig. Op. Page 17]]

            An examination of the provisions of chapter 43.62 RCW, however, reveals no express authorization therein for the conduct of any census, estimate or survey with respect tocounties comparable to those conducted thereunder for cities and towns.7/   The absence of such provisions is to be contrasted with specific requirements found in RCW 43.62.030 for population determinations in case of incorporation of cities or towns or in instances of annexation of territory by a city or town in accordance with the provisions of RCW 35.13.260.

            We next move to a consideration of certain language in Amendment 58 to determine whether a method is prescribed for extending the operation of existing statutes regarding fund distribution to cities and counties to the combined city-county form of government therein provided for.  Your question impliedly makes reference to that portion of the amendment, also considered in question (7),supra, which provides that:

            ". . .  Every such city-county shall have and enjoy . . . such rights, powers and privileges as may be granted to it, or to any city or county or class or classes of cities and counties.  In the event of a conflict in the constitutional provisions applying to cities and those applying to counties or of a conflict in the general laws applying to cities and those applying to counties, a city-county shall be authorized to exercise any powers that are granted to either the cities or the counties."

            While there is unquestionably a conflict between the statutory provisions for allocation of state funds to counties as opposed to towns and cities, the foregoing language of the constitution speaks in terms of a conflict inpowers capable of being exercised by either a county on the one hand or a city on the other.  A review of the provisions of chapter 36.13 RCW and chapter 43.62 RCW indicates that the process of population determination, if not altogether a self-executing arrangement, is, nevertheless, a combined reference to actions by federal and state agencies and not to the function of powers of a city or county.  Thus, once again, RCW 36.13.100  [[Orig. Op. Page 18]] provides, in pertinent part:

            ". . . the population of the respective counties shall be determined by the most recent census, estimate or survey by the federal bureau of census or any state board or commission authorized to make such a census, estimate or survey. . . ."

            And with respect to cities and towns, RCW 43.62.020 states that:

            ". . . all . . . allocations shall be made on the basis of the population of the respective cities and towns as last determined by the state census board: . . ."

            From the foregoing we conclude that the above quoted language of Amendment 58 will not permit a city-county to choose between methods of allocation available to counties, on the one hand, or cities on the other.  And from our previous analysis of the statutes dealing with determinations of population, we see that even if a city-county could justifiably characterize itself as a municipality for purposes of sharing in the allocation of state funds, there is no provision under present law for determination of its population.

            In addition, there is another problem with attempting to resolve your question within the ambit of existing statutes.  Although this is more a policy consideration than a legal one, we find that a random examination of the statutes by which certain funds are allocated to cities and counties raises serious doubt about the desirability of permitting a city-county, under present law, to elect to characterize itself as a county or as a city for purposes of fund allocation.  A single example will suffice.  The provisions of RCW 46.68.110 and 46.68.120 which deal with distributions from the state motor vehicle fund direct that allocations be made to cities on the basis of population, while disbursements to counties are to be made on the basis of a more complex formula in which registered vehicles, "trunk highway mileage" and need are factors.  Unresolved at present under such statutes are questions relating to which formula is more appropriate for a combined city-county and, as noted above, of greater importance,  [[Orig. Op. Page 19]] that of whether a city-county itself should be able to make that determination.

            Moreover, assuming only for purposes of argument that the operation of such existing statutes could be extended to a city-county, continuing problems in administering distributions would exist.  Once a city-county has been brought into existence, the question would arise as to whether there is authorization for continuing annual determinations of population for the geographical area once comprehended by a city, and likewise, whether distributions can be made on the basis of the most recent determination prior to consolidation.8/

             The present statutes, of course, provide no direction.  In the continued absence of clarifying legislation a further problem for resolution would arise at the time for the next decennial census following formation of a city-county municipal corporation.  Geographically, the boundaries of the former county and the new city-county will coincide.  A new census within such confines would represent the census for the city-county.  Thus, there would seemingly be no further authorization or justification for utilizing population estimates made prior to incorporation of the city-county for cities and towns within the county boundaries.

            Finally, from the foregoing it will readily be seen that because a statutory mechanism for distribution of state funds to a city-county is presently lacking, the right of such a municipality to participate in allocations for state funds at all is in doubt.  The problem is aggravated, again, by the texts of existing statutes.  Aside from the absence of any express reference to city-county, we find, for example, that in RCW 66.08.200, relating to distributions from the liquor revolving fund, reference is made tounincorporated areas of counties ‑ areas not included within the incorporated limits of cities and towns.  Amendment 58, however, specifically provides for the incorporation of a city-county, thus posing severe if not insurmountable obstacles to reconciliation of the language of the amendment with this statute.

             [[Orig. Op. Page 20]]

            For all of these reasons, we must therefor answer your question by saying, in simplest terms, that the right of a city-county to share in allocations of state funds is highly questionable under present law.  Even if such right is recognized, the existing statutory framework for distribution does not warrant the interpolation that must be made to effect allocations to a city-county.  For these reasons, our ultimate conclusion is that in this area, further legislation is essential if a city-county is to realize the financial benefits that flow from these disbursements of state funds.

            Quite obviously the form which an such legislation might take is primarily a policy question to be decided by the legislature.  If the end result sought, however, is simply a retention of the status quo involving neither a gain nor a loss in state funds as a result of the consolidation, one approach might merely be to enact:

            (1) A statute providing that any city-county formed under the provisions of the state constitution should be deemed entitled, under any statutes providing for the distribution of state funds to local governmental bodies, to receive the combined total amounts which would have been payable to the predecessor county and all other absorbed municipal corporations if the city-county had not been formed; and

            (2) A further statute requiring that the population determinations required to be made for cities under chapter 43.62 RCW be continued with respect to any cities absorbed into a city-county, in accordance with their territorial boundaries at the time of its formation, as if the city-county had not been formed; and also providing that the county involved should continue to be treated as a county for the purposes of any statutes such as RCW 36.13.100,supra, relating to the allocation of funds to counties on the basis of population.

            Question (10):

            This question asks:

            Would it be legal for a city-county charter to provide that all present zoning laws of all affected cities and the county will remain the same for two years after the adoption of the charter?

             [[Orig. Op. Page 21]]

            Answer:

            With the dissolution of the existing county and cities resulting from the formation of a new city-county under Amendment 58, it is axiomatic that the present laws of those municipalities, including their zoning regulations, will cease to exist.  In order for them to survive, in effect, it will be necessary for them to be readopted in some manner by the new governmental entity.

            Your question thus must be considered in two parts:  First, it must be considered from the standpoint of whether this necessary act of readoption can be accomplished within the charter itself rather than as a legislative enactment by the law-making authority of the new city-county following its formation.  And secondly, it must be analyzed from the standpoint of the validity of what, in effect, would constitute a moratorium on any changes in the zoning laws thus adopted for a period of two years.

            In order to resolve the first of these two issues, we must look to the source and nature of the zoning power as it exists under Washington law.  The starting point is found in Article XI, § 11 of the state constitution which provides that:

            "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."

            Since Amendment 58 confers upon a city-county the rights, powers and privileges of cities and counties and of classes of cities and counties, we must next ask whether the limitation imposed by this constitutional provision on the adoption of regulations "not in conflict with general laws" will impliedly confine a city-county to the methods of adoption of zoning ordinances which are prescribed by statute for cities and counties.  See, generally, chapter 35.63 RCW, chapter 35A.63 and chapter 36.70 RCW.  This question, we think, may be readily answered in the negative on the basis ofNelson v. Seattle, 64 Wn.2d 862, 395 P.2d 82 (1964), in which a similar contention was rejected by the state supreme court.  Quoting with approval from its earlier decision inAyers v. Tacoma, 6 Wn.2d 545, 554, 108 P.2d 348 (1940), the court there said:

             [[Orig. Op. Page 22]]

            "It may be stated as a general rule that a state law will not be construed as impliedly taking away from a first-class city an existing power.  In order to accomplish that result, the state statute must be clear and unambiguous.  A seeming conflict must be harmonized, if possible. . . ."

            Similarly, the argument that the statutory sections cited above impliedly foreclose the inclusion of zoning provisions in the charter itself is confronted by the fact that Amendment 58 expressly provides for a "home rule" charter and makes further reference to the provisions of Article XI, § 4.  In so doing, the amendment confers the range of legislative powers on a city-county which are recognized in a county operating under a home rule charter.  The nature of this authority within the territorial jurisdiction of the city-county is that possessed by the state legislature itself ‑ qualified only by restrictions imposed unambiguously by the legislature or by the constitution.  Accord, our opinion of October 7, 1971 [[to Christopher T. Bayley an Informal Opinion AIR-71618]], to the King county prosecuting attorney,supra.

            Having thus concluded that the zoning regulations of a city-county may be provided for by its charter ‑ and thus, that the present zoning laws of the existing county and such cities as are affected by its formation may be continued in effect by such a charter, we next must turn to the question of a moratorium on further zoning in the city-county area for a period of two years.

            The authority of any municipality to enact zoning ordinances is, like any exercise of the police power, subject to the due process and equal protection clauses of the state and federal constitutions.  Peterson v. Hagan, 56 Wn.2d 48, 351 P.2d 127 (1960).  The incorporation of temporary zoning regulations into the basic organizational document of a local government (i.e., its charter) will not, of itself, insulate those regulations from constitutional question.  However, the circumstances surrounding the governmental reorganization may augment the defense against such an attack.

            In this regard, we must assume the existence of a rational basis for the two year moratorium.  Were such a restraint against zoning changes to be of indefinite duration or if a case could not be articulated for even a limited term  [[Orig. Op. Page 23]] restraint of this nature, then such a provision would be immediately vulnerable to attack on the general grounds that it bore no sufficient relation to the public health, safety, morals or general welfare; or, under appropriate factual circumstances, to the more specific charge that portions of the zoning law constituted spot zoning or were otherwise arbitrary and capricious.

            We surmise, however, that the proposal contemplated by your question is prompted by those considerations which attend the type of transition in government represented by a city-county consolidation.  In such a case there may be a need for a moratorium to provide time for development of a comprehensive new zoning code for the entire city-county area while at the same time also insuring tentative stability in existing patterns of land use and development.  Thus, some interim measures such as would result from this approach contemplated by your question are arguably preferable to the removal of all land-use controls which would otherwise follow the dissolution of existing local governments upon formation of a new city-county municipal corporation.

            The continuation of existing zoning regulations and the reasons that might be advanced in support of such action find a parallel in situations which have led to enactments of interim zoning ordinances.  Such regulations provide a useful context in which to consider both substantive and procedural issues of a constitutional nature that might be raised by a zoning moratorium.

            In this state, interim ordinances have received express legislative recognition as tools for efficient land-use planning at the local governmental level.  See, RCW 36.70.790.  Thus, a proposal to maintain existing zoning as a temporary and transitional measure should constitute a legitimate exercise of the police power of a city-county, unless it contravenes some constitutional restriction.  Generally, the courts will refuse to interfere with zoning decisions as an exercise of the police power in the absence of a manifest abuse of discretion where the validity of the zoning classification is "fairly debatable."  State ex rel. Myhre v. Spokane, 70 Wn.2d 207, 422 P.2d 790 (1967);Sharninghouse v. Bellingham, 4 Wn.App. 198, 480 P.2d 233 (1971).  The same attitude has been expressed toward enactments of the type described in your question.  State ex rel. Randall v. Snohomish Cy., 79 Wn.2d 619, 488 P.2d 511 (1971).

             [[Orig. Op. Page 24]]

            Interim zoning ordinances have generally been upheld as valid exercises of the police power, although there is authority to the contrary.  See, generally, 30 A.L.R.3rd 1196.9/   Where such provisions have been overturned, the reasons in many cases have been inherent limitations on the adoption by local authorities of such measures.  Kline v. Harrisburg, et al., 362 Pa. 438, 68 A.2d 182 (1949); Morris v. Roseman, 162 O.S. 447, 123 N.E.2d 419 (1954);Phillips Petroleum Co. v. City of Park Ridge, 16 Ill.App.2d 555, 149 N.E.2d 344 (1958).  Wher time limitations have been definite and reasonable in length, the ordinances have been sustained.  See, e.g.,Walworth County v. Elkhorn, 27 Wis.2d 30, 133 N.W.2d 257 (1965) (two years).

            While the ultimate validity of a particular measure will depend on the reasonableness of its application ‑ measured by the facts and circumstances surrounding the ordinance's operation ‑ a temporary moratorium on zoning changes appears consistent with the objectives of city-county consolidation; i.e., the promotion of more efficient government in all of its concerns, of which comprehensive land-use planning would be one.  Further support for such interim steps toward a fully integrated plan within the city-county boundaries can be drawn from those cases which require an accommodation of regional as well as local considerations in zoning regulations.  See, e.g.,Nat. Land & Inv. Co. v. Easttown TWP Bd. of A., 419 Pa. 504, 215 A.2d 597 (1965).

            The manner in which an interim ordinance is adopted is also a relevant consideration.  Despite the conclusion in the earlier part of our discussion that existing statutes do not, for purposes of the charter, govern the method of enacting the ordinance, the process may be subject to application of procedural due process concepts.  Some interim zoning ordinances have been invalidated on procedural grounds for failure to provide adequate notice and opportunity for hearing prior to adoption.  Krajenke Buick Sales  [[Orig. Op. Page 25]] v. City Engr., 322 Mich. 250, 33 N.W.2d 781 (1948);Lancaster Development, Ltd. v. River Forest, 84 Ill.App.2d 395, 228 N.E.2d 526 (1967); Mtr. of Lo Conti v. City of Utica, 52 Misc.2d 815, 276 N.Y.S.2d 720 (1966).

            Several arguments might be mustered in support of the process of limited zoning by charter. The existing ordinances which are to be continued presumably have themselves been enacted after notice and opportunity for hearing in accordance with applicable statute or ordinance.  Moreover, procedures for preliminary consideration of the charter may provide an opportunity for adequate hearing with respect to its zoning provisions.  Substantive considerations may influence the resolution of the procedural issue.  The interest of providing more certainty about transitional land-use control as the charter is brought before the voters for adoption may be thrown into the balance with that of the individual landowners seeking a full hearing prior to enactment.  An aggrieved person seeking a change in zoning who is afforded an early opportunity after city-county consolidation to comment on a proposed comprehensive plan for the area may find his due process argument less persuasive than if offered by his counterpart contesting the enactment of an interim ordinance without a hearing in the more customary setting of local government action.  Finally, the opportunity given to a party dissatisfied with the proposed moratorium to lobby against its adoption in the election process may be deemed at least in part an alternative forum for realizing procedural equity.  In concert or in some combination, these considerations would tend to rebut the due process objections to zoning action by charter.

            On balance, procedural and not substantive issues may constitute the more respectable challenge to a zoning moratorium.  Arguably, the legislative enactment of an interim regulation of this nature after the adoption of the charter, with the usual notice and opportunity for hearing, might eliminate those challenges on procedural grounds arising out of charter action.  However, we have assumed there may be practical reasons for a preference for a charter provision over a subsequently adopted ordinance and have accordingly addressed ourselves to the precise question you have submitted.

            Accordingly, subject to the foregoing qualifications, our ultimate answer to this question is in the affirmative.

             [[Orig. Op. Page 26]]

            Question (11):

            The final question to be considered in this opinion, is as follows:

            How do retirement programs in the city or the county, or other similar employee‑benefit programs become integrated in the event of city-county consolidation?  In addition, would the consolidated city-county be able to avail itself of programs which would be available to either the city or county as such as the public employees' retirement system (PERS)?

            Answer:

           The first issue to be explored in responding to this question is whether or not it will be necessary for a new city-county to distinguish between the following two categories of employees:

            (1) Persons employed by the county or by the cities or other municipal corporations affected by the consolidation at the time of formation of the new city-county; and

            (2) persons newly employed by the city-county after its formation.

            At first blush it might appear that such a distinction would be necessary because of the line of state supreme court cases in which it has been held that public employees in this state have a constitutionally protected "vested" right,10/ subject to certain limited qualifications, to receive the pension benefits provided for by the pension laws governing them at the commencement of their employment under a particular pension system.  See,Backenhus v. Seattle, 48 Wn.2d 695, 296 P.2d 536 (1956), and cases cited therein. However, this right is conditioned, among other things, upon a continuation in an employment status entitling the particular individual to coverage under the pension system involved.  In order to earn the pension the employee must remain in covered employment and fulfill the conditions with respect to age and service which are required to be met by the law before the pension can be paid; and the pension law gives him no right to a job but merely to a pension.

             [[Orig. Op. Page 27]]

            Therefore if a person ceases to be an employee of an employer under a given pension program he ceases to be an active member of that system and has, in any event, no right to require some other public agency by which he is later employed to pick up and continue his earlier pension coverage unless, of course, the new employer is also participating as an employer in the same pension system.

            For example, if a person presently employed by Clark county in a non-law enforcement or fire fighting capacity, and hence having membership in the public employees' retirement system (PERS) under RCW 41.40.410 (relating to the optional participation in this system by political subdivisions) were to terminate that employment status and take a job with one of the cities in your county which is not currently covered under PERS, he would have no right to require his new employer to cover him by entering this pension system.  But if, on the other hand, he were to transfer his employment to a city whichis an employer under the PERS program he would have such a right.

            This leads us, again, to a recognition of the point that when a city-county is formed, the result is a new municipality.  The old county and the old city or cities or other municipal corporations affected simply cease to exist.11/   Therefore, even if some of the employees of these previous municipalities are "retained" by the new city-county, they will have effectively transferred employment from one employer to another.

            From this it follows, then, that under the line of reasoning set forth above, the pension coverage rights of those employees who are thus employed by the city-county will be no different than are the rights of other employees of the new municipality who had no prior pension coverage by reason of their prior employment status.  We may, therefore, consider both of these two categories of employees together in answering your question.

            Nevertheless, having so resolved this initial issue it will still be necessary for us to categorize the employees of a city-county in order to determine their pension status.  In some cases, because of the terms of the state pension laws involved, the city-county may be requiredby statute  [[Orig. Op. Page 28]] to cover certain of its eligible employees in a particular pension system.  Thus, if the various school districts in your county are absorbed into a city-county, rather than being retained as separate municipalities, the certificated teachers regularly employed by those districts will, statutorily, be required to be covered by the state teachers' retirement act, chapter 41.32 RCW.  See, RCW 41.32.010(30), defining the word "teacher" to mean,

            ". . . any person qualified to teach who is engaged by a public school in an instructional, administrative, or supervisory capacity, including state, intermediate school districts, city superintendents and their assistants and certificated employees; . . ."

            The word "public school," in turn, is defined by RCW 41.32.010(23) to mean,

            ". . . any institution or activity operated by the state of Washington or any instrumentality or political subdivision thereof employing teachers, except the University of Washington and Washington State University."

            In our opinion, a city-county would constitute a "political subdivision" for the purposes of this last quoted definition.

            Likewise, the full time, regularly compensated fire fighters of a city-county12/ will be required to be covered under the state law enforcement officers' and fire fighters' retirement system, chapter 41.26 RCW.  On the other hand, it will apparently be necessary for the legislature to amend the provisions of RCW 41.26.030(3) in order to make this also be the result in the case of law enforcement officers employed by a city-county.  At present, this definition  [[Orig. Op. Page 29]] of the term "law enforcement officer" only speaks of persons employed as county sheriffs or deputy sheriffs, city police officers, or town marshals.

            With respect to other employees of a city-county, however, a somewhat greater range of choices will be available to such a municipality in establishing pension coverage.  Most certainly, a city-county will be a form of "political subdivision" for the purposes of RCW 41.40.410 in the same manner as it would be under RCW 41.32.010(23),supra.  Thus, as to those of its full time, regularly compensated employees not automatically covered by one of the other retirement programs above described, one option of a city-county would be to cover them under this general statutory retirement system for state employees and for those municipal employees whose public employers have elected to provide such a coverage.  Moreover, subject to acceptance by the retirement board which administers this system, such action could actually be required by the charter itself.

            There are, however, two alternatives to that approach which we should also note in order to provide you with a complete answer to your question.  First, of course, it would theoretically be possible in the absence of a charter provision to the contrary for a new city-county simply to do nothing; i.e., to elect to provide no retirement program for those of its employees who are not statutorily or constitutionally entitled to retirement coverage in any of the ways above outlined.  And secondly, as a municipality possessing general governmental powers essentially comparable to those of a charter city or a charter county, the new city-county could, by charter provision or ordinance, establish its own separate retirement program for those employees.  Accord,Ayers v. Tacoma, 6 Wn.2d 545, 108 P.2d 348 (1940), and cases cited therein, upholding the constitutionality of a city ordinance of the city of Tacoma establishing a retirement program for its general municipal employees separate and apart from any of the systems provided for by statute.

            Finally, we should briefly note the status of any volunteer firemen that may be utilized by a city-county in providing  [[Orig. Op. Page 30]] fire protection services.  At present, such personnel are mandatorily covered for disability benefits, and optionally covered for pension benefits (at the option of the municipal corporation in whose fire department they serve) by the volunteer firemen's relief and pension system, chapter 41.24 RCW.  See, RCW 41.24.020.  However, as defined by RCW 41.24.010, a "municipal corporation" for the purposes of this system, only includes a ". . . city or town, fire protection district, or any water, irrigation, or other district, authorized by law to afford . . . protection . . ."  Thus, if it is anticipated that the full time, regularly compensated fire fighters of a city-county will need to be supplemented by a force of volunteers, some thought might be given to the appropriateness of obtaining a legislative amendment to clarify the pension and disability coverage to be made available to such personnel.

                        EPILOGUE

            This completes our consideration of your several questions involving this most interesting new section of our state constitution.  Some of your questions, obviously, have been quite easy to answer on the basis of the express language of its provisions, while others have been somewhat more difficult in the absence of explanatory language in the constitution.  In at least some of the situations where the problem is not immediately resolvable by resort to the constitution, we have suggested that implementing legislation may well be necessary ‑ and we would hope that such legislation could be obtained in the near future in order to make the planning for any city-county consolidation a bit more certain than it would seem to be at the present time.  From the foregoing we would particularly recommend to the legislature the passage of laws covering the following subjects:

            (1) The status of contracts, generally, existing at the time of formation of a city-county.

            (2) The authority of a city-county to enter into contracts under the interlocal cooperation act.

            (3) The eligibility of a city-county to receive state funds distributable to counties, or to cities or both.

             [[Orig. Op. Page 31]]

            (4) The status of city-county law enforcement officers under the law enforcement officers' and fire fighters' retirement system, and of volunteer firemen under the state relief and pension program for those personnel.

            In addition, there may well be other situations in which clarifying legislation would be appropriate, and as these occur to you in the course of your further work on this subject in your county, we can only suggest that you bring them to the attention of the legislature as promptly as possible.

            It is hoped that the foregoing will be of some assistance to you at this time.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

ROBERT F. HAUTH
Assistant Attorney General

LELAND T. JOHNSON
Assistant Attorney General

            APPENDIX

            § 16 COMBINED CITY-COUNTY.  Any county may frame a "Home Rule" charter subject to the Constitution and laws of this state to provide for the formation and government of combined city and county municipal corporations, each of which shall be known as "city-county".  Registered voters equal in number to ten (10) per cent of the voters of any such county voting at the last preceding general election may at any time propose by a petition the calling of an election of freeholders.  The provisions of section 4 of this Article with respect to a petition calling for an election of freeholders to frame a county home rule charter, the election of freeholders, and the framing and adoption of a county home rule charter pursuant to such petition shall apply to a petition proposed under this section for the election of freeholders to frame a city-county charter, the election of freeholders, and the framing and adoption of such city-county charter pursuant to such petition.  Except as otherwise provided in this section, the provisions of section 4 applicable to a county home rule charter shall apply to a city-county charter.  If there are not sufficient legal newspapers published in the county to meet the requirements for publication of a proposed charter under section 4 of this Article, publication in a legal newspaper circulated in the county may be substituted for publication in a legal newspaper published in the county.  No such "city-county" shall be formed except by a majority vote of the qualified electors voting thereon in the county.  The charter shall designate the respective officers of such city-county who shall perform the duties imposed by law upon county officers.  Every such city-county shall have and enjoy all rights, powers and privileges asserted in its charter, and in addition thereto, such rights, powers and privileges as may be granted to it, or to any city or county or class or classes of cities and counties.  In the event of a conflict in the constitutional provisions applying to cities and those applying to counties or of a conflict in the general laws applying to cities and those applying to counties, a city-county shall be authorized to exercise any powers that are granted to either the cities or the counties.

            No legislative enactment which is a prohibition or restriction shall apply to the rights, powers and privileges of a city-county unless such prohibition or restriction shall apply equally to every other city, county, and city-county.

            The provisions of sections 2, 3, 5, 6, and 8 and of the first paragraph of section 4 of this article shall not apply to any such city-county.

            Municipal corporations may be retained or otherwise provided for within the city-county.  The formation, powers and duties of such municipal corporations shall be prescribed by the charter.

            No city-county shall for any purpose become indebted in any manner to an amount exceeding three per centum of the taxable property in such city-county without the assent of three‑fifths of the voters therein voting at an election to be held for that purpose, nor in cases requiring such assent shall the total indebtedness at any time exceed ten per centum of the value of the taxable property therein, to be ascertained by the last assessment for city-county purposes previous to the incurring of such indebtedness:  PROVIDED, That no part of the indebtedness allowed in this section shall be incurred for any purpose other than strictly city-county or other municipal purposes:  PROVIDED FURTHER, That any city-county, with such assent may be allowed to become indebted to a larger amount, but not exceeding five per centum additional for supplying such city-county with water, artificial light, and sewers, when the works for supplying such water, light, and sewers shall be owned and controlled by the city-county.

            No municipal corporation which is retained or otherwise provided for within the city-county shall for any purpose become indebted in any manner to an amount exceeding one and one‑half per centum of the taxable property in such municipal corporation without the assent of three‑fifths of the voters therein voting at an election to be held for that purpose, nor shall the total indebtedness at any time exceed five per centum of the value of the taxable property therein, to be ascertained by the last assessment for city-county purposes previous to the incurring of such indebtedness:  PROVIDED, That no part of the indebtedness allowed in this section shall be incurred for any purpose other than strictly municipal purposes:  PROVIDED FURTHER, That any such municipal corporation, with such assent, may be allowed to become indebted to a larger amount, but not exceeding five per centum additional for supplying such municipal corporation with water, artificial light, and sewers, when the works for supplying such water, light, and sewers shall be owned and controlled by the municipal corporation.  All taxes which are levied and collected within a municipal corporation for a specific purpose shall be expended within that municipal corporation.