COUNTIES ‑- FUNDS ‑- EMERGENCY ‑- APPROPRIATION FOR EMPLOYER'S OASI CONTRIBUTIONS

COUNTIES ‑- FUNDS ‑- EMERGENCY ‑- APPROPRIATION FOR EMPLOYER'S OASI CONTRIBUTIONS

County Commissioners may properly make emergency appropriation to pay employer's OASI contributions for period between adoption of coverage and earlier effective date thereof.

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                                                                 August 29, 1955

Honorable John J. O'Connell
Prosecuting Attorney
Pierce County
401 Court House
Tacoma, Washington                                                                                                              Cite as:  AGO 55-57 No. 130

Attention:  !ttMr. Robert A. Jacques
            Chief Civil Deputy

Dear Sir:

            You have requested the opinion of this office on the following question:

            "In the event a referendum among county employees, held pursuant to chapter 4, Extraordinary Session 1955, relating to Social Security coverage, results in a vote of approval of a plan calling for such Social Security coverage for said employees retroactive to January 1, 1955, may the County Commissioners of said county properly declare an emergency to exist and appropriate sufficient funds to pay the county's contribution for said Social Security coverage?"

            It is our conclusion that the Pierce County Commissioners may properly declare an emergency to exist and appropriate the required funds to cover the 

              [[Orig. Op. Page 2]]

county's contribution for OASI coverage.

                                                                     ANALYSIS

            The passage of Public Law 761 by the 83rd Congress and the enactment by our own state legislature of chapter 4, Laws of 1955, Extraordinary Session, has broadened the base of OASI coverage for employees of the state and its political subdivisions.  An outline of the procedure to be followed in making OASI available to county employees is set out and explained in the enclosed opinion from this office to the Prosecuting Attorney, King County, on July 15, 1955.

            Also enclosed is "Plan for Extension of OASI coverage to members of the State Employees Retirement System", a resolution passed by the retirement board on August 1, 1955 and submitted to the Governor for approval, paragraph 15 providing as follows:

            "Each political subdivision, with the approval of a majority of its employees as indicated by vote thereon in conjunction with the referendum to be held pursuant to RCW 41.48.030 (3) and (4), may designate the first day of any month beginning with January of 1955 as the effective date of OASI coverage for such employees: except that after January 1, 1958, a subdivision may not so designate an effective date prior to the first day of the current calendar year."  (Emphasis supplied)

            This provision is based upon the noted applicable state and federal enactments concerning the possible effective dates for such plans.

            Title 42 U.S.C.A., Sec. 418 (F) provides:

            "Any agreement or modification of an agreement under this section shall be effective with respect to services performed after an effective date specified in such agreement or modification: except that‑-

             [[Orig. Op. Page 3]]

            (2) in the case of an agreement or modification agreed to after 1954 but prior to 1958, such date may not be earlier than December 31, 1954:  * * *"

            Section 3, (1) (c) of chapter 4, of the 1955 extra session provides that:

            "Such agreement shall be effective with respect to services in employment covered by the agreement performed after a date specified therein but in no event may it be effective with respect to any such services performed prior to the first day of the calendar year in which such agreement is entered into or in which the modification of the agreement making it applicable to such services is entered into except that if a modification is entered into after December 31, 1954 and prior to January 1, 1958, which applies to individuals covered by an existing retirement system,such modification may be effective with respect to services performed after December 31, 1954 or after a later date specified in such modification."  (Emphasis supplied)

            The question then becomes one of the ability of the county commissioners to make an emergency appropriation to pay employer contributions not provided for in the annual county budget.

            RCW 36.40.180 provides for county expenditures in the event of non-debatable emergencies in the area of public disasters like floods, fires and the like.  RCW 36.40.140 provides for other public emergencies as follows:

            "When apublic emergency, other than such as are specifically described in RCW 36.40.180 andwhich could not reasonably have been foreseen at the time of making the budget, requires the expenditure of money not provided for in the budget, the board of county commissioners by unanimous vote of the commissioners present * * *" (Emphasis supplied)

            The county commissioners may make an emergency appropriation if they could not have reasonably foreseen the necessity for the expenditure when  [[Orig. Op. Page 4]] the budget was adopted.  The declaration of an emergency will not be disturbed by the court unless the evidence clearly preponderates against it, or unless it appears that the board had acted arbitrarily or capriciously.  State ex rel. Porter v. Superior Court 145 Wn. 551 (1927) 40 Wn. (2d) 445 (1952).

            We believe that this is such an emergency of the nature contemplated by RCW 36.40.140.  It is one that could not have been foreseen at the time the current budget was made, although the acts of Congress and our legislature in this case clearly contemplate the possible expenditure of money during the time covered by that budget.  In the present case, as a factual matter, the statutory authority for the OASI coverage contemplated was only recently enacted into law by the 1955 legislature in extraordinary session and as such could not have been considered in the 1955 county budget.  Therefore we believe that the board of county commissioners can make such emergency appropriations to cover OASI contributions for their employees.

            We hope the above analysis will be of aid to you.

Very truly yours,

DON EASTVOLD
Attorney General

MAURICE M. EPSTEIN
Assistant Attorney General