DISTRICTS ‑- PORT ‑- BOARD OF COMMISSIONERS ‑- PER DIEM COMPENSATION ‑- NEWLY FORMED DISTRICT

DISTRICTS ‑- PORT ‑- BOARD OF COMMISSIONERS ‑- PER DIEM COMPENSATION ‑- NEWLY FORMED DISTRICT.

The elected commissioners of a newly formed port district may not receive per diem compensation at any time during their initial terms of office under the provisions of RCW 53.12.250, Article II, § 25, Amendment 35 and Article XI, § 8, Washington State Constitution.

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                                                                February 28, 1966

Honorable Paul Klasen
Prosecuting Attorney
Grant County
Ephrata, Washington

                                                                                                                Cite as:  AGO 65-66 No. 73

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on a question which we paraphrase as follows:

            May the elected commissioners of a newly formed port district receive per diem compensation at any time during their initial terms of office, under the provisions of RCW 53.12.250?

            We answer your question in the negative.

                                                                     ANALYSIS

            For purposes of clarification your question and our answer thereto involve the payment of compensation on a per diem basis under RCW 53.12.250, and not a per diem rate of reimbursement for expenses of officers or employees, which may be permitted under § 2, chapter 101, Laws of 1965.  The constitutional and statutory restrictions discussed in this opinion are applicable to compensation, but not necessarily to expenses.  See, AGO 65-66 No. 30 [[to Board of Trustees, Eastern Washington State College on August 12, 1965]], a copy of which is enclosed.  As the supreme court of this state said inState ex rel. Jaspers v. West, 13 Wn.2d 514, 519, 125 P.2d 694 (1942):

            ". . . The terms salary and compensation  [[Orig. Op. Page 2]] import the idea of compensation for personal services and not the repayment of money necessarily expended in the discharge of the duties of the office. . . ."

            RCW 53.12.250 authorizes the payment of compensation, in varying amounts, according to the classification by population of the various port districts of the state.  The statute, in so far as it is applicable to the port district in question, provides in part as follows:

            "The compensation of port district commissioners shall be as follows:

            "(1) Commissioners of a port district having a population, according to the latest United States census, of less than one hundred thousand persons but at least one thousand persons may, by resolution, after a public hearing, notice of which shall be published no less than four times during a period of not less than ten nor more than twenty days next preceding the hearing in the newspaper of largest general circulation in the district, provide that each commissioner be reimbursed for actual attendance at meetings of the port district at a rate not to exceed twenty-five dollars per diem:  Provided, That the commissioners shall not receive per diem for meetings in excess of four each month:  Provided further, That the question of per diem for the commissioners must be submitted for approval to the electors, at the next succeeding general election.  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.  At any general election thereafter the commissioners may resubmit the proposition.

            ". . .

            "Any resolution adopted under the provisions of this section relating to per diem or  [[Orig. Op. Page 3]] salaries of commissioners shall not increase or diminish the compensation of any commissioner for the remainder of his term of office."

            The final paragraph of this statute merely incorporates expressly the constitutional prohibitions which would be applicable in any event.  See, Article II, § 25 (Amendment 35); also, Article XI, § 8, Washington State Constitution.  Under these provisions the supreme court has held that a port commissioner serving without compensation cannot, during his term of office, take advantage of a new law granting compensation to port commissioners.  See,State ex rel. Port of Seattle v. Wardall, 107 Wash. 606, 183 Pac. 67 (1919).  The supreme court has also held that the constitutional provisions in question prohibit the increase of per diem rates of compensation as well as monthly salary or other rates of compensation (but not properly established rates of expense reimbursement).  See,State ex rel. Jaspers v. West, supra; DeBow v. Truax, 140 Wash. 258, 248 Pac. 437 (1926); also,State ex rel. Wyrick v. Ritzville, 16 Wn.2d 36, 132 P.2d 737 (1942).  See, also, a previous opinion of this office on a similar question involving county superintendents of schools, AGO 63-64 No. 27 [[to Louis Bruno, State Superintendent of Public Instruction on May 29, 1963]].

            Therefore, under these constitutional provisions and cases interpreting them, as well as under the express language of RCW 53.12.250, supra, the first member of the board of commissioners of a newly formed port commission, in adopting a per diem plan under RCW 53.12.250,supra, cannot receive any of the compensation so provided during their first term of office.  However, as we have indicated above, this opinion has no application to per diem expense reimbursement properly established under chapter 101, Laws of 1965.

            We therefore answer your question in the negative.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General