EMPLOYEES' DEFERRED COMPENSATION PLANS

DISTRICTS ‑- SCHOOLS ‑- FUNDS ‑- INVESTMENTS ‑- EMPLOYEES' DEFERRED COMPENSATION PLANS

(1) RCW 28A.58.740, which authorizes school districts to invest funds accumulated thereunder in shares of an investment company, must be presumed by this office to be constitutional until otherwise ruled upon by a court of competent jurisdiction; moreover, the constitutionality of any such investments could conceivably depend upon the terms of the particular deferred compensation plan involved.

(2) RCW 28A.58.740 does not constitute authority for a state‑regulated credit union to receive funds deposited pursuant to that section.

(3) It is within the legal ability of a schoold district, in the final analysis, to determine whether investments made pursuant to RCW 28A.58.740 will be made by the district itself, or, instead, by the county treasurer so as to be subject to an investment service fee paid to that official.

                                                                   - - - - - - - - - - - - -

                                                               November 14, 1977

Honorable Robert V. Graham
State Auditor
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1977 No. 51

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on three questions which we have paraphrased as follows:

            (1) Does Article VIII, § 7 of the Washington State Constitution prohibit a school district from investing funds accumulated pursuant to RCW 28A.58.740 in shares of an investment company?

             [[Orig. Op. Page 2]]

            (2) Does RCW 28A.58.740 constitute authority for a state‑regulated credit union to receive funds deposited pursuant to that section?

            (3) Are county treasurers entitled to receive an investment service fee on investments of funds accumulated pursuant to RCW 28A.58.740?

            We answer question (2) in the negative and respond to questions (1) and (3) in the manner set forth in our analysis.

                                                                     ANALYSIS

            RCW 28A.58.740 reads as follows:

            "In addition to any other powers and duties, any school district may contract with any classified or certificated employee to defer a portion of that employee's income, which deferred portion shall in no event exceed the appropriate internal revenue service exclusion allowance for such plans, and shall subsequently with the consent of the employee, deposit or invest in a credit union, savings and loan association, bank, mutual savings bank, or purchase life insurance, shares of an investment company, or a fixed and/or variable annuity contract, for the purpose of funding a deferred compensation program for the employee, from any life underwriter or registered representative duly licensed by this state who represents an insurance company or an investment company licensed to contract business in this state.  In no event shall the total investments or payments, and the employee's nondeferred income for any year exceed the total annual salary, or compensation under the existing salary schedule or classification plan applicable to such employee in such year.  Any income deferred under such a plan shall continue to be included as regular compensation, for the purpose of computing the retirement and pension benefits earned by any employee, but any sum so deducted shall not be included in the computation of any taxes withheld on behalf of any such employee."

             [[Orig. Op. Page 3]]

            The evident purpose of this statute is to enable school districts to provide their employees with certain benefits under the federal income tax laws by deferral of their compensation.  Compensation deferred in accordance with the requirements of the Internal Revenue Code is not taxed in the year in which it is earned but at a later time (such as at retirement) when the employee's income is likely to be taxed at a lower rate.1/

             The Internal Revenue Code recognizes three basic mechanisms through which otherwise presently taxable compensation for personal services may be deferred:  A pension, profit-sharing, stock bonus or bond purchase plan qualified under the code;2/ a bargain purchase of a corporate employer's stock under prescribed conditions;3/ and a common law contract between employer and employee.4/   The latter arrangement is termed a "non-qualified" plan because, although subject to the provisions of the Internal Revenue Code, it is not specifically provided for in the  [[Orig. Op. Page 4]] Code.  Because school districts are employers without stock or profit, however, some of those mechanisms are obviously unavailable to their employees.  Accordingly, the arrangements which presently are available under federal law for employees of school districts are the following:  (1) a pension or annuity plan qualified under § 401(a) of the Code; (2) so-called "tax deferred annuities" under § 403(b) of the Code; and (3) non-qualified deferred compensation contracts between employer and employee.

            Each of the three tax deferral methods available to school district employees under federal tax law have, in turn, been specifically authorized in this state.  RCW 41.04.250(1) empowers "any political subdivision of the state," including school districts, to "provide qualified pension plans under the provisions of 26 U.S.C., section 401(a) . . ."  RCW 28A.58.560 authorizes "the board of directors of any school district . . . to provide and pay for tax deferred annuities for their respective employees in lieu of a portion of salary or wages as authorized under the provisions of 26 U.S.C., section 403(b) . . ."  And finally, RCW 28A.58.740, supra, covers common law contracts for deferral of compensation.5/   In this opinion, however, we are (by reason of the scope of your questions) concerned only with the latter; i.e., "non-qualified" plans for which a school district may contract under RCW 28A.58.740.

             [[Orig. Op. Page 5]]

            Question (1):

            First you have asked:

            "Does Article VIII, § 7, of the Washington State Constitution prohibit a school district from investing funds accumulated pursuant to RCW 28A.58.740 in shares of an investment company?"

            Article VIII, § 7 of the state constitution provides that:

            "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, except for the necessary support of the poor and infirm,or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation."  (Emphasis supplied)

            In responding to your question we must first readily acknowledge that the underscored portion of this constitutional provision would clearly prohibit a school district, when dealing with its own general funds, from investing in corporate stock of any kind.  We know, however, of no prior supreme court case or attorney general's opinion which has applied that provision so as to prohibit a municipal corporation from investing, in that manner, funds withheld from employees' salaries pursuant to an agreement such as is contemplated by RCW 28A.58.740.  Furthermore, in AGO 1970 No. 24 [[to David G. Sprague and George Fleming, State Representatives, on November 5, 1970]](copy enclosed) you will recall that we expressed the view that Article VIII, § 7, supra, is inapplicable with respect to the expenditure of funds which, although held by a municipal corporation, would not legally be ". . . available to be spent upon proper municipal purposes. . . ."6/   Similarly, in the instant case, it is likewise conceivable, depending upon the terms of a particular deferred compensation agreement entered into by a school district under RCW 28A.58.740, that a comparable rationale could be developed in view of the policy considerations regarding Article VIII, § 7 which we noted in our earlier opinion.

            We recognize, of course, that this analogy is not entirely apt.  In the first place, we are here concerned with the ownership of a form of corporate stock under the final clause of  [[Orig. Op. Page 6]] Article VIII, § 7 rather than (as in AGO 1970 No. 24) with a grant or loan of funds in possible violation of the earlier part of that constitutional provision.  In addition, we are cognizant of the fact that in order to defer compensation in accordance with federal tax law, the contract between the school district and its employees must provide that the employees will possess nothing more than an unsecured promise to pay benefits in the future; i.e., the participating employees must have no present interest in the compensation deferred and the funds must remain solely the property of the school district.  See,e.g., Revenue Ruling 72-25, 1972 ‑ 1 Cum.Bull. 127.  Nevertheless, it remains possible that the employees might, by contract, have certain rights under RCW 28A.58.740 with respect to the selection of investments to be made for their benefit which could afford a basis for sustaining the constitutionality thereof even if made in ". . . shares of an investment company . . ."  Even if the school district is not legally obligated to follow the employee's selection of an investment vehicle it clearly may do so and to the extent that such a tracking should in fact occur the risk of a possible violation of Article VIII, § 7 would appear to us to be minimized.

            In addition, there is another factor to be considered in connection with your first question ‑ this time one involving our own internal office policy.  As will be noted the phraseology which we have just placed in quotation marks is expressly contained in RCW 28A.58.740, supra, ‑ which means that such investments, when made by a school district in the context of a deferred compensation program formulated thereunder, have been specifically authorized by the legislature.  And, as we have explained on numerous occasions in the past this office since its inception has continually followed a policy of presuming all duly enacted statutes to be constitutional until they are otherwise held invalid by a court of competent jurisdiction.7/   Therefore, in any event, we must here refrain from issuing any opinion which would purport to declare RCW 28A.58.740 unconstitutional insofar as it authorizes this or any other category of investments.

             [[Orig. Op. Page 7]]

            Question (2):

            In addition, RCW 28A.58.740 authorizes a school district to invest the deferred portion of its employees' compensation in ". . . a credit union . . ." and by your second question you have asked:

            "Does RCW 28A.58.740 constitute authority for a state‑regulated credit union to accept funds deposited pursuant to that section?"

            Credit unions are corporations organized under various statutory provisions.  Credit unions organized in accordance with the provisions of the Federal Credit Union Act8/ are known as federal credit unions, while those organized pursuant to Chapter 31.12 RCW will be referred to herein as state credit unions.  As corporations existing by virtue of state law (see RCW 31.12.010), state credit unions are creatures of the state and they must comply with state law in carrying on the business for which they are organized.  State ex rel. N.W. Bond & Mort. Corp. v. Hinkle, 134 Wash. 140, 235 Pac. 359 (1925).  As a result, all transactions of such state‑regulated credit unions not authorized directly or indirectly by law are prohibited.  Moore v. Los Lugos Gold Mines, 172 Wash. 570, 596, 21 P.2d 253 (1933).

            Your second question, as above stated, assumes as a matter of law that state‑regulated credit unions do not possess the authority independent of RCW 28A.58.740 to receive funds deposited  [[Orig. Op. Page 8]] or invested by school districts ‑ an assumption with which we fully agree.  See, AGLO 1975 No. 89 [[to Joe Stortini, State Senator, on November 17, 1975, an Informal Opinion, AIR-75589]], copy enclosed, in which we likewise considered the legal ability of such credit unions to receive deposits from school districts ‑ either under RCW 28A.58.4409/ or otherwise ‑ and concluded as follows:

            "Since credit unions are not among the types of financial institutions mentioned in this statute [RCW 28A.58.440], it necessarily follows that the statute affords no authority to a county treasurer, in investing surplus school district funds, to invest those funds in such an institution.  Moreover, from our examination of the laws relating to credit unions in chapter 31.12 RCW, it would not appear to us that such institutions would be eligible to receive deposits from school districts, as such, in any event.  Under RCW 31.12.080 and 31.12.090, credit unions may only receive deposits from their own members.  Thus, for example, teachers employed by a school district could make deposits in a teachers' credit union to which they belong but the school district itself could not."

            The central issue presented by your second question is whether the foregoing conclusion is altered by the fact that RCW 28A.58.740 itself now provides that funds accumulated pursuant to that section may be deposited or invested by the employer school district in a credit union.  We answer in the negative.

            The legislature's intent is to be deduced from the language of the provision in question.  In Re Estate of Lyons, 83 Wn.2d 105, 108, 515 P.2d 1293 (1973).  Here, RCW 28A.58.740 speaks of the powers and duties of a school district and not of a credit union.  There is no hint in the statute that in adopting this provision the legislature intended to modify either RCW 31.12.080 or RCW 31.12.090.  Moreover, even if it could be argued that RCW 28A.58.740 somehow implies a legislative intent to amend Chapter 31.12 RCW we would be required to reject such an assertion since amendments by implication are not favored.   [[Orig. Op. Page 9]] See,Misterek v. Wash. Mineral Prods., 85 Wn.2d 166, 168, 531 P.2d 805 (1975);Generaux v. Petit, 172 Wash. 132, 19 P.2d 911 (1933).  We therefore conclude that RCW 28A.58.740 does not constitute authority for a state‑regulated credit union to accept deposits or investment of funds from school districts made pursuant thereto.

            In reaching this conclusion we have not overlooked the argument that the legislature is presumed not to engage in a meaningless or futile act10/ and that, under our interpretation, the reference to credit unions in RCW 28A.58.740 would be meaningless.  However, that reference is clearly not meaningless because federal credit unions may receive funds from school districts.  See, § 107 of the Federal Credit Union Act, supra, which empowers such credit unions to receive "payments on shares, share certificates, or share deposits" from members and from "an officer, employee, or agent of those non-member units of federal, state or local governments and political subdivisions thereof enumerated in § 1787 of this title . . ." as depositors.  12 U.S.C. § 1757(7) (Supp. V 1975).  Therefore, it follows that a school district, acting pursuant to RCW 28A.58.740, may deposit funds accumulated pursuant thereto in a federal credit union.  The authority for a federal credit union to receive such funds, however, is not derived from the state law.  See,Kaski v. First Fed. S. & L. Asso. of Madison, 72 Wis.2d 132, 240 N.W.2d 367 (1976).11/

            Question (3):

            By your third question you have asked:

            "Are county treasurers entitled to receive an investment service fee on investments of funds accumulated pursuant to RCW 28A.58.740?"

             [[Orig. Op. Page 10]]

            County treasurers are entitled to receive a service fee on the investment of school district funds only when acting pursuant to RCW 28A.58.440 or RCW 36.29.020.  The answer to your question thus requires an analysis of the relationship between those two statutes and RCW 28A.58.740.

            Statutes are in pari materia when they relate to the same class of things and such statutes must be construed together.  Goodman v. Bethel School Dist., 84 Wn.2d 120, 127, 524 P.2d 918 (1974); Champion v. Shoreline Sch. Dist., 81 Wn.2d 672, 674, 504 P.2d 304 (1972); see also RCW 28A.98.040.  RCW 36.29.020, RCW 28A.58.440 and RCW 28A.58.740 all encompass the investment of school district funds.  Such provisions should be read as constituting a unified whole so that a harmonious statutory scheme results which maintains the integrity of the respective statutes.  State v. Wright, 84 Wn.2d 645, 650, 529 P.2d 453 (1974).  However, such statutes will be reconciled and harmonized only if it is possible to do so.  State v. Zornes, 78 Wn.2d 9, 15, 475 P.2d 109 (1970);State v. Bell, 59 Wn.2d 338, 356, 368 P.2d 177 cert. denied 371 U.S. 818 (1962).

            RCW 28A.58.440 provides as follows:

            "The county treasurer, or the trustee, guardian, or any other custodian of any school fund, when authorized to do so by the board of directors of any school district, shall invest or reinvest any school funds of such district in savings or time accounts in banks, trust companies and mutual savings banks which are doing business in this state, up to the amount of insurance afforded such accounts by the Federal Deposit Insurance Corporation, or in accounts in savings and loan associations which are doing business in this state, up to the amount of insurance afforded such accounts by the Federal Savings and Loan Insurance Corporation, or any obligations, securities, certificates, notes, bonds or short term securities or obligations, of the United States.  The county treasurer shall have the power to select the particular investment in which said funds may be invested.  All earnings and income from such investments shall inure to the benefit of any school fund designated by the board of directors of the school district which such board may lawfully designate:  PROVIDED, That any interest or earnings being credited to a fund different from that which earned the interest  [[Orig. Op. Page 11]] or earnings shall only be expended for instructional supplies, equipment or capital outlay purposes.  This section shall apply to all funds which may be lawfully so invested or reinvested which in the judgment of the school board are not required for the immediate necessities of the district.

            "Five percent of the interest or earnings, with an annual minimum of ten dollars or annual maximum of fifty dollars, on any transactions authorized by each resolution of the board of school directors shall be paid as an investment service fee to the office of county treasurer when the interest or earnings becomes available to the school district."  (Emphasis supplied)

            It is clearly not possible to reconcile this statute with RCW 28A.58.740,supra, because the investments authorized by the two statutes are largely different.  The investments authorized by RCW 28A.58.740 are deposits or investments in ". . . a credit union, savings and loan association, bank," or the purchase of "life insurance, shares of an investment company, or a fixed and/or variable annuity contract . . . from any life underwriter or registered representative duly licensed by this state who represents an insurance company or an investment company licensed to contract business in this state."  The investments authorized by RCW 28A.58.440, on the other hand, are the following:

            ". . . savings or time accounts in banks, trust companies and mutual savings banks which are doing business in this state . . . or in accounts in savings and loan associations which are doing business in this state, . . . or any obligations, securities, certificates, notes, bonds or short term securities or obligations, of the United States. . . ."

            Also, under the latter statute the county treasurer ". . . shall have the power to select the particular investment in which said funds may be invested. . . ."  If funds accumulated pursuant to RCW 28A.58.740 were subject to investment under RCW 28A.58.440 the legislature's careful enumeration of investments in the former could be rendered ineffective by the exercise of this selection power by the county treasurer.  Therefore, those  [[Orig. Op. Page 12]] two statutes cannot be harmonized and we thus conclude that funds accumulated pursuant to RCW 28A.58.740 are not subject to investment by the county treasurer under RCW 28A.58.440.  Accordingly, since the treasurer's investment service fee only applies to investments made under the latter section it may not be imposed on such investments of employees' deferred compensation under the former.

            Similar reasoning is applicable to the ability of the county current expense fund to receive interest or other earnings on investments made pursuant to thesecond paragraph of RCW 36.29.020 which reads as follows:

            "Whenever the funds of any municipal corporation which are not required for immediate expenditure are in the custody or control of the county treasurer, and the governing body of such municipal corporation has not taken any action pertaining to the investment of any such funds, the county finance committee shall direct the county treasurer to invest, to the maximum prudent extent, such funds or any portion thereof in certificates, notes, or bonds of the United States, or other obligations of the United States or its agencies, or of any corporation wholly owned by the government of the United States, in federal home loan bank notes and bonds, federal land bank bonds and federal national mortgage association notes, debentures and guaranteed certificates of participation, or the obligations of any other government sponsored corporation whose obligations are or may become eligible as collateral for advances to member banks as determined by the board of governors of the federal reserve system or deposit such funds or any portion thereof in investment deposits as defined in RCW 39.58.010 secured by collateral in accordance with the provisions of chapter 193, Laws of 1969 ex. sess.:  PROVIDED, That the county treasurer shall have the power to select the specific qualified financial institution in which said funds may be invested.  The interest or other earnings from such investments or deposits shall be deposited in the current expense fund of the county and may be used for general county purposes.  The investment or deposit and disposition of the interest or other earnings therefrom authorized by this  [[Orig. Op. Page 13]] paragraph shall not apply to such funds as may be prohibited by the state Constitution from being so invested or deposited.  (Emphasis supplied)

            As in the case of RCW 28A.58.440, however, none of the investments enumerated in this paragraph are contained in RCW 28A.58.740.  Thus, again, the two statutes cannot be harmonized.  The provisions of the second paragraph of RCW 36.29.020 do not encompass funds accumulated pursuant to RCW 28A.58.740 which may be deposited or invested only in the assets specified in the latter section.

            Thefirst paragraph of RCW 36.29.020, on the other hand, presents a slightly different analysis.  That paragraph provides, in part, as follows:

            ". . .  Any municipal corporation may by action of its governing body authorize any of its funds which are not required for immediate expenditure, and which are in the custody of the county treasurer or other municipal corporation treasurer, to be invested by such treasurer in savings or time accounts in banks, trust companies and mutual savings banks which are doing business in this state, up to the amount of insurance afforded such accounts by the federal deposit insurance corporation, or in accounts in savings and loan associations which are doing business in this state, up to the amount of insurance afforded such accounts by the federal savings and loan insurance corporation, or in certificates, notes, or bonds of the United States, or other obligations of the United States or its agencies, or of any corporation wholly owned by the government of the United States; in federal home loan bank notes and bonds, federal land bank bonds and federal national mortgage association notes, debentures and guaranteed certificates of participation, or the obligations of any other government sponsored corporation whose obligations are or may become eligible as collateral for advances to member banks as determined by the board of governors of the federal reserve system or deposit such funds or any portion thereof in investment deposits as defined in RCW 39.58.010 secured by collateral in accordance with the provisions of chapter 193,  [[Orig. Op. Page 14]] Laws of 1969 ex.sess.:  PROVIDED,Five percent of the interest or earnings, with an annual minimum of ten dollars or annual maximum of fifty dollars, on any transactions authorized by each resolution of the governing body shall be paid as an investment service fee to the office of the county treasurer or other municipal corporation treasurer when the interest or earnings become available to the governing body."  (Emphasis supplied)

            Unlike RCW 28A.58.440 or the second paragraph of RCW 36.29.020, this initial paragraph of the latter encompasses two types of investments authorized by RCW 28A.48.740 ‑ deposits in savings and loan associations and deposits in banks.  It will also be noted, however, that when such deposits are made in banks under RCW 36.29.020 they must be put into savings or time accounts.  In addition, any investments in savings and loan associations under RCW 36.29.020 are limited to those associations which are doing business in this state and may not exceed the amount of the federal insurance afforded such accounts.

            We have further previously noted that the first paragraph of RCW 36.29.020 contemplates specific direction from the municipal governing body as to which types of investments are to be made by the county treasurer.  Thus, in AGO 1972 No. 21 [[to R. Ted Bottiger, State Representative, on September 14, 1972]](copy enclosed), we reviewed the history and considered the structure of the pertinent statutes and concluded that when the board of commissioners of a port district authorizes investment of its surplus funds under RCW 36.29.020, the board may designate the specific qualified financial institution or institutions in which such funds may be invested.  Moreover, in AGO 1974 No. 20 [[to Patrick D. Sutherland, Prosecuting Attorney of Thurston County, on September 20, 1974]](copy enclosed), we advised that "action" of the governing body within the meaning of RCW 36.29.020 means a resolution dealing with the investment of specific funds at aspecific time and does not allow the use of a general resolution delegating blanket investment authority to the county treasurer.  This ability of the governing body to select the particular investment further distinguishes the authorization contained in the first paragraph of RCW 36.29.020 from those contained in the second paragraph of that statute and in RCW 28A.58.440,supra.

            What this means, then, is that funds accumulated under RCW 28A.58.740 may be invested under the authority of the first paragraph of RCW 36.29.020 so long as the authorization of the governing body directs a specific investmentwhich is one of those listed in both statutes.  Since in its resolution authorizing the investment the school district specifies the particulars  [[Orig. Op. Page 15]] of the investment the district itself, in effect, makes the investment as required by the literal language of RCW 28A.58.740; and since nothing of consequence then remains for any exercise of discretion of the county treasurer, his duty is merely ministerial.  See,e.g., Tacoma v. Peterson, 165 Wash. 461, 467, 5 P.2d 1022 (1931).  Thus, we are able to harmonize RCW 28A.58.740 with the first paragraph of RCW 36.29.020 ‑ from which it follows that if a school district, by action of its governing body, directs the county treasurer to make a particular investment under the latter statute, of funds accumulated pursuant to the former, the county treasurer will then be entitled to receive the investment service fee provided for in the last sentence of the first paragraph of RCW 36.29.020.

            At the same time it should also be emphasized that RCW 28A.58.740 constitutes an independent authorization for investment by school districts under which reliance on the county treasurer is unnecessary.  As explained above, when harmonizing statutes relate to the same subject the integrity of the respective statutes must be maintained.  State v. Wright,supra, at 650.  The language of RCW 28A.58.740 providing that "[i]n addition to any other powers and duties, any school district . . . shall subsequently . . . deposit or invest . . ." is clear and unambiguous.  The school district itself is authorized to make the deposit or investment.  It is well established that when a statute is plain, unambiguous and clear on its face, there is no room for construction.  Snow's Mobile Homes, Inc. v. Morgan, 80 Wn.2d 283, 288, 494 P.2d 216 (1972).  In summary, it is therefore within the legal ability of the school district, in the final analysis, to determine whether investments made pursuant to RCW 28A.58.740 will be made by the district itself, or, instead, by the county treasurer so as to be subject to an investment service fee paid to that official.

            This completes our consideration of your general questions.  We trust that the foregoing will be of assistance to you.

Very truly yours,