EMPLOYEES ‑- STATE ‑- RETROACTIVE PAY RAISES

EMPLOYEES ‑- STATE ‑- RETROACTIVE PAY RAISES

A purely retroactive pay increase for state employees, not involving either the Aldrich or Christie situations, would be unconstitutional under Article II, § 25 (Amendment 35) of the Washington Constitution.

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                                                                 January 17, 1973

Honorable Gary M. Odegaard
State Senator, 12th District
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1973 No. 10

Dear Sir:

            This is written in response to your recent letter requesting a written opinion from this office respecting the constitutionality of retroactive pay raises for state employees.

                                                                     ANALYSIS

            As I previously advised you by telephone, this matter is wholly covered by the following language of Article II, § 25 (Amendment 35) of our state Constitution:

            "The legislature shall never grant any extra compensation to any public officer, agent, employee, servant, or contractor,after the services shall have been rendered, or the contract entered into, nor shall the compensation of any public officer be increased or diminished during his term of office.  Nothing in this section shall be deemed to prevent increases in pensions after such pensions shall have been granted."  (Emphasis supplied.)

            I am enclosing herewith copies of a number of prior opinions of this office dealing with the constitutionality of retroactive pay raises for both state and local governmental employees.  For purposes of your understanding of these opinions, the term "retroactive pay" in each case has been used to describe the granting of a retroactive salary increase payable solely for services already rendered by the employee at the time the particular increase is granted.  On the other hand, if an employee is required to continue in the service of his employer for some period of time after a pay raise is granted in order to qualify for the receipt of that raise, the constitutional prohibition against extra compensation for services already rendered would not be violated.  Accord,Aldrich v.  [[Orig. Op. Page 2]] State Employees' Etc., 49 Wn.2d 831, 307 P.2d 270 (1957).

            In addition, as pointed out in the most recent of the enclosed prior opinions,

            ". . . where the employees of a public agency, having come to the end of a period covered by a wage agreement, nevertheless agree to continue to work during a time of negotiation of a new agreement in consideration for the commitment of their employer (once the new agreement has been finalized) to pay at the newly agreed upon wage level retroactive to the date of expiration of the earlier agreement, the payment of such retroactive wages does not violate either Article II, § 25 or Article VIII, § 7 of our state constitution."

            Accord,Christie v. The Port of Olympia, 27 Wn.2d 534, 179 P.2d 294 (1947).

            In direct answer to your question, however, a purely retroactive pay increase for state employees, not involving either the Aldrich or Christie situations, would be unconstitutional under Article II, § 25 (Amendment 35), supra.

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

Very truly yours,

FOR THE ATTORNEY GENERAL

Philip H. Austin
Deputy Attorney General