HEALTH OFFICERS, COMPENSATION, AUTHORITY OF COUNTY COMMISSIONERS TO FIX, CHANGE IN COMPENSATION, EFFECTIVE DATE

HEALTH OFFICERS, COMPENSATION, AUTHORITY OF COUNTY COMMISSIONERS TO FIX, CHANGE IN COMPENSATION, EFFECTIVE DATE

A board of county commissioners has the power and authority to fix the compensation of the county health officer.  Any change made in the county health officer's remuneration shall only become effective at the commencement of his next term of office.

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                                                                 January 25, 1956

Washington State Association of
County Commissioners
111 East State Avenue
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 191

Attention:  !ttMr. R. C. Watts

            Executive Secretary

l

Gentlemen:

            By letter previously acknowledged, you have requested our opinion on the following questions:

            "Do the several boards of county commissioners have the power and authority to fix the compensation of the county health officer?  If so, may the boards increase or decrease this appointive official's salary at any time during his term of office?  If the answer to these two questions is in the affirmative, are there restrictions as to the time such changes in remuneration may be made?

            In answering the above questions, you have further asked us to  [[Orig. Op. Page 2]] "* * * consider the analogy of the appointive county road engineer, whose salary is fixed by the board on an annual basis at the time of adopting the county road budget."

            Our answer to your first and second questions is in the affirmative.  Our answer to your third question is that there are certain such restrictions.

                                                                     ANALYSIS

            The statutory provisions covering county health officers are contained in RCW 70.06 [[chapter 70.06 RCW]].  The power and authority of county commissioners to fix the compensation of the county health officer is found in RCW 70.06.020, which reads in part as follows:

            "* * * The chairman of the board of county commissioners shall be the president of the board of health, and the county auditor shall be the clerk thereof.  Theyshall on or before July 1st next following each general election, appoint a qualified physician as county health officer whose term of office shall be for two years from July 1st next following each general election,and shall fix his compensation.  * * *" (Emphasis supplied)

            The foregoing statute clearly requires that the county board of commissioners fix the compensation of the county health officer.

            The Washington state constitution provides, in Article II, § 25, as follows:

            "The legislature shall never grant any extra compensation to any public officer, agent, 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."  (Emphasis supplied)

             [[Orig. Op. Page 3]]

            Although the foregoing constitutional provision is in the section of the constitution entitled "Legislative Department," it applies to all agencies of government.  City of Everett v. Johnson, 37 Wn. (2d) 505, 510, 224 P. (2d) 617.  The constitutional provision above quoted thus applies to the county health officer if it can be shown that he is a public officer and that he serves for a definite term.

            RCW 70.06.020 herein quoted sets forth in definite terms the duration of each term of the health officer.  Thus the problem remains, is he a public officer?

            Whether or not a given employment comes within the term "public officer" must be determined by consideration of the particular facts and circumstances involved.  Nevertheless there are certain fundamental principles that may be referred to as a guide in this connection.  The supreme court of Washington has discussed these principles in State ex rel. Brown v. Blew, 20 Wn. (2d) 47, 145 P. (2d) 554, and inState ex rel. Hamblen v. Yelle, 29 Wn. (2d) 68, 185 P. (2d) 723, wherein it is said, in the latter case, at p. 76:

            "'* * * five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office created or authorized by the legislature and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity and not be only temporary or occasional.'

             [[Orig. Op. Page 4]]

            "If any of the five elements recited * * *, as indispensable in any position of public employment is absent, such employment is not a public office of a civil nature.  All five elements must be present.  * * *"

            Applying these principles to chapter 70.06 RCW, we reach the conclusion that the county health officer is a public officer and that any change made in his remuneration shall only become effective at the commencement of his next term of office.

            You have further inquired whether the appointive county road engineer's salary, which is fixed by the board of county commissioners on an annual basis at the time of adopting the county road budget, may be increased or diminished during his term of office.

            The appointing county road engineer falls in a different category.  We have found no statute which fixes a "term" of office for this official, and refer, therefore, to RCW 36.80.020, which sets forth the necessary qualifications of the engineer, and to 67 C.J.S. 196, Officers, § 43.

            RCW 36.80.020.  "He shall be a registered and licensed professional civil engineer under the laws of this state, duly qualified and experienced in highway and road engineering and construction.  He shall serve at the pleasure of the board.  He shall have supervision, under the direction of the board, of establishing, laying out, constructing, altering, improving, repairing, and maintaining all county roads of the county."  (Emphasis supplied)

            67        C.J.S. 196, Officers, § 43.  "Where the term of office is not fixed by law, the officer is regarded as holding at the will of the appointing power, even though the appointing power attempts to fix a definite term, which it may do; and an officer removable at the pleasure of the appointing power has, in the strict meaning of the word, no 'term' of office.  * * *"

             [[Orig. Op. Page 5]]

            Although the county road engineer may be a public officer, as that term is defined inState ex rel. Hamblen v. Yelle, supra, it is readily apparent that he does not have a "term" of office in the sense of Article II, § 25 of the state constitution.  The statute last quoted states "He shall serve at the pleasure of the board" of county commissioners.  This of course means that the county board of commissioners may terminate his employment whenever it desires so to do.  In consequence Article II, § 25 is inapplicable.

            The salary of the appointive county road engineer may be increased or diminished only at the time of the adoption of the county budget.  The law covering this matter is contained in RCW 36.40.100 and RCW 36.40.130, quoted, respectively, as follows:

            "The estimates of expenditures itemized and classified as finally fixed and adopted in detail by the board of county commissioners shall constitute the appropriations for the county for the ensuing fiscal year; and the county commissioners and every other county official shall be limited in the making of expenditures or the incurring of liabilities to the amount of such detailed appropriation items or classes respectively:  Provided, That upon a resolution formally adopted by the board at a regular or special meeting and entered upon the minutes, transfers or revisions within the general classes of 'salaries and wages,' 'maintenance and operation' and 'capital outlay' may be made:  Provided, further, That no salary class shall be increased above the total amount appropriated therefor.  Transfers between the general classes provided for in this chapter shall not be permitted, except that in the case of appropriations from the county road fund, any transfer between the general classes of (1) salaries and wages, (2) maintenance and operation, and (3) capital outlay may be made."

            "Expenditures made, liabilities incurred, or warrants issued in excess of any of the detailed budget appropriations or as revised by transfer as herein provided shall not be a liability of the county, but  [[Orig. Op. Page 6]] the official making or incurring such expenditure or issuing such warrant shall be liable therefore personally and upon his official bond.  The county auditor shall issue no warrant and the county commissioners shall approve no claim for any expenditure in excess of the detailed budget appropriations or as revised under the provisions hereof, except upon an order of a court of competent jurisdiction, or for emergencies as hereinafter provided.  Any county commissioner, or county auditor, approving any claim or issuing any warrant in excess of any such budget appropriation except as herein provided shall forfeit to the county fourfold the amount of such claim or warrant which shall be recovered by action against such county commissioner or auditor, or all of them, and the several sureties on their official bonds."  (Emphasis supplied)

            The statutes above quoted have been discussed in 37 OAG 203 [[to E. W. Schwellenback, Prosecuting Attorney, Grant County on September 21, 1937]]and 43 OAG 69 [[to Lloyd L. Wiehl, Prosecuting Attorney, Yakima County on May 15, 1943]], attached hereto.

            We trust the foregoing will prove of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

ANDY G. ENGEBRETSEN
Assistant Attorney General