INCREASE OR DECREASE DURING TERM

PUBLIC OFFICERS ‑- COMPENSATION ‑- INCREASE OR DECREASE DURING TERM.

City Ordinance No. 348 of the city of Longview, establishing a department of revenue and authorizing the city clerk or other officer to be the head thereof, and fixing additional salary for performing the duties, could not have the effect of increasing the salary of any officer serving a fixed term, until the commencement of a term of his regular office.

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                                                              September 22, 1953

Honorable Tom Hall
State Senator, 18th District
Skamokawa, Washington                                                                                                              Cite as:  AGO 53-55 No. 137

Dear Sir:

            Receipt of your letter of September 15, 1953, is hereby acknowledged.  We have reviewed ordinance No. 348 of the city of Longview.  That ordinance establishes a position known as "revenue collector" and authorizes the city clerk or any other officer to hold that position.

            The question presented is whether or not the ordinance would violate Article II, section 25 of the Washington Constitution prohibiting the increase or diminution of the compensation of any public officer during his term of office.  The same prohibition is embodied in Article XI, section 8, relating specifically to municipal officers.

            Our answer is that if the city clerk were appointed to the position during the term for which he was elected, he could not draw the additional salary until the commencement of his next term.

                                                                     ANALYSIS

            Several Washington cases have discussed the theory that where new or additional duties have been added to an office which are extrinsic or foreign to the prior duties, the incumbent may be entitled to the additional compensation without violating such a provision as Article II, section 25.  But, certain language inState ex rel. Livingston v. Ayer,  [[Orig. Op. Page 2]] (1945) 23 Wn. (2d) 578, 161 P. (2d) 429, later quoted with approval in State ex rel. Troy v. Yelle, (1947) 27 Wn. (2d) 99, 176 P. (2d) 459, indicates that the rule does not prevail in Washington especially where the act appears to have been passed with an intent to evade the constitutional provision.  In theLivingston case, supra, the court said at page 592:

            "* * * But we are clearly of the opinion that it should not be the rule, and that it was not the intention of this court in any of its former decisions to say, that for performing additional duties provided by an act passed subsequent to his election, a public officer is entitled to additional salary or compensation during the term for which he was elected, even though such additional duties be extrinsic and foreign to the duties required of him at the time of his election, where it clearly appears, as in the instant case, that such act was passed with an intent to evade the constitutional provision prohibiting an increase in the salary of a county officer or the compensation of a public officer during the term for which he was elected."

            Ordinance No. 348 looks very much like that type of law which is designed to accomplish indirectly what could not be directly accomplished because of the prohibitions of Article II, section 25, and Article XI, section 8.  We think it is within the rule quoted above.

            It should be pointed out that the constitutional provision prevents the increase only during the term for which such officer is elected.  This ordinance was originally passed in 1939.  It has been in effect through the commencement of several terms of city officers.  Any additional salary payable to a city officer under this ordinance could properly commence at thebeginning of his term, although it could not be further increased during that term.  In other words, it is not the additional salary which is objectionable; only the increase during the term for which the officer was elected.

            We are of the opinion that any additional salary payable to a city officer serving a fixed term, could not commence under this ordinance, until the beginning of the next term of that office.

Very truly yours,

DON EASTVOLD
Attorney General

RALPH M. DAVIS
Assistant Attorney General