MIDTERM INCREASES IN COMPENSATION

COUNTIES ‑- COUNTY COMMISSIONERS ‑- PUBLIC OFFICER COMPENSATION ‑- MIDTERM INCREASES IN COMPENSATION

The Legislature clearly intended, by amending RCW 41.04.190 in 1983, to authorize county commissioners to accept increases in health benefits on a midterm basis; the Attorney General will not comment on the constitutionality of the 1983 amendments.

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                                                                November 9, 1988

Honorable David F. Thiele
Island County Prosecuting Attorney
Island County Courthouse
P. O. Box 430
Coupeville, WA 98239

Cite as:  AGO 1988 No. 27                                                                                                                

 Dear Mr. Thiele:

             By letter, previously acknowledged, you have asked the opinion of this office on the following question:

             May members of a board of county commissioners receive midterm increases in health care benefits which they have provided for themselves and other county officers and employees?

 We answer your question in the manner set forth in our analysis.

                                                                      ANALYSIS

             As you point out in your request to us, we previously addressed this issue in AGO 1974 No. 9.  At that time we concluded that the members of a board of county commissioners may not constitutionally receive midterm increases in health care benefits as they have provided from themselves.  Our conclusion at that time was based upon the provisions of article 30, section 1 of the state constitution (Amendment 54) and upon RCW 41.04.180 and .190 [41.04.190].  Your inquiry to us at this time is based upon a 1983 legislative change to RCW 41.04.190.

              [[Orig. Op. Page 2]]

             Article 30, section 1 of the state constitution provides as follows:

             The compensation of all elective and appointive state, county, and municipal officers who do not fix their own compensation, including judges of courts of record and the justice courts may be increased during their terms of office to the end that such officers and judges shall each severally receive compensation for their services in accordance with the law in effect at the time the services are rendered.

 This provision in turn interacts with article 11, section 8, which provides as follows:

             The salary of any county, city, town, or municipal officers shall not be increased except as provided in section 1 of Article XXX or diminished after his election, or during his term of office; nor shall the term of any such officer be extended beyond the period for which he is elected or appointed.

 Taken together, these two constitutional provisions permit midterm increases in compensation for officers who do not fix their own compensation, but prohibit midterm increases for those who do.

             As we stated in AGO 1974 No. 9, in 1972 the voters approved Amendment 57 to the state constitution (amending article 11, sections 5 and 8) which allowed the Legislature to delegate to the legislative authorities of the counties the right to prescribe the salaries of its own members and the salaries of other county officials.  Following the approval of this amendment by the voters, the Legislature granted to the legislative authorities of all counties the power to increase the salary levels fixed by the Legislature.  Laws of 1973, 1st Ex. Sess., ch. 88, § 2, p. 683 (amending RCW 36.17.020).  Accordingly, county legislative authorities then became officials who fix their own compensation.

             As we have seen, article 30, section 1 (Amendment 54) provides for increases in compensation only for officials who do not fix their own compensation.  When AGO 1974 No. 9 was issued, RCW 41.04.180 authorized the purchase of hospitalization and medical aid for county employees and their dependents.  At that time, RCW 41.04.190 read as follows:

             The cost of any such group policy or plan to any such public agency or body shall be deemed additional compensation to the employees or elected county officials covered thereby for services rendered. . . .

              [[Orig. Op. Page 3]]

             In 1983, RCW 41.04.190 was amended as follows:

             The cost of any such group policy or plan to any such public agency or body shallnot be deemed additional compensation to the employees or elected county officials covered thereby  . . . .

 Laws of 1983, 1st Ex. Sess., ch. 37, § 1, p. 1667.

             The foregoing statutory change purports to alter the nature of health care benefits so as to permit mid-term increases providing for group insurance coverage.  In looking at the legislative history of SSB 3079 (Laws of 1983, 1st Ex. Sess., ch. 37, sec. 1, p. 1667) we find that the Legislature was concerned that the existing statutes varied regarding the availability of group insurance benefits for officials of various local governments.  In arguing for passage of the amendment, proponents stated:

             This is currently being done in most other areas.  Other major special purpose districts (school districts, PUD's) can provide such benefits to their officials.  Counties and cities can provide such benefits to their officials.  Since such benefits for county officials are deemed to be compensation, the rates paid to the county commissioners cannot be increased during the current term of office of the county commissioner.  This would remove the necessity for the county commissioner to pay out of his or her pocket for increased rates.

 House Committee on Local Government, House Bill Report on Engrossed Substitute Bill 3079 (April 28, 1983).  No one argued or testified against passage of this bill.

             By way of background, the Legislature noted:

             It is not clear whether insurance benefits for county elected officials and employees may be considered compensation.  The Legislature has not studied the whole issue of compensation and benefits of special district officials in recent years.  The compensation and benefit provisions are not uniform or comparable between the many special purpose districts.

 Final Legislative Report Forty-Eighth Legislature 1983( at p. 200).

             There remains a question whether the Legislature exceeded its constitutional power in defining the cost of group insurance policies or plans not to be compensation.  In keeping with our  [[Orig. Op. Page 4]] long-standing policy, we will not directly address the constitutionality of the current version of RCW 41.04.190.

             We will note, however, that we addressed the constitutionality of compensation for elective officials in AGO 53-55 No. 355 and have attached a copy of that opinion for your review.  In that opinion, we concluded:

             The term "compensation" as used in Article XI, sec. 8 of the Washington Constitution, forbidding an increase in compensation to elected municipal officials during their term of office, is "broad enough to include any kind of remuneration from the public treasury for a public officer, whether by way of what is called salary or otherwise."  State ex. rel. Funke v. Board of Commissioners, 48 Wash. 461, 465, 93 Pac. 920 (1908).  Therefore, if elective officials were to receive its benefits during the current term, the health and welfare plan would constitute additional compensation in violation of Article XI, sec. 8 of the Washington Constitution.

 AGO 53-55 No. 355.

             We trust the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

MEREDITH WRIGHT MORTON
Assistant Attorney General