OFFICERS ‑- COMPENSATION ‑- INCREASE DURING TERM

OFFICERS ‑- COMPENSATION ‑- INCREASE DURING TERM

1. Compensation of members of Public Service and Tax Commissions and Boards of Prison Terms and Paroles and Industrial Insurance Appeals cannot be increased during terms.

2. Chairmen of the above departments cannot receive additional compensation during term for duties incident to chairmanships.

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                                                               September 1, 1955

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 132

Attention:  Mr. F. D. Keister
Dear Sir:

            You have requested the opinion of this office on three questions which may be paraphrased as follows:

            1. Are the chairmen and members of the Public Service and Tax Commissions and Board of Prison Terms and Paroles entitled to receive for and after July 1955 the salary increases authorized by the Governor pursuant to chapter 340, Laws of 1955?

            2. Are the respective chairmen entitled to receive for and after July 1955 the $500 per annum additional compensation authorized by the Governor for duties incident to their positions?

            3. Are the two members of the Board of Industrial Insurance Appeals, as distinguished from its chairman, entitled to receive an annual salary of $11,500 from June 20, 1955?

             [[Orig. Op. Page 2]]

            Our conclusions are as follows:

            1. No.

            2. No.

            3. Mr. Borcher has been entitled to $11,500 per year since his last appointment on June 24, 1953; Mr. Engstrom is not now and will not be entitled to receive that salary unless and until he is appointed to another term.

                                                                     ANALYSIS

            The provision of the Constitution upon which your inquiries arise is Article II, § 25:

            "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)

            We have no doubt that each member of the boards and commissions mentioned above is a public officer within the contemplation of the quoted provision.  See RCW 42.04.010;State ex rel. Brown v. Blew, 20 Wn. (2d) 47;State ex rel. McIntosh v. Hutchinson, 187 Wash. 61.

            1. The constitutional prohibition applies to any increase during a term, whether made by the legislature itself or by the appointing authority.  State ex rel. Bergin v. Yelle, 11 Wn. (2d) 151; State ex rel. Henneford v. Yelle, 12 Wn. (2d) 434.  It operates upon the term itself, rather than in relation to the person who may hold the office.  State ex rel. Wyrick v. Ritzville, 16 Wn. (2d) 36, and cases cited therein.

            RCW 43.53.010 provides in relevant part as to the Public Service Commission that

            "The members of the first commission to be appointed  [[Orig. Op. Page 3]] after taking effect of this section shall be appointed for terms beginning April 1, 1951, and expiring as follows:  One commissioner for the term expiring January 1, 1953; one commissioner for the term expiring January 1, 1955; one commissioner for the term expiring January 1, 1957.  * * *"

            RCW 43.55.010 provides in relevant part as to the Tax Commission that

            "Each commissioner shall hold office for a term of six years, * * * The terms shall be staggered so that the term of one commissioner will expire on January 31st of each odd-numbered year."

            RCW 43.67.020 provides in relevant part as to the Board of Prison Terms and Paroles that

            "* * * Each member shall hold office for a term of six years, * * *.  The terms shall be staggered so that the term of one member will expire on April 15th of each odd-numbered year.  * * *"

            From the quoted statutory provisions it is clear that each commissioner and board member was serving throughout the month of July 1955 in the course of a term which began prior to the Governor's approval of salary increases.  It follows that no such salary increases could be paid until the particular term had expired.

            2. The question here involves the additional $500 per annum, above the increases already discussed, authorized by the Governor for the chairmen of the Public Service and Tax Commissions and the Board of Prison Terms and Paroles.

            The only possible exception to the constitutional prohibition against increase in compensation during a term is that stated in State ex rel. Younger v. Clausen, 111 Wash. 241, at 242:

            "* * * The general rule supported by the authorities is that, where new duties are added to the office during the term and the act fixes the compensation therefor, the constitutional inhibition does not apply if such new  [[Orig. Op. Page 4]] duties are extrinsic or foreign to the prior duties.  On the other hand, if the new duties are incidental, collateral or germane to the duties which the officer was required to perform under the prior law, the salary increase cannot be sustained.  * * *"

            Your letter of request states that the increases would compensate for

            "* * * additional duties as chairman of their respective boards and for the additional duties required by law.  * * *"

            or for

            "* * * extra duties incident to the chairmanship * * *."

            We have found no new statutory duties of such a nature as to fall within the exception described by the court in the Younger case.  We conclude that the additional $500 per annum could not be paid during the present term of any of the chairmen.

            3. The third question is whether the members, as distinguished from the chairman, of the Board of Industrial Insurance Appeals have been entitled since June 20, 1955, to an annual salary of $11,500.

            Section 2, chapter 219, Laws of 1949, creating the board, provided in relevant part that

            "* * * The chairman shall receive the same salary as that provided for Superior Court Judges in Class A counties; the two remaining members shall each receive thesame salary less the sum of five hundred dollars ($500) per annum, * * *" (Emphasis supplied)

            This language remained unchanged when the section was amended by § 1, chapter 225, Laws of 1951, and now appears in RCW 51.52.010.  The word  [[Orig. Op. Page 5]] "same" as underscored therein clearly relates the salary of a member to that of a judge.  Nothing in the statute makes the salary of a member dependent upon that actually received by the chairman; it depends rather upon that provided by law for a judge.

            Under § 2, chapter 48, Laws of 1949, the salary of a judge was $9,000 per year.  The salary of the first members appointed was therefore $8,500.  By § 2, chapter 144, Laws of 1953 [now RCW (1953 supp.) 2.08.090], effective June 11, 1953, the salary of a judge was raised to $12,000.  Under the constitutional prohibition of Article II, § 25, members could not receive the $11,500 thereby authorized until the subsequent expiration of their terms.

            The initial terms of the members were for two and four years, and all terms thereafter were for six years, with members appointed by the Governor. RCW 51.52.010.  We have found no statute which fixes a day certain for the beginning or expiration of these terms, and refer therefore to 67 C.J.S. 198, Officers, § 44b:

            "* * * Where a statute creates an office and prescribes the length of the term, with no date for the beginning or ending thereof, and designates the appointing power, the appointing power may fix not only the commencement of the term, but the end thereof, and it can say in the first instance that the term shall begin on a certain date, or it can say that the appointment is made under the law with the understanding that it shall end on a certain day."

            A letter from Mr. Lynch, the chairman, supplementing your request, indicates that he was appointed in 1954 to fill the unexpired term ending June 17, 1955, and was reappointed on June 20, 1955, for the term ending June 17, 1961.  While the date mentioned in your request is that of Mr. Lynch's reappointment, we do not believe it is material in determining the right of the other members to the increased salary, since it has no bearing upon their terms of office.

            It also appears from Mr. Lynch's letter that Mr. Borcher was originally appointed for a four-year term ending June 17, 1953, and was reappointed on June 24, 1953, for the term ending June 17, 1959.  The statute (§ 2, chapter 144, Laws of 1953) increasing the judges' salary took effect on June 11, 1953, almost a week before the beginning of Mr. Borcher's present term as fixed  [[Orig. Op. Page 6]] by the Governor under the rule last stated above.  There has thus been no increase during Mr. Borcher's present term, and he is therefore not prevented by the Constitution from receiving the statutory $11,500.

            It further appears that Mr. Engstrom was originally appointed for the two-year term ending June 17, 1951, and was reappointed for the term ending June 17, 1957.  He has been serving in the same six-year term both before and after the statutory increase in 1953; and is prevented by the Constitution from receiving that increase unless and until he is reappointed to another term.

            We conclude that Mr. Borcher is and has been since his last appointment entitled to $11,500 per year; and that Mr. Engstrom is not now and will not be entitled to that salary unless and until he is reappointed to another term.

            We hope the foregoing analysis will prove helpful to you.

Very truly yours,

DON EASTVOLD
Attorney General

A. J. HUTTON, JR.
Assistant Attorney General