OFFICES AND OFFICERS ‑- COUNTIES ‑- SALARIES ‑- FRINGE BENEFITS ‑- PAYMENT OF MID-TERM SALARY INCREASES TO COUNTY COMMISSIONERS

OFFICES AND OFFICERS ‑- COUNTIES ‑- SALARIES ‑- FRINGE BENEFITS ‑- PAYMENT OF MID-TERM SALARY INCREASES TO COUNTY COMMISSIONERS

The members of a board of county commissioners, during the remainder of the terms of office they were serving on the effective date of the salary increases granted by the legislature in chapter 88, Laws of 1973, 1st Ex. Sess., may receive those legislatively granted increases; they may not, however, constitutionally receive mid-term increases in such health care benefits as they have provided for themselves and other county officers and employees under the provisions of RCW 41.04.180.

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                                                                   April 10, 1974

Honorable Smith Troy
Prosecuting Attorney
Thurston County Court House
Olympia, Washington 98501

                                                                                                                   Cite as:  AGO 1974 No. 9

Dear Sir:

            This is written in response to your recent letter requesting our opinion on two questions which we paraphrase as follows:

            (1) May the members of a board of county commissioners, during the remainder of the terms of office they were serving on the effective date of the salary increases granted by the legislature in chapter 88, Laws of 1973, 1st Ex. Sess., receive those increases?

            (2) May the members of a board of county commissioners constitutionally receive mid-term increases in such health care benefits as they have provided for themselves and other county officers and employees under the provisions of RCW 41.04.180?

            We answer question (1) in the affirmative and question (2) in the negative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Question (1):

            As indicated in AGO 1973 No. 20 [[to Granville Egan, Prosecuting Attorney, Ferry County on September 20, 1973]], copy enclosed, until the adoption of Amendment 57 to the state Constitution at the November 7, 1972, general election, the function of fixing salaries for all county elected officials wasexclusively that of the legislature under the then existing provisions of Article XI, §§ 5 and 8 of the state Constitution.  By their adoption of this recent amendment, however, the voters amended those two sections to read as follows:

            Article XI, § 5:

            "The legislature, by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys and other county, township or precinct and district officers, as public convenience may require, and shall prescribe their duties, and fix their terms of office:  PROVIDED, That the legislature may, by general laws, classify the counties by population and provide for the election in certain classes of counties certain officers who shall exercise the powers and perform the duties of two or more officers.  It shall regulate the compensation of all such officers, in proportion to their duties, and for that purpose may classify the counties by population:  PROVIDED, That it may delegate to the legislative authority of the counties the right to prescribe the salaries of its own members and the salaries of other county officers.  And it shall provide for the strict accountability of such officers for all fees which may be collected by them and for all public moneys which may be paid to them, or officially come into their possession."

            Article XI, § 8:

            "((The legislature shall fix the compensation by salaries of all county officers, and of constables in cities having a  [[Orig. Op. Page 3]] population of five thousand and upwards; except that public administrators, surveyors and coroners may or may not be salaried officers.))  The salary of any county, city, town, or municipal officers shall not be increasedexcept 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."

            Following the approval of this amendment by the voters, the legislature, by its enactment of chapter 88, Laws of 1973, 1st Ex. Sess., simultaneously increased the salaries of all county elective officers (effective January 1, 1974) and granted to the legislative authorities of all counties the power to vary from the new salary levels thus established, as follows:

            ". . .

            "Beginning January 1, 1974:

            "The salaries of the following county officers of class AA and A counties and counties of the first, second, third, fourth, fifth, sixth, seventh, eighth and ninth classes, as determined by the last preceding federal census, or as may be determined under the provisions of RCW 36.13.020 to 36.13.075, inclusive, shall be per annum respectively as follows:

            "Class AA counties:  Prosecuting attorney, thirty thousand three hundred dollars;

            "Class A counties:  Auditor, seventeen thousand six hundred dollars; clerk, seventeen thousand six hundred dollars; treasurer, seventeen thousand six hundred dollars; sheriff, nineteen thousand five hundred dollars; assessor, seventeen thousand six hundred dollars; prosecuting attorney, twenty-four thousand eight hundred dollars; members of board of county commissioners, nineteen  [[Orig. Op. Page 4]] thousand five hundred dollars; coroner, sixteen thousand five hundred dollars; . . . [similar provisions for counties of the first through eighth classes omitted] . . .

            "Counties of the ninth class:  Auditor-clerk, eight thousand two hundred dollars; treasurer-assessor, eight thousand two hundred dollars; sheriff, nine thousand four hundred dollars; prosecuting attorney, nine thousand nine hundred dollars; members of the board of county commissioners, six thousand one hundred dollars.

            "The county legislative authority of such county is authorized to increase or decrease the salary of such office:  PROVIDED, That the legislative authority of the county shall not reduce the salary of any official below the amount which such official was receiving on January 1, 1973.

            "One‑half of the salary of each prosecuting attorney shall be paid by the state."  (Emphasis supplied.)1/

             Clearly, the members of a board of county commissioners, in the exercise of the delegated authority now vested in them to increase salaries above the levels thus fixed by the legislature, may not grant further mid-term increases to themselves.  Accord, AGO 1973 No. 20,supra, and Article XXX, § 1 (Amendment 54) of the Constitution, as adopted in 1968, which provides that:

            "The compensation of all elective and appointive state, county, and municipal officerswho 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  [[Orig. Op. Page 5]] for their services in accordance with the law in effect at the time the services are being rendered."  (Emphasis supplied.)

            But this does not mean ‑ nor was AGO 1973 No. 20 intended to imply ‑ that county commissioners may not even receive, until the commencement of their next terms of office, those salary increases which were provided for in chapter 88,supra, by the legislature.

            In AGO 1969 No. 2 [[to Robert V. Graham, State Auditor on January 20, 1969]], a copy of which is also enclosed, this office specifically advised that the members of a board of county commissioners were not precluded from receiving mid-term salary increases when granted by the legislature under the then existing provisions of Article XI, § 8 of the Constitution, supra.  In our judgment, that 1969 opinion remains valid today insofar as legislatively fixed salary increases are concerned.  Neither the spirit nor the letter of the constitution is violated by the payment to a county commissioner of a mid-term salary increase provided for by the legislature ‑ as distinguished from one which is granted by the commissioners themselves.  In the one case, the new salary is fixed by a state law enacted by the legislative authority of the state; in the other, it is fixed by a county ordinance or resolution requiring the approval of the commissioners themselves for passage.  Therefore, it is our opinion that the members of a board of county commissioners or other county legislative authority may, during the remainder of the current terms they were serving when the salary increases provided for by the legislature in chapter 88,supra, became effective, receive those increased salaries.

            Question (2):

            Although thus answering your first question in the affirmative, we find it necessary to answer your second in the negative ‑ also on the basis of AGO 1969 No. 2,supra.  In upholding the constitutional ability of members of a board of county commissioners to receive mid-term salary increases granted by the legislature we distinguished between such salaries and the health care benefits that county commissioners are authorized to provide for themselves and other county officers and employees under RCW 41.04.180, saying:

            ". . . as you have pointed out, these  [[Orig. Op. Page 6]] officials do have the authority, under RCW 41.04.180, to provide group hospitalization and medical aid coverage for '. . . county elected officials and their dependents on the same basis as such hospitalization and medical aid is provided for other county employees and their dependents: . . .'  Furthermore, RCW 41.04.190 expressly provides that the county's costs incurred in providing such group hospitalization or medical aid coverage '. . . shall be deemed additional compensation to the employees or elected county officials covered thereby for services rendered, . . .'

            "Thus, to this limited extent only, the members of a board of county commissioners can be said to be officers who fix their own compensation; however, consistent with the underlying purpose of the qualification contained in HJR No. 13, it is our opinion that this should merely be regarded as meaning that the members of a board of county commissioners will continue to be barred from either (1) initially providing group hospitalization or medical aid coverage for themselves, or (2) increasing the county's payments toward such coverage, in such a manner as to have this action take immediate, mid-term effect.  Accord, our opinion of March 6, 1968, to the Snohomish county prosecuting attorney, copy enclosed."