OFFICES AND OFFICERS - TOWNS - ADDITIONAL COMPENSATION OF TREASURER-CLERK AS EMERGENCY MEASURE

OFFICES AND OFFICERS - TOWNS - ADDITIONAL COMPENSATION OF TREASURER-CLERK AS EMERGENCY MEASURE

A treasurer-clerk of a town may not be paid additional compensation as an emergency measure for the collection of water revenues when no emergency exists.

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                                                                 October 9, 1959

Honorable Paul Klasen
Prosecuting Attorney
Grant County
Ephrata, Washington                                                                                   Cite as:  AGO 59-60 No. 74

Dear Sir:

            This is in answer to your request for the opinion of this office on a question which we paraphrase as follows:

            "Can the treasurer-clerk of a fourth class town be paid additional compensation for work pertaining to the collection of water revenues as an emergency measure, if such duties were not required of him at the time he took the position in that the city only recently acquired a water system?"

            We answer your question in the negative as qualified in the analysis.

                                                                     ANALYSIS

            Enclosed is a copy of AGO 53-55 No. 199, dated February 8, 1954 [[to Prosecuting Attorney, Benton County]].  This opinion provides that if the position of treasurer-clerk was created by the absorption of the clerk's duties by the treasurer, then the office is elective, and the salary of the office holder cannot be raised during the term.  The opinion also provides that if the position was created by the absorption of the treasurer's duties by the clerk, then the position is appointive at the will of the mayor, and the salary of the office holder can be raised.

             [[Orig. Op. Page 2]]

            Assuming that the treasurer-clerk of Westlake is eligible to have his salary raised, the question is whether or not it can be done in the present fiscal year.

            RCW 35.27.420 provides that "the town council shall make estimates of the amount [of moneys] required to meet the expenses of the town for the ensuing year and the amount necessary to be raised by taxation."  It is provided that this tentative budget is to be itemized and is to include the salary of each public officer.  RCW 35.27.440 provides that a budget and the necessary tax levies will be adopted after a public hearing.  RCW 35.27.450 provides that it is illegal for the town council to incur any liability which exceeds by more than two percent the amount provided in the estimates without the vote of the people or unless it is required by an emergency.  RCW 35.27.460 sets out that emergency expenditures can be made when disasters caused by fires, floods, earthquakes, etc., occur.  RCW 35.27.470 reads as follows:

            "If a public emergency which could not reasonably have been foreseen at the time of making the annual estimate requires the expenditures of money not provided for in such estimate, and if it is not one of the emergencies specifically enumerated in RCW 35.27.460, the town council before making any expenditure beyond the two percent tolerance excess permitted, shall adopt an ordinance stating the facts constituting the emergency and the estimated amount required to meet it and declaring that an emergency exists.

            "This ordinance shall not be voted on until one week has elapsed after its introduction and it shall require the unanimous vote of the council members present and the approval of the mayor.

            "Any taxpayer may appear at the council meeting at which the emergency ordinance is to be voted on and be heard for or against the adoption thereof."

            If the treasurer-clerk's salary can be raised by more than two percent it must be done under this statute.

             [[Orig. Op. Page 3]]

            A finding by the city council that such an emergency exists will be given great weight.  The court stated inState ex rel Pennock v. Reeves, 27 Wn. (2d) 739, 743, 179 P. (2d) 961 (1947):

            ". . . We have consistently held that such legislative declaration of emergency and necessity for the enactment is conclusive and must be given effect, unless the declaration on its face is obviously false; and, in determining the truth or falsity of the legislative declaration, we will enter upon no inquiry as to the facts, but must consider the question from what appears upon the face of the act, aided by the court's judicial knowledge. . . ."

            The question, however, is whether a bona fide "public emergency" exists, and whether or not it "could not reasonably have been foreseen at the time of making the annual estimate" as required by the statute.

            InState ex rel Porter v. Superior Ct., 145 Wash. 551, 559, 261 Pac. 90 (1927) there was stated a general definition of emergency:

            "The term 'emergency' is variously defined, but the controlling idea in all the definitions is that it is something unforeseen.  It is defined in 15 Cyc. 542, as:

            "'Any event or occasional combination of circumstances which calls for immediate action or remedy; pressing necessity; exigency; a sudden or unexpected happening; an unforeseen occurrence or condition.'"

            InState ex rel Gray v. Martin, 29 Wn. (2d) 799, 806, 189 P. (2d) 637 (1948) the court summarized the review made in State ex rel Robinson v. Reeves, 17 Wn. (2d) 210, 135 P. (2d) 75 (1943) of the cases in which the court upheld or denied the legislative declarations of emergency.  In theMartin case it was stated:

            ". . . In those cited cases, and in others more recently decided, we have held (1) that, unless the legislative act is in fact immediately necessary, all other factors  [[Orig. Op. Page 4]] are irrelevant, and the legislation will not be upheld as emergent(State ex rel Kennedy v. Reeves, supra); (2) that it is no argument to say that a referendum would promote a good cause, for the court's function is to declare the law, not to maintain or defend policies (State ex rel Mullen v. Howell, 107 Wash. 167, 181 Pac. 920); (3) that an emergency does not mean expediency, convenience, or best interest (State ex rel Brislawn v. Meath, supra, and (State ex rel Reiter v. Hinkle, supra); (4) that 'promotion of the public welfare' is not a criterion by which the court may be guided in determining whether or not an emergency exists (State ex rel Robinson v. Reeves, supra); . . ."

            It is stated in your letter that, "In justice to the Clerk for the extra duties, a raise in pay is being considered."  In light of the above authorities, it does not appear that an emergency exists.  Furthermore, it does not appear that this condition could not have been reasonably anticipated.

            Undoubtedly, provision was made in the annual budget and tax levies for the purchase of the waterworks.  It should have been apparent at that time that for the city to operate a waterworks would require the performance of clerical functions; and that a portion, if not all, of these functions would fall upon the treasure clerk.

            We conclude, therefore, that under the facts set forth in your letter, the salary of the treasurer-clerk of Westlake cannot be increased.

            We trust that this information is of value to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

GILBERT C. VALLEY
Assistant Attorney General