SALARIES ‑- OFFICES AND OFFICERS -- CITY -- COUNTY -- STATE

SALARIES ‑- OFFICES AND OFFICERS -- CITY -- COUNTY -- STATE

A mayor's salary may not be increased after his election.  The salary may be increased after the close of time for filing or the primary election.

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                                                                 January 13, 1956

Honorable Malcolm McBeath
State Representative, 42nd District
2622 G Street
Bellingham, Washington                                                                                                              Cite as:  AGO 55-57 No. 184

Dear Sir:

            You have requested our opinion relative to increase of the salary of a mayor by ordinance of the city council as now permitted by statute.  Your specific questions were as follows:

            (1) Can the mayor's salary be increased after filings have closed?

            (2) Can the mayor's salary be increased after the primary election?

            (3) Can the mayor's salary be increased after the general election in March and before taking office in June?

            In our opinion, the answers are: (1) "Yes", (2) "Yes", and (3) "No".

                                                                     ANALYSIS

            Section 8 of Article XI of the Washington state constitution, as relates to your questions, provides:

            "* * * The salary of any county, city, town, or municipal officers shall not be increased or  [[Orig. Op. Page 2]] diminished after his election or during his term of office, * * *" (Emphasis supplied)

            The 23rd Amendment affirms the foregoing prohibition of the constitution as applied to officials of combined city and county municipal corporations.

            We interpret the words "his election" to apply to that election which finally determines the successful candidate.  The salary may be increased prior to that event.  As "his election" would customarily occur at the general election, the salary may be increased prior to that date.  Therefore, your first and second questions are answered in the affirmative.

            We take this opportunity, however, to comment on what we believe to be proper policy with respect to the increase of decrease of salaries of such officials.  The Washington supreme court, discussing the constitutional provisions in State ex rel. Davis v. Clausen, 47 Wash. 372, said:

            "This wise provision was no doubt intended to prevent pernicious activity on the part of office holders of the state being brought to bear upon the members of the legislature‑-a wise provision which must not be construed out of existence or evaded by legislative enactment."

            The following language appears in State ex rel. Port of Seattle v. Wardall, 107 Wash. 606:

            "Other courts have said that such provisions also have an additional purpose, namely, to prevent the salary-fixing body from rewarding their friends and punishing their enemies, which they were sometimes wont to do, by increasing the salaries of those in favor and decreasing the salaries of those whose actions did not meet with the approval of that body."

            The latter quotation suggests the dangers inherent in changing the salary at any time after the time for filing has expired.  We can foresee the possible situation where the name of a single candidate would appear on the ballot either in the primary or general election.  In such a situation, we feel that the spirit, if not the letter, of the constitution would be in serious jeopardy.

             [[Orig. Op. Page 3]]

In Pulcifer v. Alameda County, 29 Cal. (2d) 258, 175 P. (2d) 1, it was said, at page 263:

            "The Supreme Court of Wisconsin, in treating as mandatory a statute containing a time limitation on the power of county officers to fix salaries, stated: 'It is quite clear that the statute contemplates that the power shall be exercised at a period remote from the time when such officers were to be chosen, in order to prevent the influence of partisan bias or personal feeling on the part of members of the board in fixing the salary.  And, furthermore, it was probably deemed desirable that candidates for office should know precisely what compensation was attached to the office.'  (Hull v. Winnebago Co., 54 Wis. 291, [11 N.W. 486, 487]; see, alsoFeavel v. City of Appleton, 234 Wis. 483, [291 N.W. 830, 833], and cases cited.)"  (Emphasis supplied.)

            To obtain the best-qualified candidates, it would seem most desirable to have the compensation set prior to the close of the time for filing.

            In answer to your third question, the constitution clearly prohibits an increase after the candidate's election and before taking office in June.

            Our remarks presume that any increase in salary would be effective commencing with the new term of office.

            We hope the foregoing will prove helpful to you.

Very truly yours,

DON EASTVOLD
Attorney General

H. E. WIELAND
Assistant Attorney General