TERM OF OFFICE, SALARY INCREASE DURING TERM, AND REMOVAL BY MAYOR OF POLICE JUDGE OF CITY OF THIRD CLASS

TERM OF OFFICE, SALARY INCREASE DURING TERM, AND REMOVAL BY MAYOR OF POLICE JUDGE OF CITY OF THIRD CLASS.

In view of statutory authority therefor mayor may remove at pleasure police judge (who has no fixed term) of city of third class although such officer is a justice of the peace.  Salary in excess of compensation as justice of the peace may be increased or diminished when annual budget is fixed by council.

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                                                               December 31, 1952 

Mr. A. E. Hankins
Chief Examiner
Division of Municipal Corporations
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 450

 Dear Sir:

             In your letter of November 26, 1952, you state that the mayor of a third class city, which has a population of less than five thousand, has appointed as police judge a duly elected justice of the peace.  You request an opinion on three questions:

             "1. May the Police Judge be removed at pleasure by the Mayor?

             "2. What is the term of office for the Police Judge?

             "3. May the salary of the Police Judge be reduced or increased during his term of office or from one budget year to the next?"

             It is the opinion of this office that your first question should be answered in the affirmative.  In reply to your second query, you are informed that the police judge does not have what is called "tenure in office," that is, a fixed term, as he is appointed by the mayor who at his pleasure may remove such appointee from office.  In response to your third inquiry, you are advised that the compensation of the police judge is fixed by the city council annually at the time of the adoption of the budget and may not be increased or diminished until adoption of the next annual budget.

                                                                      ANALYSIS

             The mayor of a third class city shall appoint the police judge and at his pleasure he may remove the police judge and all other appointive officers.  Each appointment or removal must be in writing signed by the mayor and filed with the city clerk.  RCW 35.24.020.

             The city attorney, clerk, treasurer (elective officers) and health officer (appointive) shall each receive at stated times a compensation to be fixed by ordinance by the city council, which compensation  [[Orig. Op. Page 2]] shall not be increased or diminished after their election (or appointment), or during their several terms of office.  The mayor and other appointive officers, including the police judge but excluding the health officer, shall receive such compensation as may be fixed by the city council at the time the estimates are made as provided by law.  RCW 35.24.090.

             On or before the second Monday in August of each year there shall be filed with the city clerk detailed and itemized estimates of all expenditures required by each office, department, division, service, or institution of cities of the third class for the ensuing fiscal year.  RCW. 35.33.030.

             All estimates, appropriations and expenditures shall be classified under five general classes, one of which is "Salaries and Wages," within which general class each salary shall be set forth separately, together with the title or position of the recipient.  RCW 35.33.040.  On or before the first Tuesday in September of each year the clerk shall submit to the mayor the city's proposed preliminary budget.  The mayor shall consider the proposed preliminary budget in detail, and after making any revisions or additions deemed advisable shall file it with the city clerk.  RCW 35.33.050.

             On the first Monday in October of each year the city council shall meet for hearing on and fixing of the final budget.  The city council shall determine each item of the budget separately and shall by ordinance adopt the budget, setting out in separate totals the appropriation total for each of the five general classes, RCW 35.33.060, 35.33.070.

             "The expenditures as classified and itemized in the final budget shall constitute the city's appropriations for the ensuing fiscal year.  Every officer and employee of the city shall be limited in the making of expenditures and incurring of liabilities to the amounts of the detailed appropriation items or classes.  Transfers between the general classes shall not be permitted and no salary shall be increased above the amount provided therefor in the budget."  RCW 35.33.120

             The foregoing is in harmony with RCW 35.24.020 and 35.24.090 reading, in part, as follows:

             * * * The city council by ordinance shall prescribe the duties and fix the compensation of all officers:  Provided, That the provisions of any such ordinance shall not be inconsistent with any statute."

                         "* * *

              [[Orig. Op. Page 3]]

            "The mayor and other officers shall receive such compensation as may be fixed by the city council at the time the estimates are made as provided by law."

             In other words, if the compensation is fixed by ordinance it may be subsequently increased or decreased for the ensuing fiscal year (except as to city attorney, clerk, treasurer and health officer whose compensation shall be fixed by ordinance and may not be changed during their terms of office) by the adoption (by ordinance enacted by the city council) of the final budget in which appropriation is made for "Salaries and Wages" within which general class each salary shall be set forth separately.

             The foregoing statutory provisions are consistent with RCW 35.24.450, reading as follows:

             "At the time he makes his other appointments, the mayor shall appoint a police judge who shall be the regular elected justice of the peace in all cities of the third class, having a population of five thousand or more, if there is any such justice of the peace present in the city and not under any disability.  Said police judge shall, * * * receive such salary in addition to his salary as justice of the peace as the council shall by ordinance direct," (Underscoring ours).

             The statutory salary as justice of the peace to which the police judge is entitled may not be increased or decreased during his term of office as justice of the peace.  Such salary as the police judge may receive in addition to his statutory salary as justice of the peace‑-it is not material whether the population of the third class city is less than five thousand‑- may be increased or decreased, as stated above, at the time of the adoption by the city council of the final budget each year.  See Article II, section 25, State Constitution, and Everett v. Johnson, 37 Wn. (2d) 505, 224 P. (2d) 617.

             In State ex rel. Evans v. Superior Court, 92 Wash. 375, it was held that, when the mayor of a city of the first class appointed, pursuant to Laws of 1899, p. 135, Rem. and Bal Code, section 7520 (see RCW 35.22.420), one of the elected justices of the peace as police justice of such city, the term of the appointment as police judge is coextensive with the term for which the appointee was elected as justice of the peace, and the mayor had no power to remove him or revoke the appointment, in the absence of statutory authority; especially in view of Article V, sections 2 and 3, which provide that officers recognized by the Constitution (see Article IV, section 10) shall be subject to removal only for misconduct  [[Orig. Op. Page 4]] or malfeasance in the manner provided by law and that judicial officers may be impeached; there being no implied power of removal by the mayor resting in public policy.

             The statute (Laws of 1899, p. 135) construed by the court in the cited case did not give the mayor of a city of the first class the power to remove a police judge, hence State ex rel. Evans v. Superior Court, supra, is not applicable to the three questions presented to us for opinion.  The 1899 statute is distinguishable from a later statute (RCW 35.24.020) which expressly authorizes the mayor of a third class city to appoint and at his pleasure remove all appointive officers which includes police judges.

 Very truly yours,
SMITH TROY
Attorney General