WAIVER OF UNIFORM ALLOWANCE -- ORGANIZED MILITIA OR WASHINGTON

WAIVER OF UNIFORM ALLOWANCE -- ORGANIZED MILITIA OR WASHINGTON

Officers of the National Guard may not waive in advance the annual uniform allowance due them and such waiver would not preclude a later claim for such amount, but after uniform allowances become due and payable it may be waived.

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                                                                 October 5, 1949

Lilburn H. Stevens, Brig. General, AGD. WNG
The Adjutant General
Camp Murray
Fort Lewis, Washington                                                                                                              Cite as:  AGO 49-51 No. 142

Dear Sir:

            Receipt is acknowledged of your letter of September 16, 1949, in which you ask our opinion as to whether officers of the National Guard may, in view of an insufficient appropriation for uniform allowances, waive the annual uniform allowance of $50.00 provided for under § 37, chapter 130, Laws of 1943 [8603-37 Rem. Supp. 1943].  You also inquire whether, if such waivers can be legally secured, the individuals would be precluded from making a claim for such allowance at some future date.

            Our conclusions may be summarized as follows:

            1. A waiver executed in advance of the completion of the twelve months service required to make the allowance payable would be void as against public policy.

            2. Such a waiver would not preclude the individual from later making a claim for the allowance.

            3. After the allowance has become payable by completion of the requisite period of service it may be waived.

                                                                     ANALYSIS

            § 37, chapter 130, Laws of 1943 [8603-37 Rem. Supp. 1943] provides in part:

             [[Orig. Op. Page 2]]

            "There shall be audited and paid to each properly uniformed and equipped officer of the active list of the Organized Militia of Washington, not in Federal service, an initial uniform allowance of one hundred dollars ($100.00) and annually thereafter for each twelve months state service an additional uniform allowance of fifty dollars ($50.00), subject to such regulations as the Commander in Chief may prescribe to be audited and paid upon presentation of proper voucher therefor: * * *"

            The inquiry in this case is concerned with the $50.00 allowance to be paid annually for each twelve months state service.  It is not concerned with the original $100.00 uniform allowance.  This flat sum of $50.00 which is allowed annually to each officer of the National Guard is not contingent upon his actual expenditures for uniform but becomes due upon his performing twelve months state service.  It is additional compensation to him for his service to the state which includes maintaining for himself a proper uniform.  The following rule of law is stated in 70 A.L.R. 973:

            "The rule seems to be well settled in most jurisdictions that a contract whereby a public officer agrees to perform services required of him by law for less compensation than that fixed by law is contrary to public policy and void."

            That general rule has been applied in this state in a number of cases.  In the case of Rhodes v. Tacoma, 97 Wash. 341, our Supreme Court said:

            "* * * It seems equally well settled that any contract or agreement on the part of an incumbent of an office, made at the time of or before his appointment to the office, that he shall accept in lieu of the salary prescribed by law a sum less than is so prescribed is void as against public policy and does not become binding upon him so as to preclude him from recovering the full amount of the salary.  Miller v. United States, 103 Fed. 413; Glavey v. United States, 182 U.S. 595;Lukens v. Nye, 156 Cal. 498, 105 Pac. 593, 36 L.R.A. (N.S.) 244, and note.  * * *"

            The rule has been applied consistently wherever it has been before the Supreme Court of this state.  Other cases in which our Supreme Court has reached the same result are State ex rel. Knez v. Seattle, 176 Wash. 283, 28 P. (2d) 1020;State ex rel. Pike v. Bellingham, 183 Wash. 439, 48 P. (2d) 602;State ex rel. Osburn v. Seattle, 190 Wash. 222, 67 P. (2d) 913; 111 A.L.R. 418;State ex rel. Ross v. King County, 191 Wash. 340, 71 P. (2d) 370;Chatfield v.  [[Orig. Op. Page 3]] Seattle, 198 Wash. 179, 88 P. (2d) 582, 121 A.L.R. 1279;State ex rel. Hartsell v. Seattle, 199 Wash. 455, 192 P. (2d) 199;Watkins v. Seattle, 2 Wn. (2d) 695.  In none of the Washington cases was the state as distinguished from a municipal officer involved.  However, the rule has been generally applied in other jurisdictions to all types of governmental officers.  See Annotation 70 A.L.R. 972, 118 A.L.R. 1458.  Although the language of the above quotation fromRhodes v. Tacoma refers to the time of appointment to the office, the rule has not been confined to the original appointment but rather to all waivers or agreements made in advance of the performance of the service for which compensation is payable.  We see no distinction between the payments designated salary and those designated uniform allowance since both are based upon the performance of service.

            It is, therefore, our conclusion that waivers made in advance of the performance of the service are not valid and under the decisions would not preclude a later claim for the amount waived.

            Where compensation has been fully earned by a public officer it is his and he may do with it as he pleases.

            "The rule of public policy which invalidates agreements to render official services for a compensation less than or different from that fixed by law has reference to services yet to be performed.  The evil sought to be prevented by invalidating such agreements cannot arise where the agreement is made after the services have been performed.  Whatever compensation attaches to such performed services belongs to the officer as his property to do with as he pleases and it lies within his power to relinquish it altogether or to agree to take less in payment for his services."  43 Am.Jur. 158

            No illegality would be involved in officers' turning back to the state their uniform allowance after it has been fully earned, or in their waiving such payments when they have become fully due.  The latter could be accomplished by their filing in lieu of vouchers a statement somewhat as follows:

            "In consideration of the maintenance of the officer strength of the National Guard of the State of Washington at a strength  [[Orig. Op. Page 4]] not possible if all sums due for uniform allowance to officers are paid, I, the undersigned hereby waive the amount of $50.00 now due me from the state as uniform allowance for services for the twelve months period from . . . . . . to . . . . . . ."

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General