Opinion No. 72-200 (1972) Ag ( 1972 )

** Summary **

COMPENSATION AND EXPENSES OF MEMBERS OF COUNTY EXCISE AND EQUALIZATION BOARDS Under the provisions of 68 O.S. 2458 [68-2458] (1971), as amended by House Bill 1523, Second Session, Thirty-third Legislature, County Excise and Equalization Board members in counties having an assessed valuation of Fifty Million Dollars ($50,000,000.00) or more appointed after the effective date of the act, that being March 28, 1972, are provided Twenty-five Dollars ($25.00) per diem expense and Twenty-five Dollars ($25.00) per diem compensation, in addition to the prescribed mileage. Those board members in counties having an assessed valuation of Five Hundred Million Dollars ($500,000,000.00) or more who were in office prior to March 28, 1972, but after June 24, 1971, the effective date of the 1971 amendment to Section 2458, would be entitled to receive their Fifty Dollars ($50.00) expense in lieu of all compensation until replaced in office or upon entering a new term of office, at which time they shall receive Twenty-five Dollars ($25.00) per diem expense and Twenty-five Dollars ($25.00) per diem compensation in addition to the prescribed mileage. Those board members in counties having an assessed valuation of Five Hundred Million Dollars ($500,000,000.00) or more who were in office prior to June 24, 1971, would still be receiving the authorized Twenty-five Dollars ($25.00) per diem compensation and prescribed mileage and be entitled to receive Twenty-five Dollars ($25.00) expense in addition to the compensation and mileage effective March 28, 1972. Those board members in counties having an assessed valuation between Fifty Million Dollars ($50,000,000.00) and Five Hundred Million Dollars ($500,000,000.00) who were in office prior to March 28, 1972, but after June 24, 1971, would be entitled to receive their Fifty Dollars ($50.00) per diem compensation until replaced in office or upon entering a new term of office, at which time they shall receive Twenty-five Dollars ($25.00) per diem expense and Twenty-five Dollars ($25.00) per diem compensation in addition to the prescribed mileage. Those board members in counties having an assessed valuation between Fifty Million Dollars ($50,000,000.00) and Five Hundred Million Dollars ($500,000,000.00) who were in office prior to June 24, 1971, would still be receiving the authorized Twenty five Dollars ($25.00) per diem compensation and prescribed mileage and would be entitled to receive Twenty-five Dollars ($25.00) expense in addition to the compensation and mileage effective March 28, 1972. This is to acknowledge receipt of your request for an opinion wherein the following question is asked: "What is the effect of 68 O.S. 2458 [68-2458] (1971), as amended by H.B. 1523 of the 33rd Legislature, as to the amounts to be received as compensation and/or expenses by members of County Excise and Equalization Boards in counties having an assessed valuation of $50,000,000 or more?" Title 68 O.S. 2458 [68-2458] (1971), amended in 1971, provides in part: "The board of equalization and excise board for each county in the state, created and appointed as hereinbefore provided, shall succeed to and exercise all the duties, powers and authority now vested in the board of equalization and excise board of each county, under existing laws, and the members of said boards, before entering upon their duties, shall subscribe to the oath required of other county officers. "Any person becoming a member of one of said boards in any county shall thereby become a member of the other board for that county, so that the membership of each board of equalization and excise board shall coincide and be identical as to each county. "The members of said boards in all counties having an assessed valuation of Five Hundred Million Dollars ($500,000,000.00) or more shall receive payment for expenses in lieu of all compensation for their services at the rate of Fifty Dollars ($50.00) per diem. Members of boards in all other counties shall receive Fifty Dollars ($50.00) per diem. All per diem payment for expenses in lieu of all compensation, upon certificates of the county clerk, shall be paid in like manner as the salaries of other county officials are paid. In addition, the members of said boards residing outside of the county seat shall be reimbursed for each mile of travel to and from their residences to the place of meeting of said board for each session attended at the rate of nine cents ($0.09) per mile. The members of said boards shall be also reimbursed for each mile of necessary travel in the performance of their official duties at the rate of nine cents ($0.09) per mile." House Bill No. 1523, Second Session, Thirty-third Legislature, amended Section 2458 by providing: "The members of said boards in all counties having an assessed valuation of Fifty Million Dollars ($50,000,000.00) or more shall receive payment for expenses at the rate of Twenty-five Dollars ($25.00) per diem in addition to compensation for their services at the rate of Twenty-five Dollars ($25.00) per diem. Members of boards in all other counties may receive as compensation not to exceed Fifty Dollars ($50.00) per diem, said amount to be established by the boards. All per diem payments for expenses in addition to compensation, upon certificates of the county clerk, shall be paid in like manner as the salaries of other county officials are paid." ArticleXXIII, Section 10 of the Oklahoma Constitution provides in part: "Except wherein otherwise provided in this Constitution, in no case shall the salary or emoluments of any public official be changed after his election or appointment, or during his term of office, unless by operation of law enacted prior to such election or appointment; . . ." Prior to the 1971 amendment to Section 68 O.S. 2458 [68-2458], said section provided compensation for all board members at the rate of Twenty-five Dollars ($25.00) per diem. Due to the constitutional limitation, the effect of the 1971 amendment to the section was to limit members of boards in office prior to the effective date of the amendment to the Twenty-five Dollars ($25.00) per diem. Members appointed after the effective date of the amendment were entitled to the increased emoluments, that being Fifty Dollars ($50.00) expenses in lieu of all compensation for members of boards in counties having an assessed valuation of Five Hundred Million Dollars ($500,000,000.00) or more and Fifty Dollars ($50.00) per diem for members of boards in all other counties. The prescribed mileage allowed board members has not changed and is provided in addition to the other emoluments. House Bill 1523 of the 1972 Legislature changed the language of Section 2458, which allowed Fifty Dollars ($50.00) expense in lieu of all compensation to members of boards of counties having an assessed valuation of Five Hundred Million Dollars ($500,000,000.00) or more, to provide Twenty-five Dollars ($25.00) per diem expense in addition to Twenty-five Dollars ($25.00) per diem salary to members of boards of counties having an assessed valuation of Fifty Million Dollars ($50,000,000.00) or more. The question of whether or not a public officer's expenses can be changed during his term of office has been ruled on by the Courts. Unless the contrary is clearly expressed, it is consistently held that the allowance of reasonable expenses incurred in the discharge of the official duties of office is neither salary, compensation, nor an emolument of the office within the purview of the constitutional prohibition against a change in compensation during the term of office. Spearman v. Williams, Okl., 415 P.2d 597. Therefore, the effect of House Bill 1523 is to provide Twenty-five Dollars ($25.00) per diem expense and Twenty-five Dollars ($25.00) per diem compensation, in addition to the prescribed mileage, to those county excise and equalization board members appointed after the effective date of the act, that being March 28, 1972. Those board members in counties having an assessed valuation of Five Hundred Million Dollars ($500,000,000.00) or more who were in office prior to March 28, 1972, but after June 24, 1971, the effective date of the 1971 amendment to Section 2458, would be entitled to receive their Fifty Dollars ($50.00) expense in lieu of all compensation until replaced in office or upon entering a new term of office at which time they shall receive Twenty-five Dollars ($25.00) per diem expense and Twenty-five Dollars ($25.00) per diem compensation in addition to the prescribed mileage. Those board members in counties having an assessed valuation of Five Hundred Million Dollars ($500,000,000.00) or more who were in office prior to June 24, 1971, would still be receiving the authorized Twenty-five Dollars ($25.00) per diem compensation and prescribed mileage and would be entitled to receive Twenty-five Dollars ($25.00) expense in addition to the compensation and mileage effective March 28, 1972. Those board members in counties having an assessed valuation between Fifty Million Dollars ($50,000,000.00) and Five Hundred Million Dollars ($500,000,000.00) who were in office prior to March 28, 1972, but after June 24, 1971, would be entitled to receive their Fifty Dollars ($50.00) per diem compensation until replaced in office or upon entering a new term of office, at which time they shall receive Twenty-five Dollars ($25.00) per diem expense and Twenty-five Dollars ($25.00) per diem compensation in addition to the prescribed mileage. Those board members in counties having an assessed valuation between Fifty Million ($50,000,000.00) and Five Hundred Million Dollars ($500,000,000.00) who were in office prior to June 24, 1971, would still be receiving the authorized Twenty-five Dollars ($25.00) per diem compensation and prescribed mileage and would be entitled to receive Twenty-five Dollars ($25.00) expense in addition to the compensation and mileage effective March 28, 1972. It is, therefore, the opinion of the Attorney General that your question be answered as follows: Under the provisions of 68 O.S. 2458 [68-2458] (1971), as amended by House Bill 1523, Second Session, Thirty-third Legislature, County Excise and Equalization Board members in counties having an assessed valuation of Fifty Million Dollars ($50,000,000.00) or more appointed after the effective date of the act, that being March 28, 1972, are provided Twenty-five Dollars ($25.00) per diem expense and Twenty-five Dollars ($25.00) per diem compensation, in addition to the prescribed mileage. Those board members in counties having an assessed valuation of Five Hundred Million Dollars ($500,000,000.00) or more who were in office prior to March 28, 1972, but after June 24, 1971, the effective date of the 1971 amendment to Section 2458, would be entitled to receive their Fifty Dollars ($50.00) expense in lieu of all compensation until replaced in office or upon entering a new term of office, at which time they shall receive Twenty-five Dollars ($25.00) per diem expense and Twenty-five Dollars ($25.00) per diem compensation in addition to the prescribed mileage. Those board members in counties having an assessed valuation of Five Hundred Million Dollars ($500,000,000.00) or more who were in office prior to June 24, 1971, would still be receiving the authorized Twenty-five Dollars ($25.00) per diem compensation and prescribed mileage and be entitled to receive Twenty-five Dollars ($25.00) expense in addition to the compensation and mileage effective March 28, 1972. Those board members in counties having an assessed valuation between Fifty Million Dollars ($50,000,000.00) and Five Hundred Million Dollars ($500,000,000.00) who were in office prior to March 28, 1972, but after June 24, 1971, would be entitled to receive their Fifty Dollars ($50.00) per diem compensation until replaced in office or upon entering a new term of office, at which time they shall receive Twenty-five Dollars ($25.00) per diem expense and Twenty-five ($25.00) per diem compensation in addition to the prescribed mileage. Those board members in counties having an assessed valuation between Fifty Million Dollars ($50,000,000.00) and Five Hundred Million Dollars ($500,000,000.00) who were in office prior to June 24, 1971, would still be receiving the authorized Twenty-five Dollars ($25.00) per diem compensation and prescribed mileage and would be entitled to receive Twenty-five Dollars ($25.00) expense in addition to the compensation and mileage effective March 28, 1972. (Mike D. Martin)