Judges: DUSTIN McDANIEL, Attorney General
Filed Date: 3/6/2009
Status: Precedential
Modified Date: 7/5/2016
The Honorable Jim Wood Auditor of State 230 State Capitol Little Rock, Arkansas 72201
Dear Mr. Wood:
I am writing in response to Chief Deputy Auditor Larry E. Crane's request for an opinion on the following:
This office has received several informal requests by a Constitutional Officer and several members of the General Assembly to determine if, under Arkansas law, elected legislators and officers may decline the increases in salary recently approved by the General Assembly for their respective offices. Please consider this our request for your formal opinion on whether an elected Constitutional or legislative office-holder may decline part or all of the salary otherwise approved for payment by Arkansas law.
RESPONSE
In my opinion, the answer to this question is "no," based upon Arkansas's apparent adherence to the majority rule that when the salary of a public officer is fixed by law, the officer cannot waive such compensation because such waiver is contrary to public policy.
The Arkansas Supreme Court has never directly addressed the question of whether an officer may voluntarily decline part or all of his or her established salary, but it has recognized the general rule that "Public Officers' compensation is fixed by *Page 2
law and no contract or agreement made to receive less or more is binding." Pulaski County v. Caple,
If the prosecuting attorneys have accepted warrants on their face payable only under the terms of act 227 of 1935, they are not bound thereby to submit to the terms of the act, but are constitutionally entitled to be paid without the limits of such act.
`Public Officers' compensation is fixed by law and no contract or agreement made to receive less or more is binding. Mecham on Public Officers, page 249.' [Citations omitted.]
`The acceptance of less compensation than that established by law for the office does not estop an officer from subsequently claiming the legal compensation.' 46 C.J 1027, Officers.
`As a general rule, an agreement by a public officer to render the services required of him for less than the compensation provided by law is void, as against public policy.' 22 R.C.L. 538, Public Officers, 235.
Id. at 347.
A reference to current treatises confirms the continued validity of these observations. 67 C.J.S. Officers § 310 (2002) at 539. ("As a general rule, where the compensation of a public officer is established by law, he or she cannot accept less.") 63C Am. Jur. 2d Public Officersand Employees § 296 (1997) at 737. ("The courts, with some exceptions,13. declare invalid as against public policy a contract or agreement by a public officer to render services for a different compensation than that provided by law, [footnote omitted] as, for example, where the stipulated compensation is less than that provided for by law. [Footnote *Page 3 omitted.] Agreements of this character have been held invalid where made by a public officer with another officer or public body. [Footnote omitted.]").1
The general rule that a public officer cannot agree to accept any compensation less than that fixed by law is grounded primarily on the principle that public office, and compensation therefore, is not a matter of contract. As stated in Gentry v. Harrison,
The reasons for the rule are obvious. Where the compensation for an office has been fixed by law, it would be detrimental to the public service if the office could be let out to the lowest bidder. Laws designed to attract competent persons to public office by providing them with adequate compensation could be set at naught at the caprice of those charged with their administration. The effects on the efficiency and morale of the public service, if this were permitted, are not difficult to imagine.
Allen v. Lawrence,
The Georgia Attorney General aptly summarized the law concerning public officers' salaries as follows: *Page 4
There is a distinct difference in the salary of a public official and the salary of an ordinary employee. The salary of a public official does not arise from a contractual relationship between the public official and the state or political subdivision. This is distinctly different from the ordinary employer-employee relationship which is based on an express or implied contract. The public official's salary is a part of his office and attaches to the person holding the office. As the Court of Appeals stated in Owens v. Floyd County,
`It has been repeatedly held by the courts that `an officer's right to his compensation does not grow out of a contract between him and the State or the municipality by which it is payable. The compensation belongs to the office, and is an incident of his office, and he is entitled to it, not by force of any contract, but because the law attaches it to the office.' [Citation omitted.]
Thus, the salary of a public official becomes a matter of public interest and a matter of public policy. Since the salary is not based on contract, the public official is not at liberty to modify or to waive the salary. `An agreement by a public officer to accept less than the fees or salary allowed him by law is contrary to public policy and void, and the same is true of a promise to give a public officer more than the amount which the law fixes as compensation for his services.' [Citations omitted.]
Ga. Op. Att'y Gen. No. 85-13 (1985 WL 68867 (Ga. AG) (emphasis added)).
The few Arkansas cases, noted above, appear to accord with the weight of authority to the effect that a public officer cannot accept less than the salary that has been established for the office. It should be noted that there are cases to the contrary, at least in so far as the right of the officer to claim the difference in salary is concerned. E.g.,Schwarz v. City of Philadelphia,
I believe it also bears noting that even assuming our court subscribes to the theory that a public officer may voluntarily relinquish part of his or her fixed salary, no authority exists for the payment of a lesser amount than the salaries in question, which were recently established under
According to my review, therefore, the Auditor performs essentially a non-discretionary duty in the payroll process with respect to these constitutionally-established salaries. There is no procedure under which the Auditor, or any other official, might determine the amount to be requisitioned. Because neither the Auditor nor any other official is authorized to alter the established salaries, I believe it is immaterial whether or not a waiver of these salary increases would otherwise be considered contrary to public policy. This distinguishes your question from one addressed by the Ohio Attorney General concerning the compensation of county officials. Ohio Op. Att'y Gen. No.
As explained above, a very different case is presented with respect to the constitutional officers salaries under
In sum, therefore, it is my opinion that the officials may not decline these recent salary increases. After they receive their salaries, the officials may of course *Page 7 dispose of them as they wish. If, for instance, an officer wishes to return all or a portion of his or her salary to the state treasury, I see nothing to prevent such a donation.
Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.
Sincerely,
DUSTIN McDANIEL Attorney General
Gentry v. Harrison , 194 Ark. 916 ( 1937 )
Fennell and Reeves v. School Dist. No. 13. , 208 Ark. 620 ( 1945 )
Smith v. Page , 192 Ark. 342 ( 1936 )
Pulaski County v. Caple , 191 Ark. 340 ( 1935 )
State, Ex Rel. v. Akron , 132 Ohio St. 305 ( 1937 )