Can Washington county commissioners enact midterm increases to their own health insurance contributions, cash-in-lieu payments, or convert health benefits to cash before their next term begins?

Plain-English summary

Franklin County offers its employees, including county commissioners, a "lump sum" health benefit. Each employee can apply that lump sum to insurance premiums, deposit it in an HRA/VEBA account, or (by group election) take it as taxable cash or contribute it to a retirement account. Franklin County asked the AG three questions about commissioners adjusting these arrangements during their terms in office, against the backdrop of the Washington Constitution's prohibition on midterm compensation increases for elected officials who set their own pay.

AG Nick Brown's April 2025 answer split the questions:

1. Midterm increases to the cost of a health benefit plan: possibly allowed. RCW 41.04.190 expressly says that the cost of a "policy or plan" authorized by RCW 41.04.180 is not "additional compensation" to elected officials. So if the County's program is a true RCW 41.04.180 hospitalization-and-medical-aid program, midterm increases to the County's contribution are constitutional. Whether Franklin County's specific program meets the RCW 41.04.180 requirements is a fact question the AG declined to decide.

2. Midterm increases to cash-in-lieu payments: not allowed. When commissioners take the benefit as cash rather than as health coverage, the cash is "compensation" in the constitutional sense, and Article II, section 25, Article XI, section 8, and Article XXX, section 1 prohibit increases during a term of office for officials who set their own pay.

3. Midterm conversion of health benefits to cash payments: not allowed. Even between an election win and the start of the new term, an incumbent board cannot enact a conversion. Compensation adjustments for the next term have to be enacted before the election.

The opinion sits inside the long-running Washington tension between two constitutional principles: officials should receive compensation that keeps up with cost of living and market conditions (Article XXX, section 1, allowing midterm increases for officers who do not set their own pay), and officials with self-fixing power should not vote themselves raises (Article II, section 25 and Article XI, section 8). RCW 41.04.190 is a narrow legislative carveout for health benefits, it does not extend to cash-in-lieu.

What this means for you

If you're a Washington county commissioner

You can probably take advantage of midterm increases to the cost of your group health benefit plan, as long as the plan meets RCW 41.04.180 (group hospitalization or medical aid through insurance carriers, health care service contractors, or self-insurance, on the same basis as other county employees). You cannot take a midterm increase to a cash-in-lieu payment, and you cannot convert your health benefits to cash midterm, that includes the post-election but pre-term-start window.

If you want to adjust your compensation package for your next term, do it before the election. Then if you win re-election, the changes can take effect when the new term begins.

If you're a county HR director or county auditor

The structure of the benefit matters. A program structured as a true group health plan under RCW 41.04.180, where the county purchases or arranges health coverage and the commissioner participates as a covered individual: fits within RCW 41.04.190 and can be increased mid-term. A program structured as a "lump sum" that the employee can elect to take as cash or in HRA/VEBA contributions does not fit cleanly inside RCW 41.04.180. The cash element is compensation, and the constitutional limits apply.

If you administer a program where commissioners and other employees are in the same group, midterm changes to the cash-in-lieu component can create odd situations: other employees can receive the cash increase, but commissioners cannot.

If you're a county prosecutor advising a board

When the board asks about midterm benefit changes, walk through:

1. Is the underlying health benefit plan a true RCW 41.04.180 plan?
2. Are the proposed changes increases to plan contributions, or to cash-in-lieu?
3. If cash-in-lieu, the constitution blocks it for the commissioners (though not for other employees).
4. Is timing pre-election or post-election? Post-election but pre-term-start changes for incumbents who won re-election are still blocked.

If you're a citizen evaluating a county compensation proposal

The constitutional rule is straightforward: officials who set their own pay cannot vote themselves raises during their terms. The question is what counts as "pay." Health benefits structured as a group plan under RCW 41.04.180 are not pay for this purpose, by statute. Everything else is.

Common questions

Q: What is the constitutional rule against midterm raises?
A: Three provisions interact. Article II, section 25 forbids midterm "extra compensation" or compensation increases for public officers. Article XI, section 8 specifically protects county officers' salaries from midterm increase or decrease. Article XXX, section 1 carves out a limited exception for officials who do not fix their own compensation. County commissioners do fix their own compensation under RCW 36.17.020, so the carveout does not apply.

Q: What is RCW 41.04.180?
A: A statute authorizing counties (and other municipalities) to provide group hospitalization and medical aid benefits through insurance carriers, health care service contractors, or self-insurance. It allows counties to provide those benefits to county elected officials on the same basis as to other county employees.

Q: Why is RCW 41.04.190 the linchpin?
A: It says: "The cost of a policy or plan to a public agency or body is not additional compensation to the employees or elected officials covered thereby." That sentence, as the AG read it (consistent with prior AG opinions in 1968, 1983, 1988, and 1992), means that the constitutional bar on midterm compensation increases does not apply to increases in the cost of a true RCW 41.04.180 plan.

Q: What's an HRA/VEBA?
A: A Health Reimbursement Arrangement / Voluntary Employees' Beneficiary Association is an employer-funded group health plan from which employees are reimbursed for qualified medical expenses up to a fixed annual amount. VEBAs are tax-exempt under 26 U.S.C. § 501(c)(9). They are health-benefit vehicles, but the Franklin County program presented to the AG also allowed cash conversion as a group election, which is what triggered the constitutional concern.

Q: When should a commissioner's compensation for the next term be set?
A: Before the election. The opinion's third holding is that an incumbent board, even after an election win, cannot enact a midterm conversion or increase that would benefit the commissioner. The commissioner's compensation is what it was when they were elected to the new term, plus whatever was lawfully enacted before the election.

Background and statutory framework

The constitutional architecture

Washington's constitution has accumulated three layers of compensation rules:

• Article II, section 25 (1889 Constitution): no extra compensation after services rendered; no midterm increase or decrease.
• Article XI, section 8 (1889 Constitution, amended): county and municipal officers' salaries shall not be increased except as Article XXX provides, or diminished, during a term.
• Article XXX, section 1 (1968 amendment): allows midterm compensation increases for officers who do not fix their own compensation, "to the end that such officers . . . shall each severally receive compensation for their services in accordance with the law in effect at the time the services are being rendered." The amendment also repealed inconsistent earlier provisions.

The structural compromise: officials whose pay is set by someone else (legislature, voters, independent commission) can receive midterm increases. Officials who set their own pay cannot. County commissioners set their own pay (RCW 36.17.020), so they fall on the wrong side of the line.

The health-benefits carveout

RCW 41.04.180 (county hospitalization and medical aid authority) plus RCW 41.04.190 (declaring plan costs not "additional compensation") create a narrow carveout: counties can provide their commissioners with group health benefits, and increases in the cost of those benefits are not midterm compensation increases. The legislature created this carveout because health-benefit costs change continuously due to medical inflation and market shifts, and applying the constitutional midterm-increase bar to those routine adjustments would have been unworkable.

Why cash-in-lieu doesn't qualify

Cash-in-lieu of health benefits is cash. RCW 41.04.190 talks about "the cost of a policy or plan," which is the cost the county incurs for providing health coverage. When the county instead pays cash to the employee or commissioner, that is compensation. The carveout does not stretch.

Why the post-election but pre-term-start window is blocked

The opinion's third holding flows from the structural rule. An incumbent commissioner who has won re-election is still in their current term, and the next term has not yet begun. Any compensation adjustment enacted in that window is enacted by the incumbent (in the current term), and applies to the same person continuing in office. To comply with the constitution, compensation adjustments for the next term must be enacted before the election, at a time when it is uncertain who will hold the office in the next term.

Citations and references

Constitutional and statutory provisions:
- Wash. Const. art. II, § 25
- Wash. Const. art. XI, § 8
- Wash. Const. art. XXX, § 1
- RCW 36.17.020 (county commissioner pay)
- RCW 41.04.180 (county health benefits authority)
- RCW 41.04.190 (plan cost not additional compensation)

Prior AG opinions cited:
- AGO 1968 No. 36
- AGO 1983 No. 6
- AGO 1988 No. 27
- AGO 1992 No. 21

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/county-commissioner-health-insurance-county-commissioners-ability-enact-midterm

Original opinion text

ATTORNEY GENERAL NICK BROWN

COUNTY COMMISSIONER—COMPENSATION—HEALTH INSURANCE—CONSTITUTIONALITY—County Commissioners' Ability To Enact Midterm Increases To Their Own Health Benefits, Convert Their Health Benefits To Cash Payments, Or Increase Cash Payments They Receive In Lieu Of Health Benefits

1. If a county's health benefit plan is authorized by RCW 41.04.180, then RCW 41.04.190 provides that the county's costs in that regard are not "additional compensation" to the employee that would otherwise implicate state constitutional prohibitions on county commissioners' ability to increase their own compensation during their terms of office.

2. Increases to cash payments made in lieu of health plan contributions are constitutionally prohibited.

3. Midterm conversion of health benefits to equivalent value cash payments is likewise prohibited.

April 9, 2025

The Honorable Shawn Sant
Franklin County Prosecuting Attorney
1016 North 4th Avenue
Pasco, WA 99301

Cite As: AGO 2025 No. 1

Dear Prosecutor Sant:

By letter previously acknowledged, you have requested our opinion on a series of questions relating to the validity of midterm changes to board of county commissioners' health insurance benefits or cash payments in lieu of benefits.

QUESTIONS

1. May county commissioners enact midterm increases to county contributions to their own health benefit plan?

2. May county commissioners enact midterm increases to cash payments payable to themselves where such payments are equivalent in monetary value to the cost of health benefits that the commissioners have opted out of receiving?

3. May an incumbent board of county commissioners enact a conversion of health benefits to equivalent value cash payments after winning the November election but before the new term of office begins?

BRIEF ANSWERS

1. Possibly. Assuming that the health plan meets all requirements of RCW 41.04.180, then under RCW 41.04.190, the cost of the health plan to the county is not "additional compensation" to the employees that would be subject to a constitutional prohibition on midterm compensation increases.

2. No. Cash payments made in lieu of health plan contributions are compensation as that term is used in the state constitution, and the constitutional prohibition on midterm increases to compensation would apply.

3. No. To comply with the state constitution, a county commissioner's compensation adjustments for the next term must be enacted prior to the election.

ANALYSIS

I. The constitutional framework

There are three sections of the Washington Constitution regulating the compensation or salary of elected county officers: article II, section 25; article XI, section 8; and article XXX, section 1. Article II, section 25 forbids legislative bodies from granting "extra compensation to any public officer, agent, employee, servant, or contractor, after the services shall have been rendered[.]" Article II, section 25 further prohibits "the compensation of any public officer [from being] increased or diminished during his term of office." Article XI, section 8 provides, in part, that "[t]he salary of any county, city, town, or municipal officers shall not be increased except as provided in section 1 of article XXX or diminished after his election, or during his term of office[.]" Article XXX, section 1 permits midterm increases in compensation for "municipal officers who do not fix their own compensation . . . to the end that such officers . . . shall each severally receive compensation for their services in accordance with the law in effect at the time the services are being rendered."

Taken together, these constitutional provisions mean that public officers who have the power to fix their own compensation, and thus have the power to grant themselves an increase in compensation, may not constitutionally benefit from the exercise of this power during their current terms of office. County commissioners have the power to fix their own compensation. RCW 36.17.020.

II. RCW 41.04.190 carves health benefits out of "compensation"

Payments made for health care policies and plans covering county commissioners are not compensation in some circumstances. RCW 41.04.190 provides that "[t]he cost of a policy or plan to a public agency or body is not additional compensation to the employees or elected officials covered thereby." It applies to "any county elected officials who are provided insurance coverage under RCW 41.04.180[.]" RCW 41.04.190. As we stated in AGO 1988 No. 27, it was the intent of the Legislature to permit midterm increases in health benefit policies or plans by way of RCW 41.04.190.

RCW 41.04.180 establishes a municipality's authority to provide group hospitalization and medical aid policies or plans to county elected officers. Under these statutes, if a health benefit plan constitutes the sort of program authorized by RCW 41.04.180, then county commissioners may enact midterm increases to payments made to such a program on their behalf, as those payments would not constitute "additional compensation."

We do not opine on whether Franklin County's specific health benefits program meets the qualifications of RCW 41.04.180. If a health benefit program is not the sort of program authorized by RCW 41.04.180, and is consequently not a "policy or plan" under RCW 41.04.190, then midterm increases to it would be unconstitutional as to the county commissioners.

III. Cash payments in lieu of health benefits are constitutionally protected compensation

Cash payments made in lieu of health plan contributions are compensation as that term is used in the state constitution. RCW 41.04.190's carveout speaks to "the cost of a policy or plan" — actual coverage costs incurred by the county. When the county instead pays cash to the employee, the cash is compensation. The constitutional prohibition on midterm increases to compensation applies, and the commissioners cannot benefit from such an increase during their current terms.

IV. Conversion of health benefits to cash midterm is also blocked

A conversion of an existing health benefit to an equivalent value cash payment is a change from a non-compensation benefit to compensation. Even if the dollar value remains the same, the constitutional bar applies because the post-conversion form is compensation that is being increased (from zero in cash terms to whatever the equivalent value is). The conversion cannot be enacted midterm by an incumbent board, including in the post-election pre-term-start window.

To comply with the state constitution, a county commissioner's compensation adjustments for the next term must be enacted prior to the election.

CONCLUSION

For the reasons stated above:

1. Midterm increases in the cost of an RCW 41.04.180 health benefit plan covering county commissioners are not constitutionally barred, because RCW 41.04.190 provides that such plan costs are not "additional compensation."
2. Midterm increases to cash payments in lieu of health benefits are constitutionally prohibited.
3. Midterm conversion of health benefits to equivalent-value cash payments is constitutionally prohibited.

Sincerely,

NICHOLAS W. BROWN
Attorney General