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News / Clark County News

Audit: FVRLibraries violated state Constitution by issuing back pay to nonrepresented employees

Fort Vancouver Regional Library district workers not expected to return funds

By Griffin Reilly, Columbian staff writer
Published: February 11, 2023, 6:00am

The Fort Vancouver Regional Library district violated the Washington Constitution by retroactively compensating non-represented employees in 2021, according to findings in a routine audit released by the Washington State Auditor’s office Monday.

According to the report, FVRLibraries employees represented by the American Federation of State County and Municipal Employees reached a new bargaining agreement on Nov. 1, 2021, that gave them a 6 percent pay increase effective back to Jan. 1, 2021.

The district then also retroactively applied that same pay increase — which, in total, amounted to $122,521 — to 57 non-represented employees in similar positions.

That action was in violation of Article II, Section 25 of the Washington Constitution, which bans “extra compensation to any public officer, agent, employee, servant, or contractor, after the services shall have been rendered, or the contract entered into,” according to the state auditor’s office.

As a reporting agency, the state auditor’s office lacks the authority to force any money to be returned, but it suggested that FVRLibraries review with its legal counsel what the next steps should be.

The following internal review found that such refunds aren’t due from the identified employees.

“Based on FVRLibraries’ past practice, and the time elapsed between the distribution of pay and the SAO’s audit, they believe it is not reasonable to expect these individuals to return these funds,” the district said in its response.

The audit assessed the period of Jan. 1, 2020, to Dec. 31, 2021.

What happened?

FVRLibraries argued that the decision was originally made to keep pay fair for non-union employees and to prioritize worker retention.

“The market salary study the district undertook in 2021 revealed that FVRLibraries was behind the market in compensation for many of our AFSCME and non-represented positions, driving the decision to grant a six percent increase to all employees at the end of the year, along with the retroactive compensation,” the district said. “FVRLibraries hoped that would narrow the gap for many employees and help the district retain valuable employees and increase compensation equal to or above our peers in the state.”

FVRLibraries also indicated that the practice of matching pay increases was something it had done in previous years and that it wasn’t aware that such payments that aren’t part of a collective bargaining agreement are against state law, as it had never been flagged in a previous audit.

“We looked at the personnel records for a 40-year employee that was non-represented for the duration of their career with FVRL. We found instances of retroactive pay going back to the 1980s,” FVRLibraries executive director Amelia Shelley wrote in an email Friday. “It did not happen every year, but frequently enough to be considered an acceptable practice by FVRL.”

Kathleen Cooper, a spokesperson for the state auditor’s office, said Friday that the office hadn’t found such violations in previous audits because the increases were applied retroactively.

“This is something that trips governments up from time to time,” Cooper said. “Governments can raise pay to ensure parity or for other policy reasons, but it must be done before the period of payment and tied to performance.”

Going forward, FVRLibraries said it should implement a policy for non-represented employees to have a compensation plan that indicates when a retroactive pay increase may be possible based on job expectation and performance.

Cooper said the state auditor’s office will follow up on the situation’s remedy during the next audit.