Island County commissioners rescinded a resolution that would have provided staff members with a total of $1.5 million in lump-sum premium pay from federal relief funds.

But extra money will likely still be coming to county employees, just in a different form under a revised resolution.

Catherine Reid, county Human Resources director, recommended revoking the resolution, saying that the county prosecutor advised that he would not be comfortable defending the action “based on one of the items in the resolution and the conversations that we had about premium pay.”

“The idea of rescinding this breaks my heart,” Commissioner Melanie Bacon said, asking Reid to expound on the issue.

Last week, the commissioners passed the resolution that would have awarded essential employees bonuses for their “incredible work” during the COVID-19 pandemic.

Those hired before Jan. 1, 2021 would have received a one-time payment of $2,850 and those hired this year would have gotten $1,425. County officials said all employees are considered essential, although elected officials, temporary election workers and temporary judges would not have qualified.

The funds for the premium pay would have come from the $16.5 million the county received through the American Rescue Plan Act of 2021, which was meant to spur the economy and help individuals and communities recover from the effects of the pandemic. The act allows the funds to be used for premium pay to essential workers.

The problem is that Washington state law and the state constitution doesn’t allow for retroactive premium pay or retroactive bonuses to public employees because of the prohibition on gifts of public funds. As The South Whidbey Record pointed out in an earlier story, Municipal Research and Service Center questioned whether premium pay would be legal in the state since it may be considered a gift for work already accomplished.

In an interview, Island County Prosecutor Greg Banks said he didn’t see the resolution prior to it being adopted. After reading it, he concluded that it is inconsistent with state law and the state constitution because of the issue of retroactive gifts to public employees.

Banks said there is likely a legal way to give premium pay to some employees, but it may not be in the form of lump-sum bonuses. Reid also said she and the prosecutor were confident a resolution can be crafted that complies with both state and federal law; she said a recommendation will be brought back to the commissioners.

At the meeting last week, Reid acknowledged that state law does not allow retroactive premium pay, but she asserted that the resolution only applies to work moving forward. The resolution states that the funds are for “work they continue to perform due to the coronavirus pandemic.”

But the prosecutor opined that the resolution and the conversations surrounding it contained mixed messages about the intent.

A county commissioner work session earlier this month completely focused on rewarding county staff for past work during the difficult days of the pandemic.

At the meeting last week, two of the commissioners described the pay solely in terms of awards for past, exemplary performance of staff members. Among the commissioners, only Jill Johnson referenced future expectations for employees, saying she expects “the same attitude going forward.”

This week, Johnson expressed frustration with the advice from the prosecutor. She questioned how Snohomish County — which she pointed out is a much larger county — could give its employees retroactive bonuses if they weren’t legal.

The Snohomish County Council approved an ordinance last month that uses American Rescue Plan Act money to give some employees one-time payments of $1,250. The bonuses will go to employees considered essential during the pandemic, such as sheriff’s deputies, human services specialists and others who frequently interact with the public. Only about half the county employees qualify.

The Snohomish County Council also passed an ordinance that provided some grocery store workers in unincorporated areas with $4-per-hour pay raises.

Banks said that, legally speaking in the state, it is easier to give premium pay to people who work for private employers.

The interim final rules on American Rescue Plan states that the premium pay is meant for “essential” employees who worked or continue to work jobs that put them at risk of exposure to COVID-19; those who performed “telework performed from a residence” do not qualify. It notes that many essential workers are people of color and low-wage workers.

“These workers, in particular, have borne a disproportionate share of the health and economic impacts of the pandemic,” the rules state.