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AGO 1957 No. 34 - March 14, 1957
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John J. O'Connell | 1957-1968 | Attorney General of Washington

CITIES AND TOWNS ‑- 4TH CLASS CITY, POWER OF TOWN COUNCIL TO RETAIN ATTORNEY --MAYOR ‑- REMOVAL OF BY RESOLUTION OF TOWN COUNCIL

(1) Town council has no power to employ private attorney (2) Town council has no power to remove mayor by resolution.

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                                                                  March 14, 1957

Honorable Paul M. Stocker
State Representative, 38th District
Legislative Building
Olympia, Washington                                                                                                                Cite as:  AGO 57-58 No. 34


Dear Sir:

            By letter, previously acknowledged, you have requested the opinion of this office on two questions concerning fourth class towns which we paraphrase as follows:

            (1) Does the town council have legal authority to retain a private attorney to seek advice as to the removal of the mayor?

            (2) Does the town council have power to remove the mayor by resolution?

            We answer both questions in the negative.

                                                                     ANALYSIS

            RCW 35.27.070 provides in pertinent part as follows:

            "The government of a town shall be vested in a mayor and a council consisting of five members and a treasurer, all elective; the mayor shall appoint a clerk, a marshall, and a police justice; andmay appoint a town attorney. . .  (Emphasis supplied.)

             [[Orig. Op. Page 2]]

            RCW 35.27.250 provides:

            "The town attorney shall advise the town authorities and officers in all legal matters pertaining to the business of the town."

            There is no statute giving the council express authority to retain a private attorney for any purpose.  Nor, do we believe, is the employment of an attorney by the town council within its implied authority.  A municipal corporation is limited in its powers to those expressly granted or to those necessarily implied in or incident to the powers expressly granted and also to those essential to its declared objects and purposes.  Christie v. The Port of Olympia, 27 Wn. (2d) 534.  The employment of an attorney for a purpose for which there is neither express nor implied authority is plainlyultra vires.  McQuillin on Municipal Corporations (3rd Ed.), § 29.14.  If the purpose for which an attorney is required is a "legal matter pertaining to the business of the town," then express provision is made for appointment of a town attorneyby the mayor, and if it does not pertain to the business of the' town, then an attorney may not be employed in any event.

            It is said, as a general rule, that in order to bind the municipality to pay for legal services, it must appear that such services were rendered in a matter in which the city or town was interested.  McQuillin on Municipal Corporations (3rd Ed.), § 29.14 and cases cited.  However, a city council is not authorized to employ counsel in every case that may be of interest or benefit to the city without regard to the character of that interest.  83 A.L.R. 135, Annotation, Power of Municipal Corporation to Employ Attorney.  For example, it has been held that a municipal corporation does not have sufficient interest in a suit exclusively directed against its officers, charging lack of legal qualifications to hold office and gross malfeasance in office, as will authorize it to retain counsel to defend such suit.  And this is true even though it is sought to enjoin the officers from performing the functions of their offices and to secure the appointment of a receiver with power to control the city property and finances.  McQuillin on Municipal Corporations (3rd Ed.), § 29.14; City of Del Rio v. Lowe (Tex. Cir. App.), 111 S.W. (2d) 1208.

            Answering your first question directly, it is our opinion that the town council of a fourth class city does not have authority to retain a private attorney to seek advice on the removal of the mayor.

            Referring to the question of removal from office of the mayor by the city council, we must be guided by provisions of the Washington State Constitution.

             [[Orig. Op. Page 3]]

            Article V, § 3, provides as follows:

            "All officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law."

            This section is not self-executing, and the legislature has not seen fit to make any provision for the removal of mayors of fourth class towns, other than RCW 42.12.010 and 9.92.120, which provide for forfeiture of office of any public officer convicted of an infamous crime or of an offense involving a violation of his official oath.  Article I, §§ 33 and 34 (Amendment 8), of the Washington Constitution provide for the recall of elective officers, and RCW 29.82.010 et seq., set forth in detail the procedure which may be utilized to effect the removal of a mayor of a fourth class town unless the provisions of RCW 42.12.010 and 9.92.120 are applicable, and that the town council may not effect the removal of the mayor by resolution.

            We trust that this opinion will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General


DAVID S. BLACK
Assistant Attorney General

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