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AGO 1955 No. 48 - March 28, 1955
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Don Eastvold | 1953-1956 | Attorney General of Washington

COUNTIES ‑- PROSECUTING ATTORNEYS ‑- DEPUTIES ‑- APPOINTMENT ‑- RESIDENCE

A board of county commissioners can determine the number of deputy prosecuting attorneys necessary for their county and the salary to be paid to each, but may not participate in the selection and removal of such deputies.

A deputy prosecuting attorney must be a resident for voting purposes in the county which he serves.

                                                              - - - - - - - - - - - - -

                                                                  March 28, 1955

Honorable R. C. Watts
Executive Secretary
Washington Association of
County Commissioners
111 East State Avenue
Olympia, Washington                                                                                                                Cite as:  AGO 55-57 No. 48

 

Dear Sir:

            We have your letter of February 28, 1955, asking our formal opinion on the following questions:

            1. Whether the appointment of a deputy prosecuting attorney must be either made or confirmed by the board of county commissioners.

            2. Whether any deputy prosecuting attorney must be a resident of the county in which he is deputized.

            Our answer to the first question is in the negative.  Our answer to the second is in the affirmative.

                                                                     ANALYSIS

            1. The statute with which we are mainly concerned in answering question No. 1, is RCW 36.27.040 which reads as follows:

             [[Orig. Op. Page 2]]

            "The prosecuting attorney may appoint one or more deputies who shall have the same power in all respects as their principal.  Each appointment shall be in writing, signed by the prosecuting attorney, and filed in the county auditor's office.  Each deputy thus appointed shall have the same qualifications required of the prosecuting attorney, but his appointment may be revoked by the prosecuting attorney at will.  The prosecuting attorney shall be responsible for the acts of his deputies."

            The above was enacted as section 1, chapter 35, Laws of 1943.  This act amended Rem. Rev. Stat. § 115 derived from § 1, chapter 7, Laws of 1903, which read as follows:

            "The prosecuting attorney of each county may appoint, by and with the consent of the county commissioners, one or more deputies who shall have the same power in all respects as their principal.  Such appointment shall be in writing, signed by the prosecuting attorney and filed in the county auditor's office.  Each deputy thus appointed shall have the same qualifications required of the prosecuting attorney, but his appointment may be revoked by the prosecuting attorneyor county commissioners at will.  The prosecuting attorney shall be responsible for the acts of his deputies."  (Emphasis supplied)

            The underlined portion of the above was deleted by the act of 1943.  It would seem by this fact that it was the legislative intent to remove the selection of deputy prosecuting attorneys from any control which the county commissioners might exercise and leave it solely up to the prosecuting attorney.

            However, there are statutes still in force which pertain to the selection of attorneys by the county commissioners.  RCW 36.32.200 reads as follows:

             [[Orig. Op. Page 3]]

            "It shall be unlawful for the board of county commissioners to employ, contract with, or pay any special attorney or counsel to perform any duty which the attorney general or any prosecuting attorney is authorized or required by law to perform, unless the contract of employment of such special attorney or counsel has been first reduced to writing and approved in writing by the superior court judge of the county or a majority of the judges thereof.  This section shall not prohibit the appointment of deputy prosecuting attorneys in the manner provided by law."  (Emphasis supplied)

            It is necessary here to point out the distinction between deputy prosecuting attorneys appointed to assist in all duties which the prosecuting attorney is authorized to perform and attorneys hired by the county for a special purpose outside the usual scope of the prosecutor's office.  It is our opinion that the latter type of legal counsel was in the minds of the authors of Rem. Rev. Stat. § 4130, as follows:

            "Each prosecuting attorney shall be the legal adviser of the board of county commissioners for the county for which he was elected; he shall also prosecute all criminal and civil actions in which the state or his county may be a party, defend all suits brought against the state or his county, and prosecute all forfeited recognizances, bonds, and actions for the recovery of debts, fines, penalties, and forfeitures accruing to the state or his county:  Provided, the commissioners of any county may employ other attorneys, when they may deem it for the interest of their county."  (Emphasis supplied)

            We reach this conclusion because Rem. Rev. Stat. § 115, previously quoted, was in effect at the same time and it refers expressly to deputies.  Section 4130 of Rem. Rev. Stat. became part of RCW 36.27.020, outlining the duties of the office of prosecuting attorney.  This RCW section omits any reference to the employment of other attorneys by the county in order to avoid confusion  [[Orig. Op. Page 4]] as to the type of legal counsel referred to.

            We should also distinguish deputy prosecuting attorneys from attorneys appointed by the courts to handle individual actions in the event of disability, disqualification or non-appearance of the duly elected prosecutor.  This is provided for in RCW 36.27.030.

            Our analysis up to this point still leaves the prosecuting attorney unlimited discretion in the selection of his legal deputies.  However, we still must consider the effect of RCW 36.16.070 which reads:

            "In all cases where the duties of any county office are greater than can be performed by the person elected to fill it, the officer may employ deputies and other necessary employeeswith the consent of the board of county commissioners.  The board shall fix their compensation and shall require what deputies shall give bond and the amount of bond required from each.  The sureties on deputies' bonds must be approved by the board and the premium therefor is a county expense.  No deputy or clerk employed in the office of any auditor, clerk, treasurer, prosecuting attorney, sheriff, assessor, coroner, or superintendent of schools shall receive larger compensation than provided for the officer employing him.

            "A deputy may perform any act which his principal is authorized to perform.  The officer appointing a deputy or other employees shall be responsible for the acts of his appointees upon his official bond and may revoke each appointment at pleasure."  (Emphasis supplied)

            This is a general section relating to deputies and employees, and the office of prosecuting attorney is expressly mentioned therein.  On its face it would seem to require approval of all appointments by the board of county commissioners.   [[Orig. Op. Page 5]] The courts however have not so interpreted it, and our opinion will follow their decisions.

            In the case ofThomas v. Whatcom County, 82 Wash. 113, the fact that a board of commissioners had for eight months authorized and allowed salaries for three deputy sheriffs, was held to be a finding by the board that three deputies were needed and that by this action the board had consented to the employment.  This consent could not be withdrawn upon a change in the membership of the board; the selection and dismissal of deputies was left to the sole determination of the sheriff.  The case ofJackson v. Thurston County, 127 Wash. 41, followed the decision of theThomas case.  State v. Hurd, 5 Wn. (2d) 662, says that provision in the county budget for a certain number of employees is sufficient consent by the commissioners to satisfy the statute in question and allow the particular official to select that number.  State ex rel. Farmer v. Austin, 186 Wash. 577, approved the case ofDillon v. Whatcom County, 12 Wash. 391, and held that the extent of control by a board of county commissioners over the selection of deputies is solely to determine the number necessary and the salaries to be paid.

            It is thus our opinion that the county commissioners may exercise these powers even to the extent of increasing or decreasing the number of deputies during the term of office unless, it in fact amounts to an attempt by the board to select or remove a particular individual as a deputy.  It is our opinion that selection or removal of individuals is solely in the discretion of the prosecuting attorney.

            2. Relative to the second question presented, the important statutes are RCW 36.27.020, which reads in part as follows:

            "* * * Each deputy thus appointed shall have the same qualifications required of the prosecuting attorney, * * *" (Emphasis supplied)

            And RCW 36.27.010 provides:

            "No person shall be eligible to the office of prosecuting attorney in any county of this state,  [[Orig. Op. Page 6]] unless he is a qualified voter therein, and has been admitted as an attorney and counselor of the courts of this state."  (Emphasis supplied)

            One requirement for an elector, as found in the Fifth Amendment to the Constitution of the State of Washington, is residence for ninety days in the county.  For the purpose of determining eligibility to office, the terms "qualified elector" and "qualified voter", the term used in RCW 36.27.010, are synonymous, unless a different meaning is apparent from the statute.  Gilbert v. Briethaupt, (Nev.) 104 P. (2d) 183.  Having actually registered and voted within the county is not an element for a qualified voter.  He must only meet the constitutional requirements.  Hindman v. Boyd, 42 Wash. 17.  Legal residence for the purpose of voting can only be gained originally by actual physical presence within the county.  Intent to claim it as one's legal residence now or in the future is not sufficient by itself.  Snyder v. Boulware, (Mont.) 96 P. (2d) 913.  But once physical presence is attained for a sufficient length of time, legal residence for the purpose of voting may be continued within the county even though physical residence is elsewhere until legal residence is established in the new location,Wilson v. Hoisington, (Mont.) 98 P. (2d) 369.

            The question as presented to us was whether a deputy prosecuting attorney must be a resident of the county in which he is deputized.  The answer must be in the affirmative.  What is sufficient residence in a given case for voting purposes is a problem of fact and intent to be determined in each situation.

            This part of our opinion does not cover special attorneys appointed by the board of county commissioners nor attorneys appointed by the courts in the event of disability of the prosecuting attorney.

            We hope the foregoing will be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General


THOMAS SWAYZE, JR.
Assistant Attorney General

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