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AGLO 1981 No. 28 - October 27, 1981
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTY ‑- SHERIFF ‑- CIVIL SERVICE ‑- INSPECTION OF SHERIFF'S OFFICE BY CIVIL SERVICE COMMISSION

A county sheriff may not legally adopt and enforce an administrative rule under which no civil service commission member or members would be allowed on the sheriff's department's premises during the course of an inspection or investigation conducted under RCW 41.14.060(3) unless accompanied by a member of the sheriff's staff.

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

                                                                October 27, 1981

Honorable Russ Juckett
Prosecuting Attorney
Snohomish County
Mission Building
Everett, Washington 98201                                                                                                               Cite as:  AGLO 1981 No. 28

Dear Sir:

            By recent letter you requested our opinion on a question which we paraphrase as follows:

            Can a county sheriff legally adopt and enforce an administrative rule under which no civil service commission member or members would be allowed on the sheriff's department's premises during the course of an inspection or investigation conducted under RCW 41.14.060(3) unless accompanied by a member of the sheriff's staff?

            We answer the foregoing question in the negative for the reasons set forth in our analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Chapter 41.14 RCW codifies the provisions of Initiative No. 23 which was approved by the voters in 1958 and established a statewide civil service system for deputy sheriffs.  Responsibility for administration of the system, in each county, is vested in a county civil service commission in accordance with RCW 41.14.030.  And, in setting forth the powers and duties of such commissions, RCW 41.14.060 provides, in pertinent part, as follows:

            "It shall be the duty of the civil service commission:

            ". . .

            "(3) To make investigations concerning and report upon all matters touching the enforcement and effect of the provisions of this chapter, and the rules and regulations prescribed hereunder; to inspect all departments, offices, places, positions, and employments affected by this chapter, and ascertain whether this chapter and all such rules and regulations are being obeyed.  Such investigations may be made by the commission or by any commissioner designated by the commission for that purpose.  Not only must these investigations be made by the commission as aforesaid, but the commission must make like investigation on petition of a citizen, duly verified, stating that irregularities or abuses exist, or setting forth in concise language, in writing, the necessity for such investigation.  In the course of such investigation the commission or designated commissioner, or chief examiner, may administer oaths, subpoena and require the attendance of witnesses and the production by them of books, papers, documents, and accounts appertaining to the investigation  [[Orig. Op. Page 3]] and also cause the deposition of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in civil actions in the superior court; and the oaths administered and the subpoenas issued hereunder shall have the same force and effect as the oaths administered and subpoenas issued by a superior court judge in his judicial capacity; and the failure of any person so subpoenaed to comply with the provisions of this section shall be deemed a violation of this chapter, and punishable as such.

            ". . ."

            For the purposes of this opinion, let us first note, and emphasize, our assumption that any investigations so conducted by a county civil service commission are, and will be, limited in scope.  The above‑quoted statute does not grant the commission a carte blanche authority to delve into any and all activities of the sheriff's office.  Rather, the statute only permits it to investigate for the purpose of seeking out possible hiring practices or related personnel procedures which violate the provisions of chapter 41.14 RCW itself, or any lawful regulations promulgated thereunder.

            In turn, the issue which you have raised is whether the county sheriff may lawfully condition the exercise of that statutory function by adopting an administrative rule which (as you have described it) would say that ". . . no commission member is to be allowed on the sheriff's department's premises unless accompanied by a member of the sheriff's staff. . . ."  For the reasons hereinafter set forth, we think not.

            As a public officer, a county sheriff is vested only with those powers which have been granted to him by law, either expressly or by necessary implication.  Accord, the general rule enunciated in such cases as Pacific First Federal Savings & Loan Ass'n v. Pierce County, 27 Wn.2d 347, 353, 178 P.2d 351 (1947).  And, if there is a doubt as to whether a particular power is granted, it must be denied.  Griggs v. Port of Tacoma, 150 Wash. 402, 273 Pac. 521 (1928); State ex rel. Hill v. Port of Seattle, 104 Wash. 634, 177 Pac. 671 (1919).

             [[Orig. Op. Page 4]]

            This basically leads us, therefore, to the provisions of chapter 36.28 RCW which relate to the county sheriff and set forth the functions, powers and duties of his particular office.  While those powers and duties are, indeed, extensive insofar as the enforcement of state criminal laws is concerned,1/ we can find nothing therein, or in any other statute relating to the sheriff's office, which purports to empower a county sheriff to do what you have here described; i.e., to refuse to allow access to the physical premises of his office or related facilities by the county civil service commission in the performance of its investigative functions under RCW 41.14.060(5), supra, unless accompanied by a member of the sheriff's staff.

            In addition, it is noteworthy that chapter 41.14 RCW is remedial legislation.  See, RCW 41.14.010 which states:

            "The general purpose of this chapter is to establish a merit system of employment for county deputy sheriffs and other employees of the office of county sheriff, thereby raising the standards and efficiency of such offices and law enforcement in general."

            Prior to the passage of this law by the voters in 1958, it was possible, and in some instances, common practice for sheriffs to make hiring decisions based on political patronage or nepotism‑-the evil which civil service laws have historically sought to cure.  See, generally,Gogerty v. Department of Institutions, 71 Wn.2d 1, 426 P.2d 476 (1967).  In passing this measure, therefore, the voters were presumably "seeking the correction of recognized errors and abuses [by] introducing some new regulations for the advancement of the public welfare."  Peet v. Mills, 76 Wash. 437, 439, 136 P.2d 685 (1913).  Our construction of the law thus should be guided by the following principles of construction governing such "remedial legislation," as set forth in Peet v. Mills,supra:

             [[Orig. Op. Page 5]]

            "It is a well accepted rule that the remedial statutes, seeking the correction of recognized errors and abuses in introducing some new regulation for the advancement of the public welfare, should be construed with regard to the former law, and the defects or evils sought to be cured, and the remedy provided; that, in so construing such statutes, they should be interpreted liberally, to the end that the purpose of the legislature in suppressing the mischief and advancing the remedy be promoted, even to the inclusion of cases within the reason, although outside the letter, of the statute; and that, in construing the statute, courts will look to the old law, the mischief sought to be abolished and the remedy proposed."

            In this instance, however, by approving the sheriff's proposed restrictions on commission investigations, this office would be inhibiting the performance of the commission's statutory duty and not enhancing it.

            For the foregoing reasons, therefore, we answer your question in the negative.  In our opinion, the administrative rule which you have described in your letter‑-under which no commission member would be allowed on the sheriff's department's premises in the course of an inspection unless accompanied by a member of the sheriff's staff‑-is not one which the sheriff is legally authorized to adopt and enforce.2/

             [[Orig. Op. Page 6]]

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/See, RCW 36.28.010.

2/While it might well be legally necessary (and thus, permissible under the above‑stated rule) for a sheriff to so restrict access to certain specific premises, such as the jail or evidence room, in order to maintain security in those particular areas, the rule which you have described is overly broad in that respect.

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