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AGLO 1980 No. 13 - March 18, 1980
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTY ‑- SHERIFF ‑- CLOTHING ALLOWANCE FOR CIVILIAN CLOTHING

As amended by § 1, chapter 132, Laws of 1979, RCW 36.28.180 does authorize the expenditure of county money for civilian clothing for nonuniformed sheriff deputies such as detectives, but only to the extent that the civilian clothing in question has been determined to be necessary for the performance of their official duties.

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                                                                  March 18, 1980

Honorable Byron E. McClanahan
Prosecuting Attorney
Mason County
310 Birch, No. 1
Shelton, Washington 98584                                                                                                               Cite as:  AGLO 1980 No. 13

Dear Sir:

            By letter previously acknowledged, you requested our opinion on the following question:

            "Does RCW 36.28.180, as amended by the Session Laws of 1979, c 132 § 1, authorize the expenditure of county money for civilian clothing for non-uniformed Sheriff's Deputies such as Detectives?"

            We answer this question in the manner indicated in our analysis below.

                                                                     ANALYSIS

            By its enactment of § 1, chapter 132, Laws of 1979, the legislature amended RCW 36.28.180 to read as follows:

             [[Orig. Op. Page 2]]

            "A county may from available funds provide for ((a uniform)) an allowance for clothing and other incidentals necessary to the performance of official duties for the sheriff and his deputies."

            It is a well-established principle of statutory construction that when a material change in a statute is made, a change in legislative intent is presumed.  Accord,Strunk v. State Farm Auto Ins., 90 Wn.2d 210, 580 P.2d 622 (1978);Allen v. Employment Security Dept., 83 Wn.2d 145, 516 P.2d 1032 (1973), and other authorities cited therein.  We therefore must initially conclude that the 1979 legislature intended to change the law in some material way insofar as a county's authority to provide for a uniform or clothing allowance for its sheriff and his deputies is concerned.

            We further note, in this regard, that the Division of Municipal Corporations of the State Auditor's Office (with the concurrence of this office) previously had taken the position that the original version of RCW 36.28.180,supra,1/ did not permit a county to provide a clothing allowance for its sheriff or his deputies for any purpose other than the purchase of uniforms.  It therefore seems likely that the 1979 amendment was enacted by the legislature in order to overcome that problem.

            Accordingly, it is our opinion, to begin with, that the statute as amended does now authorize a county to provide for a clothing allowance for its sheriff and his deputies covering such clothing as is necessary ". . . to the performance of [their] official duties . . .," whether that clothing be an official uniform or something else.

            This does not, however, dictate an unqualified affirmative answer to your question as above stated.  Clearly, the complete amendatory phrase "clothing and other incidentals necessary to the performance of official duties" demonstrates to us that the legislature was not thinking about clothing in general but, instead, only about clothing to be used by sheriffs  [[Orig. Op. Page 3]] and their deputies in the performance of their official duties.  Of course, one obvious example in such clothing would be a standard uniform prescribed by the sheriff and required by him to be used by some or all of his deputies when they are on duty.  Another example would be clothing worn by a sheriff's deputy when assuming a disguise as part of an investigation.

            In addition, we can conceive of the possibility that some sheriffs might wish to require some or all of their deputies to wear a particular type of clothing (such as a coat and tie) which, while not precisely standardized as a "uniform" within the purview of the former version of the subject statute, would nevertheless constitute a form of ". . . clothing necessary for the performance of official duties."  Or, a given sheriff might require some of his deputies to wear an official uniform while prescribing other requirements with respect to the clothing to be worn on duty by other deputies.  In that instance, the uniform and/or the other prescribed clothing (whatever it may be) could be covered by the county's clothing allowance.

            But if, instead, the sheriff has made no determination that any particular form of clothing is necessary to the performance of official duties and, rather, simply permits his deputies to wear whatever they like, it would be our opinion that the clothing allowance statute, even as amended, still does not apply.  Why?  Because in that case the deputies cannot show a need for such an allowance to purchase clothing required for the performance of their duties.2/

             [[Orig. Op. Page 4]]

            In your letter you have suggested two potential legal problems with RCW 36.28.180,supra, as amended, if construed to authorize the expenditure of county money for civilian clothing for non-uniformed sheriff's deputies.  First, you have indicated a possibility that such an expenditure of county funds would be an unconstitutional gift in violation of Article VIII, § 7 of our state constitution.  If, however, the clothing allowance in question is restricted to the purchase of clothing necessary for the performance of official duties‑-as we here conclude it must be‑-we can conceive of no valid objection on that ground.

            Second, you have suggested that a county which grants such a clothing allowance to its sheriff and his deputies might somehow run afoul of federal income tax laws.  In response to this suggestion, however, we are aware of nothing in the Internal Revenue Code which prohibits an employer from providing a clothing allowance for its employees.  The only question, in a given case, might be that of whether the value of the clothing thus provided would constitute taxable income.  But the answer to that question would have nothing whatsoever to do with the underlying validity of the clothing allowance itself.

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

Very truly yours,

SLADE GORTON
Attorney General

JAMES K. PHARRIS
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/As enacted in 1963 pursuant to § 2, chapter 50, Laws of 1963.

2/Naturally, we can foresee possible disputes over the proper application of RCW 36.28.180 as amended to particular clothing allowances established pursuant to that statute by the various counties.   It is impossible to resolve all of those questions in advance, but we do suggest that since the statute permits the payment of a clothing allowance only for clothing necessary to the performance of official duties, it presupposes an explicit fact finding by a sheriff that some particular type of clothing is necessary for the performance of official duties.  Where there is no evidence of such a finding, or where a sheriff adopts the policy only in general terms such as requiring "appropriate clothing," it appears that no clothing allowance would be in order.  The precise terms and amount of any clothing allowance adopted by a county would of course have to be resolved between the sheriff, who is responsible for determining what clothing should be worn by his deputies, and the board of county commissioners which have general responsibility for the county budget (see chapter 36.40 RCW).

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