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May 19, 1972
Honorable Ronald L. Hendry
946 County City Building
Tacoma, Washington 98402 Cite as: AGLO 1972 No. 40 (not official)
Attention: !ttMr. Arthur W. Verharen
Chief Civil Deputy
This is written in response to your recent letter requesting our opinion on two questions pertaining to the duties and functions of prosecuting attorneys. We paraphrase your questions as follows:
(1) Does § 1, chapter 142, Laws of 1972, Ex. Sess., obligate a prosecuting attorney to defend a legal action brought against an officer or employee of a school district or intermediate school district within his county arising out of the performance or failure of performance of his or her official duties where the board of directors of the district has granted a request ". . . that the prosecuting attorney and/or attorney of the district's choosing be authorized to defend said claim, suit or proceeding, . . ."?
(2) Does a full time prosecuting attorney have either a legal duty or authority to provide legal representation and counsel to such special purpose taxing districts as fire protection districts or sewer districts which are located within his county?
We answer both of these questions in the negative.
Your first question arises by reason of the following provisions of § 1, chapter 142, Laws of 1972, Ex. Sess. ‑ adding the following new section to chapter 28A.58 RCW:
"Whenever any action, claim or proceeding is instituted against any director, officer, [[Orig. Op. Page 2]] employee or agent of a school district or intermediate school district arising out of the performance or failure of performance of duties for, or employment with any such district, the board of directors of the school district or intermediate school district board, as the case may be, may grant a request by such person that the prosecuting attorney and/or attorney of the district's choosing be authorized to defend said claim, suit or proceeding, and the costs of defense, attorney's fees, and any obligation for payment arising from such action may be paid from the school district's general fund, or in the case of an intermediate school district, from any appropriation made for the support of the intermediate school district, to which said person is attached: PROVIDED, That costs of defense and/or judgment against such person shall not be paid in any case where the court has found that such person was not acting in good faith or within the scope of his employment with or duties for the district." (Emphasis supplied.)
This statute is to be read in conjunction with so much of RCW 36.27.020 as provides that the prosecuting attorney of each county shall
". . .
"(2) Be legal adviser to all county and precinct officers and school directors in all matters relating to their official business, and when required he shall draw up all instruments of an official nature for the use of said officers;
"(3) Appear for and represent the state, county, and all school districts subject to the supervisory control and direction of the attorney general in all criminal and civil proceedings in which the state or his county or any school district in his county may be a party;
". . ."
[[Orig. Op. Page 3]]
This latter statute quite clearly makes it a duty of a prosecuting attorney to provide legal counsel to, and to appear for and represent, in court, the various school districts in his county in any actions in which any such district may be a party. See, also, RCW 28A.21.190, which imposes a similar duty upon the full time prosecuting attorneys of those counties in which the headquarters office of an intermediate school district is located.1/ However, neither of these preexisting statutes purports either to require or to authorize a prosecuting attorney to appear and defend in a legal action brought against a school district officer or employee in his private capacity, even though the cause of action may have arisen out of the performance or failure of performance of the official duties of the defendant.
With this in mind, we return to the provisions of § 1, chapter 142, Laws of 1972, Ex. Sess., supra, which was apparently designed to cover these latter situations. Your question is whether this statute requires, or merely authorizes, a prosecuting attorney to appear and defend in a case to which the statute applies.
In our opinion, the language of § 1, chapter 142, is plain, clear, and unambiguous on this point. Nothing contained therein purports to require a prosecuting attorney to defend an action brought against an officer or employee of a school district or intermediate school district under the circumstances stated; instead, the statute merely authorizes the prosecutor to do so where an appropriate request for such a defense has been made by the district's governing body. If the prosecutor is either unable or unwilling to take the case, the defense is then to be tendered to some other attorney of the district's choosing ‑ in accordance with RCW 28A.59.180 (3) and RCW 28A.60.310, under which all classes of school districts are now authorized to employ their own attorneys if they desire to do so either instead of, or in addition to, utilizing the services of their prosecutor.
[[Orig. Op. Page 4]]
In either case, it is also to be noted that the subject new (1972) statute further states that the payment of the costs of defense, including attorney's fees, may be paid from school district funds. However, as you know, in those instances where a prosecuting attorney is representing a school district or its officers in an action against them in their official capacities, in performance of the duties imposed by RCW 36.27.020, supra, no provision for such reimbursement of his costs is made. This dichotomy, we think, lends further support to the proposition that § 1, chapter 142, supra, merely authorizes, but does not require, the prosecuting attorney to take the case in an instance to which this statute applies.
While, as above noted, RCW 36.27.020 does require a prosecuting attorney to appear and represent all school districts which are located within his county, nothing contained therein either requires or authorizes a prosecutor, in his official capacity, to provide legal services for such other special purpose taxing districts as fire protection or sewer districts. Instead, these other districts are to be represented by such attorneys as they have, themselves, employed, unless they can point to some specific statute requiring or authorizing a prosecuting attorney to represent them. Accord, opinion dated March 1, 1949 [[OAG 47-49-549]], to the prosecuting attorney of Klickitat county copy enclosed, in which we concluded that a prosecuting attorney is not under any statutory requirement to represent a fire protection district located within his county.
In the smaller counties where the prosecuting attorney, under RCW 26.27.060, is still allowed to maintain a private law practice we have said that it is generally permissible for him to serve, in this private capacity, as attorney for one or more of these special purpose taxing districts where such representation will not give rise to a prohibited conflict of interest. See, opinion dated April 20, 1971, to the prosecuting attorney of Skamania county, copy enclosed. However, since your county is not among those which may permit their prosecuting attorneys to engage in private practice, this approach is not available to you.
[[Orig. Op. Page 5]]
We trust that the foregoing will be of some assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Deputy Attorney General
*** FOOTNOTES ***
1/As will be noted further below, full time prosecuting attorneys now serve in all Class AA, A, first, second and third class counties. See, RCW 36.27.060.