SHERIFF ‑- LAW ENFORCEMENT ‑- CITIES AND TOWNS ‑- CONTRACTS ‑- INTERLOCAL COOPERATION ACT ‑- COUNTIES
1. The county sheriff's duty to enforce state law applies equally in incorporated and unincorporated areas of the county.
2. If a city is unable to provide for adequate police protection, the county sheriff must take this factor into account in allocating the resources of the sheriff's office. However, the statutes do not obligate the sheriff to provide a city with a specific number of police officers or a specific level of police services.
3. If a city wants to obtain a specific number of county police officers or level of police services, the Interlocal Cooperation Act empowers the city to contract with the county to provide those services.
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May 24, 1990
Honorable Scott Barr
State Senator, Seventh District
Olympia, WA 98504
Cite as: AGO 1990 No. 4
Dear Senator Barr:
By letter previously acknowledged, you requested our opinion on the following two questions:
[[Orig. Op. Page 2]]
1. To what extent does a county sheriff have an obligation to enforce state law1/
in an incorporated city or town within the county?
2. Does the answer to question 1 differ depending upon the existence of a functioning city or town police department?
We answer your questions in the manner set forth below.
We commence by analyzing the statutory duties of the sheriff, with particular reference to the territorial directives contained therein. The Legislature has set forth the general duties of the sheriff in RCW 36.28.010 as follows:
The sheriff is the chief executive officer and conservator of the peace of the county. In the execution of his office, he and his deputies:
(1) Shall arrest and commit to prison all persons who break the peace, or attempt to break it, and all persons guilty of public offenses;
(2) Shalldefend the county against those who, by riot or otherwise, endanger the public peace or safety;
(3) Shall execute the process and orders of the courts of justice or judicial officers, when delivered for that purpose, according to law;
(4) Shall execute all warrants delivered for that purpose by other public officers, according to the provisions of particular statutes;
(5) Shall attend the sessions of the courts of record held within the county, and obey their lawful order or directions;
[[Orig. Op. Page 3]]
(6) Shall keep and preserve the peace in their respective counties, and quiet and suppress all affrays, riots, unlawful assemblies and insurrections, for which purpose, and for the service of process in civil or criminal cases, and in apprehending or securing any person for felony or breach of the peace, they may call to their aid such persons, orpower of their county as they may deem necessary.
RCW 36.28.011 further provides:
In addition to the duties contained in RCW 36.28.010, it shall be the duty of all sheriffs to make complaint of all violations of the criminal law, which shall come to their knowledge, within their respective jurisdictions.
The statutes plainly state that the sheriff is a county officer. Where territorial references are made, the statutes direct the sheriff to "defend the county" and to take various actions "within the county" or "in their [the sheriffs'] respective counties". Nowhere has the Legislature indicated that the sheriff's powers and duties are limited to the unincorporated areas of the county. Nor is there any statutory language from which such a limitation might be inferred. We note, in addition, that the sheriff at common law was the chief law enforcement officer of the county, and that the office of sheriff retains its common law powers and duties unless modified by the constitution or statutes. 70 Am. Jur. 2dSheriffs, Police, and Constables § 2 (1987); seeState ex rel. Johnston v. Melton, 192 Wash. 379, 388-89, 73 P.2d 1334 (1937); AGO 51-53 No. 322 at 2. We thus conclude that the sheriff has a general duty to enforce state law in both unincorporated and incorporated areas of the county.
Several other states have held likewise. State ex rel. Windham v. LaFever, 486 S.W.2d 740, 742 (Tenn. 1972); State ex rel. Danforth v. Orton, 465 S.W.2d 618, 626 (Mo. 1971);People v. Scott, 259 Cal. App. 2d 268, 66 Cal. Rptr. 257, 265 (1968);Commonwealth ex rel. Davis V. Malbon, 195 Va. 368, 78 S.E.2d 683, 686 (1953);see also 80 C.J.S. Sheriffs and Constables § 36a (1953). InScott, the California court noted that "the jurisdiction of the sheriff in law enforcement matters normally extends throughout his county including the incorporated areas thereof." 66 Cal. Rptr. at 265. InOrton, the Missouri court expounded further:
[The sheriff's] authority is county wide. He is not restricted by municipal limits. For better protection and for the enforcement of local ordinance[s] the [[Orig. Op. Page 4]] cities and towns have their police departments or their town marshals. Even the state has its highway patrol. Still the authority of the sheriff with his correlative duty remains.
465 S.W.2d at 626.
We recognize that the Legislature, in addition to delineating the sheriff's powers and duties, has provided for the establishment of city and town police departments. See RCW 35.22.570 (omnibus grant of power under which first class cities may establish police departments); RCW 35.23.130 (chief of police and police force for second class cities); RCW 35.24.160 (chief of police and police department for third class cities); RCW 35.27.240 (town marshal and police department for towns). But as pointed out above, the existence of a municipal police department does not in itself diminish the general duty of the county sheriff to enforce state law within a city or town.
Indeed, this office has twice previously concluded that where the statutory powers and duties granted to municipal police departments coincides with those granted to county sheriffs, the municipality's jurisdiction is concurrent, not exclusive, within the municipality's boundaries.2/
AGO 61-62 No. 25 at 6 [[Orig. Op. Page 5]] (county sheriff and municipal police department have concurrent authority to investigate felony cases occurring within a city or town); AGLO 1974 No. 96 at 3 (county sheriff and municipal police department have concurrent authority over state traffic law violations occurring within a city or town).
Thus, the statutory duties of the sheriff apply equally within and without municipal boundaries. That being said, however, it is equally important to stress the nature of those duties. As noted at the outset, the sheriff's duties are set forth in RCW 36.28.010-[36.28].011. InState ex rel. Zempel v. Twitchell, 59 Wn.2d 419, 427, 367 P.2d 985 (1962), the state Supreme Court held that the sheriff is obligated to "devote unceasing effort toward performing and discharging those duties of the office which are imposed by law. . . ." That is, the sheriff may not simply refuse to perform his or her statutory duties altogether. Such a refusal has been held a wilful neglect of duty. State v. Twitchell, 61 Wn.2d 403, 378 P.2d 444 (1963). Other courts have similarly ruled that the sheriff must "exercise [a] reasonable degree of activity and diligence" to carry out his or her duties. State ex rel. Windham v. LeFever, 486 S.W.2d at 744;State ex rel. Thompson v. Reichman, 135 Tenn. 653, 188 S.W. 225, 228 (1916);Brownstown Township v. County of Wayne, 68 Mich. App. 244, 242 N.W.2d 538, 540 (1976); see also Orton, 465 S.W.2d at 627 (the sheriff has an "official duty to make reasonable efforts to enforce [the] laws both within and without the cities").
There may be instances in which a sheriff would be found to have "wilfully neglected" his or her duties. But one should note, in this regard, that the statutes do not obligate the sheriff to provide cities (or the unincorporated areas of the county) with a specific number of police officers, or with a specific level of police services. Whether the sheriff has in fact carried out his or her statutory duties will therefore depend on the facts and circumstances of the particular case. We conclude here, in answer to your first question, simply that the sheriff's statutory duties apply to both the incorporated and unincorporated areas of the county.
Your second question, repeated for ease of reference, asks:
Does the answer to question 1 differ depending upon the existence of a functioning city or town police department?
At the outset, we note that the materials submitted with your opinion request indicate that for budgetary or other reasons, certain cities or towns have had difficulty in providing [[Orig. Op. Page 6]] their own full-time police departments. We understand that you are referring to this phenomenon when speaking of the lack of "functioning" municipal police departments. Your question is whether this factor affects the sheriff's duty to enforce state law within cities.
To a certain extent it does. While we have located no Washington cases on this issue, other state courts have considered the question, though in a slightly different context. InOrton, a municipal police department, while apparently able to act, nevertheless did little or nothing to stop gambling and liquor law violations occurring within the city. The sheriff likewise did not act, contending that responsibility rested solely with the city officials. In rejecting this contention, the court stated, in part:
It has become the custom for the sheriff to leave local policing to local enforcement officers but this practice cannot alter his responsibility under the law.... A sheriff may assume that a city police department will do its duty in enforcing the law and hence will not be guilty of any serious neglect of duty if he gives little attention to police matters in such city. But this rule has a proper qualification. If the sheriff has reason to believe that the police force is neglecting its duty it is his duty to inform himself. And if he knows that the police are ignoring or permitting offenses his duty to prevent and suppress such offenses is the same as it would be if there were no municipality and no police force.
465 S.W.2d at 626-27. Accord Commonwealth v. Malbon, 78 S.E.2d 683, 686;State v. Reichman, 188 S.W. 225, 228.
We believe the same principle applies to those cities which are unable, rather than simply unwilling, to provide adequate police protection for themselves. That is, the sheriff must take this factor into account in allocating his office's resources between the cities and the unincorporated areas of the county. To the extent that certain areas are not adequately policed by local authorities, the sheriff's duty to provide police protection increases. See Brownstown Township, 242 N.W.2d 538, 541.
It is, however, equally important to repeat what the statutes do not require. They do not obligate the sheriff to provide cities with a specific number of police officers, nor do they obligate the sheriff to provide cities with a specific level of police services. Furthermore, the sheriff's resources may be limited; and the unincorporated areas of the county, lacking statutory authority to create their own police force, must rely [[Orig. Op. Page 7]] heavily on the sheriff's office for their own police protection. The county resources remaining for police protection in the cities may thus be problematical. Therefore, while the sheriff's duty to enforce state law remains clear, that duty is not neatly quantified in the sheriff's statutes.
Should a city find it desirable or necessary to obtain the services of a specific number of county police officers, or a specific level of police services, it may contract with the sheriff's office for such services. Such contracts, in our view, are the only means by which a city may assure itself of quantified police protection beyond that contained in the sheriff's general charge to enforce state laws. The authority to contract in this manner is contained in the Interlocal Cooperation Act, chapter 39.34 RCW, and is implicitly recognized in several other statutes.
We are aware of a previous opinion, AGO 65-66 No. 28, in which this office found that cities and counties did not have the authority to enter into such contracts. That opinion, however, was issued prior to the enactment of RCW 39.34.080 which provides:
Any one or more public agencies may contract with any one or more other public agencies to perform any governmental service, activity, or undertaking which each public agency entering into the contract is authorized by law to perform: Provided That such contract shall be authorized by the governing body of each party to the contract. Such contract shall set forth fully the purposes, powers, rights, objectives, and responsibilities of the contracting parties.
This statute, part of the Interlocal Cooperation Act, permits public agencies (including cities and counties) to mutually contract for the provision of services. The entity providing the services in question must have the authority to perform such services independent of the authority granted by RCW 39.34.080. See AGO 1969 No. 8 at 5 (the Interlocal Cooperation Act does not authorize the exercise of any new substantive powers by public agencies).
That requirement poses no obstacle here, however, because as noted previously, the sheriff has not only the authority but the duty to perform his or her statutory law enforcement duties in both the incorporated and unincorporated areas of the [[Orig. Op. Page 8]] county.3/
The city may therefore contract with the county for specific law enforcement services. To the extent that AGO 65-66 No. 28 concludes otherwise, it is overruled.
To summarize, we conclude that the sheriff has a duty to enforce state law in both incorporated and unincorporated areas of the county. To the extent that a particular city's police department is unable to provide adequate police protection, the sheriff's office has a duty to allocate its resources accordingly. However, the sheriff is not obligated by statute to provide cities with a specific number of officers, or a specific level of services. Should a city wish to obtain such specific protection, it may do so by contract.
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
GREGORY J. TRAUTMAN
Assistant Attorney General
*** FOOTNOTES ***
1/We note that your opinion request refers specifically to the enforcement of state law within cities or towns. We thus limit our response to that issue, and do not address the question of enforcement of city or town ordinances.
2/This principle is expressly set forth in the statutes governing the police departments of third class cities and towns. RCW 35.24.160 provides in part:
The department of police in a city of the third class shall be under the direction and control of the chief of police subject to the direction of the mayor.
. . .
He shall have the same authority as that conferred upon sheriffs for the suppression of any riot, public tumult, disturbance of the peace, or resistance against the laws or the public authorities in the lawful exercise of their functions and shall be entitled to the same protection.
(Emphasis added). RCW 35.27.240, governing towns, contains identical language. We conclude that the principle of concurrent jurisdiction likewise applies to all city police departments, as we have found no language in the various statutes that would limit the sheriff's powers and duties within first class, second class, or code cities.
3/The Legislature has also implicitly recognized the authority of cities and counties to enter into such contracts. RCW 41.14.250-[41.14].280, for example, sets forth a detailed scheme governing the rights and duties of city police department employees whenever "a city or town shall contract with the county sheriff's office for law enforcement services." See also RCW 35.02.220-[35.02].225, which recognizes the authority of newly incorporated cities to contract for law enforcement and other essential services after the date of incorporation.