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AGO 1982 No. 10 - July 20, 1982
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTY ‑- PROSECUTING ATTORNEY ‑- COMMISSIONERS ‑- SALARIES ‑- ELECTIONS ‑- ESTABLISHMENT OF FULL-TIME PROSECUTOR'S OFFICE IN FIFTH THROUGH NINTH CLASS COUNTY

The board of county commissioners of a fifth through ninth class county may not, simply by making a public announcement to that effect prior to the period for candidates' filings, cause the office of county prosecuting attorney to become a full-time office so as to prohibit the candidate then duly elected to that office from thereafter engaging in the private practice of law. 

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                                                                    July 20, 1982 

Honorable Richard W. Miller
Adams County Prosecuting Attorney
210 West Main
Ritzville, Washington 99169

Cite as:  AGO 1982 No. 10                                                                                                                

Dear Sir:

             This is written in response to your request for our opinion on a question which we paraphrase as follows:

             May a board of county commissioners of a fifth through ninth class county, by making a public announcement to that effect prior to the period for candidates' filings, cause the office of county prosecuting attorney to become a full-time office so as to prohibit the candidate then duly elected to that office from thereafter engaging in the private practice of law?

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

                                                                      ANALYSIS

             Under the provisions of RCW 36.27.060, prosecuting attorneys and their deputies in class four counties and counties with populations larger than class four counties are required to serve full time and may not engage in the private practice of law.  Conversely, there is no such requirement, or correlative legal prohibition, in the case of prosecuting attorneys serving in fifth, sixth, seventh, eighth or ninth class counties.1

              [[Orig. Op. Page 2]]

            It is, nevertheless, possible for a particular incumbent in one of those smaller counties to give up his private law practice on a voluntary basis.  And, in turn, we also note the authority of a board of county commissioners, under RCW 36.17.020, to fix the salary of the county prosecuting attorney (or any of the various other elected officials referred to therein) at a level higher than that established by the state legislature.2/   These two points, it will thus readily be seen, lend themselves to the possibility of an agreement between the otherwise part-time prosecuting attorney (once elected) and the county commissioners under which the right of the prosecutor to engage in private practice of law is voluntarily relinquished in return for payment of a higher salary deemed to be commensurate with a full-time office or position.  Moreover, we understand that arrangements of this kind have, in fact, been made in the past in some other, smaller, counties.

             But that is not what you are asking about in the instant case.  Instead, the question you have posed is one which contemplates some form of unilateral action by the county commissioners, prior to the period for candidates' filings,3/ which is intended to have the effect of binding those who then file for prosecuting attorney to devote their full time to the duties of that office (if elected)‑-notwithstanding their statutory ability to engage in private practice under RCW 36.27.060,supra.  It is fundamental, however, that boards of county commissioners generally4/ have only those powers which have been granted to them by the state legislature, either expressly or by necessary implication.Pacific First Federal Savings & Loan Association v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947) and cases cited therein.  And there is no statute currently in effect which purports to authorize such a board (in a fifth through ninth class county) to, in effect, modify  [[Orig. Op. Page 3]] RCW 36.27.060 so as to prohibit the county prosecutor from also engaging in the private practice of law if he desires to do so.5/   Only the legislature, itself, by expressly amending the statute, could accomplish that result.

             It is one thing for the county commissioners to cause the office to become a full-time position by agreement with the successful candidate once the election is over and he has assumed office.  By virtue of its authority over salaries, as above noted, the county commissioners do, indeed, have the practical ability to so deal with the situation at that juncture.  But it is quite another thing to speak of a unilateral pronouncement, made before candidates' filings, which would be legally binding on whoever is elected to the position.

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

 Very truly yours, 

KENNETH O. EIKENBERRY
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

 1/See, RCW 36.13.010 with regard to the classification of counties.  Classification, under that statute, is based upon population with the cutoff point between a fourth and a fifth class county being a population of 18,000 inhabitants.

 2/Cf., AGO 1973 No. 20, copy enclosed.

 3/I.e., the period between the last Monday in July and the next succeeding Friday as provided for in RCW 29.18.030.

 4/Except in the case of home rule, charter, counties organized pursuant to Article XI, § 4 (Amendment 21) of our State Constitution.

 5/Accord, AGO 65-66 No. 115, copy enclosed, at pp. 2-3. 

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