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AGO 1961 No. 73 - October 24, 1961
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS ‑- COUNTY COMMISSIONERS ‑- POWER TO FIND AND DECLARE A PUBLIC EMERGENCY AND MAKE EMERGENCY APPROPRIATIONS.

In the event that the participation by the county auditor in the governor's pre‑emergency [[preemergency]]registration program would result in an exhaustion of the auditor's budget, the county commissioners, in the exercise of their discretionary powers may find and declare a public emergency and upon said finding make an emergency appropriation for the county auditor to meet the expenditure as one which could not have been reasonably foreseen at the time of the making of the budget.

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                                                                October 24, 1961

Honorable Charles C. Ralls
Director of Civil Defense
P.O. Box 519
Olympia, Washington

                                                                                                                Cite as:  AGO 61-62 No. 73

Dear Sir:

            By letter dated October 18, 1961, you requested an opinion of this office on a question which we paraphrase as follows:

            Under what conditions may a board of county commissioners legally make an emergency appropriation to provide funds necessary for the county's participation in the civil defense pre‑emergency [[preemergency]]registration program?

            We answer your question in the manner set forth in the analysis below.

                                                                     ANALYSIS

            The background of this problem is as follows:

            The state civil defense department has been directed by the legislature to formulate a plan for the civil defense of this state.  The plan so formulated must complement and implement that prepared by the federal government.  See RCW 38.52.020 (2) and 38.52.050 (3) (b) and (3) (c) set out in the appendix hereto.

            The federal plan for the civil defense of this country acknowledges the fact that following an enemy attack, the state and county governments must assume the responsibility for the conservation and rationing of essential consumer items until such time as the federal government is able to assume this function.  The federal civil defense  [[Orig. Op. Page 2]] plan delegates to the state and local governments the authority to do so.  See AGO 61-62 No. 51 [[to Department of Civil Defense on August 2, 1961]], a copy of which is enclosed.

            In order to facilitate carrying out the civil defense program embodied in chapter 38.52 RCW, the legislature has directed the several cities and counties and the officers and departments thereof to extend their services and facilities to the civil defense organization of the state upon request.  (See, RCW 38.52.010 and 38.52.110.)

            The governor, as a part of the pre‑emergency [[preemergency]]registration program, has called upon the several county auditors to assist in the registration of citizens of this state for the purpose of issuing temporary ration cards which would be used for the period of time following an enemy attack until the federal program could be instituted.  In order to comply with the request of the governor, some county auditors have found it necessary to request emergency appropriations from their respective boards of county commissioners.

            Lest there be some misunderstanding, we must initially point out that there would be no legal objection to the expenditure for the contemplated purpose out of funds provided under existing normal categories of county auditors' budgets.  We have discussed this conclusion with the division of municipal corporations, state auditor's office, and that office is in complete accord, from an accounting standpoint.

            Therefore, from the information you have supplied us, we must assume that there is an actualpresent need, for an emergency appropriation, rather than a mere expectancy that the budgets of these county auditors will be prematurely exhausted at some indefinite future time on account of the present expenditure for the purpose in question.  See,State ex rel. Lawler v. Grant, 178 Wash. 61, 65, 34 P. (2d) 355 (1934);Palmquist v. Taylor, 177 Wash. 306, 31 P. (2d) 894 (1934).

            Based upon the assumption that the expenditure of funds necessary for the county's participation would presently exhaust amounts provided under existing normal categories of the county auditor's budget, it is our opinion that a board of county commissioners may legally make an emergency appropriation to the county auditor to provide the necessary funds with which to carry out the county's portion of this program.

            The statutes which we believe are pertinent to our determination of this question read as follows:

            RCW 36.40.130:

            "Expenditures made, liabilities incurred, or warrants issued in excess of any of the detailed budget appropriations or as revised  [[Orig. Op. Page 3]] by transfer as herein provided shall not be a liability of the county, but the official making or incurring such expenditure or issuing such warrant shall be liable therefor personally and upon his official bond.  The county auditor shall issue no warrant and the county commissioners shall approve no claim for any expenditure in excess of the detailed budget appropriations or as revised under the provisions hereof, except upon an order of a court of competent jurisdiction, or for emergencies as hereinafter provided.  Any county commissioner, or county auditor, approving any claim or issuing any warrant in excess of any such budget appropriation except as herein provided shall forfeit to the county fourfold the amount of such claim or warrant which shall be recovered by action against such county commissioner or auditor, or all of them, and the several sureties on their official bonds."  (Emphasis supplied.)

            RCW 36.40.140:

            "When a public emergency, other than such as are specifically described in RCW 36.40.180, andwhich could not reasonably have been foreseen at the time of making the budget, requires the expenditure of money not provided for in the budget, the board of county commissioners by unanimous vote of the commissioners present at any meeting the time and place of which all the commissioners have had reasonable notice, shall adopt and enter upon its minutes a resolution stating the facts constituting the emergency and the estimated amount of money required to meet it, and shall publish the same, together with a notice that a public hearing thereon will be held at the time and place designated therein, which shall not be less than one week after the date of publication, at which any taxpayer may appear and be heard for or against the expenditure of money for the alleged emergency.  The resolution and notice shall be published once in the official county newspaper, or if there is none, in a legal newspaper in the county.  Upon the conclusion of the hearing, if the board of county commissioners approves  [[Orig. Op. Page 4]] it, an order shall be made and entered upon its official minutes by a unanimous vote of all the members of the board setting forth the facts constituting the emergency, together with the amount of expenditure authorized, which order, so entered, shall be lawful authorization to expend said amount for such purpose unless a review is applied for within five days thereafter."  (Emphasis supplied.)

            RCW 36.40.180:

            "Upon the happening of any emergency caused by fire, flood, explosion, storm, earthquake, epidemic, riot, or insurrection, or for the immediate preservation of order or of public health or for the restoration to a condition of usefulness of any public property the usefulness of which has been destroyed by accident, or for the relief of a stricken community overtaken by a calamity, or in settlement of approved claims for personal injuries or property damages, exclusive of claims arising from the operation of any public utility owned by the county, or to meet mandatory expenditures required by any law, the board of county commissioners may, upon the adoption by the unanimous vote of the commissioners present at any meeting the time and place of which all of such commissioners have had reasonable notice, of a resolution stating the facts constituting the emergency and entering the same upon their minutes, make the expenditures necessary to meet such emergency without further notice or hearing."

            Before proceeding further, the term "emergency" should be defined.  InState ex rel. Porter v. Superior Ct., 145 Wash. 551, 559, 261 Pac. 90 (1927), our court stated:

            "The term 'emergency' is variously defined, but the controlling idea in all the definitions is that it is something unforeseen.  It is defined in 15 Cyc. 542, as:

            "'Any event or occasional combination of circumstances which calls for immediate action  [[Orig. Op. Page 5]] or remedy; pressing necessity; exigency; a sudden or unexpected happening; an unforeseen occurrence or condition.'"

            As this definition has been applied by our court it is apparent that an "emergency" exists when funds are not available to meet a proper county expenditure not reasonably foreseeable when the budget was prepared.  On this point the court, at page 560 in the Porter case, supra, stated:

            ". . . If an emergency in fact exists, the county commissioners must so find and must provide funds in order that the necessary functions of the governmental agencies under their control shall continue.  Otherwise, we shall have chaos."

            In our opinion the present situation would lend itself to a valid determination by the several boards of county commissioners that an emergency exists justifying an emergency appropriation under the statutes quoted above.  See, Fitts v. Gibbs, 40 Wn. (2d) 444, 244 P. (2d) 241 (1952), andState ex rel. Lawler v. Grant, supra, as examples of fact situations which the supreme court has held were sufficient emergencies to justify emergency appropriations.

            The court, in thePorter case, supra, also noted that there are two distinct types of emergencies contemplated by the above statutes.  First there is the "self-evident" (nondebatable) emergency, consisting of those events enumerated in RCW 36.40.180, supra.  Second there is what is referred to as "debatable" emergencies which consist of all other circumstances or conditions which may arise and which could not have been reasonably foreseen at the time of making the budget.  See, RCW 36.40.140,supra, for the procedures to be followed in each case.

            In thePorter case, supra, the court, in discussing whether the board of county commissioners acted properly in making an emergency appropriation, noted that it was necessary only for the board to determine whether or not the necessity could have reasonably been foreseen when the budget was adopted.  That, the court held, is a question of fact involving an element of discretion which would be disturbed only upon a finding that the board acted arbitrarily and capriciously.

            Furthermore, inasmuch as the pre‑emergency [[preemergency]]registration program was not instituted until after the budgets for the current fiscal period were adopted by the several counties, we do not believe that there is any possibility the finding necessary for the appropriation could be overturned, at least if the procedures outlined in RCW 36.40.140, supra, were followed.

             [[Orig. Op. Page 6]]

            Because of the need for an immediate determination by this office of this question, we have not attempted to pass upon the possibility that the appropriation here under discussion might fall within the class of nondebatable emergencies covered by RCW 36.40.180, supra, for which no hearing is required.  In our opinion that question should be decided in the first instance by the several boards of county commissioners acting with the advice of their prosecuting attorneys.  For your information, we enclose an opinion written to the Honorable Fred B. Cohen, Prosecuting Attorney, Kitsap County, dated June 25, 1942 [[1941-42 OAG 186]], wherein this office had occasion to discuss a similar problem.

            This office will of course be glad to advise the several prosecuting attorneys on questions which may be peculiar to an individual county.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General

R. TED BOTTIGER
Assistant Attorney General

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