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AGO 1977 No. 12 - June 02, 1977
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTY ‑- SHERIFF-LABOR ‑- APPLICABILITY OF STATE MINIMUM WAGE ACT TO DEPUTY SHERIFFS

Deputy county sheriffs appointed pursuant to RCW 36.16.070 and chapter 41.14 RCW are exempt from the state minimum wage act (chapter 49.46 RCW) by reason of so much of RCW 49.46.010(5)(k) as excludes any individual ". . . who holds a public . . . appointive office of . . ." the state, any county, city, town, municipal corporation or quasi municipal corporation, political subdivision, or any instrumentality thereof.

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                                                                    June 2, 1977

Honorable George F. Hanigan
Prosecuting Attorney
Wahkiakum County
P.O. Box 39
Cathlamet, Washington 98612

                                                                                                                 Cite as:  AGO 1977 No. 12

Dear Sir:

            This is written in response to your recent letter requesting our opinion regarding the applicability of chapter 49.46 RCW, the Washington minimum wage act, to county deputy sheriffs.  Specifically, you have asked whether such personnel are exempt from the law by reason of so much of RCW 49.46.010(5) as excludes from the term "employee", and hence from coverage under the act,

            "(k) Any individual who holds a public elective or appointive office of the state, any county, city, town, municipal corporation or quasi municipal corporation, political subdivision, or any instrumentality thereof, or any employee of the state legislature."

             [[Orig. Op. Page 2]]

            We answer your question in the affirmative for the reasons set forth in our analysis.  Deputy sheriffsare exempt from the Washington minimum wage act in view of RCW 49.46.010(5), supra.1

                                                                     ANALYSIS

            In responding to your question, we must, at the outset, make note of AGO 1976 No. 21, a copy of which you will find enclosed, dealing with the applicability of the state minimum wage act to persons serving as firefighters (including so-called "volunteer firemen") in the fire departments of cities, towns or fire protection districts.  There, likewise, we considered the possibility that such individuals held appointive offices within the meaning of RCW 49.46.010(5)(k), supra, and thus were exempt from the law.  We rejected such an interpretation, however, because of so much of RCW 49.46.130,supra, as provides that no public agency shall be deemed to have violated the overtime pay requirements of the law ". . . with respect to the employment of any employee in fire protection activities or any employee in law enforcement activities . . ." if certain prescribed alternatives are met.2/   Because of that provision we reasoned, in essence, that although for some purposes, firemen are classified as officers rather than employees, they should  [[Orig. Op. Page 3]] not be so regarded under RCW 49.46.010(5)(k),supra, or otherwise,

            ". . .  The above quoted excerpt from § 3 (RCW 59.46.130) would have been unnecessary."3

             Arguably, that same approach might be taken in the case of deputy county sheriffs inasmuch as the cited portion of RCW 49.46.130,supra, encompasses ". . . any employee in law enforcement activities. . ." in immediate conjunction with a similar treatment of ". . . any employee in fire protection activities . . ."  After considerable reflection, however, we have come to the conclusion that the two situations can, and should, be distinguished.

             [[Orig. Op. Page 4]]

            Clearly, a county sheriff, himself, is exempt from the minimum wage act under RCW 49.46.010(5)(k),supra, because there can be no doubt that the position which he holds is a county elective office.  See, Washington Constitution, Article XI, § 5 and RCW 36.16.030.  Deputy sheriffs, in turn, occupy positions to which they are appointed by the sheriff.  Accord, RCW 36.16.070, which authorizes all county elected officials to appoint deputies, and the provisions of chapter 41.14 RCW which, although establishing a civil service system for most deputy sheriffs,4/ nevertheless confirms the role of the sheriff as the appointing authority.  But even more importantly, once an individual has been so appointed as a deputy sheriff he becomes, in effect, an alter ego of the sheriff himself in accordance with the following significant terms of RCW 36.28.020:

            "Every deputy sheriff shall possess all the power, and may perform any of the duties, prescribed by law to be performed by the sheriff, and shall serve or execute, according to law, all process, writs, precepts, and orders, issued by lawful authority . . ."

            In short, a deputy sheriff is truly a "deputy" as that word is defined, for example, in 63 Am.Jur. 2d, Public Officers and Employees, § 43; i.e.,

            ". . . a person appointed to act for another, or a substitute or delegate who acts officially for his principal . . ."5/

             [[Orig. Op. Page 5]]

            It is, in the final analysis, this factor which leads us to draw a distinction between deputy sheriffs, on the one hand, and most municipal firefighters or law enforcement personnel, on the other.  For the most part the latter, although they may also be referred to as "public officers" for some purposes,6/ do not occupy the status of deputies to their appointing authority in the critical sense of having been legally authorized (either by constitutional provision, statute or ordinance) to perform all acts and functions which their principal is empowered to perform.  In short, while such persons may properly be referred to as public officers in the broad sense of that term, they do not ordinarily occupy public offices.  And, as you will note from a careful reading of RCW 49.46.010(5)(k),supra, the precise question to be considered thereunder is not merely whether an individual is, for certain purposes, a public officer but, instead, it is whether he holds ". . . a public, elective or appointiveoffice of the state or any county, city, town or political subdivision thereof. . .".  (Emphasis supplied).  A county sheriff does and so, in our opinion, do his deputies.  Accordingly, they are exempt from the state minimum wage act by reason of that provision ‑ meaning that your question (as above paraphrased) is to be answered in the affirmative.

            By the same token, we should here hasten to add that under the approach which we have taken in this opinion, the chief of a municipal fire department (or similarly, the chief of a municipal police department) would most certainly also be exempt from the law in accordance with RCW 49.46.010(5)(k), supra.  And, in addition, depending upon local ordinances or charter provisions, the same could also be true of immediate subordinates to the chief in the chain of command.  If, under the provisions of those local laws, such personnel are true "deputies" to their respective chiefs, as we have used that term in this  [[Orig. Op. Page 6]] opinion, they, likewise, would be exempt from the minimum wage act under the reasoning which we here have employed.7/

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

Very truly yours,


SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/In so advising you, however, we should point out that as a practical matter, we know of no instance in which deputy sheriffs are, in fact, paid less than the prescribed minimum hourly wage listed in RCW 49.46.020.  Thus, the more significant impact of our answer to your question is in the area of premium pay for overtime work under RCW 49.46.130, quoted below, rather than that of basic salary.

2/RCW 49.46.130 reads, in pertinent part, as follows:

            "(1) No employer shall employ any of his employees for a work week longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one‑half times the regular rate at which he is employed, except that the provisions of this subsection (1) shall not apply to any person exempted pursuant to RCW 49.46.010(5) as now or hereafter amended . . .

            "(2) No public agency shall be deemed to have violated subsection (1) of this section with respect to the employment of any employee in fire protection activities or any employee in law enforcement activities (including security personnel in correctional institutions) if:  (a) In a work period of twenty-eight consecutive days the employee receives for tours of duty which in the aggregate exceed two hundred and forty hours; or (b) in the case of such an employee to whom a work period of at least seven but less than twenty-eight days applies, in his work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his work period as two hundred forty hours bears to twenty-eight days; compensation at a rate not less than one and one‑half times the regular rate at which he is employed: . . ."

3/AGO 1976 No. 21 [[to Alan Bluechel, State Senator, on November 30, 1976]]at p. 5.

4/I.e., all except those appointed to positions specifically designated as being exempt from civil service under RCW 41.14.070.

5/Accord, as well, RCW 36.16.070, supra, which in authorizing all county elective officers to appoint deputies, then goes on to provide that such a deputy ". . . may perform any act which his principal is authorized to perform . . ."

6/See, e.g., AGO 1973 No. 24 [[to Michael Mattingly, State Senator, on November 29, 1973]].

7/Conversely, however, in the absence of such a relationship we would, at this time, reaffirm the views expressed in AGO 1976 No. 21, supra, to the effect that the exemption from the minimum wage act which is provided for by RCW 49.46.010(5)(k), supra, is inapplicable.

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