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AGO 1959 No. 51 - July 14, 1959
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John J. O'Connell | 1957-1968 | Attorney General of Washington

PORT DISTRICTS - AUTHORITY TO EMPLOY PRIVATE ATTORNEY AS ADVISER TO PORT COMMISSION - REGISTRATION OF WARRANTS OF THE DISTRICT BY COUNTY AUDITOR.

(1) Port district is legally authorized to employ an attorney as legal adviser to port commission.  (2) In counties of the 5th to 8th class the prosecuting attorney may be employed as the port district attorney.

(3) The auditor of a port district need not present the warrants of the district to the county auditor for registration.

                                                                   - - - - - - - - - - - - -

                                                                    July 14, 1959

Honorable Dewey C. Donohue
Representative, Tenth District
506 E. Richmond
Dayton, Washington                                                                                                    Cite as:  AGO 59-60 No. 51

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on several questions relating to the county-wide port district which was established in Columbia county in 1958.  We believe a determination of the following questions will adequately answer your inquiry:

            (1) Does a port district have the power under state law to employ an attorney on a monthly salary as the adviser of the port commission?

            (2) In the event that question (1) is answered in the affirmative, may the prosecuting attorney in 5th to 8th class counties be employed by a county-wide port district?

            (3) Must the auditor of a port district present the warrants of the district to the county auditor for registration thereof?

            We answer questions (1) and (2) in the affirmative; question (3) in the negative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Question (1)

            A port district is a municipal corporation (Port of Seattle v. International Longshoremen's and Warehousemen's Union, 52 Wn. (2d) 317, 324 P. (2d) 1099 (1958) and cases cited therein), and as such, has only those powers expressly granted by the legislature; those necessarily or fairly implied in or incident to the powers granted, and those essential to the declared objects and purposes of the municipal corporation.  Christie v. Port of Olympia, 27 Wn. (2d) 534, 179 P. (2d) 294 (1947); AGO written to the Honorable Cliff Yelle, State Auditor, dated July 19, 1946 [[1945-46 OAG 902]].

            The general law governing port districts is contained in Title 53 of the Revised Code of Washington.  Among the powers expressly granted port districts by the legislature in chapter 53.08 RCW, we find that "the port commission shall have authority to create and fill positions, to fix wages, salaries and bonds thereof, . . ." (RCW 53.08.170).  It is our opinion that this statute authorizes the commission, in the exercise of its discretion, to employ an attorney as its legal adviser on a monthly salary.  Furthermore, prior to the enactment of the above statute in 1955 (§ 1, chapter 64, Laws of 1955) this office held in the opinion cited hereinbefore, that a port district had the implied power to employ an attorney.  There it is said:

            "Of course, the port district will probably be required to have attorneys represent it before the civil aeronautics board in matters rising out of its powers to establish, maintain and operate air navigation facilities, or in other phases of its activities over which the port district and the civil aeronautics board have concurrent authority.  In such cases the port district has implied power to expend its funds for necessary attorneys' fees."  (Emphasis supplied.)

            See also AGO written to the Honorable Boone Hardin, Prosecuting Attorney, Whatcom County, dated December 3, 1948 [[Opinion No. 47-49-477]].

             [[Orig. Op. Page 3]]

            Question (2)

            The general powers and duties of the prosecuting attorney are found in RCW 36.27.020.  An examination of this statute reveals that although the legislature has expressly made the prosecutor the legal adviser to the board of county commissioners, all county and precinct officers, and school directors in matters relating to their official business, the prosecutor has not been given the specific duty of advising municipal port districts.

            Since he is not required by law to advise the port districts the question to be resolved is whether the prosecuting attorney may be employed, in his private capacity, as the attorney for such a district.

            There are two statutory restrictions upon the private practice of law by prosecuting attorneys:

            RCW 36.27.050 provides as follows:

            "No prosecuting attorney shall receive any fee or reward from any person, on behalf of any prosecution, or for any of his official services, except as provided in this title, nor shall he be engaged as attorney or counsel for any party in any action depending upon the same facts involved in any criminal proceeding."

            RCW 36.27.060 reads as follows:

            "The prosecuting attorneys of class A counties and counties of the first class and their deputies shall not engage in the private practice of law."

            The latter certainly does not apply in this instance because your inquiry is limited to 5th through 8th class counties.  Furthermore, in view of the nature of the employment here contemplated, we cannot see wherein the former would prohibit the prosecutor of the above class counties from acting as the attorney for a port district in his capacity as a private attorney.  However, the absence of constitutional or statutory prohibition does not, in every case, determine the question of incompatibility of offices or employments.  Our court in the case ofKennett v. Levine, 50 Wn. (2d) 212, 216, 310 P (2d) 244 (1957) said:

            "Offices are incompatible when the nature and duties of the offices are such as to render it  [[Orig. Op. Page 4]] improper, from consideration of public policy, for one person to retain both.  State ex rel. Klick v. Wittmer, (1914), 50 Mont. 22, 144 Pac. 648; State ex rel. Nebraska Republican State Central Committee v. Wait (1912), 92 Neb. 313, 138 N.W. 159;State v. Anderson (1912), 155 Iowa 271, 136 N.W. 128; Mechem on Public Officers (1890), 268, § 422. Or, as was said inBarkley v. Stockdell (1933), 252 Ky. 1, 66 S.W. (2d) 43:

            "'The question [of incompatibility] is . . . whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest.'

            "The question of what is compatible and what is incompatible is often difficult of solution, and the principles upon which its solution depends cannot always be stated with exactness.  Throop on Public Officers (1892), 37, § 33.  This must of necessity be so, inasmuch as what public policy should be, and what is, detrimental to the public interest may, in many instances, be subject to a legitimate difference of opinion.

            "The cited cases deal for the most part with the issue of incompatibility between two public offices; but the same principles which require a public office holder to surrender one of two incompatible offices, must make an incompatibility between private business or professional interests and an appointive public office a cause for removal within the purview of a statute or a charter provision providing for removal for cause."

            From our examination of the statutory duties of the prosecuting attorney (RCW 36.27.020) and the establishment, organization and powers of a port district (Title 53 RCW) we are unable to find any obvious provisions which would give rise to a conflict between the official capacity in which the prosecutor represents the county and the private capacity in which he would advise a port district.  It is a very basic presumption in this jurisdiction that public officers are presumed to perform their duties in accordance with the law; therefore, we presume that, in the event that some factual situation should arise which would create a conflict of interest between the two employments, the prosecutor would perform his public duty and allow another attorney  [[Orig. Op. Page 5]] to represent the port district.  See AGO written to Honorable Boone Hardin, Prosecuting Attorney, Whatcom County, dated December 3, 1948 [[Opinion No. 47-49-477]].  Except as qualified above, it is our opinion that the offices of prosecuting attorney in a county of the 5th through 8th class and legal adviser of a port district are not legally incompatible.

            Question (3)

            In respect to the disbursement of port district funds, RCW 53.36.010 provides as follows:

            "The treasurer of the county in which a port district is located shall be treasurer of the district.  All district funds shall be paid to him as such treasurer and shall be disbursed by him upon warrants signed by a port auditor appointed by the port commission, upon vouchers approved by the commission."  (Emphasis supplied.)

            You inquire whether the warrants of the port commission must be presented to the county auditor for registration.  We find no such statutory requirement.

            The county auditor is a county officer (RCW 36.16.030) and is, by RCW 36.22.010 (6), required to:

            "Make out a register ofall warrants legally authorized and directed to be issued by any superior court cost bill, not earlier than ten days after receipt thereof, orby the board of county commissioners. . .  He shall also make out a certified copy of the register of warrants under his hand and seal and deliver it forthwith to the county treasurer who shall record it in a book kept for that purpose.  The auditor shall file and carefully preserve the original in his office for future reference.  The register of warrants shall be part of the records of the county."  (Emphasis supplied.)

            Under the provisions of this statute, the county auditor is required only to keep a register of allcounty warrants.  Since warrants of the port district are not county warrants and since such warrants are directed to be issued by the port commission and not the board of county commissioners, the port auditor  [[Orig. Op. Page 6]]

need not present the warrants of the district to the county auditor for registration prior to disbursement of the funds by the treasurer of the district, the county treasurer.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. DORAN
Assistant Attorney General

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