VACANCY IN OFFICE

OFFICES AND OFFICERS ‑- COUNTY ‑- SHERIFF ‑- CORONER ‑- VACANCY IN OFFICE

(1) A vacancy in the office of county sheriff created by a resignation does not constitute an "incapacity" within the meaning of RCW 36.24.010 so as to require the county coroner to perform the duties of the sheriff until the vacancy is filled by the county commissioners.   

(2) If, upon the occurrence of a vacancy in the office of county sheriff, the superior court of the county were to appoint an acting sheriff under the provisions of RCW 36.28.090, its action would be entitled to a presumption of validity and even if ultimately established to be invalid, it would nevertheless establish the appointee as the defacto county sheriff.

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                                                                 January 31, 1975

Honorable David F. Thiele
Prosecuting Attorney
Island County Court House
Coupeville, Washington 98239                                                                                                                 Cite as:  AGLO 1975 No. 8

Dear Sir:

            By letter dated January 22, 1975, you have advised us of the recent resignation of the Island county sheriff.  You have further indicated that the Island county board of commissioners has thus far failed to fill this vacancy by means of an appointment in the manner called for by Article II, § 15 (Amendment 52) of the state constitution.  In the light of these circumstances you have asked for our opinion on two questions which we paraphrase as follows:

            (1) Does a vacancy in the office of county sheriff created by a resignation constitute an "incapacity" within the meaning of RCW 36.24.010 so as to require the county coroner to perform the duties of the sheriff until the vacancy is filled by the county commissioners?

            (2) If question (1) is answered in the negative, does RCW 36.28.090 authorize the appointment of an acting sheriff to serve until the vacancy is filled pursuant to Article II, § 15 (Amendment 52) of the state constitution, and if so, by whom?

            We answer your first question in the negative and your second in the manner set forth in our analysis.

                                                                     ANALYSIS

            We begin by noting the pertinent language of RCW 42.12.010, a general statute relating to all public offices in this state which provides, in pertinent part, as follows:

            "Every office shall become vacant on the happening of either of the following events before the expiration of the term of such officer.  First, the death of the incumbent; second, his resignation; . . ."

             [[Orig. Op. Page 2]]   Thus there can be no doubt, under the facts you have given us, that there currently is a true vacancy in the office of Island county sheriff.  It is, moreover, clearly a vacancy within the meaning of Article II, § 15 (Amendment 52) of our state constitution which provides that:

            "Such vacancies as may occur in . . . any partisan county elective office shall be filled by appointment by the board of county commissioners of the county in which the vacancy occurs:  Provided, That the person appointed to fill the vacancy must be from the same . . . county . . . and the same political party as the . . . partisan county elective officer whose office has been vacated, and shall be one of three persons who shall be nominated by the county central committee of that party, . . . in case a majority of said county commissioners do not agree upon the appointment within sixty days after the vacancy occurs, the governor shall within thirty days thereafter, and from the list of nominees provided for herein, appoint a person who shall be from the same . . . county . . . and of the same political party as the . . . partisan county elective officer whose office has been vacated, . . . the person so appointed shall hold office until his successor is elected at the next general election, and shall have qualified: . . ."

            Thus, the initial responsiblity for the appointment of a new sheriff is that of the county commissioners ‑ with the governor becoming involved only in the event of a failure by the commissioners to do so within sixty days of the occurrence of the vacancy.  In either event, however, the person appointed will only serve by virtue of his appointment until the next general election in our state; namely, the "annual" state general election to be held on November 4, 1975, in accordance with RCW 29.13.010.1/

             [[Orig. Op. Page 3]]Question (1):

            Apparently, however, you presently are anticipating some possible delay by the commissioners in performing this constitutional duty.  In the meantime, you have initially inquired as to whether you, yourself, as the county prosecuting attorney and thus,exofficio, the coroner,2/ are required to perform the duties of the sheriff under the following provisions of RCW 36.24.010:

            "The coroner shall perform the duties of the sheriff in all cases where the sheriff is interested or otherwise incapacitated from serving; and whenever the coroner acts as sheriff he shall possess the powers and perform all the duties of sheriff, and shall be liable on his official bond in like manner as the sheriff would be, and shall be entitled to the same fees as are allowed by law  [[Orig. Op. Page 4]] to the sheriff for similar services:  Provided, That nothing herein contained shall prevent the court from appointing a suitable person to discharge such duties, as provided by RCW 36.28.090."

            We are aware of two recent instances in which, as a matter of fact, a county coroner (or a prosecuting attorney/coroner) has temporarily served as the sheriff following, in each case, the death of the incumbent.  One such case occurred in Snohomish county following the apparent murder of the sheriff of that county while on a family vacation in Mexico, and the other occurred in Whitman county (a county like yours in which the prosecuting attorney serves,exofficio, as coroner) following the death of the elected sheriff of that county.  In the Whitman county case, however, the prosecuting attorney/coroner had actually assumed the duties of the sheriff prior to the incumbent's death, becuase of his incapacity as a result of the illness which ultimately led to his passing.  Thus, from a practical standpoint, the person involved in that situation simply continued, for a time, to do those things which he had already been doing becuase of the incumbent sheriff's incapacity prior to his death.

            We have no doubt that in performing the duties of the sheriff following the incumbent's death in each of these two recent cases, the coroner (in Snohomish county) and the prosecuting attorney/coroner (in Whitman county) occupied the status ofdefacto officers.  See, 63 Am.Jur.2d, Public Officers and Employees, § 494, and authorities cited therein.  Accordingly, the principles of this well-established common law doctrine, to which we will refer further in responding to your second question below, would be available to sustain the validity of such official acts as were performed by them as, in essence, the "acting" sheriff in each instance.  Nevertheless, it does not now appear to us that this was a role which the coroner, or the prosecuting attorney/coroner, was stautorily required to fill.

            It is true that in the Whitman county case, when we were asked for an opinion regarding the entitlement of the prosecuting attorney/coroner to be additionally compensated for his services as sheriff, our negative answer was based upon the premise that it was his "duty" as coroner to have done so.  AGLO 1974 No. 9 [[to Robert F. Patrick, Prosecuting Attorney, Whitman County an Informal Opinion, AIR-74509 on January 21, 1974]], copy enclosed.3/ This same answer,  [[Orig. Op. Page 5]] however, could also have been derived from an application of thedefacto officer doctrine.  Accord, 63 Am. Jur. 2d,supra, §§ 510-513, and cases cited.  And, perhaps more importantly, the prosecutor/coroner's initial assumption of the sheriff's duties, occurring at a point in time when the office had not yet become vacant, was at that time sanctioned by an earlier letter written by this office to the prosecuting attorney involved.  See, letter dated October 29, 1973 [[to Robert F. Patrick, Prosecuting Attorney, Whitman County an Informal Opinion AIR-73616]], a copy of which you will also find enclosed, in which we indicated the apparent applicability of RCW 36.24.010,supra, to the factual situation with which we were then (two weeks prior to the sheriff's death) presented.  Thus, understandably, when later we were asked for an opinion on the compensation issue, we simplyassumed without any discussion of the issue that this same statute continued to cover the problem throughout the entire period involved; i.e., following the death of the sheriff on November 11, 1973, and until the appointment of a new one on January 2, 1974.4/

             In any event, having now for the first time had our attention squarely directed to the precise issue, it is our opinion that RCW 36.24.010, supra, is not applicable following the death or resignation of a sheriff.  Instead, by its express terms the statute clearly assumes the continuing existence of adejure county sheriff who is simply unable, either because of some sort of personal interest or in consequence of an incapacitating illness or injury, to perform his duties in a given case or cases.  Thus the statute only operates when there is a sheriff, and, conversely, it does not apply when there is a legal vacancy5/ in that office.

            Question (2):

            Having thus answered your first question in the negative we turn, now, to your second which, repeated for ease of reference, is as follows:

             [[Orig. Op. Page 6]]   If question (1) is answered in the negative, does RCW 36.28.090 authorize the appointment of an acting sheriff to serve until the vacancy is filled pursuant to Article II, § 15 (Amendment 52) of the state constitution, and if so, by whom?

            This statute, which is referred to in the proviso to RCW 36.24.010,supra, reads as follows:

            "When there is no sheriff of a county, or he is disqualified from any cause from discharging any particular duty, it shall be lawful for the officer or person commanding or desiring the discharge of that duty to appoint some suitable person, a citizen of the county, to execute the same:  Provided, That final process shall in no case be executed by any person other than the legally authorized officer; or in case he is disqualified, some suitable person appointed by the court, or judge thereof, out of which the process issues, who shall make such appointment in writing; and before such appointment shall take effect, the person appointed shall give security to the party interested for the faithful performance of his duties, which bond of suretyship shall be in writing, approved by the court or judge appointing him, and be placed on file with the papers in the case."

            Both this statute and RCW 36.24.010 were originally enacted well before statehood by the territorial legislature and were codified in the Code of 1881 as §§ 745 and 2776, respectively.  The proviso to what is now RCW 36.24.010, however, was not added until 1897 when, by § 1, chapter 21, Laws of 1897, the legislature provided:

            "That section 2776 of the Code of 1881 be amended so as to read as follows:  Section 2776.  The coroner shall perform the duties of the sheriff in all cases where the sheriff is interested or otherwise incapacitated from serving; and whenever the coroner acts as sheriff he shall possess the powers and perform all the duties of sheriff, and shall be liable on his official bond in like manner as the sheriff would be, and shall be entitled to the same fees as are allowed by law to the sheriff for similar services:  Provided, That nothing herein contained shall prevent the court from appointing a suitable person to discharge such duties, as provided by section 745 of the Code of 1881."  (Amendatory language underscored.)

             [[Orig. Op. Page 7]]   This amendment would seem to provide an answer to one aspect of your second question; namely, by whom may an appointment under RCW 36.28.090, supra, be made?  Apparently the 1897 legislature understood that it was the court which is to do so ‑ meaning, we would assume, the superior court of the county involved.  Accord, the final sentence of RCW 36.28.090, supra, itself; but see, Russell v. Millett, 20 Wash. 212, 55 Pac. 44 (1898), to be noted below.

            Secondly, unlike RCW 36.24.010, it is clear from its express terms that RCW 36.28.090does have some utility in a situation in which "there is no sheriff" as well as in the case of an incapacity or other disqualification of an incumbent sheriff.  In fact, the presence of this language in the latter statute would appear to bolster our negative answer to your first question on the theory that when the legislature intended to cover both situations ‑ incapacity and vacancy ‑ it knew how to say so.

            The only remaining question, then, is that of whether in the case of a vacancy the court can simply appoint some citizen of the county to serve as acting sheriff for any and all purposes ‑ as opposed to an appointment merely to perform a particular duty such as the service of process in a specific case.

            The only reported case in which what is now RCW 36.28.090 has ever been cited by our supreme court isRussell v. Millett, supra, in 1898, the year following the above described amendment to RCW 36.24.010.  At issue was the ability of a private citizen, upon appointment by another private citizen, to serve a writ of garnishment upon the sheriff himself.  The sheriff admitted that by virtue of his own interest in the case it would have been proper for service to have been made by the coroner, but he contended that this was the only method by which it could have been made.

            The supreme court, however, ruled otherwise.  After making note of the 1897 amendment to what is now RCW 36.24.010, it then quoted RCW 36.28.090 and said:

            "It seems to us that this section plainly warrants the service of this writ by any person, who is otherwise qualified, who may be appointed by the person commanding or desiring the writ. . . ."  (pp. 214-15.)

             [[Orig. Op. Page 8]]   From this we first discern that at least in so far as the sevice of process is concerned, the appointment can be made by the party on whose behalf it is to be served as well as by the court.  But because the case only dealt with this particular duty of a sheriff, we are left without any precedent for a use of RCW 36.28.090, in a situation "when there is no sheriff," to cover any of his other duties.  See, RCW 36.28.010, And likewise, even though this statute does appear by its express terms to permit an appointment of an "acting" sheriff to perform "any particular duty" of a disqualified or nonexistent sheriff, and not solely the service of process, we are left with no decided cases on the essential question you have here asked ‑ whether this statute further would permit the superior court of the county (or, perhaps, some other person) to appoint an acting sheriff to performany and all of the duties of the sheriff without specification.

            In the case of an attempted appointment by a person other than the court or judge, we would be doubtful simply because of a concern as to who else could be said to have a sufficient "standing" to make such a command.  It is one thing for a private citizen or even some other public official to have a need for the performance of a particular function such as the service of process or, perhaps, the conduct of a sheriff's sale of abandoned property or the like.  It is another, however, for any such individual to be in the position of having a justificaton to demand some other private citizen to step in and be the sheriff for any and all purposes.  If nothing else, any such interpretation of the statute would be highly suspect under the rule against absurdities6/ in that it could result in as many different acting sheriffs running around a county as there are "interested" citizens making appointments and other citizens willing to serve.

            On the other hand, if the court itself were to purport to make such an appointment its action would at least be entitled to a presumption of validity under the rule of law which presumes the validity of all official acts of public officers, including the making of appointments to other offices over which they possess the power of appointment.  See, 2 McQuillin, Municipal Corporations, § 10.37  [[Orig. Op. Page 9]] at pp. 833-4, and cases cited therein.  And by the same token, even if ultimately established to be invalid, it would nevertheless thereby establish the appointee as the defacto county sheriff under the same doctrine as we cited earlier in this opinion in connection with the status of a county coroner serving as "acting" sheriff following the death of the incumbent sheriff himself.  See, again, 63 Am.Jur.2d, Public Officers, § 494, supra, in which the following oft quoted definition of this term appears:

            ". . .  A person is a de facto officer where the duties of the office are exercised (1) without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be; (2) under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent, requirement, or condition, such as to take an oath, give a bond, or the like; (3) under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unkown to the public; (4) under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such. . . ."  (Emphasis supplied.)

            Beyond this, however, there is little more we can say with any degree of certainty regarding the utility of RCW 36.28.090 in the situation with which you are presently concerned.  We would obviously hope that it turns out to be one of short duration and that the county commissioners will resolve their differences as quickly as they can and proceed, without any unnecessary delay, to perform the function of appointing a newdejure sheriff ‑ a function with respect to which they have not only a power, but, as well, a clear duty under the express language of our state constitution as quoted at the outset of this opinion.

            It is true that this provision of the constitution in one sense gives them a period of sixty days to fill the vacancy ‑ in that they do not lose theirpower of appointment to the governor until the expiration of that period.  However, this does not mean that they are under no duty  [[Orig. Op. Page 10]] to make the appointment in the meantime.  Most certainly they are, for the opening sentence of the section expressly contains the mandatory word "shall" ‑ and conceivably they could be held to be in neglect of that duty if they were intentionally to make no real attempt to fill the vacancy in order to pass the resonsibility for selecting the new sheriff by default to the governor.  See, RCW 42.20.100 which provides that:

            "Whenever any duty is enjoined by law upon any public officer or other person holding any public trust or employment, their wilful neglect to perform such duty, except where otherwise specially provided for, shall be a misdemeanor."

            In addition, any such wilful neglect of duty can result in possible civil liability for any resulting injuries, see, 63 Am.Jur.2d, Public Officers, § 292, and even, possibly, a forfeiture of office; e.g., State ex rel. Zempel v. Twitchell, 59 Wn.2d 419, 367 P.2d 985 (1962).

            If, on the other hand, the county commissioners in this case do make a full and good faith effort to agree upon a new sheriff, from the list of names required to be submitted to them by the county central committee of the political party involved, and yet find themselves unable by simple majority to agree upon the appointment, another possible solution to the problem might be considered.  In such a case, if the commissioners as a body were then immediately to notify the governor of their unalterable deadlock on the question, we would be prepared to advise the governor to proceed with an appointment on his own (from the same list as the constitution requires) without waiting for the prescribed sixty-day period to elapse ‑ subject, for the sake of covering any resulting challenge to this procedure, to an ensuing ratification by the commissioners.