AGO 1982 No. 8 - Jun 17 1982
OFFICES AND OFFICERS ‑- COUNTY ‑- COMMISSIONERS ‑- EMPLOYEES ‑- CIVIL SERVICE ‑- ADOPTION AND IMPLEMENTATION OF COUNTY PERSONNEL SYSTEM
There is no authority, under existing state law, for the adoption and implementation, by the board of county commissioners of a noncharter county, of a county personnel system covering the employment, compensation, subsequent promotion, suspension or discharge of all county employees‑-including those appointed by other, independent, county elected officials; there are, however, certain limited actions which may be taken in this area pursuant to a joint agreement between all affected county offices.
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June 17, 1982
Honorable Robert K. Leick
Stevenson, Washington 98648
Cite as: AGO 1982 No. 8
By letter previously acknowledged you requested our opinion regarding the legal authority of the board of county commissioners of a noncharter county to establish a county personnel system. In addition, you provided us with a draft copy of the text of a document providing for such a system which, as we understand it, would cover the employment, compensation, subsequent promotion, suspension or discharge of all county employees‑-including those appointed by other, independent, county elected officials.
We respond to your inquiry in the manner set forth below.
Much the same question as you have now asked was submitted to this office several years ago and led to our issuance of AGO 55-57 No. 306, copy enclosed. In that opinion we first quoted the following language of RCW 36.16.070:
"In all cases where the duties of any county office are greater than can be performed by the person elected to fill it, the officer may employ deputies and other necessary employees with the consent of the board of [[Orig. Op. Page 2]] county commissioners. The board shall fix their compensation and shall require what deputies shall give bond and the amount of bond required from each. The sureties on deputies' bonds must be approved by the board and the premium therefor is a county expense.
". . . The officer appointing a deputy or other employee shall be responsible for the acts of his appointees upon his official bond and may revoke each appointment at pleasure."
We then noted that an earlier version of that statute had been held by the court, inThomas v. Whatcom County, 82 Wash. 113, 143 Pac. 881 (1914), to vest each appointing officer with exclusive control over the appointment and dismissal of his own deputies‑-although the board of county commissioners determines the numbers and salaries of those deputies. We also alluded to the absence of any express language in RCW 36.32.120 (relating, generally, to the powers of county commissioners) which would permit a board of commissioners to establish a county civil service or merit system. We therefore answered the question posed in the negative and said that some form of statutory authorization would be needed in order to facilitate the establishment of such a system.
Thereafter, in 1958, an initiative was approved by the voters which provided for the establishment of a statewide civil service system for one particular class of county personnel; namely, deputy county sheriffs.1/ However, the legislature has enacted no similar law covering other county employees‑-and there is thus a presumption that the legislature has intentionally withheld such authority. See,Washington Education Association v. Smith, 96 Wn.2d 601, __P.2d__ (1981). We also note in this regard that on at least one occasion, in 1977, the legislature considered but declined to pass a bill (HB 787) which was specifically designed to deal with the matter.
We must, therefore, once again respond to your basic question, in the negative. In so doing, however, we would also offer certain suggestions regarding the possibility of a somewhat more limited approach which might be considered under the existing laws as they relate to noncharter counties.2/ We will divide this further [[Orig. Op. Page 3]] discussion into two parts, the first relating to possible courses of action which a board of county commissioners may itself pursue, unilaterally, and the second covering the possibility of some form of joint action by the various county officials, acting in concert.
Unilateral Action By County Commissioners:
A board of county commissioners has the express power, under RCW 36.16.070,supra, to fix the compensation of subordinate county officers and employees‑-including those appointed by independent elected officials.3/ Accordingly, in the exercise of that authority, the county commissioners could by unilateral action establish a countywide compensation schedule for those classes of personnel over whom the board has such control. Accord, AGO 55-57 No. 48, a copy of which is also enclosed. And, of course, "compensation" includes such fringe benefits as medical insurance, or the like, which counties are authorized to provide for their employees.4/
In addition, RCW 36.16.070 also has the effect of making the consent of the board of county commissioners a necessary condition to the appointment, or employment, of most county personnel. Therefore, in the exercise of that function, the commissioners might also establish, unilaterally, appropriate procedures for the initial employment (or hiring) of those personnel. Please note, however, that we are not here suggesting the existence of a power, in the county commissioners, to select the particular individuals to be appointed or employed by any of the several independent [[Orig. Op. Page 4]] county elected officials.5/
Nothing in RCW 36.16.070, supra, however, purports to vest the county commissioners with the power, acting unilaterally, to regulate the subsequent promotion, suspension or discharge of those deputies or other employees who are appointed by, and thereafter serve at the pleasure of, other county elected officials referred to in that statute. Accord, AGO 55-57 No. 306,supra.
Joint Action By Other County Elected Officials:
A somewhat more extensive program, on the other hand, would appear to be possible through the joint action of all affected county elected officials acting in concert. In fact, we understand that something along those lines has been done, in the past, in other counties including (according to our information) Cowlitz, Clark, Yakima, Spokane, Skagit, Whatcom, Walla Walla, Whitman and Kitsap. Such a program, however, would be effective only with the continuing mutual consent of those other elected officials and could not involve a delegation oftheir discretion to others. For it is well established that in the absence of express statutory authority, a public official may not delegate to others those discretionary functions which have been vested in him by law. See,State ex rel. Everett Fire Fighters v. Johnson, 46 Wn.2d 114, 278 P.2d 662 (1955); andRoehl v. PUD No. 1, 43 Wn.2d 214, 261 P.2d 92 (1953).
We trust that you will find the foregoing to be of assistance.
Very truly yours,
KENNETH O. EIKENBERRY
ROBERT F. HAUTH
Senior Assistant Attorney General
*** FOOTNOTES ***
1/See, Initiative No. 23, since codified as chapter 41.14 RCW.
2/What we are here saying with regard to the necessity for legislative authorization, of course, is generally inapplicable in the case of those counties which have adopted their own home rule charters under Washington Const., Art. 11, § 4 (Amendment 21). See,Winkenwerder v. Yakima, 52 Wn.2d 617, 328 P.2d 873 (1958) which, although it dealt with charter cities, contains reasoning which is equally applicable to charter counties.
3/See, however, RCW 36.21.011 which apparently creates a qualified exception for employees in the county assessor's office‑-to the extent that it purports to require each board of county commissioners to which a budget estimate is submitted by the assessor to ". . . allow sufficient funds for such positions. . . ."
4/See, RCW 41.04.180, et seq.
5/See also, in that regard, AGO 55-57 No. 48, supra.