AGO 1961 No. 5 - Jan 30 1961
OFFICES AND OFFICERS ‑- COUNTY ‑- SHERIFF ‑- AUTHORITY TO RECEIVE A REWARD FROM THE UNITED STATES POST OFFICE DEPARTMENT
A county sheriff is prohibited by RCW 42.22.040 (2) from receiving a reward from the United States Post Office Department for the performance of services instrumental to the solution of a crime relating to the postal service, unless the matter for which the reward is offered is in no way connected with or related to his services as county sheriff.
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January 30, 1961
Honorable Alf M. Jacobsen
Cite as: AGO 61-62 No. 5
By letter, previously acknowledged, you have requested an opinion of this office on a question which we paraphrase as follows:
Under the provisions of RCW 42.22.040 (2), is a county sheriff prohibited from receiving a reward offered by the United States Post Office Department for the performance of services which are instrumental to the solution of a crime relating to the Postal Service?
In our opinion a county sheriff is prohibited from receiving such a reward, unless the matter for which the reward is offered is in no way connected with or related to his services as county sheriff. Our reasons for this conclusion are set forth in our analysis.
RCW 42.22.040 (2), codifying subsection (2) of section 4, chapter 320, Laws of 1959, reads as follows:
"No officer or employee of a state agency, or other public officer shall, directly or indirectly, give orreceive or agree to receive any compensation, gift, [[Orig. Op. Page 2]] reward, or gratuityfrom any source except the state of Washington, its political subdivisions, or employing municipal government, for any matter connected with or related to his services as such an officer or employee unless otherwise provided for by law." (Emphasis supplied.)
Prior to the enactment of this statute, this office had occasion to pass upon certain aspects of the problem of receipt of rewards by county sheriffs other than the precise aspect of the problem which is here presented. In an opinion to the Honorable F. M. Turner, Prosecuting Attorney, Stevens County, dated July 17, 1933, a copy of which is enclosed herein, we concluded that a sheriff has no legally enforceable claim to a reward for the rendition of services which it was his official public duty to perform. See also, AGO 57-58 No. 148, dated January 17, 1958, to the Honorable John Panesko, Prosecuting Attorney of Lewis County, a copy of which is also enclosed.
In addition, in the above cited opinion of July 17, 1933 to the Honorable F. M. Turner, we ruled, pursuant to § 4218 Rem. Comp. Stat. (now RCW 36.18.140), that any reward received by a county sheriff for the performance of an official public duty must be paid over by him to the county treasurer.
Of course, unlike the instant matter involving as it does an interpretation of the above quoted 1959 statute, in neither of the above noted opinions was the source of the reward considered to be material. Nor were the writers of these two opinions concerned with the precise question of the right of a county sheriff toreceive, as distinguished from the right to claim and collect or the right toretain, a reward for a matter related to the performance of his official public duty.
In relation to the question here presented, the key words and phrases in the portion of the 1959 statute above quoted, as indicated by our emphasis of same, are "other public officer," "receive or agree to receive," "reward," "from any source except the state of Washington, its political subdivisions, or employing municipal government," and "for any matter connected with or related to his services as such an officer." By the terms of your question, that which is here offered is without doubt a reward. Manifestly it is a reward from a source other than the state of Washington, its political subdivisions, or employing municipal government; i.e., it is a reward offered by the United States Post Office Department. It is evident that the applicability of [[Orig. Op. Page 3]] the statute as a bar to the receipt of such a reward by a county sheriff is dependent upon whether a county sheriff, who clearly is not an officer or employee of astate agency (state agency being defined by subsection (1) of section 2 of the Act‑-cf. RCW 42.22.020 (1)‑-as "any state board, commission, bureau, department, division, or tribunal other than a court"), is an "other public officer" within the meaning of the statute.
We think it is beyond doubt that a county sheriff is a public officer, as distinguished from a mere public employee. Quoting fromState ex rel. Barney v. Hawkins, 79 Mont. 506, 257 Pac. 411 (1927), the Washington Supreme Court, inState ex rel. McIntosh v. Hutchinson, 187 Wash. 61, 59 P. (2d) 1117 (1936) set forth the test bearing on this subject as follows:
"After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity and not be only temporary or occasional. In addition, in this state, an officer must take and file an official oath, hold a commission or other written authority, and give an official bond, if the latter be required by proper authority."
An examination of chapter 36.28 RCW, creating the office of county sheriff and prescribing in detail the qualifications and duties of the person holding this office leaves no doubt but that a county sheriff is a public officer within the purview of the above quoted test.
However, it is equally clear that a county sheriff, though a public officer, is essentially an officer of a political subdivision of the state of Washington, rather than an officer of [[Orig. Op. Page 4]] the state government itself. Thus, if it was the intention of the legislature, in enacting subsection (2) of section 4, chapter 320, Laws of 1959 (RCW 42.22.040 (2)), supra, to merely limit the activities of officers of thestate government, it would follow that the statute in question would have no application to a county sheriff. However, we do not believe that this is the case. It will be noted that the portion of the statute excepting certain sources of rewards from the general prohibition contained therein reads, "from any source except the state of Washington, its political subdivisions, or employing municipal government, . . ." (Emphasis supplied.) This modification of the phrase "municipal government" with the word "employing" makes it clear, we believe, that the legislature intended that this particular subsection of the subject statute, prohibiting the receipt of rewards except from certain designated sources, should cover officers of municipal governments, including county governments, as well as officers of the state government. Therefore, we conclude that this subsection of the statute is applicable to a county sheriff.
Consequently, it follows that pursuant to this statutory provision, a county sheriff is prohibited from receiving a reward from the United States Post Office Department for the performance of services which are instrumental to the solution of a crime relating to the postal service unless in fact the matter for which the reward is offered is in no way "connected with or related to his services as" county sheriff.
We trust that the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
PHILIP H. AUSTIN
Assistant Attorney General