AGLO 1981 No. 9 - Apr 22 1981
OFFICES AND OFFICERS ‑- STATE ‑- GOVERNOR ‑- STATE PATROL ‑- BACKGROUND INVESTIGATIONS OF GUBERNATORIAL APPOINTEES
When requested to do so by the Governor for the purpose of determining the qualifications of a prospective gubernatorial appointee to public office, the Washington State Patrol may (a) provide the Governor with information contained in records then on file with the Patrol, except to the extent that, in a given case, particular information contained in those records is covered by a specific statutory restriction against disclosure; and (b) pursuant to an interlocal cooperation act agreement with the Governor, go beyond its own existing records and, further, search out other information by examining existing records maintained by other law enforcement agencies and/or other custodians and by contacting and interviewing neighbors, past business associates or others deemed likely to have personal knowledge about the prospective appointee.
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April 22, 1981
Honorable Phil Talmadge
St. Sen., 34th District
409 Public Lands Building
Olympia, Washington 98504 Cite as: AGLO 1981 No. 9
By letter previously acknowledged, you requested our opinion on a question which we paraphrase as follows:
When requested to do so by the Governor for the purpose of determining the qualifications of a prospective gubernatorial appointee to public office, may the Washington State Patrol
(a) provide the Governor with information contained in records then on file with the Patrol;
(b) search for and provide the Governor with information contained in existing records maintained by other law enforcement agencies and/or other custodians (e.g., the Internal Revenue Service) of particular records;
[[Orig. Op. Page 2]] (c) further search out other information by contacting and interviewing neighbors, past business associates, or others deemed likely to have personal knowledge about the prospective appointee?
We answer the question in the manner set forth in our analysis.
As the chief executive of our state, the Governor has the responsibility for filling, by appointment, vacancies in a number of constitutional and statutory offices. See ,e.g., Art. III, § 13 and Art. IV, §§ 3 and 5 of our state constitution and RCW 43.06.010, et seq. In addition, there are numerous other statutes relating to specific offices which provide that those offices are to be filled by the gubernatorial appointment process‑-including all code department heads and the members of various state boards and commissions.
In selecting an appointee, a governor most certainly wants to know that the individual involved has the necessary qualifications, ability and moral character to perform the responsibilities associated with the position.1/ And, in some cases, the Governor may simply not be satisfied that the application itself, together with supporting references, are sufficient to support a proper determination of whether or not a particular appointment should be made. Your question relates to a historic practice, in such instances, whereby governors, over the years, have looked to the Washington State Patrol for assistance.
[[Orig. Op. Page 3]] The resulting investigations, commonly referred to as "background checks," may involve, at least at the outset, only a review of records already in the custody of the Patrol. But in addition, in some cases, the requested investigation may also lead to the examination of further records held by other agencies‑-both public and private. And, finally, it may also involve searching out additional information by contacting and interviewing neighbors, past business associates or others deemed likely to have personal knowledge about the prospective appointee.
Your inquiry, as above paraphrased, covers all three of these possible areas of investigative activity. We will deal, first, with the examination of existing records which are either on file with the Patrol itself or accessible to the Patrol through its data processing capabilities or the like.. Then we will turn to the question of whether the State Patrol has, or by action of the Governor may be vested with, the legal authority to seek out further information through the process of searching for and examining other records or by going out and conducting personal interviews or the like.
There are several different types of records in the actual custody of the State Patrol itself which could, conceivably, contain information relating to persons, among others, who are prospective gubernatorial appointees. First, there are the records of the Patrol's crime information center under RCW 43.43.500.2/ A second informational records center within the Patrol involves the Drug Control Assistance Unit which, under RCW 43.43.620, includes a comprehensive system of information concerning violations of narcotic and drug laws. Thirdly, the Patrol has a section on identification under RCW 43.43.700 which includes fingerprinting, photographs and other [[Orig. Op. Page 4]] informational data for persons who have been lawfully arrested and charged or convicted of any criminal offense. This includes information as to arrest and conviction under the laws of other states or governments.3/ And finally, there are such records and information as have been obtained by the Organized Crime Intelligence Unit of the Patrol pursuant to RCW 43.43.852,et seq.
A review of the applicable statutes reveals, however, that there are varying degrees of confidentiality which do apply to many of these records. See,e.g., RCW 43.43.705 and RCW 43.43.856, among other such provisions. Conceivably, in a given case, one or more of those statutory bars to disclosure might preclude the Patrol from including, in its report to the Governor, particular information. But in the absence of any such barrier to disclosure, in a given instance, it is our opinion that the State Patrol may lawfully respond to a gubernatorial request for a background check on a potential appointee by communicating to the Governor whatever information is to be gleaned from its own existing files and records or those records which are accessible to it through its data processing capabilities.4/ And likewise, assuming such to be the case, the Patrol may also respond to such a request by indicating to the Governor an apparent absence of any such information or records pertaining to the particular individual involved.
Other Records and Personal Interviews:
In dealing with this further segment of your question, we first must note that the State Patrol is purely a statutory state agency created by the legislature. As such, it may only exercise those powers which have been expressly granted by law or are necessarily to be implied from any such express authorization. Accord,State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956) and cases cited therein.
[[Orig. Op. Page 5]]
With that rule in mind, and based on our examination of the applicable statutes, we must initially conclude that the State Patrol has no independent statutory authority to go beyond its own records (or those available to it through its data processing capabilities)‑-as outlined above‑-in conducting a background investigation of a prospective gubernatorial appointee.
The general declaration of authority for the State Patrol is set forth in RCW 43.43.030 as follows:
"The chief and other officers of the Washington state patrol shall have and exercise, throughout the state, such police powers and duties as are vested in sheriffs and peace officers generally, and such other powers and duties as are prescribed by law."
But, in turn, the police powers and duties of county sheriffs, as related in RCW 36.28.010‑-and of peace officers generally‑-relate only to the enforcement of criminal law, coupled with specific powers in relation to certain civil matters. We do not believe that those powers include the authority to make general investigations of members of the public or potential appointees to public office for any purpose other than the actual enforcement of the criminal laws.
This does not mean, however, that subparts (b) and (c) of your question necessarily must be answered in the negative. Under RCW 43.43.020 the chief of the State Patrol has the authority to hire, promote or discharge State Patrol officers and, in our opinion, that authority carries with it by implication the authority to inquire into (or investigate)the backgrounds of those individuals who are potential State Patrol officers in order to determine their overall qualifications. Likewise, as is manifest by the very question you have posed, the Governor has much the same power to hire, promote or discharge persons to fill the numerous public offices which are subject to gubernatorial appointment. And, accordingly, it follows that the Governor is also vested with the same implied power to conduct background investigations regarding those prospective appointees as is possessed by the chief of the State Patrol in the context of prospective state troopers.
[[Orig. Op. Page 6]]
Bearing this in mind we turn, next, to the provisions of chapter 39.34 RCW, the "Interlocal Cooperation Act." Among those provisions is RCW 39.34.080 which states that:
"Any one or more public agencies may contract with any one or more other public agencies to perform any governmental service, activity, or undertaking which each public agency entering into the contract is authorized by law to perform: PROVIDED, That such contract shall be authorized by the governing body of each party to the contract. Such contract shall set forth fully the purposes, powers, rights, objectives, and responsibilities of the contracting parties."
Clearly, both the Governor's Office and the State Patrol are "public agencies" for the purposes of this provision. See, RCW 39.34.020. Therefore, utilizing the device of an interlocal agreement formulated pursuant to RCW 39.34.080, it is our opinion that the governor may call upon the State Patrol to go beyond its own existing records and, further, to conduct background investigations of prospective gubernatorial appointees in the same manner and to the same extent as either the Governor or the chief of the Patrol could do with respect to (1) those same prospective appointees (in the case of the Governor) or (2) prospective State Patrol officers under RCW 43.43.020 (in the case of the chief of the Patrol).
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
EDWARD B. MACKIE
Deputy Attorney General
*** FOOTNOTES ***
1/The importance of this selection process and the Governor's responsibility with respect to subsequent actions by the appointee is further evidenced by RCW 43.06.070 which provides:
"The governor may remove from office any state officer appointed by him not liable to impeachment, for incompetency, misconduct, or malfeasance in office."
2/That data processing system maintained by the crime information center also has access to the National Crime Information Center, to motor vehicle and driver license information and to such other public records as may be accessed by data processing which are pertinent to law enforcement. Further, the crime information center also has records of outstanding criminal warrants.
3/It should also be noted that by virtue of RCW 43.43.735, the photography and fingerprinting information thus possessed by the Patrol should include all persons who have been lawfully arrested in this state for the commission of any criminal offense constituting a felony or gross misdemeanor, except when this person arrested for a gross misdemeanor is not taken into custody.
4/See, again, footnote 3, supra.