Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1964 No. 124 - Oct 20 1964
Attorney General John J. O'Connell


A county can in a proper case (in this connection see AGO 61-62 No. 71 [[to Mark Litchman, State Representative on October 11, 1961]], and AGO 63-64 No. 118) provide legal services 61-62 No. 71, and AGO 63-64 No. 118) provide legal services for the sheriff and his deputies when they are sued as the result of an official act but this responsibility is not a statutory duty of the prosecuting attorney's office.

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                                                                October 20, 1964

Honorable Charles O. Carroll
Prosecuting Attorney
King County
King County Courthouse
Seattle 4, Washington

                                                                                                              Cite as:  AGO 63-64 No. 124

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on the following paraphrased question:

            May the county provide, through the prosecuting attorney or otherwise, a legal defense for the sheriff and his deputies against civil suits arising from their official acts?

            We answer your question in the affirmative, as qualified in the analysis.


            This opinion is supplemental to AGO 63-64 No. 118 [[to Don L. Talley, State Senator on September 3, 1964]], a copy of which is attached hereto.  That opinion concluded:

            ". . . a city of any class may, in a proper case, expend city funds to defend the acts of one or more of its officers in a civil action brought against them for a cause arising out of their performance of official duty. . . ."

            That conclusion was reached by looking to the "police power" of the various classes of cities in the state of Washington and to the "public policy" of the state regarding indemnification of its law enforcement officers.  Our opinion also  [[Orig. Op. Page 2]] discussed the possible effect ofKelso v. Tacoma, 63 Wn. (2d) 913, 390 P. (2d) 2 (1964), establishing municipal tort liability.  However, in that opinion as in this one, no city or county liability was involved,1/ and the case has no application to the present issue.  As we said in that opinion:

            "In this case, however, the question to be decided is whether the city has a similarly direct and substantial interest of its own to warrant the expenditure of its funds to defend one or more of its officers in cases where the city itself is not a party and is not, therefore, faced with the same immediate threat of liability.  In other words, is the need to avoid pecuniary liability the only ground for such a defense, or is there some other basis such as the police power of the city on which the city's action may be lawfully predicated?"

            Both cities and counties derive their police power from Article XI, § 11, of the Washington State Constitution.  It provides:

            "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."

            Consequently, the various classes of cities and counties have equal police power (subject to regulation by the legislature).  In that respect the reasoning of AGO 63-64 No. 118 applies to counties as well as cities.  Our research discloses no statutory provision which would restrict the power of a county any more than that of a city, on the subject of providing a legal defense to its law enforcement agency.

             [[Orig. Op. Page 3]]

            The second consideration in AGO 63-64 No. 118 is public policy, and the opinion points out that our legislature, in 1963, passed an act authorizingcities to provide false arrest insurance for their law enforcement personnel (§ 1 chapter 127, Laws of 1963; cf. RCW 35.23.460), and thereby definitely established the public policy of the state as favoring indemnification of law enforcement personnel.

            This same enactment provided that counties also could furnish false arrest insurance for their law enforcement personnel.  (§ 2, chapter 127, Laws of 1963; now RCW 36.16.130)  Therefore, it is readily apparent that the reasoning applies equally as strongly to counties as to cities.  Incidentally, this statute also supersedes and nullifies our earlier opinion, AGO 57-58 No. 18 [[to Prosecuting Attorney, Douglas County on February 19, 1957]], holding that counties may not purchase false arrest insurance for the sheriff and his deputies.  The public policy enunciated by the same statute also militates against the conclusion expressed in AGO 45-46 page 335, to the effect that counties have no legally recognizable interest in defending actions brought against the sheriff, and to that extent AGO 45-46 page 335 [[1945-46 OAG 335 to Prosecuting Attorney, Kitsap County on September 11, 1945]], is also superseded.

            Therefore, since the police power of counties is equal to that of cities, and since the public policy in question was established by the legislature in an act which dealt with them both (chapter 127, Laws of 1963), there would seem to be no longer a doubt that a county may provide legal services for the defense of its sheriff and any of his deputies when the suit against them arises out of an official act.  Of course, we attach to this conclusion the same qualification expressed in our previous opinion relative to the defense of a city police officer, AGO 63-64 No. 118, pp. 6-7.  Accordingly, the determination should be made in each case, based upon an appropriate general resolution or ordinance passed as any other police measure.  RCW 36.32.120 (7).  The purpose of the formal enactment is to adopt a basic policy outline for continuing guidance.

            As we pointed out by analogy in AGO 63-64 No. 118, when a county does provide such a defense, under the conditions outlined in our earlier opinion, it is not necessarily for the benefit of the law enforcement officer but merely in support of his actions on behalf of the county.

            A further question arises, however, as to how the county commissioners can furnish this legal service; specifically as to whether or not they can direct the prosecuting attorney to accept this responsibility.  The office of  [[Orig. Op. Page 4]] prosecuting attorney is established by Article XI § 5, of the Washington State Constitution, which reads:

            "The legislature, by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys and other county, township or precinct and district officers, as public convenience may require, and shall prescribe their duties, and fix their terms of office: . . ."  (Emphasis supplied.)

            Pursuant to this provision the legislature enacted chapter 36.27 RCW.  An examination of these statutes reveals no duty on the part of the prosecuting attorney to defend a lawsuit arising out of the official act of a county officer unless the suit is brought against the county.  RCW 36.27.020 provides in pertinent part:

            "The prosecuting attorney shall:

            ". . .

            "(3) Appear for and represent the state, county, and all school districts subject to the supervisory control and direction of the attorney general in all criminal and civil proceedings in which the state or his county or any school district in his county may be a party;

            "(4) Prosecute all criminal and civil actions in which the state or his county may be a party, defend all suits brought against the state or his county, and prosecute actions upon forfeited recognizances and bonds and actions for the recovery of debts, fines, penalties, and forfeitures accruing to the state or his county;"

            It is our conclusion, therefore, that the county may in a proper case provide legal services for the sheriff and his deputies when they are sued as the result of an official act.  An attorney could be hired especially for this purpose at county expense.  However the county commissioners may not require these legal services to be performed by the prosecuting  [[Orig. Op. Page 5]] attorney, since that is not a legal duty of his office.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES  ***

1/In addition, see RCW 36.28.010, providing expressly that "the county is not responsible for acts of the sheriff."  Such statutory exemption from liability is given effect notwithstanding abolition of the common-law rule of immunity.  See,Barnecut v. Seattle School Dist., 63 Wn. (2d) 905, 389 P. (2d) 904 (1964).