Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1974 No. 15 -
Attorney General Slade Gorton


A board of county commissioners acting pursuant to RCW 36.32.200 may, with the approval of a majority of the county superior court judges, employ an attorney to advise the board on general matters of its concern; such employment contract, however, may not extend beyond the term of the board.

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                                                                 February 1, 1974

Honorable James E. Carty
Prosecuting Attorney
Clark County
301 Court House
Vancouver, Washington 98660                                                                                                               Cite as:  AGLO 1974 No. 15

Dear Sir:

            By recent letter you have asked for our opinion on the following questions:

            "1. When a Board of County Commissioners has passed a resolution, approved by a majority of a County's Superior Court Judges, authorizing the Board to hire an attorney, may that Board hire an attorney to advise the Board on general matters of its concern?

            "2. When approval to hire an attorney has been granted by a County's Superior Court Judges, for how long a period of time can a resolution authorizing the hiring of an attorney be effective for the purposes and authorities contained therein?"

            We answer your first question in the affirmative and your second question as set forth in our analysis.


            RCW 36.27.020 states that:

            "The prosecuting attorney shall:

            "(1) Be legal adviser of the board of county commissioners, giving them his written opinion when required by the board or the chairman thereof touching any subject which the board may be called or required to act upon relating to the management of county affairs;"

             [[Orig. Op. Page 2]]

            RCW 36.32.200 then provides that:

            "It shall be unlawful for the board of county commissioners to employ, contract with, or pay any special attorney or counsel to perform any duty which the attorney general or any prosecuting attorney is authorized or required by law to perform, unless the contract of employment of such special attorney or counsel has been first reduced to writing and approved by the superior court judge of the county or a majority of the judges in writing endorsed thereon.  This section shall not prohibit the appointment of deputy prosecuting attorneys in the manner provided by law."

            By prohibiting a board of county commissioners from employing a special attorney to perform the foregoing, or any of the other duties of the prosecuting attorneywithout the approval of a majority of the superior court judges of the county, this statute, as we read it, impliedly authorizes such an employmentwith the approval of a majority of those judges.  Accordingly, we answer your first question in the affirmative.1/

            Turning to your second question, there is no time limitation set forth in RCW 36.32.200 with respect to the duration of the effectiveness of a resolution adopted thereunder.  Thus, unless the resolution, as  [[Orig. Op. Page 3]] approved by the superior court judges, contains its own limitation its legal status asan authorization to employ a special attorney would appear to be of indefinite duration.

            Beyond this, however, we perceive in your second question the issue of whether the employment of a special attorney by a board of county commissioners to perform the functions contemplated by your first question will be subject to rule that,

            ". . . where the contract involved relates to governmental or legislative functions of the council, or involves a matter of discretion to be exercised by the council unless the statute conferring power to contract clearly authorizes the council to make a contract extending beyond its own term, no power of the council so to do exists, since the power conferred upon municipal councils to exercise legislative or governmental functions is conferred to be exercised as often as may be found needful or politic, and the council presently holding such powers in vested with no discretion to circumscribe or limit or diminish their efficiency, but must transmit them unimpaired to their successors. . . ."  37 Am.Jur., Municipal Corporations, § 66.

            For the reasons set forth in our letter of October 3, 1960, to Mr. Ned W. Kimball, then legal counsel for Douglas County Public Utility District No. 1, we believe that it will be.  We are also enclosing a copy of this letter for your immediate reference, and would direct your particular attention to the discussion appearing on pages 5 and 6.  Based upon the authorities there cited, it is our opinion that the duration of such an employment contract between a board of county commissioners and a special attorney employed under RCW 36.32.200, supra, as is contemplated by your request may not extend beyond the term of the employing board.

            It is hoped that the foregoing will be of some assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/In so answering this question, we are not to be taken as having passed upon the constitutionality of RCW 36.32.200, supra.  In accordance with long-standing policy, this office must presume that statute, as any other duly enacted statute, to be constitutional until such time as it is otherwise determined by a court of competent jurisdiction.  Accord, AGO 1971 No. 12 [[to Gordon L. Walgren, State Senator on March 16, 1971]].  We would be remiss in this regard, however, not to point out to you the possible ramifications upon this question ofState ex rel. Johnston v. Melton, 192 Wash. 379, 73 P.2d 1334 (1937), as explained in our letter of July 19, 1973, to State Representative Richard King [[an Informal Opinion AIR-73615]], copy enclosed.