Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1975 No. 65 -
Attorney General Slade Gorton


Where a county, the county commissioners, and prosecuting attorney are sued in their official capacities and a special attorney is employed pursuant to RCW 36.32.200, the costs thus incurred constitute a county expense.

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                                                                    July 29, 1975

Honorable David F. Thiele
Prosecuting Attorney
Island County Court House
Coupeville, Washington 98239                                                                                                               Cite as:  AGLO 1975 No. 65

Dear Sir:

            This is written in response to your request for our opinion on the following question:

            "Where a County, the County Commissioners, and Prosecuting Attorney are sued in their official capacities and a special attorney is employed pursuant to RCW 36.32.200, are the costs of defense properly a County expense or must the individual defendants bear the expense?"


            RCW 36.32.200, which you have cited, 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."

            From the terms of this statute it appears clear to us that any contract of employment entered into thereunder is a county contract; i.e., a contract between the county and the special attorney thus employed.

             [[Orig. Op. Page 2]]   Accordingly, whatever compensation is agreed to be paid to the special attorney under such a contract will be paid by the county as a county expense.  Conversely, it will not constitute an expense to be borne by those individual county officers who may have been sued in their official capacities under circumstances such as you have described, in whatever legal action gave rise to the commissioners' decision to employ the special attorney in question.

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

Very truly yours,

Attorney General

Deputy Attorney General