AGO 1984 No. 23 - Sep 7 1984
OFFICES AND OFFICERS ‑- STATE ‑- ATTORNEY GENERAL ‑- WASHINGTON STATE PATROL ‑- LEGAL COUNSEL FOR STATE PATROL
The Washington State Patrol does not have statutory authority to employ an attorney to serve as legal adviser to the Patrol, instead of obtaining legal advice and representation from the Office of the Attorney General
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September 7, 1984
Honorable Phil Talmadge
State Senator, 34th District
4006 ‑ 53rd S.W.
Seattle, Washington 98116
Cite as: AGO 1984 No. 23
By recent letter you requested the opinion of this office on the following question:
"Does the Washington State Patrol have statutory authority to employ an attorney to serve as legal advisor to the Patrol, instead of obtaining legal advice from the Office of the Attorney General?"
We answer your question in the negative.
Wash. Const. Art. III, § 21 provides, in material part, that:
"The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law. . . ."
Likewise, in setting forth the functions and duties of the Attorney General, RCW 43.10.030 provides that one of those functions is to,
". . .
"(5) Consult with and advise the governor, members of the legislature, and other state officers, and when [[Orig. Op. Page 2]] requested, give written opinions upon all constitutional or legal questions relating to the duties of such officers;
". . ."
In addition, by its enactment, in 1941, of a further statute the legislature specifically prohibited all but certain designated state agencies from employing attorneys to serve as legal counsel in place of the Attorney General. See, § 2, chapter 50, Laws of 1941 which, as last amended by § 1, chapter 268, Laws of 1981, is currently codified as RCW 43.10.067 and provides, in part, as follows:
"No officer, director, administrative agency, board, or commission of the state, other than the attorney general, shall employ, appoint or retain in employment any attorney for any administrative body, department, commission, agency, or tribunal or any other person to act as attorney in any legal or quasi legal capacity in the exercise of any of the powers or performance of any of the duties specified by law to be performed by the attorney general, . . ."
And, as you have noted in your letter, although RCW 43.10.067 then lists certain exceptions (e.g., the state bar association and the judicial council) the Washington State Patrol is not an agency which has thus been exempted from the prohibition‑-either by RCW 43.10.067 itself or by any other statute now in existence.
It must also be noted, however, that the provisions of RCW 43.10.067,supra, do not purport to prohibit state agencies from employing, in any capacity, individuals who are lawyers. Instead, the statute only prohibits the employment of lawyers to perform those functions or duties ". . . specified by law to be performed by the attorney general, . . ." Thus, it is not a violation of the statute for a state agency to employ a person who happens to be a lawyer so long as that person is not employed to act as attorney for the agency or to represent it in court proceedings or the like.
You are, on that count, correct in your understanding that the State Patrol now employs individuals who are law school graduates and at least one of those employees has been admitted to practice law in this state. We understand, however, that a substantial portion of that person's time is devoted to training programs and informational updates on developments in the criminal law field.
[[Orig. Op. Page 3]]
He is not (and cannot legally be) the attorney for the Patrol as you have used that term. For we may assure you that those attorney services continue to be provided by this office as required by law‑-through the assignment of a regularly-appointed assistant attorney general. Thus, the individual in question is an employee of the Patrol and is not the attorney for either the Patrol or the Chief of the Patrol.
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
PHILIP H. AUSTIN
Senior Deputy Attorney General