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Bob Ferguson

AGLO 1970 No. 89 -
Attorney General Slade Gorton

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                                                                    June 8, 1970
Honorable Robert V. Graham
State Auditor
Legislative Building
Olympia, Washington 98501
                                                                                                               Cite as:  AGLO 1970 No. 89
Attention:  Adrian Webster, Chief Examiner
            Division of Municipal Corp.
Re:  Conflict of Interest ‑
     RCW 42.23.030
Dear Sir:
            By letter previously acknowledged, you requested an opinion of this office on a question which, based on further conversations with you, we paraphrase as follows:
            When a county commissioner has married a secretary of one of the other elected officials of the county, is the secretary's current continuing employment at a rate in excess of $200 per month in conflict with RCW 42.23.030 and for that reason void?
            We answer this question in the negative, as follows.
            RCW 42.23.030 provides, in pertinent part, as follows:
            "No municipal officer shall be beneficially interested, directly or indirectly, in any contract which may be made by, through or under the supervision of such officer, in whole or in part, or which may be made for the benefit of his office, or accept, directly or indirectly, any compensation, gratuity or reward in connection with such contract from any other person beneficially interested therein.  . . ."
            Under RCW 42.23.050 contracts prohibited by this section are void.  Exceptions are made in RCW 42.23.030 for, among other things, certain contracts in which the  [[Orig. Op. Page 2]] municipality's liability is $200 or less.  As your question is paraphrased, none of the exceptions is applicable and the problem is one of interpreting the terms of the statutory prohibition itself which we have quoted at the outset of this letter.
            The situation you have described in your request is that of a county commissioner who has acquired an interest in the earnings of a county employee by reason of his marriage to her (see, State v. Miller, 32 Wn.2d 149, 201 P.2d 136 (1948), in good faith at a time long after the formation of her contract.  The contract itself, although of an indefinite month-to-month nature, is a subsisting contract and one which is not renewed or "made" in each month by any official action of the board.1/
             The key phrase in RCW 42.23.030, pertinent to your inquiry, describes as prohibited those contracts which ". . . may be made by, through or under the supervision of such officer, in whole or in part, . . ."  This statute does not in express terms declare illegal or void any contract which preexisted the appointment or election of the officer to his position of conflict; nor any contract in which an officer acquires an interest in good faith after the contract has been made or let.  See, for a previous supreme court decision construing a similar statute on this latter point, O'Neill v. Auburn, 76 Wash. 207, 135 Pac. 1000 (1913).  A strong reason for this interpretation against the application of the statute in both such instances is the rule of statutory construction that criminal statutes are strictly construed, and criminal penalities will not be imposed by virtue of a construction of an ambiguous statute against a defendant.  See, State v. Eberhart, 106 Wash. 222, 179 Pac. 853 (1919).
            If the secretary in question were an employee of the board of county commissioners or were employed in the office of the county commissioner in question, our answer would be in all probability different because of the different relationship then involved.  In that case it might well be argued that the secretary, who holds office at the pleasure of the appointing power or on a month-to-month basis, "renews" her contract under that officer's  [[Orig. Op. Page 3]] supervision each successive pay period.  See, 37 Am. Jur., Master and Servant, § 20.  In the present case, however, the employee was hired under RCW 36.16.070, which provides as follows:
            "In all cases where the duties of any county office are greater than can be performed by the person elected to fill it, the officer may employ deputies and other necessary employees with the consent of the board of county commissioners.  The board shall fix their compensation and shall require what deputies shall give bond and the amount of bond required from each.  The sureties on deputies' bonds must be approved by the board and the premium therefor is a county expense.
            "A deputy may perform any act which his principal is authorized to perform.  The officer appointing a deputy or other employee shall be responsible for the acts of his appointees upon his official bond and may revoke each appointment at pleasure."
            It is evident under this statute that the employee in question, although initially hired with the consent of the board of county commissioners (long before her marriage to a member of the present board) does not hold her position at the pleasure of the board nor is she supervised directly by them.  During the current budget year, at least, she serves at the pleasure of the prosecuting attorney under a preexisting appointment.  Whatever act the board of county commissioners is required to make each month in approving disbursement of county funds on existing payrolls of other elected officials may be said, because of the above statute and other statutory payment procedures, to be largely ministerial.  See, AGO 65-66 No. 8 [[to Prosecuting Attorney, Clark County on February 11, 1965]], a copy of which is enclosed.

            In our opinion, therefore, in the situation you have described, there is no presently prohibited conflict of interest on the part of the county commissioner in question in the salary of the employee under chapter 42.23 RCW.
            As you know, in our conversations we have also discussed a second question which could arise if the present employment continues unchanged through the end of the county's current fiscal year and beyond January 1, 1971.  On that day the 1971 budget will become operative and its effect will be to establish or confirm the then current salary rates of such classes of employees.   [[Orig. Op. Page 4]] See, State ex rel. Bradford v. King County, 197 Wash. 393, 85 P.2d 670 (1938), and cases cited therein at page 399; also, RCW 36.16.070 and chapter 36.40 RCW, particularly RCW 36.40.050 and 36.40.080.
            It could be conceivably argued from that case and those statutes that the essential term of the employee's contract ‑ her compensation ‑ which was initially fixed by a prior board of county commissioners, is either renewed or altered each year by the board of county commissioners.  However, bearing in mind the rule that penal statutes are strictly construed, the effect of the budget adoption as a "making" of a county contract is not clear.  At any rate, this situation is not now before us, and we feel that an opinion on the question raised thereby would be premature at the present time.  Please feel free to advise this office and request further information if the status quo remains unchanged through January 1, 1971.
            We trust the foregoing will be of assistance to you.
Very truly yours,
Robert F. Hauth
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/This reasoning assumes that the contract provisions remain unchanged and that there is no substantial modification of it following the marriage.  Otherwise, our conclusion might be different; particularly if the change resulted in any favorable advantage to the employee and, consequently, to the county commissioner husband.