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AGLO 1971 No. 45 -
Attorney General Slade Gorton

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                                                                  March 18, 1971
Honorable C. J. Rabideau
Prosecuting Attorney
Franklin County
P. O. Box 951
Pasco, Washington 99301
                                                                                            Cite as:  AGLO 1971 No. 45 (not official)
Attention:  !ttMr. George E. Heidlebaugh
            Deputy Prosecuting Attorney
Dear Sir:
            We acknowledge receipt of your letter dated March 5, 1971, requesting our opinion with respect to the proper person to be serving as legal counsel to Intermediate School District No. 103.
            As we understand it, this intermediate district, formed under the provisions of chapter 28A.21 RCW, encompasses both Benton and Franklin counties; however, its headquarters is located in Franklin county.
            The next factual matter of note is that, based upon 1970 populations, Franklin county is of the 4th class, and Benton county is of the 3rd class.  See, RCW 36.13.010.  Therefore, in accordance with RCW 36.27.060, the prosecuting attorney of Benton county is required to serve on a full time basis and not engage in the private practice of law, whereas the prosecuting attorney of Franklin county is not so required to serve on a full time basis.
            This, of course, is a most relevant factual point in view of RCW 28A.21.190, which provides for the service of certain prosecuting attorneys as legal advisers to the boards and officers of intermediate school districts, as follows:
            "The prosecuting attorney for the county in which the headquarters office of the intermediate school district office is located shall, if required by law to devote full time to the duties of his office, as a part of his duties, serve as legal advisor to the intermediate school district board and superintendent in all matters relating to their official business.  When  [[Orig. Op. Page 2]] requested by such board or superintendent, he shall draw all instruments, give legal advice, and represent such board or superintendent with respect to all such matters and business.  The prosecuting attorneys of other counties within an intermediate school district, if required by law to devote their full time to the duties of their office, shall be available to assist the headquarters county prosecuting attorney with respect to such matters and business."  (Emphasis supplied.)

            Under this statute, it is readily apparent that if the headquarters of Intermediate School District No. 103 were in Benton county, a third class county having a full time prosecuting attorney, that prosecuting attorney would be required to serve as legal adviser to the board and officers of the district.  However, because the district's headquarters is in Franklin county instead, a county which is served by a part time prosecuting attorney, one of the essential conditions of RCW 28A.21.190 is not present, and, therefore, the prosecuting attorney of Franklin county is not required to serve as legal counsel for the intermediate district.
            Who, then, is to serve as the legal counsel for this intermediate district?  The answer to this question, in our judgment, is to be found in RCW 28A.21.090 (13), which reads as follows:
            "Every intermediate school district board of education shall have the following additional powers and duties:
            ". . .
            "(13) Enter into contracts and employ consultants and legal counsel relating to any of the duties, functions and powers of the intermediate school districts."  (Emphasis supplied.)
            The answer, then, is that so long as the headquarters of Intermediate School District No. 103 remains in Franklin county, its legal counsel will have to be obtained on a  [[Orig. Op. Page 3]] contract basis and the district will have no right to require legal counsel to be provided by the Franklin county prosecuting attorney's office as one of the statutory designated functions of that office.1/
             We trust that the foregoing will be of assistance to you.
Very truly yours,
Philip H. Austin
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/As an alternative to moving its headquarters from Franklin county over into Benton county, in order to qualify for legal representation by the full-time Benton county prosecuting attorney under the present provisions of RCW 28A.21.190, supra, a solution which might be considered, inasmuch as the legislature is presently in session, would be an amendment to this statute designed to provide that if a full-time prosecuting attorney is serving in any county encompassed within the boundaries of an intermediate school district, although not in the county in which the district's headquarters is located, such full-time prosecuting attorney shall, as a part of his duties, serve as legal adviser to the intermediate school district board and superintendent.