LIMITATION UPON PUBLIC FUNDS

OFFICES AND OFFICERS ‑- STATE ‑- TREASURER ‑- PUBLIC FUNDS ‑- BANKS ‑- LIMITATION UPON PUBLIC FUNDS

(1) The limitation in RCW 39.58.130 upon public deposits with a particular bank or trust company applies to all funds, in the aggregate, deposited by a county treasurer rather than separately to the funds of each municipality served by such treasurer.

(2) The protections of chapter 39.58 RCW extend to all public funds on deposit with qualified depositaries irrespective of the limitations of RCW 39.58.130 and without regard to the reasons attributable to the violation of the statutory restriction.

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                                                                   June 14, 1976

Honorable Robert S. O'Brien
State Treasurer
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1976 No. 38

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on the following two questions involving chapter 39.58 RCW (commonly known as the public deposit protection act):

            1.         "Does the limitation on deposit of public funds by a treasurer to the total of capital, surplus and undivided profits of a bank or trust company refer to each fund which is maintained by a [county] treasurer for a municipal corporation or other jurisdiction, or must all such funds be aggregated for purposes of applying the limitation?"

            2.         "Where public funds on deposit by a single treasurer exceed the limitations of RCW 39.58.130, to what portion of such funds do the protections of chapter 39.58 RCW extend?"

            We answer these questions in the manner set forth in the following analysis.

                                                                     ANALYSIS

            Chapter 193, Laws of 1969, 1st Ex. Sess., now codified in part as chapter 39.58 RCW, substantially revised the law relating to the deposit and investment of public funds.  By this act a comprehensive system was established for the protection of funds deposited by the state, municipal corporations or other political subdivisions with certain banking institutions within the state, defined by RCW 39.58.010(2) as "qualified public depositaries."1/

             [[Orig. Op. Page 2]]

            Prior to the enactment of this new law the deposit of public funds was generally conditioned upon the furnishing of a surety bond by the depositary in an amount equal to the funds placed on deposit or, in the alternative, the segregation as collateral of defined securities with a market value equal to or exceeding the amounts deposited.2/   Earlier statutes also limited deposits by a public treasurer with a given depositary to a percentage of the paid-in capital and surplus of the depositary,3/ although such limitations had been removed from the statutes some years before the passage of chapter 193, supra.4/

             The public deposit protection scheme of the 1969 legislation eliminated the bonding and full collateralization provisions of prior statutes.  Instead, each depositary of public funds (qualified public depositary) is now required to segregate collateral only to the extent of that depositary's "maximum liability," defined by RCW 39.58.010(6) as ". . . a sum equal to five percent of all public deposits held by . . ." the depositary.  The aggregate of the assets thus segregated by all such qualified public depositaries within the state, in turn, constitutes the fund from which a public depositor will be compensated (pursuant to procedures described in our response to your second question) for any loss of deposits by reason of a failure of the depositary.5/   Along with this change, however, the 1969 law reinstated the earlier concept of a specific limitation upon the amounts which a public treasurer may deposit with any one depositary.  Thus, RCW 39.58.130 provides that:

             [[Orig. Op. Page 3]]

            "A treasurer as defined in RCW 39.58.010 is authorized to deposit in investment deposits in a qualified public depositary any public funds available for investment and secured by collateral in accordance with the provisions of this chapter, and receive interest thereon.  The authority provided by this section is additional to any authority now or hereafter provided by lawfor the investment or deposit of public funds by any such treasurer:  Provided, That in no case shall the deposit or deposits of public funds by any such treasurer in any one bank or trust company exceed at any one time in the aggregate the total of the capital, surplus, and undivided profits of such bank or trust company."  (Emphasis supplied.)

            Question (1):

            Your first question involves this last quoted statute and asks:

            "Does the limitation on deposit of public funds by a treasurer to the total of capital, surplus and undivided profits of a bank or trust company refer to each fund which is maintained by a [county] treasurer for a municipal corporation or other jurisdiction, or must all such funds be aggregated for purposes of applying the limitation?"

            Before addressing this question directly some preliminary comments on this section and related definitions in chapter 39.58 RCW are warranted.  The proviso in RCW 39.58.130 qualifies language which ostensibly refers to "investment deposits."  Closer examination of the statute, however, reveals that the sentence immediately preceding the proviso deals with the general authority given to a public treasurer for the investment ordeposit of public funds.  Under recognized rules of construction the operation of a proviso is to be confined to the language which immediately precedes it and not to other portions of the statutory section in which the proviso is contained unless there is clear indication that such was the legislative intent.  Bayha v. Public Utility District No. 1, 2 Wn.2d 85, 97 P.2d 614 (1939).  Thus, the limitation contained in RCW 39.58.130 extends to the deposit of public fundsgenerally and not simply to investment deposits.

            Next, we note that the term "deposit of public funds" is not specifically defined by statute.  However, consideration of this phrase along with the term "public funds on deposit"  [[Orig. Op. Page 4]] elsewhere in chapter 39.58 RCW6/ demonstrates that they are both used interchangeably with the term "public deposit" which, itself,is defined in RCW 39.58.010(1) to include:

            ". . . moneys of the state or of any county, city or town, or other political subdivision of the state or any commission, committee, board or officer thereof or any court of the state deposited in any qualified public depositary, including moneys held as trustee, agent, or bailee by the state, any county, city or town, or other political subdivision of the state, or any commission, committee, board or office thereof or any court of the state, when deposited in any qualified public depositary;"

            The limitation of RCW 39.58.130 is on the deposit or deposits of public funds by a "treasurer," a term defined in RCW 39.58.010(9) to encompass:

            ". . . the state treasurer, a county treasurer, a city treasurer, a treasurer of any other municipal corporation, and the custodian of any other public funds."

            Your question arises from the fact that one such category of treasurers, the county treasurer, is authorized and directed by law to act in addition as the treasurer of a number of political subdivisions other than the county itself.  Such other jurisdictions may include, among others, port districts (RCW 53.36.010), public utility districts (RCW 54.24.010), school districts (RCW 28A.48.100), public hospital districts (RCW 70.44.171), irrigation districts (RCW 87.03.440) and reclamation districts (RCW 89.30.310 ‑ 89.30.319).  You accordingly inquire whether the county treasurer, when also acting as treasurer for those other districts, must aggregate the various funds maintained and administered for all of the governmental units involved; or whether, instead, the limitation of RCW 39.58.130 can be applied to the deposits of each such public agency separately.  Our answer is the former; i.e., that all funds on deposit which come under the charge of a single county treasurer must be combined for purposes of computing the limitation in RCW 39.58.130.

             [[Orig. Op. Page 5]]

            To begin with, it will readily be seen that the language of the proviso refers to the depositor deposits of public funds by a treasurer.  We note also that the legislature did not choose to phrase the limitation (as it easily could have) in terms of the deposit of the public funds of the state or a particular political subdivision but rather it did so by reference to depositsby a treasurer.  Where the language of a statute is plain and lends itself to rational construction the meaning of the statute must be derived from the language itself.  In reSherwood's Estate, 122 Wash. 648, 211 Pac. 734 (1922).

            A review of those statutory provisions by which a county treasurer is authorized or directed to perform the functions of treasurer for other political subdivisions reinforces the conclusion we have stated.  While the language of the several statutes is not uniform the county treasurer generally is identified as the treasurerexofficio (i.e., by virtue of his authority as county treasurer) of a specified class of political subdivisions or taxing districts within his county.  See, e.g., RCW 28A.48.100 with regard to school districts.  Thus, he does not actually hold any additional offices but merely performs the functions of such offices as an additional duty of his own (and only) office as county treasurer.  Cf., AGLO 1976 No. 30 [[to Andrew C. Braff, Prosecuting Attorney, Stevens County an Informal Opinion, AIR-76530]]involving county prosecuting attorneys serving,exofficio, as county coroners under RCW 36.16.030 (copy enclosed).

            We do note, however, that in some (but by no means all) of the instances in which a county treasurer is also designated as the treasurer, exofficio, of other political subdivisions within his county the statute speaks in alternative terms.  Thus, in the case of public utility districts the county treasurer is designated as theexofficio treasurer of such districts as are located within the county, provided that the districts' commission may appoint another person as treasurer.  RCW 54.24.010.  The commission is thenauthorized to require the county treasurer to post a separate bond for performing the duties of district treasurer but is directed to require such security of any other appointee.

            Similar provisions govern the selection of a port district treasurer under RCW 53.36.010 or the treasurer of a public hospital district under RCW 70.44.171, the latter of which reads as follows:

            "The treasurer of the county in which a public hospital district is located shall be treasurer of the district, except that the commission by  [[Orig. Op. Page 6]] resolution may designate some other person having experience in financial or fiscal matters as treasurer of the district.  If the treasurer is not the county treasurer, the commission shall require a bond, with a surety company authorized to do business in the state of Washington, in an amount and under the terms and conditions which the commission by resolution from time to time finds will protect the district against loss.  The premium on any such bond shall be paid by the district."

            Although the term "ex officio" does not appear in this statute (nor in RCW 53.36.010) the concept remains the same.  The county treasurer, as an additional duty of his office, is to serve as the treasurer of the district or districts unless the commissioners of the district opt to designate some other person as their treasurer.

            We further observe that in no case does a county treasurer receive any separate compensation from any of the political subdivisions involved for serving as their treasurer; instead, his single salary as county treasurer covers all of his functions in that capacity including those provided for by such statutes as we have here been considering.  Accord, RCW 36.17.010 which provides that:

            "The county officers of the counties of this state, according to their class, shall receive a salary for the services required of them by law, or by virtue of their office, which salary shall be full compensation for all services of every kind and description rendered by them."7/

             Thus, even in those cases where a separate treasurer (other than the county treasurer) may be designated by the governing body of a political subdivision it remains our view that if, instead, the county treasurer does perform the functions of treasurer thereof ‑ including the depositing of district funds under RCW 39.58.130, supra ‑ the express terms of that statute require the inclusion of district deposits in the aggregate  [[Orig. Op. Page 7]] computation to be made by said treasurer.  On the other hand, under the same logic it would be our opinion that in those cases where a different individual is appointed to serve as district treasurer this would not be so, for in those cases the limiting proviso would operate, separately, with regard to the activities of each such district treasurer.8/

             Finally, the conclusion we have stated in answer to your first question is consistent with the purposes of chapter 39.58 RCW as they may be derived from the language of that statute considered in its entirety.  Accord, the rule which requires that construction to be given to a statute which best carries into effect its overall purpose.  Intermediate Sch. Dist. v. Yakima Cy., 81 Wn.2d 443, 503 P.2d 104 (1972).  The public deposit protection provisions of the law here in question have been construed as providing a comprehensive plan for protection designed to provide the fullest possible guarantee against loss.  See,State ex rel. Graham v. Olympia, 80 Wn.2d 672, 680, 497 P.2d 924 (1972).  In removing the requirement for full collateralization of public deposits which previously existed, the legislature, in turn, reinstated the earlier, pre‑1945, practice of imposing a statutory limitation on deposits measured by a depositary's capital and surplus.9/   To interpret that limitation as applying to each account which is subject to administration by a single public treasurer, rather than to all such accounts in the aggregate, would diminish the degree of security which the public deposit protection act was enacted to provide.  Thus, without more convincing evidence of legislative intent an alternative construction which tends to "limit" the ultimate purpose of the statute should be rejected.  Miller v. Paul Revere Life Ins. Co., 81 Wn.2d 302, 501 P.2d 1063 (1972).

            Question (2):

            Your second inquiry, which also pertains to RCW 39.58.130, is repeated here for ease of reference:

            "Where public funds on deposit by a single treasurer exceed the limitations of RCW 39.58.130, to what portion of such funds do the protections of chapter 39.58 RCW extend?"

            Before addressing ourselves to this question, however, a preliminary  [[Orig. Op. Page 8]] point must initially be covered.  In posing your second question you have, in your letter, made note of the last paragraph of RCW 36.48.020 which says:

            "In counties where the combined banking capital and surplus of all of the banks in the county is insufficient to carry the county funds the provision of this section with reference to the limit of the amount to be deposited in any one depositary may be waived by the county finance committee."  (Emphasis supplied.)

            The inference of this language, if considered in isolation, is that in the case of deposits of county funds such limitations as that found in RCW 39.58.130 may be waived.  Closer examination of the remaining language in RCW 36.48.020, however, reveals that this statute neither describes a limitation of its own on deposits nor incorporates by reference the limitation now in the present, 1969, law.

            This confusing state of affairs appears to have been created by the amendment of RRS § 5563, the precursor of RCW 36.48.020, by chapter 73, Laws of 1945.  In the course of that amendment an earlier limitation on deposits to the sum of a depositary's capital and surplus was removed; accord, the discussion on p. 2 of this opinion, above.  Nevertheless, the language contained in the second paragraph of RCW 36.48.020 (quoted above) was retained ‑ inadvertently in all probability.

            Repeals by implication are not favored unless the language of the two conflicting statutes cannot by fair and reasonable construction be reconciled or given effect.  Lindsey v. Superior Court, 33 Wn.2d 94, 201 P.2d 482 (1949).  Here, the conclusion seems to us inescapable that the deletion of the earlier limitation on deposits in 1945, coupled with the failure of the 1969 legislature to insert in RCW 36.48.020 some reference to the limitation now contained in RCW 39.58.130, has rendered the above quoted language of the former inoperative.  Accord, our contemporaneous, September 11, 1945 letter opinion to the prosecuting attorney for Skagit County, copy enclosed, in which we similarly concluded.  Thus, RCW 36.48.020 cannot in any way now be read to authorize a waiver of the deposit limitation currently mandated under another statute RCW 39.58.130.

            We turn then to a consideration of the protection which chapter 39.58 RCW affords to a public depositor where the limitation of RCW 39.58.130 has been exceeded.  Again, as noted above, the event of loss of a public deposit which invokes the protections of the public deposit protection act is specifically defined in RCW 39.58.010(3) as the:

             [[Orig. Op. Page 9]]

            ". . . issuance of an order of supervisory authority restrainging a qualified public depositary from making payments of deposit liabilities or the appointment of a receiver for a qualified public depositary;"

            The public deposit protection commission, constituted under the 1969 law, is thereupon directed to make proper payment to the affected public depositors "of all funds subject to such loss."  RCW 39.58.060.  The mechanics for determining the amount of loss and for assessing other qualified public depositaries for their share of assets pledged to insure against such loss are also detailed in that section of the law.  The commission is then subrogated to the public depositors' claims against the defaulting depositary.  Any resulting recovery by the commission is applied first to the remaining "unpaid net liability," if any, to the public depositors and the balance is then payable to qualified public depositaries against which assessments were made under the statute.

            It is generally held that a wrongful or unlawful deposit of public funds creates a special deposit by which the depositary holds the funds in trust for the true owner; i.e., the public depositor.  See, 63 Am.Jur.2d, Public Funds, § 13; also 10 Am.Jur.2d, Banks, § 794.  It follows that those deposits of public funds in excess of the statutory limitation in RCW 39.58.130 do not lose their character as public deposits so as to remove the protections that may otherwise be provided by the public deposit protection act.  Moreover, RCW 39.58.020 expressly proclaims thatall public deposits in qualified public depositaries will be protected against loss as provided in the act.  The definition of "public deposit" in RCW 39.58.010(1) extends to "moneys of the state or of any county, city or town, or other political subdivision . . . or any court of the state deposited in any qualified public depositary," without limitation or other qualification.  The ultimate conclusion to be reached in answer to your second question, therefore, is that all public deposits are protected by the act even though a given treasurer may have exceeded the limitation in RCW 39.58.130.  The precise nature of that protection with regard to any such excess deposit, however, remains to be explored.

            RCW 39.58.140 provides that:

            "When deposits are made in accordance with this chapter, a treasurer shall not be liable for any loss thereof resulting from the failure or default of any depositary without fault or neglect on his part or on the part of his assistants or clerks."

             [[Orig. Op. Page 10]]

            Does the existence of this statute suggest that a public depositor is to be a self-insurer (beyond the limits of its treasurer's bond) to the extent of any deposits in excess of the statutory limitation; or will nondefaulting public depositaries still be liable to the extent provided by chapter 39.58 RCW for any loss represented by such excess deposits?  A clue to the resolution of this issue can be found in a line of cases dealing with an analogous situation, the liability of sureties on bonds given by public depositaries where statutory deposit limitations have been exceeded.  The cases uniformly hold that such sureties cannot escape liability altogether simply bacause the statutory limitations have been exceeded.  See, 63 Am.Jur.2d, Public Funds, § 35.  In addition, although a few cases, perhaps distinguishable, appear to have reached a different result10/ the majority view is that a surety will be liable even for such deposited excess to the extent of the penalty of the bond.  City of Cheyenne v. Maryland Casualty Co., 13 F.2d 401 (D.C. Wyo. 1926); Board of County Commissioners v. Gray, 61 Minn. 242, 63 N.W. 635 (1895); cf.State v. United States F. & G. Co., 210 Wis. 178, 246 N.W. 434 (1933).  The premise for such holdings is that statutory limitations on deposit authority are not enacted for the benefit of sureties on the depositary bonds but rather as a further protection against loss.

            The similarity of the role of a surety on a depositary bond to the insurance function of qualified public depositaries under chapter 39.58 RCW provides a logical basis for invoking the analogy of suretyship liability in the situtation discussed above. Thus, if the majority rule set forth in the foregoing cases were to be applied to public deposit protection under chapter 39.58 RCW then such protection would extend to all funds irrespective of the limitations imposed by statute on treasurers.

            This majority view of the scope of a surety's liability for excess deposits seems to us to be in no way inconsistent with the Washington supreme court's decision inAberdeen v. National Surety Co., 151 Wash. 55, 275 Pac. 62 (1929).  In that case, it is true that a surety was relieved of liability on a statutory depositary bond for a loss occasioned by a bank's failure, and consequent inability to repay, time rather than demand deposits made by the city.  However, the parties there conceded, and the court observed, that the conditions of liability under the  [[Orig. Op. Page 11]] particular bond were expressed in terms of statutory language which only required secruity for payment "on checks drawn by the treasurer."  151 Wash. at 57.  In contrast, the potential obligation of depositaries under chapter 39.58 RCW is not couched in terms of the statutory limitation in RCW 39.58.130 but is generally left open under the 1969 act.  Thus theAberdeen decision does not of itself require a prognosis that the Washington court would not follow the majority view of surety liability even if it should find the analogy relevant to the resolution of the question you have here raised.

            There remains, however, one further issue to be considered in terms of the basic aptness of this surety analogy to the question at hand.  The majority view, once again, proceeds from the premise that the public interest in the protection of deposits is superior to the protection of the surety on the depositary bond, notwithstanding the obligation of public officials to observe the statutory limitations.  See,Gregg, et al. v. Hinkle, et al., 29 N.M. 576, 224 Pac. 1025 (1924).  The same consideration for the public interest might, however, here logically dictatea limitation on depositary liability when the entire protection mechanism in chapter 39.58 RCW is surveyed.  The cases which have discussed the liability of a surety on a depositary bond have all involved losses occasioned by the failure of a single institution.

            The public deposit protection provisions, as we have seen, establish a collective arrangement among depositaries to insure against losses within the entire system.  Payments for a loss of public deposits which exceeds the statutory limitation patently reduce the resources available to other public depositors in the event of subsequent losses occasioned by other banking failures.  By definition these resources constitute only a fraction of the public funds on deposit.  Assets used to compensate for earlier losses are not replenished since "the maximum liability" of a qualified public depositary is reduced by prior assessments paid by reason of such earlier losses.  See, again, RCW 39.58.010(6) which so provides in the following manner:

            "The 'maximum liability' of a qualified public depositary means a sum equal to five percent of (a) all public deposits held by the qualified public depositary on the then most recent call report date, or (b) the average of the balances of said public deposits on the last four immediately preceding reports required pursuant to RCW 39.58.100, whichever amount is greater, less any assessments made under this chapter;"

            Accordingly it might be desirable as a matter of public policy to assign a self-insurer's role to a public depositor to the extent that statutory limitations on deposits are exceeded, particularly  [[Orig. Op. Page 12]] where the responsibility for losses is attributable to the depositor's officers or employees.11/   But while there is considerable force to this argument we still believe that the opposite result is required by reason of the other objectives to be derived from the public deposit protection act considering the language of its provisions as a whole.

            Once again the act, in RCW 39.58.020, mandates that all public deposits ‑ without qualification ‑ be protected ". . . as provided in this chapter."  We would interpret this to refer to the mechanisms for computation and reimbursement of losses as provided therein.  Statutory emphasis on the need for speedy relief to insure against disruption of governmental functions is found in RCW 39.58.060 which requires the Public Deposit Protection Commission to make prompt payment of all funds subject to loss, following the procedures set forth in that section.  The rights of other parties affected because of the loss, including rights of public depositaries against whom assessments have been made, are left for recognition at a later point in time.