Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1978 No. 18 - Jun 1 1978
Attorney General Slade Gorton


(1) Indian tribal police officers do not constitute "law enforcement personnel" for the purposes of chapter 43.101 RCW so as to require the Washington Criminal Justice Training Commission to provide them with open access to its basic law enforcement training programs without charge unless they have also been cross-commissioned or deputized as city police officers or deputy county sheriffs.

(2) The Washington Criminal Justice Training Commission may, however, in its discretion enter into an interlocal cooperation agreement under chapter 39.34 RCW with a federally-recognized Indian tribe to provide law enforcement training to tribal police personnel.

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                                                                    June 1, 1978

Honorable James C. Scott
Criminal Justice Training
Olympia, Washington 98504                                                                                                               Cite as: AGLO 1978 No. 18

Dear Sir:

            By letter previously acknowledged you requested our opinion on two questions which we paraphrase as follows:

            (1) Do Indian tribal police officers constitute "law enforcement personnel" for the purposes of RCW 43.101.200 so as to require the Washington Criminal Justice Training Commission to provide them with open access to its basic law enforcement training programs without charge?

             [[Orig. Op. Page 2]] (2) In the event of a negative answer to question (1), may the Criminal Justice Training Commission nevertheless, in its discretion, enter into an interlocal cooperation agreement under chapter 39.34 RCW with a federally-recognized Indian tribe to provide law enforcement training to such tribal police personnel?

            We answer your first question qualifiedly in the negative and your second question in the affirmative for the reasons set forth in our analysis.


            Question (1):

            By its enactment of § 2, chapter 212, Laws of 1977, 1st Ex.Sess., now codified as RCW 43.101.200, the legislature directed the Washington Criminal Justice Training Commission to provide basic law enforcement training for "law enforcement personnel."  Specifically, RCW 43.101.200 reads as follows:

            "(1) All law enforcement personnel, except volunteers, and reserve officers whether paid or unpaid, initially employed on or after January 1, 1978, shall engage in basic law enforcement training which complies with standards adopted by the commission pursuant to RCW 43.101.080 and 43.101.160.  Such training shall be successfully completed during the first fifteen months of employment of such personnel unless otherwise extended or waived by the commission and shall be requisite to the continuation of such employment.

            "(2) The commission shall provide the aforementioned training together with necessary facilities, supplies, materials, and the board and room of noncommuting attendees for seven days per week.  Additionally, the commission shall reimburse to participating law enforcement agencies with ten or less full-time commissioned patrol officers the cost of temporary replacement of each officer who is enrolled  [[Orig. Op. Page 3]] in basic law enforcement training:  PROVIDED, That such reimbursement shall include only the actual cost of temporary replacement not to exceed the total amount of salary and benefits received by the replaced officer during his training period."

            Your first question is whether Indian tribal police officers are entitled to receive basic law enforcement training without charge under this statute.  The issue thus raised, obviously, is whether such personnel constitute "law enforcement personnel" for the specific purposes thereof.

            In the abstract, we have no doubt that Indian tribal police officers are a class of law enforcement personnel.  Unfortunately, however, except as hereinafter explained they do not constitute such personnel as the term has been specially defined for the limited purpose of RCW 43.101.200,supra, and related sections of chapter 43.101 RCW governing the Criminal Justice Training Commission.  As thus defined in RCW 43.101.010(4), the term "law enforcement personnel" denotes only a

            ". . .public employee or volunteer having as a primary function the enforcement of criminal laws in general or any employee or volunteer of, or any individual commissioned by, any municipal, county, state, or combination thereof, agency having as its primary function the enforcement of criminal laws in general as distinguished from an agency possessing peace officer powers, the primary function of which is the implementation of specialized subject matter areas. . . ."  (Emphasis supplied)

            By its use of the term "public employee," however, we believe that the legislature only meant to encompass persons employed by a Washington public agency‑-either state or local.  Accord, the reasoning of AGO 1978 No. 6 [[to Richard W. Miller, Prosecuting Attorney of Adams County, on March 7, 1978]](copy enclosed) in which a similar construction was given to the term "governmental subdivision" in a comparable context.  Any broader reading of the term "public employee" in the context of chapter 43.101 RCW would lead to the absurd result that the basic training requirement of RCW 43.101.200,supra, would apply worldwide to all public employees in all criminal law  [[Orig. Op. Page 4]] enforcement agencies.  See, however, such cases asKrystad v. Lau, 65 Wn.2d 827, 400 P.2d 72 (1965) to the effect that a statutory construction which yields such an incongruous result is to be avoided.  Therefore, even though most Indian tribal police officers may be said to be public employees in the broad sense that a federally recognized Indian tribe is a public agency within the federal governmental scheme of things,1/ they are not, as such, public employees within the meaning of RCW 43.101.010(4),supra.

            Having so concluded, however, we must go on to cover a qualifying possiblity.  In some instances it is our understanding that local law enforcement agencies and Indian tribes currently have agreements for cross-commissioning or cross-deputizing their respective personnel.  In those instances the cross-deputized Indian tribal police officers involved will qualify for basic law enforcement training under RCW 43.101.200, supra, since they then will have become, in the words of RCW 43.101.010(4), individuals ". . . commissioned by, any municipal, county [or] state . . . agency" so as to come within the definition of "law enforcement personnel" in that statute.  And therefore, to that extent, our ultimate answer to your first question is only qualifiedly in the negative.

            Question (2):

            Your second question assumes the foregoing answer to question (1) and asks whether the Criminal Justice Training Commission may, nevertheless, in its discretion enter into an interlocal cooperation agreement with a federally-recognized Indian tribe under chapter 39.34 RCW to provide basic law enforcement training to its tribal police personnel.

            In responding to this question it is important to note, at the outset, that it raises no constitutional issue regarding a lending of the state's credit in violation of Article VIII, § 5 of the state constitution for two distinct reasons.  First, because the question by its terms is limited to those Indian tribes which have been recognized by such by the federal government, the provisions of Article VIII, § 5 are  [[Orig. Op. Page 5]] simply inapplicable under the intergovernmental exception which was recognized by the Washington Supreme Court inAnderson v. O'Brien,supra.  And secondly, since your second question assumes that a contractually agreed upon fee will be paid by the tribe or tribes involved in return for the training to be afforded to their law enforcement personnel, there would in any event be no unconstitutional gift of state funds or property.  Accord,Wash. Nat. Gas Co. v. Public Util. Dist., 77 Wn.2d 94, 459 P.2d 663 (1969).

            The applicable section of the interlocal cooperation act, in our view, is RCW 39.34.080 which reads as follows:

            "Any one or more public agencies may contract with any one or more other public agencies to perform any governmental service, activity, or undertaking which each public agency entering into the contract is authorized by law to perform:  PROVIDED, That such contract shall be authorized by the governing body of each party to the contract. Such contract shall set forth fully the purposes, powers, rights, objectives, and responsibilities of the contracting parties."

            Clearly, both the Criminal Justice Training Commission and a federally-recognized Indian tribe would be "public agencies" for the purposes of this statute.  See, RCW 39.34.020 which provides, in pertinent part, as follows:

            "For the purposes of this chapter, the term 'public agency' shall mean any city, town, county, public utility district, irrigation district, port district, fire protection district, school district, air pollution control authority, rural county library districts, intercounty rural library districts, public hospital districts, regional planning agency created by any combination of county and city governments, health department or district, weed control district, county transit authority, Indian tribe recognized as such by the federal government, or metropolitan municipal corporation of this state;any agency of the state government or of the United States; and any political subdivision of another state.

            ". . ."  (Emphasis supplied)

             [[Orig. Op. Page 6]]   Thus, the only remaining issue is whether both such agencies may be said to possess, independent of the interlocal cooperation act itself, the authority to perform the governmental service which would here be covered by the proposed contract.  An affirmative answer to this question is required, of course, because of the oft-cited principle that the interlocal cooperation act does not, by itself, expand the substantive powers of a public agency beyond those which it otherwise possesses under the general laws by which it is governed.  See,e.g., our previous letter opinion dated September 26, 1967 to the Benton County prosecuting attorney, copy enclosed.  Accordingly, we turn now to this critical issue.

            At first blush, based upon the reasoning contained in our September 26, 1967 opinion to the Benton County prosecuting attorney, supra, one might readily assume that the question posed would have to be answered in the negative based upon a lack of independent authority for the Criminal Justice Training Commission to afford training, specifically, to Indian tribal police personnel as such.  In other words, while both the Commission and a given Indian tribe may be said to have the power to operate basic law enforcement training programs‑-the Commission for "law enforcement personnel" as defined in RCW 43.101.010(4) and the tribe for its own tribal police force‑-neither,by itself, has the authority to provide such training to the particular classes of law enforcement personnel who may lawfully be trained by the other.  However, as was implicit in two subsequent letter opinions involving intergovernmental contracts for the provision of law enforcement services by the county sheriff, such a reading of the qualifying language of RCW 39.34.080, supra, would, for all practical purposes, render that statute a vain and useless act‑-for if both agencies must independently possess the same specific power in order that one may exercise it for the benefit of another under an RCW 39.34.080 type agreement then the statute serves no purpose; the agencies may enter into the same agreement even without it.  We have reference, here, to our letter opinions of June 2, 1969 to the Wahkiakum County prosecuting attorney and January 16, 1978, to the Whitman County prosecuting attorney wherein we twice sanctioned the use of RCW 39.34.080 for the purposes of contracts between a county and city under which a county sheriff would assist in the enforcement of the city's own criminal ordinances (which, as sheriff, he has no duty to do) in connection with his performance of the authorized function of enforcing state and county criminal statutes or ordinances.

             [[Orig. Op. Page 7]]   Clearly, the interlocal cooperation act was passed in order to facilitate intergovernmental cooperation2/ and, undoubtedly, one of the subjects which was in the collective mind of the legislature which enacted it was local law enforcement.  While a county sheriff could enforce state criminal laws or county ordinances throughout his entire county, including areas contained within the boundaries of an incorporated city or town, he neither had the authority nor the duty similarly to enforce city ordinances.  Therefore, proposed county-city contracts for the provision of law enforcement services by a sheriff were precluded on two grounds:  First, because there was no valid contract consideration for an undertaking by the sheriff to enforce state statutes or county ordinances within an incorporated city or town because he was already under legal duty to do so; and second, because he could not be contractually committed to perform a service (the enforcement of municipal ordinances) which he had no independent legal authority to do.

            If one assumes (as we most certainly do) that it was on this basis that what is now RCW 39.34.080,supra, was enacted then it must be construed and applied accordingly.  What this means, then, is that when the subject statute speaks of the formation of a contract between public agencies for the performance of ". . . any governmental service, activity, or undertaking which each public agency entering into the contract is authorized by law to perform . . .," it must be taken to have reference to such governmental services, activities or undertakings in the abstract;e.g., the performance of law enforcement services, generally, rather than in a given, specific, context or, as in the instant case, the conduct of basic law enforcement training programs without regard to the particular individuals who may be trained.

            For that reason, then, in direct answer to your second question our opinion is basically as follows:  Without regard to whether the Criminal Justice Training Commission may be said to have the independent power to provide training to Indian tribal police officers, it may lawfully do so pursuant to such a contract in the exercise of its abstract function of affording basic law enforcement training, generally.  Therefore, notwithstanding our earlier qualifiedly negative answer to your first question we may answer your second in the affirmative.

             [[Orig. Op. Page 8]]   This completes our consideration of your questions.  It is hoped that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, Anderson v. O'Brien, 84 Wn.2d 64, 524 P.2d 390 (1974).

2/Including such cooperation with federally-recognized Indian tribes by reason of the definition of "public agency" in RCW 39.34.020, supra.