Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1956 No. 212 -
Attorney General Don Eastvold


It is the statutory duty of a prosecuting attorney to advise and to represent in court every school district in his county.  First class school districts may retain private counsel at their option.

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                                                                February 29, 1956 

Honorable Tom A. Durham
Prosecuting Attorney
Whatcom County Court House
311 Grand Avenue
Bellingham, Washington                                                                                                              Cite as:  AGO 55-57 No. 212

 Dear Sir:

             In your letter of February 17, 1956, you present for the consideration of this office the question of the duty of a prosecuting attorney to advise and represent different classes of school districts.  You specifically ask:

             (1) Is it the duty of the prosecuting attorney to give legal advice, when required, to first class school districts;

             (2) is the prosecuting attorney required to appear in the court to defend or prosecute actions for second and third class districts?

             We answer both questions in the affirmative.


             RCW 36.27.020 provides in part as follows:

             "The prosecuting attorney shall:

              [[Orig. Op. Page 2]]

            "* * *

             "(2) Be legal adviser to all county and precinct officers and school directors in all matters relating to their official business, and when required he shall draw up all instruments of an official nature for the use of said officers;

             "(3) Appear for and represent the state, county, and all school districts subject to the supervisory control and direction of the attorney general in all criminal and civil proceedings in which the state or his county or any school district in his county may be a party;"

             You call our attention to the language contained in subsection (3) above and ask us to compare it with the language of Rem. Rev. Stat. § 4132.  You cite the case of Bates v. School District No. 10, 45 Wash. 498 as authority for the rule that a prosecuting attorney is not required to prosecute or defend litigation for a school district.

             A careful examination of the complex legislative history of the statutes pertaining to the duty of prosecuting attorneys to advise and represent school districts convinces us that the revised code correctly states the law.  RCW 36.27.020 (2) above is derived from Laws of 1886, p. 61, § 8.  Bates v. School District No. 10, supra, held that this statute did not require a prosecuting attorney to represent a school district in court.

             Subsection (3) of the statute is derived from chapter 75, Laws of 1911, Rem. Rev. Stat. § 116.  This enactment was four years subsequent to the decision in the Bates case.  We conclude that this decision is no longer applicable.  This same conclusion was reached by this office in an opinion dated March 14, 1951, to the prosecuting attorney of Columbia County (49-51-472) [[Opinion No. 49-51-472]], a copy of which is enclosed for your information.

             As you pointed out in your letter, RCW 28.62.180 (7) authorizes directors of first class school districts to employ attorneys and fix their compensation.  This provision stems from § 9, chapter 90, Laws of 1919.

              [[Orig. Op. Page 3]]

            We believe the legislature must have recognized that the prosecuting attorneys of the state have certain limits as to time, staff and budget.  Accordingly, as to first class school districts the amount of legal work a particular prosecuting attorney and his staff may efficiently handle has been left flexible and subject to negotiation.  This will permit such school districts to supplement the staff and budget of the prosecuting attorney with such additional legal representation as may be required under the circumstances.

            We hope the foregoing analysis will prove helpful.

 Very truly yours,
Attorney General

Assistant Attorney General