AGO 1956 No. 341 - Nov 19 1956
SHERIFFS ‑- LEAVE OF ABSENCE COUNTY OFFICERS ‑- LEAVE OF ABSENCE LEAVE OF ABSENCE ‑- COUNTY OFFICERS
The commissioners of a county may not grant a leave of absence to the sheriff for the purpose of enabling the sheriff to accept employment with the United States government in a different locality, and appoint an acting sheriff in his stead.
In the event the sheriff shall take a leave of absence of his own volition; his salary may not be terminated during such leave. Possible recourse against the sheriff may be had under RCW 42.12.010.
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November 19, 1956
Honorable Lee J. Reynolds
Prosecuting Attorney of Clallam County
Port Angeles, Washington Cite as: AGO 55-57 No. 341
You requested the opinion of this office on certain questions which we paraphrase as follows:
(1) May the commissioner of a county grant a leave of absence to the sheriff for the purpose of enabling the sheriff to accept employment with the United States government in a different locality, and appoint an acting sheriff in his stead?
(2) In the event the sheriff shall take a leave of absence of his own volition, may his salary be terminated during such leave of absence?
(3) If the first and second questions are answered in the negative, what possible recourse has the county against the sheriff?
We answer questions 1 and 2 in the negative, and refer to RCW 42.12.010 as answer to the third question.
The answer to question 1 necessitates a determination of the scope of authority which may be exercised by county commissioners. The general rule in this regard is set out inState ex rel. Becker v. Wiley, 16 Wn. (2d) 340, 348:
". . . It may be stated as the general rule that a board of county commissioners is a creature of the statute, and has only such powers as are expressly conferred upon it, or necessarily implied from those expressly given, or such as are requisite to the performance of the duties which are imposed on it by law. . . ."
[[Orig. Op. Page 2]]
The statutes relating to county sheriffs, county commissioners and public officers and agencies are silent on the question of leaves of absence for county sheriffs. RCW 36.32.120 sets out in nine subsections the powers of the board of county commissioners. None of these subsections expressly confirm upon the commissioners authority to grant a sheriff a leave of absence, nor do they contain language from which such authority might be implied.
Therefore, since every act of the board of commissioners must be founded upon express or implied statutory authority, and since no such authority relative to granting a sheriff a leave of absence exists, the board may not so act.
The general rule relative to termination of a public official's salary, such as a sheriff's, is well stated in Throop on Public Officers, § 500, pp. 477 and 478:
". . . 'The right of an officer to his fees, emoluments, or salary, is such only as is prescribed by statute; and while he holds the office, such right is in no way impaired by his occasional or protracted absence from his post, or neglect of his duties. Such derelictions find their corrections in the power of removal, impeachment, and punishment, provided by law. The compensations for official services are not fixed upon any mere principle of a quantum meruit, but upon the judgment and consideration of the legislature, as a just medium for the services which the officer may be called upon to perform. These may in some cases be extravagant for the specific services, while in others they may furnish a remuneration which is wholly inadequate. The time and occasion may, from change of circumstances, render the service onerous and oppressive, and the legislature may also increase the duties to any extent it chooses; yet nothing additional to the statutory regard can be claimed by the officer. He accepts the office "for better or for worse;" and whether oppressed with constant and overburdening cares, or enabled, from absence of claims upon his services, to devote his time to his own pursuits, his fees, salary, or statutory compensation, constitutes what he can claim therefor, and is yet to be accorded, although he performs no substantial service, or neglects his duties. . . . The fees or salary of office are "quicquid honorarium," and accrue from mere possession of the office.'"
[[Orig. Op. Page 3]]
The salary schedule for county sheriffs is set out in RCW 36.17.020 (1953 Supp.), and the manner of payment is controlled by RCW 36.17.040 (1953 Supp.). The provisions of these statutes do not affect the above stated general rule, and to our knowledge there are no other statutes which would bar the application of this rule to the question at hand.
With reference to the third question, RCW 42.12.010 provides in part:
"Every office shall become vacant on the happening of any of the following events before the expiration of term of such officer:
"(4) His ceasing to be an inhabitant of the district, county or town, for which he was elected or appointed, or within which the duties of his office are to be discharged;"
Action under this statute would depend upon whether taking a year's leave of absence could be termed "ceasing to be an inhabitant." In our opinion to the Bureau of Inspection and Supervision of Public Offices, dated August 21, 1917, relative to this statute, we stated:
"The word 'inhabitant' has been construed as synonymous with 'resident' . . ."
InMcGrath v. Stevenson, 194 Wash. 160, 162, the court stated:
"Each of the terms 'reside,' 'residing,' 'resident,' and 'residence' is elastic. To interpret the sense in which a term is used, we should look to the object or purpose of the statute in which the term is employed. . . ."
A search of authority has failed to disclose a judicial interpretation of the term "resident" or "inhabitant" under RCW 42.12.010 or a similar statute in a foreign jurisdiction. The position of sheriff being an elective public office, however, the holder of said office must be an elector of that county under the terms of RCW 42.04.020. RCW 29.01.140 (1955 Supp.) sets out resident requirements of an elector to be a person's place of abode, and provides:
"Absence from the state on business shall not affect the question of residence of any person unless the right to vote has been claimed or exercised elsewhere."
[[Orig. Op. Page 4]]
Construing the word "resident" or "inhabitant" in light of this definition, it is doubtful the office of sheriff could be vacated according to the provisions of RCW 42.12.010, because the phrase "leave of absence" itself connotes a temporary state of affairs.
We hope this opinion will be of assistance to you.
Very truly yours,
Assistant Attorney General