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AGO 2012 No. 6 - July 26, 2012
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Rob McKenna | 2005-2012 | Attorney General of Washington

COUNTIES—COUNTY TREASURER—CHARTERS—Power Of County Legislative Authority To Suspend County Treasurer
 
1.         The legislative authority of a charter county has the authority to suspend the county treasurer from office under RCW 36.29.090.  RCW 36.29.090 authorizes the legislative authority to suspend a county assessor-treasurer from his or her duties as treasurer, but not from duties as assessor.
 
2.         For purposes of RCW 36.29.090, an action based upon “official misconduct” is a civil or criminal lawsuit alleging official misconduct and would include recall petitions, criminal prosecutions, and civil actions on required bonds posted by county treasurers to ensure the faithful performance of their duties.
 
3.         The legislature may, by general law, authorize the legislative authority of charter counties to suspend county treasurers or treasurer-assessors from their duties so long as the legislature’s action does not violate constitutional limitations generally applicable to legislative actions.
 

July 26, 2012

The Honorable Mike Carrell
State Senator, District 28
PO Box 40428
Olympia, WA  98504-0428
 

Cite As:
AGO 2012 No. 6

 

Dear Senator Carrell:
 
            By letter previously acknowledged, you have requested our opinion on the following questions:

1.         To what extent may the county commissioners of a charter county invoke RCW 36.29.090 to suspend an elected county treasurer-assessor from all or a portion of his duties?
 
2.         In the context of RCW 36.29.090, what constitutes an action based upon “official misconduct” that would warrant county commissioners suspending a treasurer?
 
3.         If a charter county may not suspend a treasurer-assessor under RCW 36.29.090, what are the constitutional limitations, if any, on the state legislature to modify laws to allow a charter county to exercise such power?

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BRIEF ANSWERS

1.         The legislature granted counties the authority to suspend county treasurers under certain circumstances in RCW 36.29.090.  That grant of authority applies to charter counties as well as to non-charter counties.  Provided that the statutory prerequisites are met, a charter county that creates the office of treasurer-assessor may invoke RCW 36.29.090 to suspend the treasurer-assessor from performing duties as treasurer, but not duties as assessor.
 
2.         “Official misconduct” is not defined in RCW 36.29.090, but its plain meaning would include misfeasance or malfeasance in office, as courts have explained the terms in the context of recall petitions.  An action based on official misconduct means a civil or criminal lawsuit alleging official misconduct and would include recall petitions, criminal prosecutions, and civil actions on required bonds posted by county treasurers to ensure the faithful performance of their duties.
 
3.         Charter counties are subject to the state constitution and generally applicable state laws, and such state laws control over conflicting county charters.  Thus, the only constitutional limitations on the state legislature in modifying laws that grant authority to charter counties to suspend a treasurer or a treasurer-assessor would be the constitutional limitations generally applicable to the state legislature in enacting any laws.

BACKGROUND

            We begin our analysis with an overview of the constitutional structure of charter county governments.  Article XI, section 4, amendment 21 of the Washington Constitution authorizes counties to adopt “home rule” charters, which allow for greater autonomy in self-governance.  For convenience, we adopt the commonly-used phrase “charter county” to refer to a county that has adopted such a charter.  A charter county continues to have all of the rights, powers, privileges, and benefits conferred by general law on non-charter counties.  Const. art. XI, § 4.  Similarly, a charter county retains all of the authority, powers, and duties of county officers as set forth in statute, but such authority, powers, and duties are vested in the legislative authority of the county unless expressly vested in specific officers in the county’s charter.  Const. art. XI, § 4.  Thus, a charter county is not constrained by the statutory designation of county officers, and the county’s charter may provide for such county officers as may be deemed necessary to carry out county functions.  Const. art. XI, § 4.  Any authority, powers, or duties not expressly vested in specific officers in the charter remains with the legislative authority of the county.  Const. art. XI, § 4; In re Recall of Hurley, 120 Wn.2d 378, 382, 841 P.2d 756 (1992).
 
            Although charter counties have more flexibility in organizing their governmental structure than other counties, home rule charters remain “subject to the Constitution and laws of this state.”  Const. art. XI, § 4.  In the event of a conflict between a county charter and a generally applicable state statute, the statute controls.  1,000 Friends of Washington v.
 
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McFarland, 159 Wn.2d 165, 173, 149 P.3d 616 (2006).  Therefore, charter provisions may not limit or restrict a legislative grant of power to the legislative authority of the county.  Id. 
 
            Your questions relate to a generally applicable state statute addressing the authority of county commissioners to suspend county treasurers.  The statute provides in full:

            Whenever an action based upon official misconduct is commenced against any county treasurer the county commissioners may suspend the treasurer from office until such suit is determined, and may appoint some person to fill the vacancy.

RCW 36.29.090.

ANALYSIS

1.         To what extent may the county commissioners of a charter county invoke RCW 36.29.090 to suspend an elected county treasurer-assessor from all or a portion of his or her duties?
 
            Your first question has two components:  (1) whether the statute applies to charter counties; and (2) if the statute applies to charter counties, to what extent the statute applies to charter counties that have established the office of treasurer-assessor.
 
            Turning to the first component, we conclude that as a legislative grant of authority to counties, the statute applies to charter counties and non-charter counties alike.  As discussed above, charter counties continue to have all of the rights, powers, privileges, and benefits conferred by law.  Const. art. XI, § 4.  Unless vested in specific officers in the county charter, powers remain with the legislative authority of the county.  Const. art. XI, § 4.  Here, authority granted by statute in RCW 36.29.090 to county commissioners would remain with the legislative authority of a charter county unless expressly vested in another county officer by charter.  Thus, the legislative authority of a charter county may invoke its authority granted by RCW 36.29.090 when the statutory prerequisites are met.
 
            The Washington Supreme Court’s opinion in In re Recall of Hurley, 120 Wn.2d 378, 841 P.2d 756 (1992), to which you refer in your letter, is consistent with our reasoning above.  In Hurley, the Court held that a statute that assigned specific duties to individual county commissioners was not applicable to a county councilmember in a charter county, when those specific duties had not been expressly assigned to individual councilmembers in the county’s charter.  Hurley, 120 Wn.2d at 382.  The Court reasoned that pursuant to article XI, section 4 specific duties of county officers were vested in the legislative authority of the county as a whole, unless expressly vested in a county officer.  Id.  Therefore, in a charter county, the specific duties assigned by statute to individual county commissioners were assigned to the legislative authority as a whole rather than in a specific officer, unless stated otherwise in the
 
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charter.  Hurley, 120 Wn.2d at 382.  Similarly here, the authority granted by RCW 36.29.090 remains vested in the legislative authority of a charter county.
 
            Turning to the second component of your question, we conclude that RCW 36.29.090 may be used by a charter county that has combined the duties of a treasurer with those of an assessor in creating the county office of treasurer-assessor.  As discussed above, charter counties retain the authority granted by RCW 36.29.090 to suspend county treasurers under the circumstances set forth in that statute.  We see no basis for concluding that a county charter’s combination of the offices of treasurer and assessor indicates any intent to forgo the authority to suspend a county treasurer.  Rather, the fundamental nature of county charters persuades us that a charter county continues to have such authority.  Charter counties possess all of the powers and duties of non-charter counties, but are granted flexibility in allocating such powers and duties within the county.  Accordingly, charter counties possess the flexibility to suspend the person from performing the duties that state law assigns to the county treasurer, pursuant to the legislative grant of authority in RCW 36.29.090, regardless of how the county chooses to allocate those duties through its charter.
 
            This result also satisfies the likely intent and purpose of the legislature’s grant of authority in RCW 36.29.090:  to allow a county to suspend, without the delay of recall procedures, the county treasurer, who has access to and control over the county’s funds.  The legislature has not granted similar authority to suspend any other county officers.  E.g., RCW 36.21 (county assessor); RCW 36.23 (county clerk); RCW 36.24 (county coroner).  It is likely that the legislature saw the need for counties to be able to immediately suspend county treasurers because, unlike other county officers, treasurers have access to and control over the county’s funds.  A county treasurer committing misconduct could cause irreparable harm during the pendency of an action for official misconduct such as a criminal prosecution or recall petition.
 
            However, neither the statutory grant of authority nor the intent and purpose of the statute would justify suspending the duties of other county officers.  Thus, we conclude that a charter county that has created the office of treasurer-assessor may invoke RCW 36.29.090 to suspend a treasurer-assessor’s duties as treasurer, but not as assessor.
 
2.         In the context of RCW 36.29.090, what constitutes an action based upon “official misconduct” that would warrant county commissioners suspending a treasurer?
 
            The question of what constitutes an action based upon “official misconduct” is one of statutory construction, and is thus governed by rules that courts apply in construing statutes.  The fundamental object of statutory construction is to ascertain and carry out the legislature’s intent.  Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 9, 43 P.3d 4 (2002).  If a statute’s meaning is plain from the face of the statute, then courts give effect to its “plain meaning” as expressing the legislature’s intent.  Id. at 9-10.  To determine whether the meaning of a statute is plain, courts consider the statutory scheme as a whole, including related statutes.  Id.  When a statutory term is undefined, courts give the term its ordinary meaning, and may look to a
 
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dictionary, including Black’s Law Dictionary, for such meaning.  Burton v. Lehman, 153 Wn.2d 416, 423-24, 103 P.3d 1230 (2005).
 
            The term “official misconduct” is not defined in RCW 36.29.090 or elsewhere within RCW Title 36, and the statute has not been construed by courts.  Although the legislature has made official misconduct a criminal misdemeanor in RCW Title 9A, the elements of that crime do not provide a definition for the term in RCW 36.29.090 for several reasons.  See RCW 9A.80.010 (setting forth elements of crime of official misconduct).  First, the criminal statute does not purport to define the term “official misconduct” for purposes of other statutes but rather sets forth elements a prosecutor must prove to convict a person of a specific crime.  RCW 9A.80.010.  Second, the language of RCW 36.29.090 was originally enacted in 1895, while the crime of official misconduct was enacted in 1975.  See Laws of 1895, ch. 73, § 2; Laws of 1975, 1st Ex. Sess., ch. 260, § 9A.80.010.  Thus, the original statute could not have contemplated the language in the latter statute as defining official misconduct.  The criminal misdemeanor was enacted without reference to RCW 36.29.090 and we do not find any indication that creation of the crime of official misconduct intended to alter the definition in RCW 36.29.090.  Third, use of the elements of the criminal misdemeanor of official misconduct as a definition for RCW 36.29.090 would lead to absurd results.  As a court opinion has recognized, a person can commit the felony of bribery without committing the misdemeanor of official misconduct because the misdemeanor includes certain elements not required for a bribery conviction.  State v. Liewer, 65 Wn. App. 641, 647, 829 P.2d 236 (1992).  Therefore, if the elements of the misdemeanor of official misconduct were used to define the term as used in RCW 36.29.090, a person could be convicted of bribery yet not be deemed to have committed official misconduct for purposes of suspension.  This appears to us an absurd result, which would not serve the purpose for which the legislature enacted RCW 39.29.090.  See, e.g., Densley v. Dep’t of Ret. Sys., 162 Wn.2d 210, 233, 173 P.3d 885 (2007) (courts construe statutes so as to avoid absurd results).  Finally, while the legislature has created a misdemeanor called official misconduct, we note that numerous other statutes set forth offenses relating to misconduct while in office, and we find nothing to suggest that use of the term “official misconduct” in RCW 36.29.090 was intended to be limited to just one identified crime.  E.g., RCW 42.20.090 (misappropriation by treasurer); RCW 42.20.100 (willful neglect of public officer to perform duty); RCW 42.23.070 (use of official position to secure special privileges).
 
            Because we conclude that official misconduct in RCW 36.29.090 is not defined by statute, it must be given its ordinary meaning.  “Misconduct” is defined as “mismanagement esp. of governmental or military responsibilities [and] intentional wrongdoing : deliberate violation of a rule of law or standard of behavior esp. by a government official : malfeasance[.]”  Webster’s Third New International Dictionary 1443 (2002).  Black’s Law Dictionary defines “official misconduct” as “[a] public officer’s corrupt violation of assigned duties by malfeasance, misfeasance, or nonfeasance.”  Black’s Law Dictionary 1019 (8th ed. 2004).  These definitions are consistent with court opinions describing grounds for recall of elected officials pursuant to article I, section 33 of the Washington Constitution as:
 
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            Misfeasance or malfeasance (often stated as maladministration, misconduct, official misconduct, nonfeasance, or misbehavior in office), have been held to be comprehensive terms and include any wrongful conduct that affects, interrupts, or interferes with the performance of official duty.

Bocek v. Bayley, 81 Wn.2d 831, 836, 505 P.2d 814 (1973) (quoting Danielson v. Faymonville, 72 Wn.2d 854, 859, 435 P.2d 963 (1967), overruled on other grounds by Cole v. Webster, 103 Wn.2d 280, 692 P.2d 799 (1984).  Because both recall of elected officials and the statute at issue here involve the permanent or temporary restriction of an elected official from performing his or her official duties, we find the court’s analysis with respect to wrongful conduct sufficient to allow recall particularly apt.  Thus, we conclude that official misconduct means any wrongful conduct that affects, interrupts, or interferes with the performance of official duty.
 
            Just as official misconduct is undefined in RCW 36.29.090, so is “action,” and again we use its ordinary meaning.  Given the context of the statute, we conclude that action means a civil or criminal judicial proceeding.  This meaning is consistent with dictionary definitions, which include a “civil or criminal judicial proceeding” and “a legal proceeding by which one demands or enforces one’s right in a court of justice.”  Black’s Law Dictionary 31 (8th ed. 2004); Webster’s Third New International Dictionary 21 (2002). 
 
            An “action based upon official misconduct” in RCW 36.29.090 therefore means a civil or criminal judicial proceeding brought against a county treasurer that alleges wrongful conduct that affects, interrupts, or interferes with the performance of official duty.  We find such actions would include criminal prosecutions for official misconduct, [1] recall petitions filed against county treasurers, and civil actions to recover amounts upon the forfeiture of official bonds posted by a county treasurer pursuant to RCW 36.16.050(8). [2] 

3.         If a charter county may not suspend a treasurer-assessor under RCW 36.29.090, what are the constitutional limitations, if any, on the state legislature to modify laws to allow a charter county to exercise such power?
 
            Although we conclude that a charter county may use the authority granted in RCW 36.29.090 to suspend a treasurer-assessor from performing treasurer duties, we nevertheless address your third question because the question encompasses complete suspension of a treasurer-assessor, including assessor duties as well as treasurer duties.
 
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            As discussed above, generally applicable state laws control over conflicting county charters.  Thus, we see no constitutional limitation on the state legislature in modifying generally applicable laws to allow a charter county to exercise the power to suspend county treasurers or treasurer-assessors, other than those general limitations applicable to all statutes.  E.g., Const. art. I, § 8 (prohibiting laws granting irrevocable privilege, franchise, or immunity); art. II, § 19 (“No bill shall embrace more than one subject, and that shall be expressed in the title.”).
 
            In reaching our conclusion, we are mindful that some courts have suggested that a state statute may not control over a county charter in areas of “purely local” concern.  For example, in Henry v. Thorne, 92 Wn.2d 878, 602 P.2d 354 (1979), the Court upheld a charter county’s rules regarding the timing of elections to fill vacancies of county officers despite the fact that those rules differed from state statute.  The Court reasoned that article XI, section 4 intended to allow charter counties the right to govern their purely local affairs without supervision from the state, so long as the counties did not run counter to “considerations of public policy of broad concern, expressed in general laws.”  Id. at 881 (quoting State ex rel. Carroll v. King Cnty., 78 Wn.2d 452, 457-58, 474 P.2d 877 (1970)).  In upholding the county charter’s rules, the Court concluded that “[t]here appears to be no sound reason why the State should have an interest in the timing of elections to fill vacancies in offices that concern only the residents of a county.”  Id.; see also Snohomish Cnty. v. Anderson, 123 Wn.2d 151, 158-59, 868 P.2d 116 (1994) (describing the decision in Henry v. Thorne as involving issues of “purely local” concern).
 
            To the extent that charter counties may have authority to control purely local affairs independent of state law, we find such authority inapplicable here.  We conclude that RCW 36.29.090 does not involve purely local affairs, because county treasurer duties and authority involve more than a county’s local concerns. [3]  For example, county treasurers receive and collect “all taxes extended upon the tax rolls of the county, whether levied for state, county, school, bridge, road, municipal or other purposes . . . .”  RCW 84.56.020(1).  As the county officer responsible for collecting and disbursing funds, a county treasurer also invests funds as authorized by law, pays bonded indebtedness, and pays county obligations.  RCW 36.29.010.  Such investments and payments do not necessarily involve only county residents, and thus involve more than purely local affairs.  Rather, RCW 36.29.090 reflects a broad public policy concern that counties must have the authority to suspend county treasurers accused of misconduct in order to protect the public fisc.  Therefore, legislative authority to amend RCW 36.29.090 to allow charter counties to exercise such authority is not constrained by article XI, section 4.
 
            Similarly, authority to suspend a treasurer-assessor would not involve an area of purely local concern.  In addition to the treasurer duties discussed above that would impact more than
 
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purely local concerns, a treasurer-assessor’s duties as assessor would also involve more than purely local concerns.  An assessor’s primary duty is determining the value of taxable real and personal property, which in turn affects the amount of property tax collected.  See Dep’t of Revenue, Property Tax Division, County Assessor’s Manual 3 (Nov. 2011), available at http://dor.wa.gov/Docs/Pubs/Prop_Tax/AssessorRefManual.doc.  Among the property taxes levied that are based on the assessor’s valuation are those levied by state and other, non-county taxing districts.  RCW 84.52.040 (levies made on assessed value of property); RCW 84.52.065 (state shall levy property tax for support of common schools); RCW 84.52.053 (levies by school districts authorized).  Accordingly, an assessor’s duties in determining the value of taxable and real personal property  are of state-wide rather than purely local concern.  Reflecting this state-wide concern with the duties of assessors, various statutes require the Department of Revenue to provide oversight and advice to county assessors.  E.g., RCW 84.08.010 (requiring Department of Revenue to exercise general supervision and control over county assessors); RCW 36.21.100 (requiring assessors to provide annual reports to Department of Revenue); RCW 84.08.190 (requiring county assessors to attend annual meeting with Department of Revenue).  Thus, as with county treasurers, county assessors’ duties do not relate solely to purely local matters, and article XI, section 4 does not constrain the state legislature’s ability to modify laws such as RCW 36.29.090.
 
            We trust that the foregoing will be useful to you.

ROBERT M. MCKENNA
   Attorney General
 
 
 
PETER B. GONICK
   Deputy Solicitor General

wros


[1] As noted above, there are numerous statutes setting forth criminal penalties for conduct that would amount to official misconduct, including RCW 42.20.090 (misappropriation by treasurer), RCW 42.20.100 (willful neglect of public officer to perform duty), RCW 42.23.070 (use of official position to secure special privileges), RCW 9A.80.010 (official misconduct).
[2] County officials must post official bonds conditioned on faithful performance of official duties.  RCW 36.16.050.  A person injured by the “official misconduct or neglect of duty” of a public officer may maintain an action against the officer and the officer’s sureties for such injury.  RCW 42.08.020.
[3] We also conclude that it is unlikely that a county charter would conflict with RCW 36.29.090, since the statute confers discretionary authority on the county to suspend county treasurers in certain circumstances.  Only if a county charter specifically disavowed such authority or placed additional conditions on the use of such authority would a conflict exist.  We are aware of no county charters that contain such provisions that would conflict with the statute.
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