Consent Of County Prosecutor For Appointment Of Outside Counsel

ATTORNEY, PROSECUTING—COUNTIES—Consent Of County Prosecutor For Appointment Of Outside Counsel

The consent of the county prosecuting attorney is required for the appointment of outside counsel to represent the county under a joint self-insurance program.

September 30, 2019

Dear Prosecutor Rasmussen:

            By letter previously acknowledged, you requested our opinion on several questions, which we have combined and paraphrased as follows:

Must a county prosecutor provide consent before a joint county self-insurance program may designate outside counsel to advise or represent one of its member counties?

BRIEF ANSWER

            Generally, yes. Elected county prosecuting attorneys have constitutional and statutory authority to advise and represent counties in criminal and civil actions. While prosecuting attorneys may appoint regular, special, or temporary deputies to perform duties within their authority, other individuals or entities, such as joint self-insurance programs, may not so delegate unless the offices of the prosecuting attorneys are vacant, the prosecuting attorneys are unable or unwilling to perform their responsibilities, or the prosecuting attorneys consent.

BACKGROUND

            Stevens County is party to an interlocal agreement to form a joint self-insurance program with other local government entities. See RCW 48.62.031 (authorizing such agreements and programs). The resulting program is a separate legal entity with powers delegated by its constituent local government members. See RCW 48.62.031(2). You note that, as the elected Prosecuting Attorney for Stevens County, you are not a party to the interlocal agreement. Rather, the Stevens County Board of Commissioners entered into the agreement on behalf of the County. See RCW 48.62.031(1).

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            If authorized in the governing interlocal agreement, joint self-insurance programs may, among other things, “[c]ontract or otherwise provide for risk management and loss control services[,]” “[j]ointly purchase insurance[,]” and “[c]ontract or otherwise provide legal counsel for the defense of claims and other legal services[.]” RCW 48.62.031(4)(a), (d), (b). You note that pursuant to that authority, the joint self-insurance program in which Stevens County participates takes the position that the program may appoint legal counsel to represent a member county in response to a claim being tendered to it. You ask whether, notwithstanding this authority, the program must obtain the relevant county prosecuting attorney’s consent before it may validly appoint legal counsel to advise or represent the individual counties.

ANALYSIS

            We begin with an overview of county prosecutors’ authority, and the statutory and constitutional restrictions on who may exercise that authority. We then analyze what the statutes that authorize joint self-insurance programs to provide counsel mean in light of those restrictions.

            RCW 36.27 sets forth a number of duties, powers, and restrictions regarding county prosecuting attorneys. Relevant here, county prosecuting attorneys are required to “defend all suits” brought against the county, and “[b]e legal adviser” of the “legislative authority” and “all county and precinct officers and school directors[.]” RCW 36.27.020(4), (1), (2). Prosecuting attorneys may “appoint one or more deputies who shall have the same power in all respects as their principal.” RCW 36.27.040. They may also temporarily share deputies with other prosecuting attorneys and appoint limited-authority special deputy prosecuting attorneys on a contract or fee basis. RCW 36.27.040. In all such appointments, the prosecuting attorney is responsible for the acts of his or her deputies and may revoke the appointments at will. RCW 36.27.040.

            When a prosecuting attorney is temporarily unable to perform the duties of the office, RCW 36.27.030 authorizes a court to appoint a qualified person to discharge the duties of the office in court until the disability is removed. In order to trigger this provision, there must be both a “duty” to represent a specific party in a specific matter, and “some disability” that prevents the prosecutor from fulfilling that duty. In re Appointment of Special Deputy Prosecuting Attorney, 446 P.3d 160, ¶ 17 (Wash. 2019) (quoting Osborn v. Grant County, 130 Wn.2d 615, 624-25, 926 P.2d 911 (1996)). The Washington Supreme Court has applied this provision to situations not only involving physical or mental disability, but also conflicts of interest. See In re Appointment of Special Deputy Prosecuting Attorney, 446 P.3d 160, ¶ 26; Westerman v. Cary, 125 Wn.2d 277, 301, 892 P.2d 1067 (1994).

            Similarly, the Court has concluded that local government entities may exercise their general powers to employ outside counsel only “when the prosecuting attorney is unable to perform his duties,” when the office is vacant, or when the prosecuting attorney consents. State ex rel. Banks v. Drummond, 187 Wn.2d 157, 177, 179 n.10, 385 P.3d 769 (2016). If unavailability is the claimed basis for appointment of outside counsel, however, the prosecuting attorney must be “truly unavailable or unable to perform.” Id. at 177. In any case, county legislative authorities may employ or contract with attorneys to perform prosecuting attorney duties only after forming a

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written contract approved by the presiding superior court judge of the county. RCW 36.32.200; Drummond, 187 Wn.2d at 172-74 (concluding RCW 36.32.200 is not an affirmative grant of right to retain special counsel, but a limit on an otherwise-existing right).

            Beyond the statutory limitations, the Washington Supreme Court has also recognized “constitutional implications” of delegating duties of a prosecuting attorney to individuals other than the prosecuting attorney or authorized deputies. Drummond, 187 Wn.2d at 179-82. County prosecuting attorneys are elected officials pursuant to article XI, section 5 of the Washington Constitution, and the Court has cautioned that an appointment of outside counsel may “unconstitutionally deny the electorate’s right to choose who provides the services” of the elected prosecuting attorney. Drummond, 187 Wn.2d at 182. As the Court held in Drummond, “[i]t would be fruitless to delegate the selection of county officers to the voters if the duties of those officers could be freely delegated to officers appointed by other government branches.” Id. at 179-80. Thus, “[i]n the case of prosecuting attorneys,” other branches of government “‘cannot interfere with the core functions that make them “prosecuting attorneys” in the first place.’” Id. at 180 (quoting State v. Rice, 174 Wn.2d 884, 905, 279 P.3d 849 (2012)).

            Relevant here, advising and defending the county and county officials are both “core functions” of the prosecuting attorney. Drummond, 187 Wn.2d at 181-82; RCW 36.27.020(1)-(2), (4). Thus, legislative delegation of these core functions to individuals other than the elected official at least implicates the electorate’s constitutional right to choose who provides the services of county prosecuting attorneys. Drummond, 187 Wn.2d at 181-82.

            In light of these general restrictions, we next address the specific statutory provisions that are central to your opinion request. RCW 48.62.031(1) authorizes counties and other local government entities to join or form joint self-insurance programs, and RCW 48.62.031(4)(b) expressly allows such programs to “[c]ontract or otherwise provide legal counsel for the defense of claims and other legal services[.]” The heart of your inquiry is whether these provisions independently authorize joint insurance programs to appoint counsel to advise or defend member counties without first obtaining the relevant prosecuting attorney’s consent (assuming the ability and availability of the prosecuting attorney is not at issue). We conclude they do not.

            The goal in construing statutes is “to ascertain and carry out the legislature’s intent.” In re Bankruptcy Petition of Wieber, 182 Wn.2d 919, 925, 347 P.3d 41 (2015) (internal quotation marks omitted). The starting point in statutory construction is to “examine the plain meaning of the statute,” in which we should take into account not only the language of the statute at issue, but also that of related statutes. Id. Starting with the statutes at issue, RCW 48.62.031(1) says nothing about prosecuting attorney consent. It simply authorizes counties and other local government entities to join or form joint self-insurance programs. RCW 48.62.031(1). Likewise, RCW 48.62.031(4)(b) provides that, if authorized in the governing interlocal agreement, a joint self-insurance program “may . . . [c]ontract or otherwise provide legal counsel for the defense of claims and other legal services[.]” Neither statute requires nor precludes prosecuting attorney consent before a joint self-insurance program appoints outside counsel pursuant to an interlocal agreement. Read in isolation,

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RCW 48.62.031(4)(b) might suggest unconstrained authority for joint self-insurance programs to appoint outside counsel.

However, the plain language of a statute is not read in isolation, but must be determined with reference to related statutes. In re Wieber, 182 Wn.2d at 925. As previously discussed, certain statutory provisions limit the authority of entities other than the prosecuting attorney to perform or delegate prosecuting attorney duties. RCW 36.27.030; RCW 36.32.200. And nothing in RCW 48.62.031(1) or (4)(b) speaks to prosecutorial consent one way or the other. Since it is entirely possible to read RCW 48.62.031(1) and (4)(b) in harmony with the statutes governing delegation of prosecuting attorney responsibilities, we should do so. American Legion Post 149 v. Dep’t of Health, 164 Wn.2d 570, 588, 192 P.3d 306 (2008) (“This court assumes the legislature does not intend to create inconsistent statutes. Statutes are to be read together, whenever possible, to achieve a harmonious total statutory scheme . . . which maintains the integrity of the respective statutes.” (alteration in original) (citation omitted) (internal quotation marks omitted) (quoting State ex rel. Peninsula Neighborhood Ass’n v. Dep’t of Transp., 142 Wn.2d 328, 342, 12 P.3d 134 (2000))). To give effect to the limitations in RCW 36.27.030 and RCW 36.32.200, we necessarily conclude that, absent inability to perform or vacancy of office, prosecuting attorney consent is still required for the appointment of counsel to defend or advise counties pursuant to joint self-insurance programs formed under RCW 48.62.  Doing so also avoids the constitutional implications that would otherwise arise if we found RCW 48.62.031(1) and (4)(b) to constitute authority to designate outside counsel to counties without prosecuting attorney consent. Const. art. XI, § 5; Drummond, 187 Wn.2d at 179-82; see also In re Detention of Danforth, 173 Wn.2d 59, 70, 264 P.3d 783 (2011) (holding “wherever possible,” courts will “‘construe a statute so as to uphold its constitutionality’” (quoting State v. Reyes, 104 Wn.2d 35, 41, 700 P.2d 1155 (1985))).

            In sum, there are statutory and constitutional provisions that restrict entities other than prosecuting attorneys from performing or designating individuals to perform duties within the prosecuting attorney’s core responsibilities. RCW 48.62.031(1) and (4)(b) do not obviate these restrictions. Absent vacancy of office or true inability to perform the duties of the office, prosecuting attorney consent is required.

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

ALICIA O. YOUNG
Deputy Solicitor General

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