DISTRICTS - DRAINAGE IMPROVEMENT - SUPERVISORS - USE OF NAMED SCHEDULE BOND

DISTRICTS - DRAINAGE IMPROVEMENT - SUPERVISORS - USE OF NAMED SCHEDULE BOND.

The supervisors of a drainage improvement district may meet the bond requirements of RCW 85.08.300 by the use of a named schedule bond, if such bond insures the faithful performances of each individual official's duties and covers each official for a specific duration of time and for specific penal amount, as contemplated by statute.

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                                                                 August 19, 1960

Honorable Ray E. Munson
Prosecuting Attorney
Yakima County
Yakima, Washington                                                                                                  Cite as:  AGO 59-60 No. 136

Dear Sir:

            By letter previously acknowledged, and as amended by our telephone conversation of August 2, 1960, you have requested our opinion upon a question which we paraphrase as follows:

            May the drainage improvement district supervisors of a given county meet the bond requirements demanded by RCW 85.08.300 by the use of a "Named Schedule Bond?"

            In our opinion the question is answered in the affirmative subject to the qualifications found in the following analysis of the problem.

                                                                     ANALYSIS

            Initially we would like to define the term "Named Schedule Bond."  We define this term to mean a bond covering several officials individually by name and insuring the faithful performance of each individual official's duties.  The term is further defined to mean a bond under which each official may be severally covered for a specific penal amount and duration of time as contemplated by RCW 42.08.060 and 42.08.070.

            RCW 85.08.300 does not itself specifically require a bond for drainage improvement district supervisors but it does state that such  [[Orig. Op. Page 2]] supervisors are to qualify as county officers are required to do.  We turn then to RCW 36.16.050 which states:

            "Every county officer before he enters upon the duties of his office, shall furnish a bond conditioned that he will faithfully perform the duties of his office . . ."

            The statute goes on to set the amount of the bond required for some specific county elected officials but does not mention supervisors of drainage improvement districts.

            In examining the legislative history of RCW 85.08.300 we find that prior to the 1955 amendment, chapter 338, Laws of 1955, the county commissioners were empowered to set the amount of the bond.  We are now faced with the problem of a bond being required but with no mention of its amount or who may determine such amount.  It is our opinion that the county commissioners retain the authority to set the amount of the supervisors' bonds under RCW 85.08.300.

            The legislative determination that such supervisors are to qualify as county officers are required to do, leads us to an examination of how the bonds for county officers are fixed where no amounts are specified by RCW 36.16.050.  When no bond amount is specified the county commissioners are to set the amount.  See also, RCW 36.16.070 where the county commissioners may set the amount of the bond of deputies; also, RCW 42.08.110 and 42.08.120 where the county commissioners are authorized to demand additional bonds of county officials.

            Having determined that a bond is required and that the county commissioners are authorized to set the amount we turn to the required form of such bond or bonds.

            RCW 42.08.060 states that such bond

            ". . . shall be in form, joint and several, and made payable to the state of Washington, . . ."

            RCW 42.08.070 requires such bonds to be

            ". . . obligatory upon the principal and sureties therein for any and all breach of the condition or conditions thereof committed during the time such officer shall continue to discharge any of the duties of, or hold such office, and every such bond shall be deemed to be in force and obligatory upon the principal and sureties therein for the faithful discharge of all duties which  [[Orig. Op. Page 3]] may be required of such officer by any law enacted subsequent to the execution of such bond, and such condition shall be expressed therein."

            While these statutes use the term "bond" in the singular it has previously been our opinion that a group bond such as you contemplate using sufficiently meets the legislative intent to provide the public with security for the faithful performance of the officials' duties.  See also, AGO 53-55 No. 289 and a letter from this office to the Honorable Cliff Yelle, State Auditor, dated April 7, 1958, copies of which are hereto attached.  It will be noted that in both the afore mentioned opinion and letter the public officers involved were appointed and not, as in the problem you present, elected officials.  The bonds there in question were of the "blanket" rather than "named schedule" type you propose using.  Despite this distinction we are of the opinion that the reasoning used there is equally applicable in this case.

            We have not overlooked the language in AGO 29-30 p. 751 [[1929-30 OAG 751]]at 752, where we stated:

            ". . . We are of the opinion that it was the intention of the legislature [referring to the then existing statute covering drainage district commissioners which was substantially the same as the current RCW 84.04.030] that the members of the board of commissioners should file separate bonds for the faithful performance of their duties."

            The issue under consideration there was whether the bond was meant to cover the board as an entity or the members of the board separately.  The opinion adequately points up the requirement for a bond insuring the separate performance of the individual commissioner's duties in individual penal amounts.

            We now conclude that the language used in that opinion was too broad in requiring individual bonds thereby excluding the use of a named schedule bond for the faithful performance of each official named thereunder.

            The necessity of individual penal coverage on the bond is found in RCW 42.08.050 which limits the recovery on any bond to the penalty stated thereon.  A bond covering more than one official which was so worded or conditioned as to allow the breach of duty of one official to exhaust or impair the surety coverage of the other officials named thereunder would not in our opinion substantially comply with the bonding requirements of RCW 36.16.050.

             [[Orig. Op. Page 4]]

            If the bond you use substantially meets the requirements afore mentioned, the provisions of RCW 42.08.090 should serve to validate any technical deficiencies.

            We trust this will be of some assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General