Letter Opinion 1970 No. 071

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                                                                    May 4, 1970

Honorable Ronald L. Hendry
Prosecuting Attorney
Pierce County
946 County-City Building
Tacoma, Washington 98402

                                                                                                               Cite as:  AGLO 1970 No. 71

Dear Sir:

            This is written in response to your recent letter requesting our opinion on the following question:

            "Is a person employed in a clerical capacity, but who has been deputized by the sheriff and has on infrequent occasions been called upon to perform the functions of a law enforcement officer, entitled to the benefits provided under Chapter 41.26 RCW as amended to date?"

            After thus stating your question, you added the following information with respect to the subject matter of this inquiry:

            "By way of background, the sheriff has traditionally deputized all employees in his office even though many employees are not called upon to perform a function which may be categorized as one of law enforcement.  On some occasions, such individuals will perform the functions of a law enforcement officer for short periods of time.  The best example of this is a secretary who serves on very infrequent occasions as a matron for women prisoners.

            "In summary, some full-time employees of the sheriff's office, although deputized, are not full-time deputy sheriffs.  We desire to know whether such individuals would be covered under the Washington Law Enforcement Officers and Firefighters Retirement System Act."

             [[Orig. Op. Page 2]]

            We respond to this question as follows:

                                                                    ANALYSIS

            Chapter 41.26 RCW codifies the laws governing the Washington law enforcement officers' and fire fighters' retirement system.  This system, which was created through the enactment of chapter 209, Laws of 1969, Ex. Sess., covers

            "All fire fighters and law enforcement officers employed as such on or after March 1, 1970, on a full time fully compensated basis in this state . . ."  (RCW 41.26.040 (1).)

            The term "law enforcement officer" is defined under RCW 41.26.030 (3) to mean:

            ". . . any person who is serving on a full time, fully compensated basis as a county sheriff or deputy sheriff, . . . city police officer, or town marshal or deputy marshal: . . ."

            In administering the provisions of this new retirement system the Washington law enforcement officers' and fire fighters' retirement board (see, RCW 41.26.050) has recognized that factual differences exist between the organizational structures of the various county sheriffs' offices throughout the state.  Accordingly, in large part, the function of determining which deputized employees of a particular county sheriff's office can be said to meet the definition of "law enforcement officer" ‑ so as to achieve eligibility for membership in the new retirement system ‑ has been left to the appointing authority (i.e., the sheriff himself) to perform.  In making this determination, the test to be applied in any given case is whether the particular deputized sheriff's office employee is serving ". . . on a full time, fully compensated basis as a . . . deputy sheriff" within the county in question.  Consistent with the foregoing approach, any employees of a sheriff's office who are deputized, and are reported to the administrators of the retirement system as meeting this test, will be accepted into membership in the retirement system.  Conversely, those employees who are not thus reported to the administrators of the retirement system ‑ presumably, because the sheriff of their county does not regard them as full-time, regularly compensated deputy sheriffs ‑ will not be covered by the retirement system.

            Applying this approach to the individuals described by you in your letter, it follows that based upon your characterization of these persons as "not full time deputy sheriffs," they do not fall within the definition of "law enforcement officer,"supra; and, hence, they do not qualify  [[Orig. Op. Page 3]] for membership in the retirement system provided for in chapter 41.26 RCW.

            We trust the foregoing will be of assistance to you.

Very truly yours,

FOR THE ATTORNEY GENERAL

Philip H. Austin
Assistant Attorney General