Letter Opinion 1972 No. 047

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                                                                   June 20, 1972

Honorable L. Edward Brown
Prosecuting Attorney
Grays Harbor County
P.O. Box 529
Montesano, Washington 98563                                                                                            Cite as:  AGLO 1972 No. 47 (not official)

Dear Sir:
 
            This is written in response to your recent request for our opinion on the following two questions:
 
            "(1) If the wife of a chief deputy sheriff who is not covered under the Sheriff's Civil Service Act is employed as a deputy sheriff, is that contract of employment prohibited by RCW 42.23 [[chapter 42.23 RCW]]?
 
            "(2) Would your answer to question number 1 above be the same if the husband relinquished his position as chief deputy sheriff and reverted to a position as deputy sheriff covered by the Sheriff's Civil Service Act?"
 
                                                                     ANALYSIS
 
            RCW 42.23.030 states, in material part, that
 
            "No municipal officer shall be beneficially interested, directly or indirectly, in any contract which may be made by, through or under the supervision of such officer, in whole or in part, or which may be made for the benefit of his office, or accept, directly or indirectly, any compensation, gratuity or reward in connection with such contract from any other person beneficially interested therein.  . . ."
 
            Although this statute goes on to set forth certain exceptions to this prohibition, we need not concern ourselves with these in responding to your  [[Orig. Op. Page 2]] request.  In our opinion, RCW 42.23.030 has no applicability to the situation presented by your questions for the simple reason that the sole authority to appoint any deputy sheriffs for a given county is vested in the sheriff himself ‑ and not in any of his deputies.  See, RCW 36.16.070; cf., RCW 36.28.020.  Accord, Jackson v. Thurston County, 127 Wash. 41, 219 Pac. 840 (1923).  Therefore, the appointment of a deputy sheriff cannot be said to give rise to a contract of employment ". . . which may be made by, through or under the supervision of . . ." some other deputy sheriff ‑ even the chief deputy within the particular organization.  From this it follows that while the sheriff might very well be restricted by the provisions of RCW 42.23.030, supra, from employing his own wife within the sheriff's department of his county (based upon principles of community property law), he is not prohibited by this statute from appointing the wife of one of his deputies to serve as a deputy sheriff of his county.  Moreover, we think this to be true irrespective of whether or not the husband-deputy occupies an exempt or a classified position under the civil service system provided for in chapter 41.14 RCW.
 
            We trust that the foregoing will be of some assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL

Philip H. Austin
Deputy Attorney General