Letter Opinion 1972 No. 089

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                                                               December 15, 1972
 
 
 
Honorable Robert E. Schillberg
Prosecuting Attorney
Snohomish County Court House
Everett, Washington 98201
                                                                                            Cite as:  AGLO 1972 No. 89 (not official)
 
 
Dear Sir:
 
            This is written in response to your recent letter requesting our opinion on the following question:
 
            "Is an appointed member of a boundary review board a county officer as contemplated by RCW 84.64.080 relating to persons prohibited to purchase at tax foreclosure sales?"
 
            We answer this question in the negative for the reasons set forth in our analysis.
 
                                                                     ANALYSIS
 
            By its enactment of chapter 189, Laws of 1967, the state legislature established "boundary review boards" in each class AA and class A county and provided for the establishment of such agencies in other classes of counties either by action of the respective boards of county commissioners or pursuant to a county-wide election called in response to a petition submitted by a designated percentage of the electors of the county.  See, RCW 36.93.030.  The function of these boards is that of reviewing and approving, disapproving or modifying the following local governmental actions, as set forth in RCW 36.93.090:
 
            "(1) The creation, dissolution, incorporation, disincorporation, consolidation, or change in the boundary of any city, town, or special purpose district; or
 
            "(2) The assumption by any city or town of all or part of the assets, facilities, or indebtedness of a special purpose district which lies partially within such city or town; or
 
             [[Orig. Op. Page 2]]
            "(3) The establishment of or change in the boundaries of a mutual water and sewer system or separate sewer system by a water district pursuant to RCW 57.08.065; or
 
            "(4) The extension of permanent water or sewer service outside of its existing corporate boundaries by a city, town, or special purpose district."
 
            The composition of a boundary review board is dependent upon the classification of the county in which it has been established and is operating.  See, RCW 36.93.050 and 36.93.060.  However, irrespective of the number of members of the board in a given county, or the particular formula to be followed in selecting them, these sections provide that all of the members of such a board are to be appointed by the governor for fixed terms as described therein.  In addition, the governor is vested with responsibility under RCW 36.93.050 for making such further appointments as are necessary to fill vacancies occurring by reason of any mid-term resignations or other causes of vacancy.
 
            RCW 84.64.080 relates to property tax foreclosure sales by counties.  This statute provides, in material part, that:
 
            ". . .
 
            "No county officer or employee shall directly or indirectly be a purchaser of such property at such sale."
 
            Your question is whether a member of a boundary review board should board should be deemed to be a "county officer" within the meaning of this statute so as to be prohibited from being a purchaser at a county tax foreclosure sale.  In phrasing this question you have excluded any possibility that a member of a boundary review board is a county employee under RCW 84.64.080 ‑ and we most certainly agree with this.  Under the rules which have been established by our supreme court for determining whether an individual is a public officer rather than an employee (see, e.g., State ex rel. Brown v. Blew, 20 Wn.2d 47, 145 P.2d 554 (1944), the members of these boards are clearly officers; the only question is whether they are county officers or state officers.
 
             [[Orig. Op. Page 3]]
            In considering this question, we note, first, that the functions performed by a boundary review board are more in the nature of state functions than they are functions of a county.  It is the state, and not the various counties, which possesses plenary power over the creation of such lesser governmental units or special purpose districts as are subject to the jurisdiction of a boundary review board.  See, Washington Constitution, Article XI, § 10; accord, Misich v. McGuire, 24 Wn.2d 758, 167 P.2d 462 (1946), and authorities cited therein; also 2 McQuillin, Municipal Corporations (3rd ed.), §§ 4.01 et seq.
 
            In apparent recognition of this, we further note that by § 7, chapter 189, Laws of 1967 (RCW 36.03.070), the legislature has provided that legal counsel for boundary review boards is to be provided by the attorney general's office, unless such a board, at its option, desires that such counsel be provided by the prosecuting attorney of the county in which it is operating.  If the legislature had regarded the members of a boundary review board as county officers, created for the performance of county functions, it would, instead, presumably have remained silent on this point ‑ leaving the job of serving as legal counsel solely to the prosecuting attorney as provided in RCW 36.27.020 (2) under which a prosecuting attorney is required to serve as legal adviser "to all county . . . officers . . ."
 
            Another significant factor to be considered in determining the status of the members of a boundary review board ‑ in terms of whether or not they are county officers ‑ is the proposition that under Article XI, § 5 of our state Constitution, county officers are all supposed to be elective rather than appointive.  See, State ex rel. Egbert v. Bloomberg, 46 Wash. 270, 89 Pac. 708 (1907), in which a statute creating the office of county fruit inspector, to be appointed by the county commissioners for a term of two years, was held to be unconstitutional for this reason.  On the other hand, in State ex rel. Lopas v. Shagren, 91 Wash. 48, 157 Pac. 31 (1916), the court upheld the constitutionality of a later act of the legislature establishing "county game commissions" and "county game wardens" as appointive rather than elective officers because it found (as in the instant situation) that the function to be performed by the persons appointed to these offices was, essentially, a state rather than a county function.
 
             [[Orig. Op. Page 4]]
            Presumably the legislature was aware of this constitutional requirement when it provided for appointive boundary review boards through its enactment of the 1967 legislation here under consideration.  See, Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948).  Moreover, in any event, it is a well-settled rule that where a statute is open to two constructions, one of which will render it constitutional and the other unconstitutional or open to grave doubt in that respect, the former and not the latter is to be adopted.  See, e.g., Soundview Pulp Co. v. Taylor, 21 Wn.2d 261, 150 P.2d 839 (1944).
 
            Accordingly, both because of its functions and the method of selection of its members, we think there is ample reason to anticipate that a court in considering your question would conclude that the members of a boundary review board, even though exercising jurisdiction on a county rather than a state‑wide [[statewide]]basis, are, truly, state officers and not county officers.  For this reason, we answer your question in the negative.
 
            We trust that the foregoing information will be of assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
 
Philip H. Austin
Deputy Attorney General