OFFICES AND OFFICERS - COUNTIES - FIRST, SECOND OR THIRD CLASS - SHERIFF - APPOINTMENTS OUTSIDE CLASSIFIED CIVIL SERVICE - JAILER - HEAD JAILER

OFFICES AND OFFICERS - COUNTIES - FIRST, SECOND OR THIRD CLASS - SHERIFF - APPOINTMENTS OUTSIDE CLASSIFIED CIVIL SERVICE - JAILER - HEAD JAILER.

The only positions which are outside the classified civil service in the sheriff's office of a first, second or third class county are the positions of sheriff and three principal positions comparable to undersheriff, a chief criminal deputy and a chief civil deputy; accordingly, the sheriff of such a county may not fill the position of jailer or head jailer by appointment outside the classified civil service except to the extent that he may designate himself, or his undersheriff, chief criminal deputy or chief civil deputy as jailer or head jailer.

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                                                                  March 15, 1967

Honorable Herbert H. Davis
Prosecuting Attorney
Benton County
1112 Meade Avenue
Prosser, Washington 99350

                                                                                                                   Cite as:  AGO 1967 No. 9

Dear Sir:

            We are in receipt of your letter dated January 23, 1967, by which you have requested an opinion of this office on a question which we paraphrase as follows:

            May the sheriff of one of the classes of county to which subsection (3) of RCW 41.14.070 applies utilize the provisions of this statute in such a manner as to fill the position of jailer or head jailer by appointment made outside the classified civil service?

            We answer your question in the negative subject to the qualifications set forth in our analysis.

                                                                     ANALYSIS

            Your question involves the application of one of the provisions of the act relating to civil service for county deputy sheriffs and other employees of the office of county sheriff.  This act, designated chapter 1, Laws of 1959, was submitted to the voters at the November 4, 1958, state general election after the 1957 legislature, to which the measure had been submitted as Initiative No. 23, had failed to take any final action.   [[Orig. Op. Page 2]] A majority of the voters approved the measure, and it became a part of the laws of this state in accordance with the provisions of Article II, § 1 (Amendment 7) to the state constitution.

            The act is now codified as chapter 41.14 RCW.

            Section 1 (RCW 41.14.010) contains the following general declaration of purpose:

            "The general purpose of this act is to establish a merit system of employment for county deputy sheriffs and other employees of the office of county sheriff, thereby raising the standards and efficiency of such offices and law enforcement in general."

            With regard to employment, the crucial term used throughout the act is the term "classified service."  Section 8 (RCW 41.14.080) provides that:

            "All appointments to and promotions to positions in the classified civil service of the office of county sheriff shall be made solely on merit, efficiency, and fitness, which shall be ascertained by open competitive examination and impartial investigation.  No person in the classified civil service shall be reinstated in or transferred, suspended, or discharged from any such place, position, or employment contrary to the provisions of this act."

            The immediately preceding section, § 7 (RCW 41.14.070) to which you have referred, distinguishes between classified and unclassified positions as follows:

            "The classified civil service and provisions of this act shall include all deputy sheriffs and other employees of the office of sheriff in each county except the following positions which are hereby designated the unclassified service:

            "(1) The county sheriff in every county;

             [[Orig. Op. Page 3]]

            "(2) In each class A and class AA county; the positions of undersheriff, inspector, chief criminal deputy, chief civil deputy, jail superintendent, and one private secretary;

            "(3)In each county of the first class, second class, and third class; three principal positions comparable to undersheriff, a chief criminal deputy, and a chief civil deputy;

            "(4) In each of all other counties; one position to be appointed by the sheriff."  (Emphasis supplied.)

            You have indicated that your particular question relates to the applicability of subsection (3), which applies in counties of the first class, second class, and third class.  Your question is whether the sheriff of such a county can appoint a person to the position of jailer or head jailer without complying with the provisions of RCW 41.14.080,supra, relative to appointments to positions in the classified civil service.

            We answer in the negative.  The only three nonclassified positions, in addition to the position of sheriff itself, in a county of the first class, second class, or third class, are the positions of undersheriff, chief criminal deputy, and chief civil deputy, or positions comparable thereto.  We cannot conceive that the position of jailer or head jailer comes within the purview of this statute.

            The governing statute with regard to the jailer of a county jail is RCW 36.63.030, which provides:

            "The jailer or keeper of the jail, unless the sheriff elects to act as jailer in person, shall be a deputy appointed by the sheriff, and such jailer shall take the necessary oath before entering upon the duties of his office.  The sheriff shall in all cases be liable for the negligence and misconduct of the jailer as of other deputies."

            Of course, it would be possible for the sheriff himself to act as jailer in the county in question; if he were to do so, then the result would be that the jailer would be a person outside  [[Orig. Op. Page 4]] the classified service in the particular county.  Likewise, the sheriff could designate his undersheriff, chief criminal deputy, or chief civil deputy (one of the unclassified positions enumerated in subsection (3) of RCW 41.14.070,supra) as jailer with like result.  However, as we understand your question, it is not whether the sheriff himself, or his undersheriff, chief criminal deputy, or chief civil deputy can be appointed as jailer.  Rather, as we understand it, you are asking whether the sheriff, in a county to which subsection (3) applies, can substitute the position of jailer for one of the three designated unclassified positions and thereby, without designating the person in question as undersheriff, chief criminal deputy, or chief civil deputy, appoint a person to the position of jailer without compliance with RCW 41.14.080, supra.

            As we have indicated, our answer to this question is in the negative.  In reaching this conclusion we are particularly influenced by the contrasting provisions of subsection (2) of RCW 41.14.070.  This subsection, relating to class A and class AA counties, excludes from the classified service:

            ". . . the positions of undersheriff, inspector, chief criminal deputy, chief civil deputy,jail superintendent, and one private secretary;" (Emphasis supplied.)

            Thus, it seems clear that the framers of the law viewed the position of jailer, or jail superintendent (as the case may be) as a position separate and apart from such positions as undersheriff, chief criminal deputy, and chief civil deputy.  The framers expressly listed the jail superintendent as one of the excluded positions in the case of class A and class AA counties; however, the position of jail superintendent was not thus included in the case of counties of the first class, second class, and third class.

            Under the circumstances, we believe the appropriate rule of statutory construction is the well-known maxim expressio unius est exclusio alterius.  See, Yelle v. Bishop, 55 Wn.2d 286, 347 P.2d 1081 (1959), and authorities cited therein.

            Accordingly, subject to the qualifications above indicated (relative to the sheriff himself, or his undersheriff, chief criminal deputy, or chief civil deputy serving in the dual capacity as county jailer), we answer your question, as paraphrased, in the negative.

             [[Orig. Op. Page 5]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General