OFFICES AND OFFICERS ‑- COUNTY COMMISSIONERS ‑- AUTHORITY TO RENT ROAD EQUIPMENT

OFFICES AND OFFICERS ‑- COUNTY COMMISSIONERS ‑- AUTHORITY TO RENT ROAD EQUIPMENT.

1. The board of county commissioners has the authority to rent county road equipment to (a) the United States department of agriculture forest service; (b) bureau of Indian affairs of the United States department of the interior; (c) state of Washington, department of natural resources; and (d) a fire protection district, to be used for fire suppression purposes.

2. The board of county commissioners may not rent county road equipment to a private organization such as a grange or cattlemen's association.

3. The board of county commissioners may by contract bind the county to furnish equipment operators to be compensated by the agency of the federal government, or a fire protection district, where equipment is rented to such an agency or district.  The county may not however enter into such an agreement with the department of natural resources of the state of Washington.

4. The board of county commissioners is empowered to authorize the sheriff to utilize county prisoners, on a voluntary basis, for fire suppression purposes subject to general regulations promulgated by the superior court judges under RCW 36.63.060.

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                                                               November 14, 1961

Honorable John Hancock
Prosecuting Attorney
Okanogan County
Hancock Building
Okanogan, Washington

                                                                                                                Cite as:  AGO 61-62 No. 76

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on questions which we paraphrase as follows:

            1. May a board of county commissioners rent county road equipment to the United States Department of Agriculture Forest Service to be used for fire suppression purposes?

            2. May county road equipment similarly be rented to:  (a) The Bureau of Indian Affairs of the United States of America Department of the  [[Orig. Op. Page 2]] Interior; (b) the State of Washington Department of Natural Resources; (c) a fire protection district; or (d) a grange or cattlemen's association?

            3. Assuming affirmative answers to the above questions, or portions thereof, may the county commissioners also bind the county to furnish equipment operators, to be compensated by the forest service or other renting agency, to operate the equipment?

            4. May a board of county commissioners authorize the sheriff to utilize county prisoners, on a voluntary basis, for fire suppression purposes?

            We answer your first and fourth questions, and parts (a) through (c) of your second question, in the affirmative.  Part (d) of your second question must be answered in the negative.  We answer your third question as set forth in our analysis.

                                                                     ANALYSIS

            It is elementary that a board of county commissioners, as the governing body of a county, has only such powers as have been expressly granted to it, or as are necessarily to be implied from the expressly granted powers.  Sasse v. King County, 196 Wash. 242, 82 P. (2d) 536 (1938), and cases cited therein.

            Responsibility for the care of county property, generally, is vested in "the several boards of county commissioners" by RCW 36.32.120 (6).  With regard to your first two questions, specific authority for the rental of county road equipment is expressly granted by RCW 36.82.220, reading in pertinent part as follows:

            "County road equipment or materials owned by the equipment rental and revolving fund may be rented or sold to any agency of the United States of America, the state of Washington, and/or to any other county, city, town, or other municipal corporation.  The proceeds of such rental or sale shall be placed in the equipment rental and revolving fund."

            In our opinion, this statute clearly authorizes a board of county commissioners to rent such county road equipment as is owned by the equipment rental and revolving fund, for fire suppression purposes, to the United States Department of Agriculture Forest Service, the Bureau of Indian Affairs of the United States Department of the Interior, the State of Washington Department of Natural Resources or a fire protection district (such being a municipal corporation "within the provisions of the laws and constitution of the state of Washington."   [[Orig. Op. Page 3]] see, RCW 52.08.010).

            However, the rental of county road equipment to a private organization such as a grange or cattlemen's association would be beyond the scope of the authority granted.  This statute, enacted by the legislature in 1949 (§ 1, chapter 156, Laws of 1949), does not include the use of county road equipment for private purposes.  AGO 53-55 No. 40 [[to Prosecuting Attorney, Pacific County on May 4, 1953]], a copy of which is herein enclosed.

            Your third question arises, we understand, because the proposed equipment rental agreement between Okanogan county and the United States Department of Agriculture Forest Service, a copy of which you have submitted, calls for the equipment owner to furnish equipment operators, said operators however to be paid by the forest service.  As between a county and the United States Forest Service, or the United States Department of Interior Bureau of Indian Affairs, such an arrangement appears to be authorized by RCW 41.04.150, reading as follows:

            "A state agency may enter into agreements with departments or other subdivisions of the federal government for the interchange of personnel on projects which are of mutual benefit to the state and federal government.

            "An interchange agreement shall specify the fiscal arrangements to be made, including compensations, rights, benefits and obligations of the employees concerned, travel and transportation of employees, their immediate families and household goods, and the duties and supervision of employees while on assignment."

            We believe this provision to be applicable to counties because, under RCW 41.04.140, the term "state agency" is defined to mean "a board, department, commission or institution of the stateor its political subdivisions."  (Emphasis supplied.)

            As for such an arrangement between the county and a fire protection district, RCW 52.08.030 (3) provides, in pertinent part, that:

            ". . . Any city, town, municipal corporation or governmental agency may contract with a county fire protection district established and maintained under the provisions of this act for the purpose of affording such district fire fighting and protection equipment and service or fire prevention facilities, and in so contracting the district, city, town, municipal corporation or other governmental agency shall be deemed for all  [[Orig. Op. Page 4]] purposes to act within its governmental capacity. . . ."  (Emphasis supplied.)

            Under this statutory provision we believe that a county renting road equipment to a fire protection district may also agree to furnish personnel to operate the equipment while being used for fire suppression purposes by the renting district.

            However, we have not found any statutory authority which would allow a county renting road equipment to the state department of natural resources to also agree to furnish operators for the equipment.  The commissioner of public lands and state forest wardens are authorized to employ and compensate ". . . a sufficient number of men to extinguish or prevent the spreading of any fires that may be in danger of destroying any valuable timber or other property of the state."  The same statute also provides that "Any person refusing to render assistance when called upon by any warden, shall be guilty of a misdemeanor, and shall be punished by a fine of not less than ten dollars nor more than one hundred dollars."  See, RCW 76.04.180.

            Thus, in our opinion, county employees may be employed by the state to fight forest fires, and may be compensated by the state for such services.  Further, the refusal of any person to render assistance when properly called upon to do so subjects such person to a criminal penalty.  However, in the absence of statutory authority, we must conclude that a board of county commissioners may not bind the county, by contract, to provide fire fighting personnel, including operators of county road equipment rented to the state department of natural resources.

            Finally, with regard to your fourth question (relating to the use, on a voluntary basis, of county prisoners for fire suppression purposes), the basic statute on employment of prisoners is RCW 36.28.100, providing as follows:

            "The sheriff shall employ all male persons sentenced to imprisonment in the county jail in such manner and at such places within the county as may be directed by the board of county commissioners."

            However, in AGO 51-53 No. 145, dated October 3, 1951 [[to Prosecuting Attorney, Okanogan County]], a copy of which is herein enclosed, this office expressed the view that RCW 36.28.100, supra, is limited by RCW 9.92.140, providing as follows:

            "When a person has been sentenced by a justice of the peace, or a judge of the superior court,  [[Orig. Op. Page 5]] to a term of imprisonment in the county jail, whether in default of payment of a fine, or costs or otherwise; such personmay be compelled to work eight hours, each day of such term, in and about the county buildings, public roads, streets and grounds:  Provided, This section and RCW 9.92.130 shall not apply to persons committed in default of bail."  (Emphasis supplied.)

            Note should also be made of RCW 36.63.170, providing that "No person accused of an offense shallbefore conviction be put to any employment while confined in any place of detention."  (Emphasis supplied.)

            Construing RCW 36.28.100, supra, and RCW 9.92.140, supra, together, we concluded in AGO 51-53 No. 145,supra, that convicted prisoners in county jails may be compelled by the sheriff to work (1) not more than eight hours a day, (2) on public roads, county buildings, and county grounds, (3) at places designated by the county commissioners which would include the county jail itself (kitchen, etc.), (4) under general regulations promulgated by the superior court judges.  However in that opinion we considered only compulsory employment.  While forest fire suppression would appear to be beyond the authorized area of compulsory employment of county prisoners, we can perceive no reason why, under RCW 36.28.100,supra, a board of county commissioners might not direct the sheriff to employ "male persons sentenced to imprisonment in the county jail," on avoluntary basis, for forest fire suppression.  Consequently, we answer your fourth question in the affirmative.

            One qualification should be made to this answer.  As in the case of compulsory employment of convicted county prisoners pursuant to RCW 9.92.140,supra, (as construed in AGO 51-53 No. 145, supra,) the voluntary employment of prisoners is, we suggest, subject to general regulations promulgated by the superior court judges.  See, RCW 36.63.060.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General