OFFICES AND OFFICERS ‑- COUNTY ‑- PUBLIC DEFENDER ‑- ESTABLISHMENT OF PUBLIC DEFENDER'S OFFICE UNDER CHAPTER 36.26 RCW

OFFICES AND OFFICERS ‑- COUNTY ‑- PUBLIC DEFENDER ‑- ESTABLISHMENT OF PUBLIC DEFENDER'S OFFICE UNDER CHAPTER 36.26 RCW

(1) A county may establish a public defender's office without forming a public defender district pursuant to chapter 36.26 RCW.

(2) If a public defender district is formed pursuant to chapter 36.26 RCW, the public defender and other lawyers appointed thereunder will be county employees and not independent contractors.

(3) Because chapter 36.26 RCW contains no provision for the removal of a public defender appointed thereunder during his term of office, it is unclear whether he can be so removed; accordingly, clarifying legislation is recommended.

(4) A public defender district created pursuant to chapter 36.26 RCW may be terminated at any time by the process of repealing the county ordinances or resolutions by which the district was created.

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                                                                February 17, 1977

Honorable Jeffrey C. Sullivan
Prosecuting Attorney
Yakima County Court House
Yakima, Washington 98901

                                                                                                                   Cite as:  AGO 1977 No. 6

Dear Sir:

            By letter previously acknowledged you requested our opinion on several questions relating to the appointment of public defenders at the county level.  We paraphrase your questions as follows:

            (1) May a county establish a public defender's office without forming a public defender district pursuant to chapter 36.26 RCW?

             [[Orig. Op. Page 2]]

            (2) If a public defender district is formed pursuant to chapter 36.26 RCW, are the public defender and other lawyers then appointed thereunder county employees rather than independent contractors?

            (3) How may a public defender appointed pursuant to chapter 36.26 RCW be discharged or removed?

            (4) May a public defender district created pursuant to chapter 36.26 RCW be dissolved once it is formed and, if so, by what procedure?

            We answer questions (1) and (2) in the affirmative and questions (3) and (4) in the manner set forth in our analysis.

                                                                     ANALYSIS

            Chapter 36.26 RCW, which codifies the provisions of chapter 94, Laws of 1969, authorizes the establishment of "public defender districts" by the board of county commissioners of any single county or of any two or more contiguous counties.  Such districts, however, do not constitute independent political subdivisions but, instead, are more comparable to judicial districts under chapter 2.08 RCW.  In other words, the term "district" is used in the law merely to denote the geographic area served by a public defender appointed thereunder and not to describe a separate municipal corporation or political subdivision by which the public defender may be said to be employed.  See, RCW 36.26.010(2) which reads as follows:

            (2) 'District' or 'public defender district' means any one or more entire counties electing to employ a public defender; and no county shall be divided in the creation of any public defender district."

            For each such public defender district there is to be appointed a public defender and as many assistant public defenders as are deemed to be necessary.  Appointments of the former are to be made by a selection committee consisting of one member of each board of county commissioners involved, one member of the superior court from each county, and one practicing attorney from each county within the district.  See, RCW 36.26.030.  Every public defender and every assistant public defender (appointed, in turn, by the public defender under RCW 36.26.060(2), below) must be qualified attorney licensed to practice law in this state as provided  [[Orig. Op. Page 3]] for by RCW 36.26.040 which then goes on to state that ". . . the term of the public defender shall coincide with the elected term of the prosecuting attorney."

            Next to be noted is RCW 36.26.060 which reads as follows:

            "(1) The board of county commissioners shall:

            "(a) Fix the compensation of the public defender and of any staff appointed to assist him in the discharge of his duties:  Provided, That the compensation of the public defender shall not exceed that of the county prosecutor in those districts which comprise only one county;

            "(b) Provide office space, furniture, equipment and supplies for the use of the public defender suitable for the conduct of his office in the discharge of his duties, or provide an allowance in lieu of facilities and supplies.

            "(2) The public defender may appoint as many assistant attorney public defenders, clerks, investigators, stenographers and other employees as the board of county commissioners considers necessary in the discharge of his duties as a public defender."

            RCW 36.26.070 then provides that:

            "The public defender must represent, without charge to any accused, every indigent person who is or has been arrested or charged with a crime for which court appointed counsel for indigent defendants is required either under the Constitution of the United States or under the Constitution and laws of the state of Washington:

            "(1) If such arrested person or accused, having been apprised of his constitutional and statutory rights to counsel, requests the appointment of counsel to represent him; and

             [[Orig. Op. Page 4]]

            "(2) If a court, on its own motion or otherwise, does not appoint counsel to represent the accused under the provisions of RCW 10.01.110; and

            "(3) Unless the arrested person or accused, having been apprised of his right to counsel in open court, affirmatively rejects or intelligently repudiates his constitutional and statutory rights to be represented by counsel."

            RCW 36.26.090, however, qualifies the foregoing by providing as follows:

            "For good cause shown, or in any case involving a crime of widespread notoriety, the court may, upon its own motion or upon application of either the public defender or of the indigent accused, appoint an attorney other than the public defender to represent the accused at any stage of the proceedings or on appeal:  Provided, That the public defender may represent an accused, not an indigent, in any case of public notoriety where the court may find that adequate retained counsel is not available.  The court shall award, and the county in which the offense is alleged to have been committed shall pay, such attorney reasonable compensation and reimbursement for any expenses reasonably and necessarily incurred in the presentation of the accused's defense or appeal, in accordance with the provisions of RCW 10.01.110 and 10.01.112."

            Finally, RCW 36.26.900, codifying § 10 of chapter 94, supra, says that:

            "The provisions of this chapter shall be cumulative and nonexclusive and shall not affect any other remedy, particularly in counties electing not to create the office of public defender:  Provided, That nothing herein shall be construed to prevent the appointment of a full time or part time assigned-counsel administrator for the purpose of maintaining a centrally administered system for the assignment of counsel to represent indigent persons."

             [[Orig. Op. Page 5]]

            Question (1):

            The last of these several sections of the law, it seems to us, is entirely determinative of your first question.  It is clear that not only a power but a duty existed long before chapter 36.26 RCW was enacted in 1969 for a county to provide legal counsel at public expense for indigents in at least certain classes of criminal cases.  See, e.g., RCW 10.01.110 and such decisions interpreting and applying that statute asIn re Wilken v. Squier, 50 Wn.2d 58, 309 P.2d 746 (1957).  In addition, the right of an indigent defendant in a criminal case to legal counsel provided at public expense has an established constitutional base as well, both within our own state and under the federal constitution.  See,Argersinger v. Hamlin, 407 U.S. 25, 32 L.ed. [[L.Ed.]]2d 530, 92 S.Ct. 2006 (1972), and cases cited therein.  Thus, all that chapter 36.26 RCW represents, as we view it, is one particular, legislatively authorized, "tool" by which those counties desiring to do so may discharge their statutory and constitutional responsibilities in this regard.

            Question (2):

            In our opinion a public defender appointed pursuant to chapter 36.26 RCW is properly to be characterized as an "employee" of the county or counties which he serves. He may not, on the one hand, properly be labeled a county "officer" because of the fact that he is appointed rather than elected ‑ and Article XI, § 5 of our state constitution has been interpreted to prohibit the establishment of appointive county offices.  See,State ex rel. Johnston v. Melton, 192 Wash. 379, 73 P.2d 1334 (1937), and cases cited therein.  On the other hand there would appear to us to be no legal basis for characterizing a public defender appointed pursuant to chapter 36.26 RCW as an "independent contractor."  Note, in this regard, the following terminology appearing in RCW 36.26.010(2),supra, which defines the term "public defender district" as meaning

            ". . . any one or more entire counties electing to employ a public defender; . . ."  (Emphasis supplied.)

            That is not to say that a county, in providing legal services for indigents accused of crimes, may not, instead, utilize "independent contractors" to perform those services; i.e., attorneys retained in that manner rather than as regular county employees.  In our opinion, however, if and when a county elects to utilize the procedures set forth in chapter 36.36 RCW to perform this function, the resulting  [[Orig. Op. Page 6]] relationship between it and the public defender so designated will be that of "employer-employee."

            Question (3):

            But for the fact that RCW 36.26.040, supra, apparently contemplates a fixed term (concurrent with that of the prosecuting attorney) for any public defender appointed thereunder, our answer to your third question would be that a public defender appointed pursuant to chapter 36.26 RCW may be removed at any time by the same authority as appointed him; i.e., the selection committee provided for under RCW 36.26.030, supra.  Accord, 63 Am.Jur. 2d, Political Officers and Employees, § 179, and cases cited therein for the proposition that when the term or tenure of a public official is not fixed by law, and the removal is not governed by constitutional or statutory provisions, the power of removal is incident to the power to appoint.  Because of RCW 36.26.040, however, your question is somewhat more complicated.  Arguably because of that feature of the law a public defender appointed thereunder may only be removed or discharged for a specified cause under some statutory provision extrinsic to the provisions of chapter 36.26 RCW itself ‑ there being nothing contained therein covering the question.  On the other hand, because a public defender under this particular law must be deemed to be a mere employee and not a county officer, it could, as well, be argued in opposition that even though he ostensibly serves a fixed term, the public defender remains removable any any time during that term by the selection committee as appointing authority.  Undoubtedly, clarifying legislation on this point would be most desirable.

            Clearly, however, the principle that the power to discharge is implicit in the power to appoint is applicable to assistant public defenders appointed pursuant to RCW 36.26.060(2), supra.  In their case, no fixed term is provided for and thus all such assistants serve at the pleasure of the appointing authority; in this case, however, the appointing authority is the public defender himself and not the selection committee provided for in RCW 36.26.030,supra.

            Question (4):

            Finally, it is our opinion that a public defender district created pursuant to chapter 36.26 RCW may, by the same token, be terminated at any time by the simple process of repealing the county ordinances or resolutions by which  [[Orig. Op. Page 7]] the district was created in the first place.  While it is true that in the case of true political subdivisions, dissolution (like creation) requires specific legislative authorization, we do not deem that principle to be applicable here because, as above indicated, we do not regard a public defender district as being a separate municipality or political subdivision.  Therefore, like any other position created by municipal ordinance, that of a public defender under chapter 36.26 RCW may be abolished at any time by an appropriate legislative act of its creator.  Accord, 63 Am.Jur. 2d, Public Officers and Employees, § 185,supra.  And this, of course, would also provide a means of removing a public defender even against his will in the event that a court were to hold that, because of the "fixed term" feature of RCW 36.26.030, supra, removal in any other manner is not authorized.

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

Very truly yours,

SLADE GORTON
Attorney General

KEVIN M. RYAN
Assistant Attorney General