OFFICES AND OFFICERS - COUNTY - SHERIFF - LIABILITY FOR ACTS OF HIS DEPUTIES UNDER INITIATIVE 23

OFFICES AND OFFICERS - COUNTY - SHERIFF - LIABILITY FOR ACTS OF HIS DEPUTIES UNDER INITIATIVE 23.

A county sheriff is no longer liable for the acts of his deputies who are in the classified service since the enactment of Initiative 23; but he is liable for acts of his deputies who are not in the classified service.

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                                                                    June 5, 1959

Honorable John G. McCutcheon
Prosecuting Attorney
Pierce County
County-City Building
Tacoma, Washington                                                                                        Cite as:  AGO 59-60 No. 44

Attention:  !ttMr. Keith D. McGoffin,Chief Civil Deputy

Dear Sir:

            You have requested an opinion from this office on a question which we paraphrase as follows:

            Is a county sheriff liable for the acts of his deputies since the enactment of Initiative No. 23?

            In our opinion, a county sheriff is no longer liable for the acts of his deputies who are in the classified service, but he is liable for the acts of deputies who are not in the classified service.

                                                                     ANALYSIS

            The authority for the sheriff to appoint deputies and the imposition of responsibility for their acts is found in § 2767, Code of 1881 [which has never been further codified in the Revised Code of Washington, although its provisions have been carried forward in RCW 36.16.070 and RCW 36.28.020] which reads:

             [[Orig. Op. Page 2]]

            "Eachsheriff may appoint as many deputies as he may think proper, for whose official acts he shall be responsible to the amount of their bond, andmay revoke such appointments at his pleasure; and persons may also be deputed by any sheriff, in writing, to do particular acts; and the sheriff shall be responsible on his official bond for the default or misconduct in office of his deputies."  (Emphasis supplied.)

            The section above quoted has been held to be in affirmance of the common law except insofar as itlimits the liability of the sheriff to the amount of his bond.  Coles v. McNamara, 131 Wash. 377, 230 Pac. 430 (1924); Kusah v. McCorkle, 100 Wash. 318, 170 Pac. 1023 (1918).  Both at common law and under the § 2767 the sheriff had complete freedom of choice in the selection of deputies, and he possessed authority to summarily revoke their appointments at pleasure.  80 C.J.S., Sheriffs and Constables, § 22; 47 Am.Jur., Sheriffs, Police and Constables, 930, § 154; 1 Anderson on Sheriffs, Coroners and Constables, 65, 76, 77, §§ 72 and 85.

            It appears to us, then, that the precise issue to be resolved, in order to answer your question, is whether § 2767, Code of 1881, can be construed to affect civil service deputies or whether it is limited to deputies who serve at the pleasure of the sheriff, as they were known at common law and as the legislature understood the nature of their appointment at the time of enacting the statute.

            In resolving this issue primary recourse should be had to the legislative intent or will exhibited by the statutory language used, interpreted in terms of the general purpose of the act.  Guinness v. State, 40 Wn. (2d) 677, 246 P. (2d) 433 (1952); Hatzenbuhler v. Harrison, 49 Wn. (2d) 691, 306 P. (2d) 745 (1957).

            We are of the opinion that the intent and purpose of the legislature as indicated by the language of § 2767 was to make the sheriff liable for deputies who were freely chosen by the sheriff and whose appointment could be revoked at his pleasure.  It is our belief that the status of deputy sheriffs now affected by the terms of Initiative No. 23 is sufficiently altered that they cannot be considered as deputies in the same sense as that term was understood at common law and as it was used by the legislature in enacting § 2767.

            Initiative No. 23 establishes a county civil service commission for the purpose of conducting examinations and selecting applicants eligible to appointment in the classified civil service.

             [[Orig. Op. Page 3]]

            Section 6 (7) of the act makes it the duty of the commission

            "To certify to the appointing authority, when a vacant position is to be filled, on written request, the name of the person highest on the eligible list for the class. . . ."

            Section 7 of the initiative provides that the classified service and the provisions of the initiative shall include all deputy sheriffs and other employees of the office of sheriff in each county, except certain expressly designated positions.

            Section 11 provides in part:

            "Thetenure of every person holding an office, place, position, or employment under the provisions of this act shall be only during good behavior, . . ."  (Emphasis supplied.)

            The section then enumerates the causes for which any person in the classified service may be removed or discharged.

            Section 12 provides, in part, as follows:

            "No person in the classified civil service who has been permanently appointed or inducted into civil service under provisions of this act,shall be removed, suspended, or demoted except for cause, and only upon written accusation of the appointing power or any citizen or taxpayer; . . . Any person so removed, suspended, or demoted may within ten days from the time of his removal, suspension, or demotion, file with the commission a written demand for an investigation, whereupon the commission shall conduct such investigation. . . . After such investigation the commission may affirm the removal, or if it finds that removal, suspension, or demotion was not made in good faith for cause, shall order the immediate reinstatement or reemployment of such person . . ."  (Emphasis supplied.)

            Section 13 provides, in part, as follows:

            "Whenever a position in the classified service becomes vacant, the appointing power, if it desires to fill the vacancy, shall requisition the commission for the name and address of a person eligible for appointment thereto.

             [[Orig. Op. Page 4]]

            The commission shall certifythe name of the person highest on the eligible list for the class to which the vacant position has been allocated, who is willing to accept employment. . . . Theappointing power shall forthwith appoint such person to the vacant position.

            "To enable the appointing power to exercise a choice in the filling of positions, no appointment, employment, or promotion in any position in the classified service shall be deemed complete until after the expiration of a period of one year's probationary service, . . . during which the appointing power may terminate the employment of the person certified to him, if during the performance test thus afforded, upon observation or consideration of the performance of duty, the appointing power deems him unfit or unsatisfactory for service in the office of county sheriff. . . ."  (Emphasis supplied.)

            Under Initiative No. 23 county sheriffs no longer have complete freedom of choice in the selection of deputies.  The civil service commission determines the qualification of applicants for the office of deputy sheriff.  The sheriff has no choice but to accept the one name certified to him in the event of a vacancy.  What choice is left him must be exercised negatively; it is in the nature of a veto.  If during the one year probationary period the sheriff deems the candidate unfit for service, he may terminate his employment, at which time he must accept the next name certified to him by the commission.

            Initiative No. 23 amounts, therefore, to an obvious limitation of the sheriff's power to freely appoint, and revoke at pleasure the appointment of, deputies.

            As to those deputies who are in the unclassified service and who are unaffected by the provisions of the initiative (by virtue of § 7), § 2767 is clearly still applicable in all respects, since their status is not altered by the initiative.  It is equally clear that § 2767 is no longer applicable to deputies in the classified service to the extent that they no longer serve at the pleasure of the sheriff.

            In view of the purpose and intent of § 2767, Code of 1881, we are constrained to conclude that the limitation of the sheriff's authority to appoint and dismiss deputies at pleasure must carry with it a corresponding limitation in the sheriff's liability for acts of his deputies.

            This view is in accordance with several decisions of our state supreme court.

             [[Orig. Op. Page 5]]

            InState ex rel. Day v. King County, 50 Wn. (2d) 427, 430, 312 P. (2d) 637 (1957), holding that the Veterans Preference Act did not apply to deputy sheriffs, the supreme court said:

            ". . . The legislature specifically endowed the sheriff with the power to remove his deputies at will, for it made both the sheriff and the surety on his bond liable for their acts. . . .

            ". . . If the law requires that officer to assume both political and financial responsibility for the acts of his deputies, the law-making power acted both justly and wisely in endowing him with the power of appointment and removal.  No limitation on that power will be imputed to the legislative branch of the government unless apt terms are employed manifesting such an intention, andsurely such an intention cannot be imputed without a corresponding limitation of the sheriff's liability for the acts of his deputies. . . ."  (Emphasis supplied.)

            Earlier inKusah v. McCorkle, supra, the court used the following language, at page 325, in discussing the liability of the sheriff for the acts of his deputies:

            "The sheriff, being responsible for reasonable care in the selection of his deputies, is responsible also for the negligence of a deputy in the performance of his duty as such. . . ."  (Emphasis supplied.)

            The court inPavish v. Meyers, 129 Wash. 605, 612, 225 Pac. 633 (1924), held that a police chief was not liable for the acts of individual police officers, and in so doing it said:

            ". . . the courts have very generally drawn a distinction between a sheriff and a chief of police, holding that the deputies of the former areselected by the sheriff and act purely as his representatives, but that police officers are generally not selected exclusively by the chief of police, . . .

            "The rule announced is particularly applicable where police officers are under civil service regulations and the chief of police has only a limited power of appointment. . . . It would be a very harsh doctrine to hold a chief of police liable for the misconduct of a policeman whom he has not had a free hand in appointing. . . ."  (Emphasis supplied.)

             [[Orig. Op. Page 6]]

            While admittedly the cases cited are not controlling on the precise question in issue, their reasoning is persuasive as to the construction of § 2767, Code of 1881, as intending to make the sheriff liable only for the acts of deputies who serve at his pleasure.

            We trust the foregoing will satisfactorily answer your questions.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

GERALD F. COLLIER
Assistant Attorney General