OFFICES AND OFFICERS ‑- COUNTY ‑- SHERIFF ‑- ROAD PATROLMAN AS SUBJECT TO CIVIL SERVICE

OFFICES AND OFFICERS ‑- COUNTY ‑- SHERIFF ‑- ROAD PATROLMAN AS SUBJECT TO CIVIL SERVICE

A road patrolman employed in a dual capacity by the county commissioners and the county sheriff and who was appointed deputy sheriff prior to the effective date of Initiative No. 23 is covered by the provisions of chapter 41.14 RCW, the civil service act for sheriffs.

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                                                                    May 2, 1961

Honorable Wayne Roethler
Prosecuting Attorney
Cowlitz County
Kelso, Washington

                                                                                                                Cite as:  AGO 61-62 No. 26

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            Is a road patrolman who was initially employed by the county commissioners but who was appointed a deputy sheriff and whose duties consist in the main of patrolling the county roads to apprehend traffic violators, directing traffic, and advising the county commissioners of the condition of county roads, covered by the provisions of chapter 41.14 RCW, the civil service act for sheriffs?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            You have advised us that the factual situation upon which you base your request for an opinion is as follows:

            "Some years ago and prior to the enactment of the aforesaid civil service act, the Cowlitz County Commissioners employed an individual for the position of 'Road Patrolman'.  At the time of his employment and at all times thereafter until the  [[Orig. Op. Page 2]] present date, he has carried a deputy sheriff's commission supplied by the Cowlitz County Sheriff.  The Road Patrolman's salary is paid from the County Road Fund.

            "The sheriff at no time has claimed the right to direct the activities of the Road Patrolman, although if the Road Patrolman did some act which the sheriff felt would bring discredit upon the sheriff or his office, the sheriff would no doubt cancel his deputy sheriff's commission.

            "The Road Patrolman operates a vehicle furnished by the County Road Department which bears upon its side a police emblem with the name 'Cowlitz County Sheriff'.  The vehicle is equipped with a red light and siren.

            "The Road Patrolman wears a uniform similar to the ones worn by the sheriff's deputies, and carries a revolver and badge.

            "The primary duties of the Road Patrolman are, (1) to advise the County Commissioners of the condition of the roads in and about the county, post warning signs wherever needed and help direct traffic as needed, and (2) to patrol the roads for the purpose of apprehending traffic violators.

            "During the course of a year's time, the Road Patrolman has arrested numerous people for violations of the traffic code and the county ordinances."

            From the factual situation you have described, it is apparent that such person was not employed solely by the County Commissioners, but rather was employed in a dual capacity so that his employment was actually twofold.  As we shall demonstrate below, the road patrolman, insofar as his employment relates to police duties, must be deemed to have been employed by, and an employee of, the sheriff.

            According to your letter, the person in question was commissioned (appointed) by the sheriff as a deputy sheriff at the time his services were initially engaged and has continued to hold such appointment to the present date.  Bearing in mind that the appointment was effected prior to the implementation of the civil service initiative (Initiative No. 23, effective December 4,  [[Orig. Op. Page 3]] 1958) it was therefore accomplished pursuant to the authority granted by RCW 36.16.070, which provides in material part as follows:

            "In all cases where the duties of any county office are greater than can be performed by the person elected to fill it, the officer may employ deputies and other necessary employeeswith the consent of the board of county commissioners.  The board shall fix their compensation and shall require what deputies shall give bond and the amount of bond required from each. . . .

            "A deputy may perform any act which his principal is authorized to perform.  The officer appointing a deputy or other employee shall be responsible for the acts of his appointees upon his official bond. . . ." (Emphasis supplied.)

            Under the provisions just cited, it has been held that the Board of County Commissioners, while authorized to fix the number of deputy sheriffs to be employed and their salaries, has no appointive authority.  Thomas v. Whatcom County, 82 Wash. 113, 143 Pac. 881 (1914).  The power to appoint deputy sheriffs is vested exclusively in the sheriff.  State ex rel. Day v. King County, 50 Wn. (2d) 427, 312 P. (2d) 637 (1957);Jackson v. Thurston County, 127 Wash. 41, 219 Pac. 840 (1923).  A deputy sheriff is not a county servant, but rather is a public officer who acts in the name and stead of the sheriff.  State ex rel. Day v. King County, supra; Pavish v. Meyers, 129 Wash. 605, 225 Pac. 633 (1924);Carter v. King County, 120 Wash. 536, 208 Pac. 5 (1922).

            The fact that such person occupies the position of a "road patrolman;" that his salary is paid from the county road fund; or that the sheriff has never claimed or exercised the right to control or direct his activities, does not place him in a different legal position.

            Judging from the duties thereof, as detailed in the fifth paragraph of that portion of your letter quoted herein, the position of road patrolman insofar as it entails the performance of police duties could just as appropriately be entitled "traffic patrolman."  In this respect, it is worthy of note that our court has expressly recognized that the duties of a traffic patrolman properly fall within the province of the sheriff's office.  SeeJackson v. Thurston County, supra.  In accord, see People v. Cermak, 239 Ill. App. 195, 148 N.E. 382 (1925).

             [[Orig. Op. Page 4]]

            Nor is the source of compensation in any way decisive to our consideration here.  InCarter v. King County, supra, it was urged that a deputy sheriff, whose duty was to drive the sheriff's car, was an employee and servant of the county because he was paid by the county.  In response thereto the court stated:

            ". . . The fact that the driver was paid by King county does not constitute him a servant or agent of King county.  That is a test the least conclusive.  The test always is, to whom is the person in question subject as to the manner in which he shall do his work?  The master is the one who can not only order the work, but also order how it shall be done.  [Citations omitted]"  (p. 539-540)

            In other words, the power of control is the test of the relation of master and servant.  The fact that the sheriff never claimed or exercised such power is of no legal significance.  It is the existence, and not the exercise, of such power that controls and the sheriff alone is vested with the power to control his deputies in the manner and performance of their work.  Carter v. King County, supra.

            Thus, with respect to the duties of directing traffic and apprehending traffic violators, it is manifest, under the established law of this state, that the person in question was employed by the sheriff rather than the county.

            Parenthetically, we note that any attempt by the County Commissioners to clothe a road patrolman with law enforcement powers would be unconstitutional.  InState ex rel. Johnston v. Melton, 192 Wash. 379, 73 P. (2d) 1334 (1937), our court held, under Article XI, § 5 (12th Amendment) of the Washington State Constitution, that the sheriff, being an elective officer, was vested with exclusive law enforcement powers in local matters so that a statute was unconstitutional which purported to authorize the various prosecuting attorneys to appoint county law enforcement officers with the same authority to make arrests as the sheriff.

            Accordingly, this office, by an opinion dated May 8, 1947 [[1947-48 OAG 35b]], advised the Prosecuting Attorney of Thurston County that a proposed ordinance authorizing the county to employ a highway patrolman with authority to enforce the county ordinances would be unconstitutional.

            The same situation, of course, does not obtain here since, as we have already indicated, the person in question derives his law  [[Orig. Op. Page 5]] enforcement powers by virtue of his appointment as a deputy sheriff and not through his employment by the county as a road patrolman.

            Chapter 41.14 RCW (chapter 1, Laws of 1959; Initiative No. 23), provides for civil service in the sheriff's office.  The scope of its application is clearly delineated in RCW 41.14.070 as follows:

            "The classified civil service and provisions of this chapter shall includeall 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;

            "(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 principle 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.)

            From the text and tenor of your letter, we assume that the person in question does not fall within any of the four categories excepted from civil service by RCW 41.14.070,supra, and further, that he held his appointment as a deputy sheriff for a continuous period of six months prior to December 4, 1958, the effective date of Initiative No. 23.  Thus, the situation presented here falls directly within the province of RCW 41.14.090, which provides:

            "For the benefit of the public service and to prevent delay, injury, or interruption therein by reason of the enactment hereof, all persons holding a position which is deemed classified by RCW 41.14.070 for a continuous period of six months prior to the effective date of this act, are eligible for permanent appointment under civil service to the offices, places, positions, or employments which they then held without examination or other act on their part,  [[Orig. Op. Page 6]] and not on probation;and every such person is automatically adopted and inducted permanently into civil service, into the office, place, position, or employment which he then held as completely and effectually to all intents and purposes as if such person had been permanently appointed thereto under civil service after examination and investigation."  (Emphasis supplied.)

            A complete disposition of this matter necessitates an inquiry into the legal propriety of providing compensation solely from the county road fund.

            Section 2, chapter 82, Laws of 1943 (cf. RCW 36.82.010 through 36.82.030, inclusive), creates the county road fund and provides in part:

            ". . . Any funds which may hereafter accrue to the credit of the secondary highway fund, general road and bridge fund, road district fundor any other fund of any county for use upon roads herein classified as county roads, shall be credited to and deposited in the county road fund of such county.  Any funds accruing to and to be deposited in the county road fund arising from any levy in any road districtshall be expended for proper county road purposes. . ." (Emphasis supplied.)

            RCW 36.82.050 directs that funds accruing to the credit of any county from the motor vehicle fund shall be deposited in the county road fund.  It is then provided in RCW 36.82.070:

            "Any money paid to any county from the motor vehicle fund may be used for the construction, alteration, repair, improvement, or maintenance of county roads and bridges thereon and for wharves necessary for ferriage of motor vehicle traffic, and for ferries, and for the acquiring, operating, and maintaining of machinery, equipment, quarries, or pits for the extraction of materials, and for the cost of establishing county roads, acquiring rights of way therefor, and expenses for the operation of the county engineering office, and forany other proper county road purpose. . . ." (Emphasis supplied.)

            Thus, there can be no question but that the county road fund, insofar as it is comprised of money derived from either a tax levy  [[Orig. Op. Page 7]] or the motor vehicle fund, can only be expended for county road purposes.

            Of further significance is RCW 43.09.210, providing:

            "Separate accounts shall be kept for every appropriation or fund of a taxing or legislative body showing date and manner of each payment made therefrom, the name, address, and vocation of each person, organization, corporation, or association to whom paid, and for what purpose paid.

            "Separate accounts shall be kept for each department, public improvement, undertaking, institution, and public service industry under the jurisdiction of every taxing body.

            "All service rendered by, or property transferred from, one department, public improvement, undertaking, institution, or public service industry to another, shall be paid for at its true and full value by the department, public improvement, undertaking, institution, or public service industry receiving the same, andno department, public improvement, undertaking, institution, or public service industry shall benefit in any financial manner whatever by an appropriation or fund made for the support of another. . . ." (Emphasis supplied.)

            In our opinion, compensating a road patrolman from the county road fund for duties rendered as a deputy sheriff, even though the money directly involved was derived from a source other than a tax levy or the motor vehicle fund, would contravene RCW 43.09.210, supra.

            Thus, the duty devolves upon the County Commissioners to make some logical division between such person's duties for police purposes and his duties for county road purposes so that the portion of his salary contributed from the county road fund is reasonably attributable to services rendered for county road purposes.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DUANE S. STOOKEY
Assistant Attorney General