REFUSAL OF COUNTY AUDITOR TO ISSUE WARRANT ON EXPENSE VOUCHER SIMILAR TO PREVIOUS ONES HELD INVALID BY STATE EXAMINERS -- DUTY OF COUNTY AUDITOR TO ISSUE WARRANTS ON VOUCHERS APPROVED BY COUNTY...

AGO 1952 No. 228 - Jan 25 1952

Attorney General Smith Troy

REFUSAL OF COUNTY AUDITOR TO ISSUE WARRANT ON EXPENSE VOUCHER SIMILAR TO PREVIOUS ONES HELD INVALID BY STATE EXAMINERS -- DUTY OF COUNTY AUDITOR TO ISSUE WARRANTS ON VOUCHERS APPROVED BY COUNTY COMMISSIONERS -- PERSONAL LIABILITY OF COUNTY AUDITOR FOR ISSUANCE OF SUCH WARRANT.

While ordinarily a county auditor should issue a warrant to pay a claim which is allowed and ordered paid by the county commissioners, yet where the auditor honestly believes that the county commissioners have exceeded their power or that the expenditure is fraudulent, he may refuse to issue the warrant and, if necessary, litigate the question. An auditor may be held civilly liable for issuance of warrants when such issuance constitutes misfeasance, malfeasance or non-feasance [[nonfeasance]].

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January 25, 1952

Honorable John J. O'Connell
Prosecuting Attorney
Pierce County
Tacoma, Washington Cite as: AGO 51-53 No. 228

Attention: !ttMr. Robert A. Jacques, Chief Civil Deputy

Dear Sir:

Your letter of January 2, 1952, gives the following facts in a situation:

"This office respectfully submits the following fact pattern for your consideration: The superintendent of the Pierce County hospital, with authorization of the trustees thereof, was delegated to take a trip for the purpose of attending a medical convention. The purpose of the trip was to better familiarize himself with the management and supervision of the hospital. This trip was taken with [[Orig. Op. Page 2]] the knowledge of the county commissioners; however, without any express consent being given prior thereto. The superintendent submitted expense vouchers subsequent to the trip, which were approved by the county commissioners. Upon presentation of the vouchers to the county auditor for payment thereof, said county auditor refused to issue warrants thereon, on the basis that previous expenditures of a like nature had been held invalid expenditures by the state examiners, upon auditing the accounts."

You then ask our opinion as follows:

"(1) May the county auditor refuse to issue a county warrant on such an expense voucher, approved by the county commissioners, where similar expenditures have been held invalid by the state examiners in the past?

"(2) Must the county auditor issue warrants upon all vouchers approved by the county commissioners, regardless of the position the state examiners may take as to the validity of such expenditures?

"(3) Where the county commissioners have approved such expense vouchers, and the county auditor issues a warrant thereon, may the county auditor be held personally liable for such expenditure upon the finding by the state examiners that such expenditure is invalid?"

Our conclusion may be stated as follows:

[[Orig. Op. Page 3]]

ANALYSIS

The leading authority upon this subject is contained in State ex rel. Becker v. Wiley, 16 Wn. (2d) 340, 133 P. (2d) 507. We refer both your office and the auditor to such decision, as it should be very helpful to you. We will take the three questions you ask above in their order and state our view.

Your first question is whether the auditor may refuse to issue a warrant on an expense voucher (covering a trip of the superintendent of a county hospital to a medical convention) where similar expenditures have been held invalid by the state examiner. The views of the state examiners are not necessarily binding on a county auditor. His own convictions as to his duty should be his guide. Of course he should make himself aware of the state examiners' opinions and the opinions of the attorney general as an aid to him in deciding his duty, but in advising upon this question we will dismiss any consideration as to whether or not the state examiners have viewed other such expenditures as valid or invalid.

Expenditures in attending conventions are not necessarily invalid. Each such situation should be decided upon its own merits. If attendance at a medical convention is in furtherance of the official duties of an officer, and not a mere junket, then such a trip might entail the valid expenditures of county funds. We enclose herewith our opinions of January 31, 1946, and April 16, 1948, which deal with the question of attendance at conventions by certain officials. These opinions might be helpful to the auditor in arriving at a reasonable and proper decision.

Your next question is whether the county auditor must issue warrants upon all vouchers approved by the county commissioners regardless of the position of the state examiners. Again we wish to point out that the position of the state examiner amounts to that of a guide only, and that an auditor must decide such questions for himself in the light of his duties under the statutes and the constitution of the state. InState ex rel. Becker v. Wiley, supra, at page 345, the court states that it has often held that a county auditor was merely a ministerial officer in regard to certain claims, but the court then goes on to say that it was not its intention to hold that an auditor could never challenge the power of the commissioners to allow a claim, and the court cites numerous authorities. We will now quote from the case at pages 346 and 347:

[[Orig. Op. Page 4]]

"'If the board of county commissioners were acting outside of their jurisdiction, then it may be that the auditor would have a right to question their action and refuse to issue a warrant.'

"From the foregoing authorities, we conclude that, when a legal claim is allowed and ordered paid by the commissioners, acting within the scope of their authority, the county auditor is required to issue a warrant on such claim, and may not question the validity of the determination made by the board.

"When the county commissioners, in the exercise of their discretion, have allowed a valid claim, neither the county auditor nor the courts, on an application for a writ of mandamus, will attempt to control such discretion, unless the action of the board is so capricious and arbitrary as to evidence a total failure to exercise discretion, and is, therefore, not a valid act. Dillon v. Whatcom County,supra;State ex rel. Farmer v. Austin, 186 Wash. 577, 59 P. (2d) 379. Where, however, the auditor is honestly of the opinion that the county commissioners have exceeded their authority in allowing a claim, he is, in our opinion, justified, and it is his duty, to refuse to issue the warrant, and, if necessary, to litigate the question. SeeState ex rel. Egbert v. Blumberg, 46 Wash. 270, 89 Pac. 708.

"We believe the right of the auditor to question what he believes to be illegal claims allowed by the commissioners, finds expression in Rem. Rev. Stat., § 2381, which makes it a gross misdemeanor for any public officer, a part of whose duty it is to audit, allow, or pay, or take part in auditing, allowing, or paying claims or demands upon the state or county, city or town, to knowingly audit, allow, or pay, or, directly or indirectly, consent to, or in any way connive at, the auditing, allowance, or payment [[Orig. Op. Page 5]] of any claim or demand against the state, county, town, or city, which is false or fraudulent or contains any charge, item, or claim which is false or fraudulent."

From the above language our conclusion is that a county auditor may in certain cases refuse to issue warrants on vouchers approved by county commissioners; but that ordinarily their issuance is merely ministerial and he must be convinced that the claim is either fraudulent or that the county commissioners acted beyond the scope of their authority when an auditor refuses the same.

Your last question asks if the auditor may be held personally liable for expenditures upon the finding by the state examiners that such expenditure is invalid. We will first discuss criminal liability. Again, we point out that the finding of the state examiner would not be the controlling thing. The statute set forth in the portion of the supreme court case quoted above makes it a gross misdemeanor for any public officer to knowingly audit, allow, or pay a false or fraudulent claim. We believe that a county auditor would not be personally liable unless he knowingly participated in the payment of a false or fraudulent claim. From the very nature of his duties a county auditor cannot know the background of every claim, valid on its face, which is presented to him. Therefore, it is our opinion that personal liability would only arise if he participated in the payment of a false or fraudulent claim with knowledge.

The question of the civil liability of an auditor may be answered by saying that in our opinion an auditor could be civilly liable for malfeasance, misfeasance and non-feasance [[nonfeasance]]in the issuance or warrants. There are also statutes governing his duty as to budgeted funds. We would have to give our opinion in the light of each factual situation presented, and therefore will not discuss this matter at any length. To answer the question directly we say that there can be situations where an auditor would be liable civilly for issuance of a warrant after the approval of a voucher by county commissioners.

In conclusion, it is our advice that the auditor review his decision as to the instant matter in the light of our opinions as to the validity of expenditures for trips to conventions and that he review for such guide as they may offer the discussions of the state examiners on similar situations.

[[Orig. Op. Page 6]]

We also call the auditor's attention to Rem. Rev. Stat., § 4085, which provides that he act as clerk of the board of county commissioners, which should enable him to hear the discussion of such authorizations, and Rem. Rev. Stat., § 9962, which provides that county auditors are ex-officio deputy supervisors of the state auditor.

Very truly yours,

SMITH TROY
Attorney General

DON CARY SMITH
Assistant Attorney General