REMOVAL OF CIVIL SERVICE COMMISSIONER

OFFICES AND OFFICERS ‑- COUNTY COMMISSIONERS ‑- CIVIL SERVICE ‑- REMOVAL OF CIVIL SERVICE COMMISSIONER

A board of county commissioners has the discretionary authority not to proceed with a hearing on the merits on charges preferred against a civil service commissioner under RCW 41.14.030 when it believes that the charges are frivolous.

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                                                                December 4, 1974

Honorable David F. Thiele
Prosecuting Attorney
Island County Court House
Coupeville, Washington 98239                                                                                                             Cite as:  AGLO 1974 No. 102

Dear Sir:
 
            By recent letter you have requested our opinion on two questions relating to the removal of county civil service commissioners under RCW 41.14.030.  Your questions read as follows:
 
            "1. Who has standing to prefer charges against a civil service commissioner under RCW 41.14.030?
 
            "2. Do the County Commissioners have the discretionary authority not to proceed with a hearing on the merits of charges preferred against a civil service commissioner when they believe the charges are frivolous?"
 
            We respond to your first question in the manner set forth in our analysis and we answer your second in the affirmative.
 
                                                                     ANALYSIS
 
            Chapter 41.14 RCW, as you know, provides for a civil service system for county deputy sheriffs and other employees of the various county sheriffs' departments throughout the state.  This system is administered, in each instance, by a three‑member civil service commission, the members of which are appointed by the appropriate board or boards (in the case of a multiple county system) of county commissioners.  See, RCW 41.14.030, which then goes on to provide, insofar as is here material, as follows:
 
            ". . .  The term of office of the commissioners shall be six years, except that the first three members of the commission shall be appointed for different terms, as follows:  One to serve for a  [[Orig. Op. Page 2]] period of two years, one to serve for a period of four years, and one to serve for a period of six years.  Any member of the commission may be removed from office for incompetency, incompatibility, or dereliction of duty, or malfeasance in office, or other good cause:  Provided, That no member of the commission shall be removed until charges have been preferred, in writing, due notice, and a full hearing had.  . . ."
 
            Relating this statutory language to your questions, it is our opinion, first, that only the county commissioners themselves have the authority to take action aimed at removing a civil service commissioner.  In other words, as we read it, the portion of RCW 41.14.030 with which you are concerned is designed, simply, to set forth the procedures to be followed by a board of county commissioners (the appointing authority) if, during the term of a particular civil service commissioner, that board believes the commissioner should be removed for any of the grounds set forth in the statute.
 
            Thus, while a complaint may, obviously, be made against a civil service commissioner by anyone ‑ in the sense of communicating to the county commissioners an asserted basis for aking that a certain civil service commissioner be removed from office ‑ it is the county commissioners themselves who are to determine whether or not to respond to that complaint by removing the individual against whom it is made.
 
            If the county commissioners do find a basis in the complaint for removal, they will then be required, by virtue of the proviso to the statute, to prefer charges in writing and, after due notice, conduct a "full hearing" on those charges.
 
            On the other hand, there is nothing in the statute which may be said to require a board of county commissioners to initiate such proceedings at all.  It is, as you will note, expressly couched in permissive rather than mandatory terms, as evidenced by its use of the word "may" rather than "shall."  Thus, most certainly, if the county commissioners believe that the charges made against a civil service commissioner are frivolous, they have the discretionary authority not to proceed with a hearing on the merits of the charges.   [[Orig. Op. Page 3]] Accord, State ex rel. Davern v. Rose, 140 Wis. 360, 122 N.W. 751 (1909); see, also, State ex rel. Schwartzkopf v. City Council of Brainerd, 121 Minn. 182, 141 N.W. 97 (1913).  As explained by the courts in these cases, the power of removal, even where limited to cause, necessarily contains an element of discretion.  Accordingly, the courts will not, at the behest of a private individual, interfere with an administrative decision not to remove an appointed official where the question has been considered and this descretion has been exercised.  Only in the event of a flagrant abuse of discretion will a court compel the removal of an appointed officer where the authority for such action ordinarily rests elsewhere.  See, e.g., State ex rel. Kelleher v. Public Schools, 134 Mo. 296, 35 S.W. 617 (1896).
 
            It is hoped that the foregoing explanation of this statutory procedure, as we veiw it, will be of some assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General