RETENTION BY COUNTY SHERIFF OF LOST OR ABANDONED MONEY

OFFICES AND OFFICERS ‑- COUNTY ‑- SHERIFF ‑- FUNDS ‑- RETENTION BY COUNTY SHERIFF OF LOST OR ABANDONED MONEY

A county sheriff, who officially comes into possession of "lost and found" money, may not keep and retain that money for his office's own use under any of the applicable provisions of chapter 63.40 RCW.

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                                                                   June 28, 1984 

Honorable Arthur R. Eggers
Prosecuting Attorney
Walla Walla County
P.O. Box 834
Walla Walla, WA 99362

Cite as:  AGO 1984 No. 16                                                                                                                

Dear Sir:

             By recent letter you requested our opinion on the following question:

             "May a county sheriff keep and retain for his office's own use lost or abandoned property in the form of money (cash) after compliance with Title RCW 63.21 and RCW 63.40?"

             We answer your question in the negative for the reasons set forth in our analysis.

                                                                      ANALYSIS

             In posing the above question you also indicated the following factual background:

             "A jailer for the Walla Walla County Sheriff's Office found $15.00 in currency in the garbage can behind the jail.  There was no indication as to where the money came from or whose money it was.  The money was not in any container or wallet, but was simply loose in the garbage  [[Orig. Op. Page 2]] can.  The sheriff's office would like to convert that money to its own use in the form of buy money for drug investigations and/or the purchase of equipment for investigative purposes. . . ."

             The basis for our negative answer to your inquiry, in turn, is a lack of authority under chapter 63.40 RCW which covers, particularly, the use or disposition of unclaimed property in the possession of a county sheriff.  We have also considered the other law cited in your question, chapter 63.21 RCW, but we believe that it relates, instead, to lost and found property where the finder is some individual or agency other than a law enforcement agency.  See, RCW 63.21.050; and note also, for analytical purposes, City of Airway Heights v. Shroeder, 53 Wn.2d 625, 335 P.2d 578 (1959) and the discussion therein of special, as contrasted with general, legislation.

             RCW 63.40.010 reads, in full, as follows:

            "Whenever any personal property, other than vehicles governed by chapter 46.52 RCW, shall come into the possession of the sheriff of any county in connection with the official performance of his duties and said personal property shall remain unclaimed or not taken away for a period of sixty days from date of written notice to the owner thereof, if known, and in all other cases for a period of sixty days from the time said property came into the possession of the sheriff's office, unless said property has been held as evidence in any court, then, in that event, after sixty days from date when said case has been finally disposed of and said property released as evidence by order of the court, said county sheriff may:

             "(1) At any time thereafter sell said personal property at public auction to the highest and best bidder for cash in the manner hereinafter provided;

             "(2) Retain the property for the use of the sheriff's office subject to giving notice in the manner prescribed in RCW 63.40.020 and the right of the owner, or his or her legal representative, to reclaim the property within one year after receipt of notice, without compensation for ordinary wear and tear if, in the opinion of the county sheriff, the property consists of firearms or other items specifically usable in law enforcement work:  [[Orig. Op. Page 3]] PROVIDED, That at the end of each calendar year during which there has been such a retention, the sheriff shall provide the county's executive or legislative authority and retain for public inspection a list of such retained items and an estimation of each item's replacement value;

             "(3) Destroy an item of personal property at the discretion of the county sheriff if the following circumstances have occurred;

             "(a) The item has been in the possession of the sheriff's office for a period of at least one year from the time of first possession by the office;

             "(b) The item has been unclaimed by any person after notice procedures have been met, as prescribed in RCW 63.40.020; and

             "(c) The county sheriff has determined that the item is unsafe and unable to be made safe for use by any member of the general public; or

             "(4) If the item is not unsafe or illegal to possess or sell, such item, after satisfying the notice requirements as prescribed in RCW 63.40.020, may be offered by the county sheriff to bona fide dealers, in trade for law enforcement equipment, which equipment shall be treated as retained property for purpose of annual listing requirements of subsection (2) of this section."

             Next, RCW 63.40.020 sets forth the procedures to be followed in connection with the disposition of such property in the event that it is sold by the sheriff‑-including the notice requirements referred to in subsections (2) and (4) of RCW 63.40.010, supra.  Then, RCW 63.40.030 provides that:

             "The moneys arising from sales under the provisions of this chapter shall be first applied to the payment of the costs and expenses of the sale and then to the payment of lawful charges and expenses for the keeping of said personal property and the balance, if any, shall be paid into the county current expense fund."

             Lastly, RCW 63.40.040 reads as follows:

                          [[Orig. Op. Page 4]]

"If the owner of said personal property so sold, or his legal representative, shall, at any time within three years after such money shall have been deposited in the county current expense fund, furnish satisfactory evidence to the county treasurer of said county of the ownership of said personal property he or they shall be entitled to receive from said county current expense fund the amount so deposited therein."

             None of the above‑quoted provisions of chapter 63.40 RCW specifically contemplate the possibility that the property thus coming into the official possession of the sheriff is, itself, money (currency) in form.  It also seems clear, however, that one does not generally sell such currency as is here involved in order to dispose of it in a manner designed to realize its value in money.  Nor, by the same token, does one ordinarily destroy such money on the ground that it is ". . . unsafe and unable to be made safe for use by any member of the general public."  RCW 63.40.010(3),supra.  The question, therefore, is whether the sheriff can find sufficient authority in the statute to retain the money and use it, directly, as (in your words) ". . . buy money for drug investigations and/or the purchase of equipment for investigative purposes."

             Conceivably, the second of those two posited uses might be deemed to come within the purview of RCW 63.40.010(4), supra, which authorizes the sheriff to trade an item which is not unsafe or illegal to possess ". . . to a bona fide dealer in trade for law enforcement equipment."  Again, however, one does not ordinarily describe the purchase of property, with money, as a "trade".  We therefore think it more likely that a court would look upon that subsection of the statute as merely authorizing an alternative method of disposition, by the sheriff directly, of some other form of tangible personal property.

             Likewise, based upon its own literal terms, we must also reject any argument in support of the sheriff's proposed use of the money based upon RCW 63.40.010(2).  It is true that money, as such, may well be usable in law enforcement work‑-specifically as buy money for drug investigations.  And, on that count, the provisions of that subsection of the statute might at first blush appear to apply.  In view of the proviso thereto, however, we have the distinct impression that the legislature was thinking here, as well, of tangible personal property other than money.  Repeated for ease of reference, that proviso reads as follows:

                          [[Orig. Op. Page 5]]

". . . PROVIDED, That at the end of each calendar year during which there has been such a retention, the sheriff shall provide the county's executive or legislative authority and retain for public inspection a list of such retained items and an estimation of each item's replacement value;"

             Moreover, if the legislature had contemplated the retention of "lost and found" money by a county sheriff‑-as distinguished from other tangible useful personal property‑-it would not logically have said what it did in RCW 63.40.030,supra.  There, in dealing with money derived from a sale of unclaimed property by a county sheriff, the legislature specifically directed that such proceeds,

             ". . . shall be first applied to the payment of the cost and expenses of the sale and then to the payment of lawful charges and expenses for the keeping of said personal property and the balance, if any, shall be paid into the county current expense fund."

             In our opinion, that is also what should happen in those instances where the unclaimed property is, itself, money.  Clearly, as in the case of any other unclaimed property which is covered by chapter 63.40 RCW because it came into the possession of the sheriff in the performance of his official duties, such money is not the private, personal property of the sheriff.  Rather, it is county property.  Where, however, such county property is in the form of money, the applicable statutes contemplate that it is to be paid over to the county treasurer and, in the absence of any provision to the contrary, made a part of the county current expense fund.  Accord, RCW 36.29.020; see also RCW 36.33.010.

             We also note that those last cited statutes were both in existence long before the legislature first enacted the law now codified as chapter 63.40 RCW, by its passage of chapter 104, Laws of 1961.  Thus, the legislature must be presumed to have been aware of their existence when it enacted that special provision relating to unclaimed property in the hands of a sheriff.  See,Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948) and cases cited therein.

             For the above reasons, therefore, we answer your question in the negative.  A county sheriff, who officially comes into possession of "lost and found" money, may not keep and retain that money for his office's own use under any of the applicable provisions of chapter 63.40 RCW,supra.

                          [[Orig. Op. Page 6]]

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

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

PHILIP H. AUSTIN
Senior Deputy Attorney General