1. WACO A NNUAL C ONFERENCE O CTOBER 7, 2010 P RESENTER : J OE L EVAN, MRSC L EGAL C ONSULTANT 1 www.mrsc.org (206) 625-1300

2. Introduction Tough economic times result in budget challenges Can lead to conflicts among separately elected county officials – such as in 2009 in Thurston County between commissioners and the sheriff Will review legal authority addressing such conflicts Will discuss legal principles established by such legal authority www.mrsc.org (206) 625-1300 2

3. Purpose To identify a few key areas of conflict between officials and discuss legal authority addressing such conflicts Such authority should provide some guidance in facing similar situations Discussion will be somewhat general to make it applicable to different forms of county government www.mrsc.org (206) 625-1300 3

4. Case Law as Guidance Court decisions address some of the key issues of conflict between separately elected county officials Provide a potential roadmap regarding how other courts may decide similar issues Such decisions incorporate discussion of key constitutional and statutory provisions and principles www.mrsc.org (206) 625-1300 4

5. Some Key Issues MRSC Has Addressed Independent Authority of Separately Elected Officials Budget Cuts Targeted Personnel Cuts Contract Authority Ownership of Property Legal Counsel www.mrsc.org (206) 625-1300 5

6. Independent Authority of Separately Elected Officials County elected officials have only those powers: Expressly conferred or delegated to them by specific statutory language; or By necessary implication from statutory language – power necessarily implied from the powers given Holt v. Gambill, 123 Wn. App. 685 (2004) www.mrsc.org (206) 625-1300 6

7. Independent Authority of Separately Elected Offic ials In Holt, for example, the court found that since RCW 36.18.016(24) designates the procedure for establishing a court filing fee by ordinance, the superior court clerk did not have the power to establish the fee himself/herself www.mrsc.org (206) 625-1300 7

8. Key Questions When issues of authority arise between separately elected county officials, ask: 1. Is there a specific statutory or constitutional provision that gives you or your office the authority to take the subject action? 2. If not, is the authority to take such action necessarily implied from the powers given by statute or constitutional authority? www.mrsc.org (206) 625-1300 8

9. Budget Issues Very few statutory provisions establish specific budgetary obligations on the county commissioners to other county elected officials One exception, for example, is RCW 36.21.011, which addresses the “required number of certified appraiser positions and their salaries necessary to enable the assessor to carry out the requirements relating to revaluation of property” www.mrsc.org (206) 625-1300 9

10. Budget Issues Under chapter 36.40 RCW, the county commissioners set the budget for all county departments, including those of the other elected county officials Generally, it is within the discretion of the board of county commissioners (BOCC) to allocate the financial resources of the county as provided in the budget it approves See, e.g., State ex rel. Farmer v. Austin, 186 Wash. 577, 588 (1936) (court upheld BOCC’s reduction of force of deputies in sheriff’s office from six to four) State ex rel. Farmer v. Austin www.mrsc.org (206) 625-1300 10

11. Budget Issues What standard will a court use when reviewing BOCC action? Courts will interfere with the BOCC’s exercise of discretion only when the action is so arbitrary and capricious as to evidence a total failure to exercise discretion, which would make the BOCC’s act invalid – State ex rel. Farmer v. Austin, 186 Wash. 577, 583 State ex rel. Farmer v. Austin www.mrsc.org (206) 625-1300 11

12. Budget Issues What is considered arbitrary and capricious? Arbitrary and capricious action has been defined by the courts as “willful and unreasoning action, without consideration and in disregard of facts or circumstances.” See, e.g., Schrempp v. Munro, 116 Wn.2d 929, 938 (1991) Schrempp v. Munro www.mrsc.org (206) 625-1300 12

13. Budget Issues There is no overall bright line answer to resolve tensions regarding the BOCC’s authority over the county budget and the authority of the other county elected officials over their departmental budgets The separately elected county officials have statutory responsibilities they must carry out, and they need staff and facilities to carry them out www.mrsc.org (206) 625-1300 13

14. Budget Cuts – Office Space Miller v. Pacific County, 9 Wn. App. 177, review denied, 82 Wn.2d 1012 (1973), is instructive Miller v. Pacific County “When the [board of county] commissioners, by resolution, show a clear purpose to effect a reduction of a department’s budget, they act within the ambit of the discretionary power granted to them.” Id. at 178. However, the court held that the commissioners exceeded the powers specifically delegated to them and acted arbitrarily www.mrsc.org (206) 625-1300 14

15. Budget Cuts – Office Space In Miller v. Pacific County, the court found that the commissioners acted arbitrarily by informally notifying the prosecuting attorney that they were not going to provide any further funds to maintain the prosecutor’s office in Raymond Miller v. Pacific County The commissioners’ action was more than a budget “revision” as allowed under RCW 36.40.100 The commissioners did not follow the required budget process, including regarding timing and notice of hearings – see RCW 36.40.010 -.080 Absent an emergency, it would be inconsistent with the county’s budget process requirements to allow an indirect attack on the finality of the county budget after its formal adoption www.mrsc.org (206) 625-1300 15

16. Personnel Cuts Generally, the BOCC has the authority to eliminate positions in the budget even if the positions are in the departments of other elected officials See, e.g., Smith v. Board of Walla Walla County Comm’rs, 48 Wn. App. 303 (1987) 16 www.mrsc.org (206) 625-1300

17. Personnel Cuts In Smith, the county auditor brought action to compel the BOCC to reinstate an accountant position in the auditor’s office that the BOCC had eliminated The court held that the commissioners exercised their discretion properly and had the authority to eliminate and establish employee positions in a county department, to reduce department budgets, and to create new departments Citing, RCW 36.32.120(6); RCW 36.16.070; Miller v. Pacific Cy., 9 Wn. App. 177, 179 (1973) www.mrsc.org (206) 625-1300 17

18. Personnel Cuts The court concluded: No dispute that the county was facing a serious budget shortfall The BOCC’s acts in balancing the budget were clearly discretionary Mandamus to reinstate the employee’s position would be appropriate only if the BOCC’s actions were properly found to be arbitrary and capricious The BOCC’s acts were not arbitrary and capricious www.mrsc.org (206) 625-1300 18

19. Personnel Cuts Key to the Smith court’s decision: Whether the position was required by statute – because it was not, the BOCC had no legal duty to create or maintain the position Whether the BOCC followed the proper procedures for eliminating a position from the budget – the BOCC followed the proper procedure 19 www.mrsc.org (206) 625-1300

20. Personnel Cuts However, the BOCC must leave hiring and termination decisions regarding specific individuals to the other elected county officials Osborn v. Grant County, 130 Wn.2d 615 (1996), is instructive See also, Crossler v. Hille, 136 Wn.2d 287 (1998) (BOCC has obligation to provide funding for district court deputy clerks, but the BOCC does not have authority to determine employment policies of the elected official) 20 www.mrsc.org (206) 625-1300

21. Personnel Cuts In Osborn, the county clerk hired a temporary employee in her office The clerk’s office budget had sufficient funds to pay for the temporary employment The BOCC disapproved of the temporary hire (because the employee was on suspension from her district court job) and refused to authorize payment of the employee’s wages www.mrsc.org (206) 625-1300 21

22. Personnel Cuts After the county prosecutor refused to give the clerk advice regarding the BOCC’s action, and after the BOCC refused to authorize the voucher, the clerk brought an action for declaratory judgment against the BOCC The key issue addressed by the court was that the BOCC did not have the authority to interfere with the clerk’s hiring of a temporary employee The BOCC argued it had authority in this situation under RCW 36.16.070, which requires “the consent of the board” to hire deputies and other necessary employees to perform the duties of the office 22 www.mrsc.org (206) 625-1300

23. Personnel Cuts The court noted that the BOCC: Sets the salary of employees; and Has the power to create and fund employee positions in county offices 23 www.mrsc.org (206) 625-1300

24. Personnel Cuts However, based on RCW 36.16.070, the court concluded that: The county officer – in this case the county clerk – is the one to appoint a deputy or other employee; and The clerk here has the authority to revoke each appointment at his/her pleasure The BOCC has “no role in those hiring decisions” “Once the board has created and funded the positions for needed deputies or employees, the county officer is the party who names the individuals to fill those positions.” Id. at 622. www.mrsc.org (206) 625-1300 24

25. Personnel Cuts In Osborn, the court found that: The BOCC had appropriated and approved funds in the clerk’s budget for an “Extra Clerk Hire” When the clerk hired the temporary employee, there were sufficient funds remaining in the clerk’s budget to cover the employee’s wages Based on these facts, the court held: The clerk’s office was authorized and funded to hire temporary employees The clerk had the authority to hire the temporary employee The BOCC had no authority to interfere with that decision The court required the payment of the employee’s wages www.mrsc.org (206) 625-1300 25

26. Personnel Cuts The Osborn court was guided by a previous decision that is also instructive In Thomas v. Whatcom County, 82 Wash. 113 (1914), the elected sheriff hired three individuals as deputies The BOCC refused to pay the salaries of the deputies because the BOCC objected to the individuals the sheriff hired for those positions www.mrsc.org (206) 625-1300 26

27. Personnel Cuts The BOCC did not deny that the sheriff’s office was allowed three deputies But the BOCC refused to pay the salaries of the deputies hired by the sheriff The sheriff sued the BOCC, alleging the BOCC was impermissibly interfering with the sheriff’s authority to hire deputies www.mrsc.org (206) 625-1300 27

28. Personnel Cuts The court in Thomas reviewed language in two statutes that was nearly identical to the language in RCW 36.16.070 reviewed by the court in Osborn The Thomas court held that: Once the BOCC has authorized the hiring of deputies in a county office, "the officer in whose office the deputies are to serve, being responsible on his bond for their conduct, has the absolute right to determine the personnel of such deputies...." Id. at 124 (emphasis added) www.mrsc.org (206) 625-1300 28

29. Personnel Cuts – Other Considerations The BOCC needs to fund the offices of other county elected officials so that those officials are able to perform their statutory duties. See, In re Juvenile Director, 87 Wn.2d 232 (1976); see, also AGO 1986 No. 1. www.mrsc.org (206) 625-1300 29

30. Personnel Cuts – Other Considerations Consult with the county prosecuting attorney Recognizing that he/she is one of the elected officials affected by the BOCC’s budgetary decisions Note that in Osborn (see above), the prosecutor refused to give the clerk advice on the matter due to a potential conflict with the BOCC www.mrsc.org (206) 625-1300 30

31. Personnel Cuts – Other Considerations The clerk then retained a law firm to represent her The court held that the prosecutor could not represent the clerk because the county was the named defendant Therefore, the superior court had no authority to appoint a special prosecutor for the clerk www.mrsc.org (206) 625-1300 31

32. Personnel Cuts – Other Considerations However, the court also held that: Although the prosecutor had no authority to litigate this action for the clerk, The prosecutor did have a statutory duty under RCW 36.27.020(2) to be legal adviser to the clerk The prosecutor refused to fulfill this duty when the clerk asked the prosecutor for advice on the BOCC’s action When the prosecutor refused to advise the clerk, the prosecutor should have appointed a special or temporary deputy under RCW 36.27.040 to advise the clerk www.mrsc.org (206) 625-1300 32

33. Personnel Cuts – Other Considerations Immediately after the prosecutor refused to advise the clerk, the clerk hired a private law firm to help her deal with the conflict with the BOCC In Osborn, the court held that to the extent the law firm’s work consisted of providing advice to the clerk about her conflict with the BOCC, the clerk was entitled to recovery of attorney fees for that work Because the work was statutorily required work that the prosecutor refused to perform www.mrsc.org (206) 625-1300 33

34. Contact Info MRSC website – www.mrsc.orgwww.mrsc.org Joe Levan, MRSC Legal Consultant jlevan@mrsc.org (206) 625-1300 www.mrsc.org (206) 625-1300 34