Did Washington state law require a deputy sheriff to live in the county served in 1975?

Plain-English summary

Washington's AG concluded in 1975 that state law did not require a deputy sheriff to live in the county served. The opinion reversed an earlier AG view that inferred a deputy's residency requirement from the elected sheriff's qualifications. A 1963 amendment to the sheriff's civil-service law removed the requirement that an applicant be an elector of the county in which the applicant lived.

The AG said this legislative change applied directly to classified positions and undermined the earlier reasoning for exempt deputies as well. It did not decide whether a local civil-service commission could impose a job-specific residency condition; a footnote said such a rule might be possible and would face constitutional scrutiny.

“In view of the amendment of RCW 42.14.100 by § 3, chapter 95, Laws of 1963, a deputy county sheriff is not required by state law to be a resident of the county which he serves.” (Official opinion)

Currency note

This opinion was issued in 1975. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Sheriff offices and deputy applicants

The opinion said an applicant's residence outside the employing county did not violate a general state-law deputy residency requirement. It relied on the amendment to RCW 41.14.100 and rejected the premise of the 1959 AG opinion.

County civil-service commissions

The AG left open whether a local commission could create a rationally job-related residency rule for a particular position. Its conclusion addressed the general state-law requirement, not every possible local rule.

Common questions

Q: Was a deputy sheriff required to live in the employing county?
A: The AG said no general state-law requirement applied under the statutes it considered in 1975.

Q: Why did the AG change its earlier answer?
A: The opinion relied on a 1963 change to the civil-service qualification statute, which removed county-elector wording. That change conflicted with the older inference that deputies had to share the sheriff's residency qualification.

Q: Could a county adopt its own residency requirement?
A: The AG did not settle that question. It said a local civil-service commission might set a position-specific, rationally related rule, subject to constitutional scrutiny.

Background and statutory framework

The earlier opinion reasoned from RCW 36.16.030, governing election of a sheriff, and RCW 36.38.020, giving deputies the sheriff's powers. This opinion reconsidered that inference after the legislature amended RCW 41.14.100 to remove prior elector and state-residency wording. The official opening sentence prints “RCW 42.14.100”; the analysis identifies the amended civil-service provision as RCW 41.14.100.

Citations and references

The opinion discussed RCW 41.14.100, RCW 36.38.020 and RCW 36.16.030.

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/offices-and-officers-county-sheriff-residence-requirement-deputy-sheriff

Original opinion text

Attorney General Slade Gorton

OFFICES AND OFFICERS ‑- COUNTY ‑- SHERIFF ‑- RESIDENCE REQUIREMENT FOR DEPUTY SHERIFF

In view of the amendment of RCW 42.14.100 by § 3, chapter 95, Laws of 1963, a deputy county sheriff is not required by state law to be a resident of the county which he serves.

August 22, 1975

Honorable Frank J. Woody
State Senator, 39th District
24228 47th
Woodinville, Washington 98043

Cite as: AGO 1975 No. 19

Dear Sir:

By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:

Is a deputy county sheriff required by state law to be a resident of the county which he serves?

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

ANALYSIS

Although recognizing that no specific statute dictated the result there reached, this office, in AGO 59-60 No. 29 [[to Wayne Roethler, Prosecuting Attorney, Cowlitz County on April 16, 1959]], copy enclosed,1/ concluded that a county deputy sheriffis required to be a resident of the county which he serves. In so concluding we reasoned, in essence, as follows:

(1) RCW 36.16.030 expressly requires that the county sheriff himself shall be elected ". . . from among the qualified voters of the county . . ."

(2) RCW 36.38.020, in speaking of deputy sheriffs, states [[Orig. Op. Page 2]] that such officers, ". . . shall possess all the power, and may perform any of the duties, prescribed by law to be performed by the sheriff, . . ."

(3) Therefore, because a deputy sheriff is empowered to perform all of the duties and functions of the sheriff, ipsofacto, he must have all of the qualifications of the sheriff ‑ including the residency requirement implicit in RCW 36.16.030,supra. Accord,People ex rel. Andrus v. Champlain Auditors, 37 N.Y.Supp. 633, 16 Misc.Rep. 92 (1896).

The basic object of your current request is to obtain our review and reconsideration of this 1959 opinion. In so calling upon us you have particularly directed our attention to two recent cases from other jurisdictions in which residency requirements for certain categories of municipal employees have been struck down on constitutional grounds,Ector v. City of Torrance, 104 Cal.Rptr. 594 (1972); andDonnelly v. Manchester, 111 N.H. 50, 274 A.2d 789 (1971). On the other hand you have also noted a case, Krzewinski v. Kugler, 338 F.Supp. 492 (D.N.J. 1972), in which a New Jersey statute requiring that police officers and firemen reside in the municipality which employs them was found to be constitutional despite the court's application of the more stringent "compelling state interest" test as to the validity of a state law under the federal equal protection clause.2/

[[Orig. Op. Page 3]]

We need not, however, presently concern ourselves with the constitutionality of a state law imposing a residency requirement for county deputy sheriffs in order to answer your immediate inquiry. Insofar as those deputies who are within the classified civil service system provided for by chapter 41.14 RCW are concerned, it appears to us that the legislature, by its passage of § 3, chapter 95, Laws of 1963, has removed from the law whatever general residency requirements may have previously existed with respect to their positions. By this enactment the legislature amended the preexisting provisions of RCW 41.14.100, a part of the original civil service law approved by the voters several years earlier, in the following respects (using bill form for ease of understanding):

"An applicant for a position of any kind under civil service, must be a citizen of the United States ((and an elector of the county in which he resides,)) who can read and write the English language ((and must have been a resident of the state for at least one year))."

Furthermore, although this implied general qualification of nonresidents only applies to classified positions in a county sheriff's office,3/ its existence most certainly must be said [[Orig. Op. Page 4]] to be irreconcilable with the rationale which was employed in our earlier, 1959, opinion, even as to exempt deputies. There is obviously no difference under RCW 36.38.020 between a classified and an exempt deputy sheriff. Under this statute both ". . . shall possess all the power, and may perform any of the duties, prescribed by law to be performed by the sheriff . . ." However the legislature, by its enactment of § 3, chapter 95, Laws of 1963, has seemingly determined that these things can be done by deputies who are not residents of the county which they serve as well as those who are.

Therefore in summary, based upon this intervening 1963 legislation, we now believe it appropriate to depart from the views expressed in AGO 59-60 No. 29 and, at this time, answer your basic question in the negative.4/

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

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

*** FOOTNOTES ***

1/Dated April 15, 1959.

2/United States Constitution, Amendment 14. As synopsized in a headnote appearing on p. 494 of 338 Fed. Supp., the essence of this ruling was as follows:

"New Jersey tenure statute requiring police and firemen to be residents in municipality where they are employed, thereby requiring policeman or fireman to surrender his constitutional right to travel and migrate in exchange for his job, is justified by compelling state interests in promoting identity with community among police and firemen, in determining crime by presence of off-duty police in municipality, and in resulting chance associations and encounters which might lead to invaluable sources of information, develop community rapport and put an end to misunderstanding and intolerance."

3/See, RCW 41.14.070, which provides that:

"The classified civil service and provisions of this chapter shall include all 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 principal 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."

4/This is not to say, necessarily, that a local (county) civil service commission operating under chapter 41.14 RCW could not establish by regulation, on a case by case basis, some form of residency requirement for a particular position or positions ‑ rationally related to the specific job requirements of any such positions. Accord, AGO 1972 No. 12 [[to Charles D. Kilbury, State Representative on June 13, 1972]], copy enclosed, in which we similarly opined with respect to the legality of locally established minimum age requirements for deputy sheriffs. Any such requirement would, however, most likely be subject to the close scrutiny as to its constitutionality which the several cases which you have cited in your letter seem to call for ‑ as, also, would be the case with respect to any such requirement which might be attempted to be imposed by the sheriff himself with respect to his unclassified chief deputy or undersheriff, or the like.