Could a small Washington county make its prosecutor full time simply by announcing the rule before candidate filing?

Plain-English summary

In 1982, an Adams County prosecutor asked whether county commissioners could announce before candidate filing that the next prosecutor’s office would be full time, thereby barring the winner from private law practice. The AG said no for fifth- through ninth-class counties. The statute required full-time service in larger counties, but did not impose the same restriction on prosecutors in those smaller counties. Commissioners lacked authority to add that restriction unilaterally.

The opinion described a different, consensual arrangement: after election, the prosecutor could voluntarily relinquish private practice in exchange for a higher salary set by the board. That possibility did not make a pre-election announcement legally binding on whoever won.

“Only the legislature, itself, by expressly amending the statute, could accomplish that result.” (Official opinion)

Currency note

This opinion was issued in 1982. 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.

Common questions

Q: Could a pre-filing county announcement require the next prosecutor to stop private practice?
A: No. The AG said commissioners could not make that change binding in a fifth- through ninth-class county merely by announcing it.

Q: Why did the AG distinguish small counties?
A: The statute then required full-time service and barred private practice for prosecutors in fourth-class and larger counties, but did not impose that rule on fifth- through ninth-class counties.

Q: Could a small-county prosecutor voluntarily work full time?
A: Yes. The opinion described an agreement made after election in which the prosecutor gave up private practice for a higher salary fixed by commissioners.

Q: Could commissioners alone amend the prosecutor’s statutory duties?
A: No. The AG said only a legislative amendment could impose the private-practice ban in those counties.

Background and statutory framework

RCW 36.27.060 drew the county-size distinction for prosecutors’ full-time service. RCW 36.17.020 let county commissioners set an elected prosecutor’s salary above the legislative level. The AG read the salary power as supporting voluntary agreement, without allowing commissioners to rewrite the statutory office before an election.

Citations and references

The opinion discussed RCW 36.27.060 and RCW 36.17.020.

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/establishment-full-time-prosecutors-office-fifth-through-ninth-class-county

Original opinion text

Attorney General Ken Eikenberry

OFFICES AND OFFICERS ‑- COUNTY ‑- PROSECUTING ATTORNEY ‑- COMMISSIONERS ‑- SALARIES ‑- ELECTIONS ‑- ESTABLISHMENT OF FULL-TIME PROSECUTOR'S OFFICE IN FIFTH THROUGH NINTH CLASS COUNTY

The board of county commissioners of a fifth through ninth class county may not, simply by making a public announcement to that effect prior to the period for candidates' filings, cause the office of county prosecuting attorney to become a full-time office so as to prohibit the candidate then duly elected to that office from thereafter engaging in the private practice of law.

July 20, 1982

Honorable Richard W. Miller
Adams County Prosecuting Attorney
210 West Main
Ritzville, Washington 99169

Cite as: AGO 1982 No. 10

Dear Sir:

This is written in response to your request for our opinion on a question which we paraphrase as follows:

May a board of county commissioners of a fifth through ninth class county, by making a public announcement to that effect prior to the period for candidates' filings, cause the office of county prosecuting attorney to become a full-time office so as to prohibit the candidate then duly elected to that office from thereafter engaging in the private practice of law?

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

ANALYSIS

Under the provisions of RCW 36.27.060, prosecuting attorneys and their deputies in class four counties and counties with populations larger than class four counties are required to serve full time and may not engage in the private practice of law. Conversely, there is no such requirement, or correlative legal prohibition, in the case of prosecuting attorneys serving in fifth, sixth, seventh, eighth or ninth class counties.1/

[[Orig. Op. Page 2]]

It is, nevertheless, possible for a particular incumbent in one of those smaller counties to give up his private law practice on a voluntary basis. And, in turn, we also note the authority of a board of county commissioners, under RCW 36.17.020, to fix the salary of the county prosecuting attorney (or any of the various other elected officials referred to therein) at a level higher than that established by the state legislature.2/ These two points, it will thus readily be seen, lend themselves to the possibility of an agreement between the otherwise part-time prosecuting attorney (once elected) and the county commissioners under which the right of the prosecutor to engage in private practice of law is voluntarily relinquished in return for payment of a higher salary deemed to be commensurate with a full-time office or position. Moreover, we understand that arrangements of this kind have, in fact, been made in the past in some other, smaller, counties.

But that is not what you are asking about in the instant case. Instead, the question you have posed is one which contemplates some form of unilateral action by the county commissioners, prior to the period for candidates' filings,3/ which is intended to have the effect of binding those who then file for prosecuting attorney to devote their full time to the duties of that office (if elected)‑-notwithstanding their statutory ability to engage in private practice under RCW 36.27.060,supra. It is fundamental, however, that boards of county commissioners generally4/ have only those powers which have been granted to them by the state legislature, either expressly or by necessary implication.Pacific First Federal Savings & Loan Association v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947) and cases cited therein. And there is no statute currently in effect which purports to authorize such a board (in a fifth through ninth class county) to, in effect, modify [[Orig. Op. Page 3]] RCW 36.27.060 so as to prohibit the county prosecutor from also engaging in the private practice of law if he desires to do so.5/ Only the legislature, itself, by expressly amending the statute, could accomplish that result.

It is one thing for the county commissioners to cause the office to become a full-time position by agreement with the successful candidate once the election is over and he has assumed office. By virtue of its authority over salaries, as above noted, the county commissioners do, indeed, have the practical ability to so deal with the situation at that juncture. But it is quite another thing to speak of a unilateral pronouncement, made before candidates' filings, which would be legally binding on whoever is elected to the position.

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

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

*** FOOTNOTES ***

1/See, RCW 36.13.010 with regard to the classification of counties. Classification, under that statute, is based upon population with the cutoff point between a fourth and a fifth class county being a population of 18,000 inhabitants.

2/Cf., AGO 1973 No. 20, copy enclosed.

3/I.e., the period between the last Monday in July and the next succeeding Friday as provided for in RCW 29.18.030.

4/Except in the case of home rule, charter, counties organized pursuant to Article XI, § 4 (Amendment 21) of our State Constitution.

5/Accord, AGO 65-66 No. 115, copy enclosed, at pp. 2-3.