Can a joint self-insurance pool pick the lawyer who defends a Washington county against a tendered claim, without the elected county prosecutor's consent?

Plain-English summary

Stevens County is part of an interlocal joint self-insurance program with other local governments. Like most such pools, the program has authority under RCW 48.62.031(4)(b) to "contract or otherwise provide legal counsel for the defense of claims and other legal services." When a claim is tendered against Stevens County, the pool takes the position that it can pick the lawyer who defends the county. Stevens County Prosecuting Attorney Tim Rasmussen, who is not himself a party to the interlocal agreement, asked the AG whether the pool needs his consent before doing so.

The AG's answer: yes, generally. Three legal threads converge on this conclusion:

1. Constitutional. County prosecutors are elected officials under Article XI, Section 5 of the Washington Constitution. Under State ex rel. Banks v. Drummond, 187 Wn.2d 157 (2016), the legislature cannot freely delegate the "core functions" of an elected officer because doing so would make the election meaningless. Defending the county and advising its officials are core functions (RCW 36.27.020(1), (2), (4)).

2. Statutory. RCW 36.27.040 authorizes the prosecutor to appoint deputies and special deputies. RCW 36.27.030 lets a court appoint someone to discharge the prosecutor's duties when there is a "duty" and "some disability" preventing performance, including conflicts of interest under In re Appointment of Special Deputy Prosecuting Attorney, 446 P.3d 160 (Wash. 2019). RCW 36.32.200 lets the county legislative authority hire outside counsel only with approval of the presiding superior court judge, and Drummond held that this is a limit on, not a grant of, the county's general power.

3. Reading RCW 48.62.031 in harmony with the prosecutor statutes. The joint-pool statute does not say anything about prosecutor consent. The interpretive rule (statutes read together to maintain integrity of each) means the pool's contracting authority does not silently override the prosecutor's exclusive authority over core functions. Reading it the other way would also raise the constitutional concern under Drummond.

The bottom line: absent vacancy, true inability of the prosecutor to perform, or a court-approved RCW 36.32.200 contract, the joint pool needs the prosecutor's consent before designating outside counsel to advise or defend a member county.

Currency note

This opinion was issued in 2019. 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: Why does the prosecutor's elected status matter?
A: Because the Washington Supreme Court in Drummond held that voters' choice of elected officers would be "fruitless" if the duties of those officers could be freely delegated to others appointed by other branches of government. For prosecutors, this means other branches "cannot interfere with the core functions that make them 'prosecuting attorneys' in the first place" (quoting State v. Rice, 174 Wn.2d 884, 905 (2012)).

Q: What are the prosecutor's "core functions" here?
A: Advising and defending the county and county officials. RCW 36.27.020(1) makes the prosecutor "legal adviser of the legislative authority" and county officers; RCW 36.27.020(4) requires the prosecutor to "defend all suits" against the county.

Q: When can the joint self-insurance pool pick counsel without prosecutor consent?
A: Three situations the AG identified: (a) the prosecutor's office is vacant; (b) the prosecutor is "truly unavailable or unable to perform" (per Drummond, 187 Wn.2d at 177); or (c) a court has appointed a special deputy under RCW 36.27.030, which can include conflict-of-interest situations under Special Deputy Prosecuting Attorney, 446 P.3d 160. Otherwise, the prosecutor's consent is required.

Q: What about RCW 36.32.200 (county hires outside counsel)?
A: That statute lets the county legislative authority retain outside counsel, but only after a written contract approved by the presiding superior court judge. Drummond held that RCW 36.32.200 is a limitation on the county's existing power, not a separate grant of authority.

Q: Doesn't RCW 48.62.031(4)(b) say the pool can contract for legal counsel?
A: It says the pool "may... contract or otherwise provide legal counsel for the defense of claims and other legal services," if authorized in the interlocal agreement. The AG read this as a grant of contracting authority that nonetheless must be exercised consistent with the prosecutor's separately conferred authority over core functions, not as silently overriding that authority. The statute does not address prosecutor consent at all.

Q: What if the prosecutor is overworked but not "unavailable"?
A: Workload alone is unlikely to qualify. Drummond requires the prosecutor to be "truly unavailable or unable to perform." If the prosecutor agrees that the pool's appointed lawyer should handle the case, consent disposes of the issue. If the prosecutor disagrees, the pool's only path without the prosecutor's consent is the court-appointed special deputy route under RCW 36.27.030 or a written RCW 36.32.200 contract approved by the superior court judge.

Q: Does the prosecutor have to actively defend every claim, or can they ratify the pool's choice?
A: The opinion does not require active defense by the prosecutor or by a deputy in the prosecutor's office. The prosecutor can consent to outside counsel chosen by the pool. The point is that the consent is required, not that the prosecutor has to litigate the matter personally.

Background and statutory framework

A county prosecuting attorney in Washington is an elected official under Article XI, Section 5 of the Washington Constitution. RCW 36.27 sets out duties: defending all suits brought against the county (RCW 36.27.020(4)), serving as legal adviser to the legislative authority (RCW 36.27.020(1)), advising county and precinct officers and school directors (RCW 36.27.020(2)). The prosecutor may appoint regular and special deputies, who have the same authority as their principal, and may share deputies with other prosecutors (RCW 36.27.040). The prosecutor remains responsible for the acts of deputies and may revoke appointments at will.

When a prosecutor is temporarily unable to perform, RCW 36.27.030 lets a court appoint a qualified person to discharge the duties in court until the disability is removed. The Washington Supreme Court has applied this provision to physical and mental disability and to conflicts of interest (Westerman v. Cary, 125 Wn.2d 277 (1994); In re Appointment of Special Deputy Prosecuting Attorney, 446 P.3d 160 (Wash. 2019)).

The county legislative authority can hire outside counsel under RCW 36.32.200, but only via a written contract approved by the presiding superior court judge. State ex rel. Banks v. Drummond, 187 Wn.2d 157 (2016), held that this provision is a limit on an otherwise-existing right rather than an affirmative grant. Drummond also articulated the constitutional dimension: "[i]n the case of prosecuting attorneys," other branches of government "cannot interfere with the core functions that make them 'prosecuting attorneys' in the first place," and unconstitutional interference threatens the electorate's right to choose who provides those services.

Joint self-insurance programs under RCW 48.62 are interlocal entities formed by counties, cities, and other local governments to pool risk. RCW 48.62.031(1) authorizes the formation of such programs. RCW 48.62.031(2) makes the resulting program a separate legal entity with delegated powers. RCW 48.62.031(4) authorizes a range of operating activities, including risk management (subsection (a)), purchase of insurance (subsection (d)), and contracting for legal counsel for the defense of claims and other legal services (subsection (b)). The interlocal agreement governs which of these the program may exercise.

The interpretive question is whether the contracting authority in RCW 48.62.031(4)(b) by itself authorizes the pool to designate outside counsel without prosecutor consent. The AG concluded it does not. Standard interpretive practice (In re Bankruptcy Petition of Wieber, 182 Wn.2d 919 (2015); American Legion Post 149) requires reading related statutes in harmony to give effect to each. RCW 48.62.031 is silent on prosecutor consent. Reading it as silently overriding the prosecutor-control statutes would also raise the constitutional concern in Drummond. So the AG concludes that absent inability to perform or vacancy, prosecutor consent is required for outside counsel appointed pursuant to a joint self-insurance program under RCW 48.62.

Citations and references

Constitutional:
- Const. art. XI, § 5 (county prosecutors as elected officers)

Statutes:
- RCW 36.27 (county prosecutors), RCW 36.27.020(1), (2), (4); RCW 36.27.030; RCW 36.27.040
- RCW 36.32.200 (legislative authority hires outside counsel)
- RCW 48.62 (joint self-insurance), RCW 48.62.031(1), (2), (4)(a), (b), (d)

Cases:
- State ex rel. Banks v. Drummond, 187 Wn.2d 157 (2016)
- In re Appointment of Special Deputy Prosecuting Attorney, 446 P.3d 160 (Wash. 2019)
- Osborn v. Grant County, 130 Wn.2d 615 (1996)
- Westerman v. Cary, 125 Wn.2d 277 (1994)
- State v. Rice, 174 Wn.2d 884 (2012)
- In re Bankruptcy Petition of Wieber, 182 Wn.2d 919 (2015)
- American Legion Post 149 v. Dep't of Health, 164 Wn.2d 570 (2008)

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/consent-county-prosecutor-appointment-outside-counsel

Original opinion text

Attorney General Bob Ferguson

ATTORNEY, PROSECUTING—COUNTIES—Consent Of County Prosecutor For Appointment Of Outside Counsel

The consent of the county prosecuting attorney is required for the appointment of outside counsel to represent the county under a joint self-insurance program.

September 30, 2019

The Honorable Tim Rasmussen

Stevens County Prosecuting Attorney

215 S Oak Room 114

Colville, WA 99114

Cite As:

AGO 2019 No. 4

Dear Prosecutor Rasmussen:

By letter previously acknowledged, you requested our opinion on several questions, which we have combined and paraphrased as follows:

Must a county prosecutor provide consent before a joint county self-insurance program may designate outside counsel to advise or represent one of its member counties?

BRIEF ANSWER

Generally, yes. Elected county prosecuting attorneys have constitutional and statutory authority to advise and represent counties in criminal and civil actions. While prosecuting attorneys may appoint regular, special, or temporary deputies to perform duties within their authority, other individuals or entities, such as joint self-insurance programs, may not so delegate unless the offices of the prosecuting attorneys are vacant, the prosecuting attorneys are unable or unwilling to perform their responsibilities, or the prosecuting attorneys consent.

BACKGROUND

Stevens County is party to an interlocal agreement to form a joint self-insurance program with other local government entities. See RCW 48.62.031 (authorizing such agreements and programs). The resulting program is a separate legal entity with powers delegated by its constituent local government members. See RCW 48.62.031(2). You note that, as the elected Prosecuting Attorney for Stevens County, you are not a party to the interlocal agreement. Rather, the Stevens County Board of Commissioners entered into the agreement on behalf of the County. See RCW 48.62.031(1).

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If authorized in the governing interlocal agreement, joint self-insurance programs may, among other things, “[c]ontract or otherwise provide for risk management and loss control services[,]” “[j]ointly purchase insurance[,]” and “[c]ontract or otherwise provide legal counsel for the defense of claims and other legal services[.]” RCW 48.62.031(4)(a), (d), (b). You note that pursuant to that authority, the joint self-insurance program in which Stevens County participates takes the position that the program may appoint legal counsel to represent a member county in response to a claim being tendered to it. You ask whether, notwithstanding this authority, the program must obtain the relevant county prosecuting attorney’s consent before it may validly appoint legal counsel to advise or represent the individual counties.

ANALYSIS

We begin with an overview of county prosecutors’ authority, and the statutory and constitutional restrictions on who may exercise that authority. We then analyze what the statutes that authorize joint self-insurance programs to provide counsel mean in light of those restrictions.

RCW 36.27 sets forth a number of duties, powers, and restrictions regarding county prosecuting attorneys. Relevant here, county prosecuting attorneys are required to “defend all suits” brought against the county, and “[b]e legal adviser” of the “legislative authority” and “all county and precinct officers and school directors[.]” RCW 36.27.020(4), (1), (2). Prosecuting attorneys may “appoint one or more deputies who shall have the same power in all respects as their principal.” RCW 36.27.040. They may also temporarily share deputies with other prosecuting attorneys and appoint limited-authority special deputy prosecuting attorneys on a contract or fee basis. RCW 36.27.040. In all such appointments, the prosecuting attorney is responsible for the acts of his or her deputies and may revoke the appointments at will. RCW 36.27.040.

When a prosecuting attorney is temporarily unable to perform the duties of the office, RCW 36.27.030 authorizes a court to appoint a qualified person to discharge the duties of the office in court until the disability is removed. In order to trigger this provision, there must be both a “duty” to represent a specific party in a specific matter, and “some disability” that prevents the prosecutor from fulfilling that duty. In re Appointment of Special Deputy Prosecuting Attorney, 446 P.3d 160, ¶ 17 (Wash. 2019) (quoting Osborn v. Grant County, 130 Wn.2d 615, 624-25, 926 P.2d 911 (1996)). The Washington Supreme Court has applied this provision to situations not only involving physical or mental disability, but also conflicts of interest. See In re Appointment of Special Deputy Prosecuting Attorney, 446 P.3d 160, ¶ 26; Westerman v. Cary, 125 Wn.2d 277, 301, 892 P.2d 1067 (1994).

Similarly, the Court has concluded that local government entities may exercise their general powers to employ outside counsel only “when the prosecuting attorney is unable to perform his duties,” when the office is vacant, or when the prosecuting attorney consents. State ex rel. Banks v. Drummond, 187 Wn.2d 157, 177, 179 n.10, 385 P.3d 769 (2016). If unavailability is the claimed basis for appointment of outside counsel, however, the prosecuting attorney must be “truly unavailable or unable to perform.” Id. at 177. In any case, county legislative authorities may employ or contract with attorneys to perform prosecuting attorney duties only after forming a

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written contract approved by the presiding superior court judge of the county. RCW 36.32.200; Drummond, 187 Wn.2d at 172-74 (concluding RCW 36.32.200 is not an affirmative grant of right to retain special counsel, but a limit on an otherwise-existing right).

Beyond the statutory limitations, the Washington Supreme Court has also recognized “constitutional implications” of delegating duties of a prosecuting attorney to individuals other than the prosecuting attorney or authorized deputies. Drummond, 187 Wn.2d at 179-82. County prosecuting attorneys are elected officials pursuant to article XI, section 5 of the Washington Constitution, and the Court has cautioned that an appointment of outside counsel may “unconstitutionally deny the electorate’s right to choose who provides the services” of the elected prosecuting attorney. Drummond, 187 Wn.2d at 182. As the Court held in Drummond, “[i]t would be fruitless to delegate the selection of county officers to the voters if the duties of those officers could be freely delegated to officers appointed by other government branches.” Id. at 179-80. Thus, “[i]n the case of prosecuting attorneys,” other branches of government “‘cannot interfere with the core functions that make them “prosecuting attorneys” in the first place.’” Id. at 180 (quoting State v. Rice, 174 Wn.2d 884, 905, 279 P.3d 849 (2012)).

Relevant here, advising and defending the county and county officials are both “core functions” of the prosecuting attorney. Drummond, 187 Wn.2d at 181-82; RCW 36.27.020(1)-(2), (4). Thus, legislative delegation of these core functions to individuals other than the elected official at least implicates the electorate’s constitutional right to choose who provides the services of county prosecuting attorneys. Drummond, 187 Wn.2d at 181-82.

In light of these general restrictions, we next address the specific statutory provisions that are central to your opinion request. RCW 48.62.031(1) authorizes counties and other local government entities to join or form joint self-insurance programs, and RCW 48.62.031(4)(b) expressly allows such programs to “[c]ontract or otherwise provide legal counsel for the defense of claims and other legal services[.]” The heart of your inquiry is whether these provisions independently authorize joint insurance programs to appoint counsel to advise or defend member counties without first obtaining the relevant prosecuting attorney’s consent (assuming the ability and availability of the prosecuting attorney is not at issue). We conclude they do not.

The goal in construing statutes is “to ascertain and carry out the legislature’s intent.” In re Bankruptcy Petition of Wieber, 182 Wn.2d 919, 925, 347 P.3d 41 (2015) (internal quotation marks omitted). The starting point in statutory construction is to “examine the plain meaning of the statute,” in which we should take into account not only the language of the statute at issue, but also that of related statutes. Id. Starting with the statutes at issue, RCW 48.62.031(1) says nothing about prosecuting attorney consent. It simply authorizes counties and other local government entities to join or form joint self-insurance programs. RCW 48.62.031(1). Likewise, RCW 48.62.031(4)(b) provides that, if authorized in the governing interlocal agreement, a joint self-insurance program “may . . . [c]ontract or otherwise provide legal counsel for the defense of claims and other legal services[.]” Neither statute requires nor precludes prosecuting attorney consent before a joint self-insurance program appoints outside counsel pursuant to an interlocal agreement. Read in isolation,

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RCW 48.62.031(4)(b) might suggest unconstrained authority for joint self-insurance programs to appoint outside counsel.

However, the plain language of a statute is not read in isolation, but must be determined with reference to related statutes. In re Wieber, 182 Wn.2d at 925. As previously discussed, certain statutory provisions limit the authority of entities other than the prosecuting attorney to perform or delegate prosecuting attorney duties. RCW 36.27.030; RCW 36.32.200. And nothing in RCW 48.62.031(1) or (4)(b) speaks to prosecutorial consent one way or the other. Since it is entirely possible to read RCW 48.62.031(1) and (4)(b) in harmony with the statutes governing delegation of prosecuting attorney responsibilities, we should do so. American Legion Post 149 v. Dep’t of Health, 164 Wn.2d 570, 588, 192 P.3d 306 (2008) (“This court assumes the legislature does not intend to create inconsistent statutes. Statutes are to be read together, whenever possible, to achieve a harmonious total statutory scheme . . . which maintains the integrity of the respective statutes.” (alteration in original) (citation omitted) (internal quotation marks omitted) (quoting State ex rel. Peninsula Neighborhood Ass’n v. Dep’t of Transp., 142 Wn.2d 328, 342, 12 P.3d 134 (2000))). To give effect to the limitations in RCW 36.27.030 and RCW 36.32.200, we necessarily conclude that, absent inability to perform or vacancy of office, prosecuting attorney consent is still required for the appointment of counsel to defend or advise counties pursuant to joint self-insurance programs formed under RCW 48.62. Doing so also avoids the constitutional implications that would otherwise arise if we found RCW 48.62.031(1) and (4)(b) to constitute authority to designate outside counsel to counties without prosecuting attorney consent. Const. art. XI, § 5; Drummond, 187 Wn.2d at 179-82; see also In re Detention of Danforth, 173 Wn.2d 59, 70, 264 P.3d 783 (2011) (holding “wherever possible,” courts will “‘construe a statute so as to uphold its constitutionality’” (quoting State v. Reyes, 104 Wn.2d 35, 41, 700 P.2d 1155 (1985))).

In sum, there are statutory and constitutional provisions that restrict entities other than prosecuting attorneys from performing or designating individuals to perform duties within the prosecuting attorney’s core responsibilities. RCW 48.62.031(1) and (4)(b) do not obviate these restrictions. Absent vacancy of office or true inability to perform the duties of the office, prosecuting attorney consent is required.

We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON

Attorney General

ALICIA O. YOUNG

Deputy Solicitor General

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