No. ( 1980 )

Ms. Paula Herzmark Executive Director Department of Local Affairs 1313 Sherman Street Denver, CO 80203

Dear Ms. Herzmark:

I am writing in response to your July 9, 1980 request for an attorney general's opinion on the proper legal advisor to a public trustee.

QUESTION PRESENTED AND CONCLUSION

You have asked the following question:

Who is the official legal advisor to a public trustee?

The Colorado statutes do not appoint any one agency to act as legal advisor to the public trustee. Either the county attorney or the district attorney may advise the public trustee on the performance of his duties.

ANALYSIS

C.R.S. 1973, 38-37-101, et seq., creates the office and duties of public trustee. That statute provides that, in counties of the first and second classes, the Governor shall appoint a public trustee for a term of two years, and in other counties, the county treasurer shall be the public trustee. Article 37 of title 38, C.R.S. 1973, does not designate any agency to serve as legal advisor to the public trustee.

A public trustee is a county officer. Walsh v. People exrel. McClenahan, 72 Colo. 406, 211 P. 646 (1922). As a county officer, the public trustee may be able to receive legal advice from the county attorney, if such officer is appointed for the county, and the county attorney may represent the trustee in civil actions to which the county is a party or in which it is interested. Medberry v. People, 107 Colo. 15, 108 P.2d 243 (1940). The county attorney is employed at the discretion of the county commissioners, and is not employed to provide services to other county officials absent specific authorization from the commissioners. Morris v. Bd. of Comm'rs, 25 Colo. App. 416,139 P. 582 (1914). If, then, the county commissioners do not authorize the county attorney to represent the public trustee, the county attorney may not serve as the trustee's legal advisor.

In that instance, the district attorney of the judicial district in which the county is located may represent and advise the public trustee. The district attorney is authorized, under C.R.S. 1973, 20-1-105, to represent county officials of all counties within his district. That section provides:

20-1-105. Opinions to county officers — representation. (1) The district attorney, upon request of any county officer of any county within his district, without fee, shall give his opinion in writing upon all questions of law having references to the duties of such officer which may be submitted and shall file and preserve in his office a copy of all such opinions.

If, therefore, the county commissioners have not appointed a county attorney, or have not authorized the county attorney to represent the public trustee, the trustee may request advice from the district attorney.

SUMMARY

As a county officer, the public trustee may seek legal advice from the county attorney, if a county attorney has been appointed and authorized by the county commissioners to act in such capacity. If the county attorney has not been either appointed or authorized, the district attorney for that county may advise the public trustee upon any question of law.

Very truly yours

J.D. MacFARLANE Attorney General

TRUSTEES PUBLIC OFFICERS COUNTY OFFICERS AND EMPLOYEES ATTORNEYS PROSECUTORS

C.R.S. 1973, 20-1-105 C.R.S. 1973, 38-37-101 et seq.

LOCAL AFFAIRS, DEPT. OF Local Government, Div. of

As a county officer, the public trustee may seek legal advice from the county attorney if the county attorney is so authorized by the county commissioners; otherwise, the district attorney may advise the public trustee.