State ex rel. Banks v. Drummond ( 2016 )

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SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON ex rei. Gregory )
M. Banks, Prosecuting Attorney of Island )
County, ) No. 92749-9
)
Appellant, ) En Bane
)
v. )
)
SUSAN E. DRUMMOND, and Law Offices )
of Susan Elizabeth Drummond, PLLC; and )
ISLAND COUNTY BOARD OF )
COMMISSIONERS, )
)
Respondents. )
)
WIGGINS, J. - Island County's board of commissioners hired Susan
Drummond and her law office to provide legal services. Providing legal services is
among the duties of county prosecuting attorneys as combined civil and criminal
county counsel. Island County's prosecuting attorney, Gregory Banks, objected to
Ms. Drummond's appvintment because his office was able and willing to provide the
necessary legal advice. Prosecutor Banks brought a quo warranto action in the Island
County Superior Court, challenging Ms. Drummond's usurpation of his elected public
State v. Drummond (Susan E.) & Island County
Bd. of Comm'rs, No. 92749-9
office. 1 The superior court denied the claim on summary judgment, holding that
boards of commissioners have authority under RCW 36.32.200 to freely hire outside
counsel. We reverse.
We hold that county boards of commissioners do not possess statutory
authority to appoint outside counsel over the objection of an able and willing
prosecuting attorney.
FACTS
This case stems from ongoing budget and performance disputes between
Island County's board of commissioners (Board) and the prosecuting attorney's office.
Prosecutor Banks's office conducts a substantial amount of the county's land use and
environmental law work. According to Prosecutor Banks, ·,outside of criminal
prosecution, land use law and the GMA [(Growth Management Act), ch. 36. 70A
RCW,] are the Civil Division's 'bread and butter."' Yet the Board is dissatisfied with
the office's legal advice, alleging both a lack of adequate expertise and a persistent
failure to defer to the Board's broad planning goals. As a result, the Board seeks
other, specialized counsel to help implement the GMA Prosecutor Banks, on the
other hand, feels that his office is fully capable of providing satisfactory GMA-related
counsel and that any shortfalls in his office's performance result from lack of adequate
1 "Quo warranto" is Medieval Latin for "by what warrant." WEBSTER's THIRD NEW
INTERNATIONAL DICTIONARY 1868 (2002). Today, it is a common-law writ used to oust a person
unlawfully exercising the powers of a public office. /d.
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staffing and funding by the Board. As Prosecutor Banks dryly summarizes, "We have
professional disagreements about policy and about budgets from time to time."
A. Budget Issues
After 2008, Island County government· faced extensive budget cuts. The
Board's consent is required to establish and fund all unelected employee positions,
including those in the prosecuting attorney's office. RCW 36.16.070 ("In all cases
where the duties of any county office are greater than can be performed by the person
elected to fill it, the officer may employ deputies and other necessary employees with
the consent of the board of county commissioners. The board shall fix their
compensation .... "). These budget reductions curtailed the number of staff in the
prosecuting attorney's office.
The office continued to shrink through 2010. While staff cuts focused on the
office's criminal division, pressure also increased on the civil division as civil staff were
partly reassigned or not replaced upon retirement. 2 By the 2015 budget cycle,
Prosecutor Banks informed the Board that his civil division was "'near the capacity of
our resources."' The 8oard agreed that "there are times [Prosecutor Banks] does not
have the necessary staff or capability to provide the services required by the Board."
Matters escalated during the 2016 budget cycle. Prosecutor Banks requested
funding for four new positions: two criminal and two civil staff. The Board granted
2For instance, in the 2014 budget cycle, a chief criminal deputy was restored with a salary
made available due to the retirement of the senior chief civil deputy. Deputy Prosecuting
Attorney Dan Mitchell was thereafter promoted to chief civil deputy, though with a much lower
salary than the outgoing chief given his fewer years with the office.
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funding for the highest-priority criminal staff position and denied the remainder.
Prosecutor Banks was disappointed by the Board's decision to instead retain
extensive funds to employ outside civil counsel while failing to satisfy civil staffing
requests in his office: "Oddly, the funds to improve ... the prosecutors' office's
capacity were not placed in my budget." This money was subsequently allocated to
Ms. Drummond's contract as outside counsel.
B. Performance and Personality Issues
Island County's financial tensions were also exacerbated by the Board's sense
that its priorities were not well represented in the prosecuting attorney's office. The
Board claimed that the prosecuting attorney's office responded too slowly, gave poor
advice, and failed to support the Board's legislative goals. Yet distinguishing genuine
performance issues from long-standing personality conflicts is challenging; both sides
swapped insults and accusations of inadequate respect. For instance, while there is
no dispute that, over the past two decades, Prosecutor Banks's office had mixed
success defending GMA regulations enacted by the Board, the parties' explanations
for these poor results diverge sharply.
On the one hand, Prosecutor Banks concluded that the "problems were caused
by the County's [previous] use of outside counsel in the 1990s and early 2000s." This
outside counsel, Prosacutor Banks claimed, cost the county "nearly a million dollars"
and helped establish "regulations that were riddled with problems." Prosecutor Banks
traced his office's losses in defending the GMA regulations to this past poor counsel,
and to the Board's "risky decisions to push the boundaries of the GMA." As a result,
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he "resolved to keep GMA planning advice and litigation 'in· house'" by "carefully
cultivat[ing] the knowledge, skill, and resources" to effectively advise on GMA issues.
Emphasizing that deputy prosecutor salaries cost a fraction of the money paid to
outside counsel, Prosecutor Banks roots his resistance both in frugality and in his
belief in his office's superior performance.
On the other hand, the Board saw the mixed results of Prosecutor Banks's
office as indicative of obstinacy and inexperience, contrasting outside counsel's past
performance as "a state model" of GMA implementation. Statements from two former
commissioners suggest that Prosecutor Banks's office refused to provide substantive
advice during the initial GMA implementation period, telling the Board to simply
"'[f]ollow the law."' Former Commissioner William McDowell described the office's
apparent "refusal and/or inability to offer strategic advice on the GMA," while former
Commissioner Mike Shelton characterized the proffered GMA advice as "weak."
According to Commissioner Shelton, Prosecutor Banks's early failures defending the
1990s GMA implementation led the Board to believe that his office lacked "the
capability [and] necessary experience" to perform GMA work going forward.
The Board generally objected to the prosecuting attorney's office's legal
perspective on planning issues. Commissioner Jill Johnson criticized Chief Civil
Deputy Prosecuting Attorney Dan Mitchell's "insistence that the Board could not
accomplish our land use goals because our Critical Areas policy was rejected on
appeal," asserting that "it was the Board's desire to strengthen the record to include
progress since the time the Critical Areas Ordinance was written." Commissioner Jill
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Johnson felt that the strategy disconnect between the Board and Prosecutor Banks's
office undermined "the Board's need for strategic guidance on how to position the
County well to defend our ultimate land use policy choices." Although Deputy
Prosecuting Attorney Mitchell "expressed a desire ... to demonstrate that he could
meet [the Board's] needs without bringing in outside counsel," the Board worried that
the prosecuting attorney's office would "jeopardize the[] defensibility" of GMA
decisions "by failing to vigorously defend those decisions in litigation." Citing this
overall dissatisfaction with Deputy Prosecuting Attorney Mitchell's performance,
Commissioner Johnson concluded "that GMA land use policy could no longer be Mr.
Mitchell's area of concentration."
The Board instead allocated approximately $200,000 to $250,000 to hire
specialized GMA counsel. At the time of the appointment, the Board did not describe
Ms. Drummond's retention as the result of any refusal or failure of Prosecutor Banks,
but rather as a way of "augment[ing]" his office: "[T]hey've ... got their ... acts
together[;] this is just to supplement them because they're busy[;] they're
shorthanded." At the same time, the Board anticipated that they would "pick and
choose some of the issues" to leave with the prosecuting attorney's office "on a case
by case basis," in order to "leverage [the] resources" of both Prosecutor Banks's and
Ms. Drummond's offices.
The Board then passed Island County Board of Commissioners Resolution C-
48-15, which provided for Ms. Drummond's appointment as outside counsel. The
Drummond contract was subsequently reviewed and approved by letter from the
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Island County Superior Court according to procedures laid out in RCW 36.32.200.
The contract took effect on April 20, 2015. Ms. Drummond has since been advising
the Board and performing other legal duties pursuant to the contract.
In reviewing the Drummond contract, Presiding Judge Vickie Churchill and
Judge Alan Hancock considered Resolution C-48-15's "whereas" clauses that
explained Ms. Drummond's appointment. One "whereas" clause noted that "the
Prosecuting Attorney's office is unable to provide ... comprehensive and proactive
legal strategy, advice and assistance" on GMA issues. Judges Churchill and Hancock
gave "due deference" to these listed reasons and accepted that Prosecutor Banks "is
apparently unwilling or unable to provide some of the legal advice and services that
the board is requesting." Judges Churchill and Hancock rejected Prosecutor Banks's
argument that RCW 36.32.200 failed to provide independent authority for the Board's
retention of outside counsel and, finding that the proposed employment was for "a
proper purpose," approved the contract.
On August 12, 2015, Prosecutor Banks filed this quo warranto action on behalf
of the State of Washington to remove Ms. Drummond from her exercise of the
prosecuting attorney's office. The Board intervened and filed a counterclaim, seeking
to have the Drummond contract declared valid. The parties then filed cross motions
for summary judgment.
In its summary judgment motion, the Board contended that Prosecutor Banks
was unable to adequately perform the necessary services because of "limited civil
staff" and "delayed response times." Prosecutor Banks, while "strongly disput[ing]" the
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Board's characterization of his office, argued that the quality of his work was irrelevant:
"[E]ven if [the Board's statements] were true ... [they] are insufficient, as a matter of
law, to disenfranchise the voters."
After hearing oral argument, visiting Judge Brian Stiles granted summary
judgment for the Board and Ms. Drummond and dismissed the quo warranto action in
an oral opinion. Specifically, the court concluded that RCW 36.32.200's application
was not limited to circumstances where the prosecuting attorney is unavailable "due
to some sort of disability, death or vacancy or conflict of ... interest." Judge Stiles
further found that the statute was not unconstitutional on its face. 3
The court's final written order granted the Board's and Ms. Drummond's
motions for summary judgment, denied Prosecutor Banks's amended motion for
summary judgment, granted the Board's cross claim for declaratory relief (affirming
the validity of the Drummond contract), and dismissed the quo warranto action with
prejudice. Noting that "nobody's really disputed or made an argument that there are
any disputed facts," the court stated that it would find, if necessary, that the Drummond
contract was made "for legitimate and appropriate purposes." There were no findings
concerning Prosecutor Banks's ability or willingness to perform his duties as
prosecuting attorney.
Prosecutor Banks appealed, and we granted direct review. We reverse.
3 Prosecutor Banks did not argue that RCW 36.32.200 is facially invalid. Rather, he claims
that the statute, if providing authority for boards of commissioners to freely hire outside
counsel, is unconstitutional as applied.
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STANDARD OF REVIEW
We review summary judgments de novo. Scrivener v. Clark Col/., 181 Wash. 2d
439, 444, 334 P.3d 541 (2014). Summary judgment is appropriate where there is no
genuine issue of any material fact and the moving party is entitled to judgment as a
matter of law. CR 56( c). We construe evidence and inferences from the evidence in
favor of the nonmoving party. Scrivener, 181 Wash. 2d at 444. When reviewing an
appeal from summary judgment, we disregard any findings of fact that were entered
by the trial court. Hemenway v. Miller, 116 Wash. 2d 725, 731, 807 P.2d 863 (1991)
(noting that "findings of fact on summary judgment are not proper, are superfluous,
and are not considered by the appellate court").
The construction and meaning of a statute is a question of law that we review
de novo. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 9, 43 P.3d 4
(2002).
Constitutional issues are also questions of law that we review de novo. State v.
Gresham, 173 Wash. 2d 405, 419, 269 P.3d 207 (2012). An as-applied constitutional
challenge asserts that application of the statute in the specific context of the party's
actions or intended actions is unconstitutional. Wash. State Republican Party v. Pub.
Disclosure Comm'n, 141 Wash. 2d 245, 282 n.14, 4 P.3d 808 (2000). Holding a statute
unconstitutional as applied prohibits future application of the statute in a similar
context, but the statute is not totally invalidated. City of Redmond v. Moore, 151
Wash. 2d 664, 668-69, 91 P.3d 875 (2004).
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ANALYSIS
Boards of commissioners lack authority to hire outside counsel without showing
that the county's elected prosecuting attorney is unable or unwilling to perform the
requisite duties.
I. Quo Warranto Claim
The first issue is whether this action is truly a quo warranto claim. A public quo
warranto action is properly brought to oust any person who "intrude[s] upon" or
"unlawfully ... exercise[s] any public office." RCW 7.56.010(1 ). The challenging party
cannot bring an action until the challenged party begins his or her term of contract.
State ex ref. Quick-Ruben v. Verharen, 136 Wash. 2d 888, 900-01, 969 P.2d 64 (1998).
In addition, the action must be brought before the contract term expires. Cotton v.
City of Elma, 100 Wash. App. 685, 695, 998 P.2d 339 (2000). When determining
whether the target is exercising a public office, we consider whether that person is
performing an official's statutory duties, not the particular title granted to the
challenged party. Grant County Prosecuting Att'y v. Jasman, 183 Wash. 2d 633, 645,
354 P.3d 846 (2015).
Here, the Board and Ms. Drummond contend that a quo warranto action is
improper because Ms. Drummond was not named a county or deputy prosecutor, nor
does she serve in any other public office. However, Ms. Drummond was hired to
provide legal advice and to "defend[] adopted legislation" for the county. The
prosecuting attorney is similarly required to serve as "legal adviser" to the county
legislative authority and defend the county in civil proceedings. RCW 36.27.020(1 )-
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(3). These duties plainly overlap. The fact that Ms. Drummond has not been given
the title of a county officer is irrelevant under Jasman. 183 Wash. 2d at 645. Therefore,
the prosecuting attorney was entitled to bring this quo warranto suit for ouster.
Respondents Board and Ms. Drummond bring a number of other tangential and
unpersuasive challenges to this quo warranto action, which we dispose of briefly.
First, they argue that this action is truly an appeal of Resolution C-48-15, in which the
Board retained Ms. Drummond's services, and is thus untimely. We note simply that
the availability of one type of action does not preclude another action properly
brought-which this is.
Second,. they strongly argue that this action is a personally motivated claim
against the Board, and as such presents both ethical and legal violations. We reject
this view of the case. This is a claim for usurpation of the office of a public official;
quo warranto claims specifically permit prosecuting attorneys to patrol for
unconstitutional delegations of public officials' authority. RCW 7.56.020. Moreover,
any person in public office may file an information where the action concerns the
person's own office. /d.
Third, they arg,Je that this action is barred by estoppel, as Prosecutor Banks
did not object to previous board decisions to hire outside counsel. Yet a prosecuting
attorney's discretion to refrain from acting on a particular issue in no way forecloses
his ability to take enforcement action in the future. See State ex rei. Fishback v. Globe
Casket & Undertaking Co., 82 Wash. 124, 133, 143 P. 878 (1914) ("An officer of the
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state ... cannot grant indulgences to commit new or continuing offenses."). The law
cannot be so easily excused.
This quo warranto action was properly filed.
II. Statutory Authority
The Board and Ms. Drummond argue that the Board acted pursuant both to "its
specific contracting authority under RCW 36.32.200" and according to "its inherent
general contracting authority under RCW 36.01.010 and RCW 36.32.120(6)." We
address the specific and general authority claims in turn.
When interpreting a statute, the court's fundamental objective is to ascertain
and give effect to the legislature's intent. Hama Hama Co. v. Shorelines Hr'gs Bd., 85
Wash. 2d 441, 445, 536 P.2d 157 (1975). We begin with the plain meaning of the statute.
See Campbell & Gwinn, 146 Wash. 2d at 9. In doing so, we consider the text of the
provision, the context of the statute in which the provision is found, related provisions,
amendments to the provision, and the statutory scheme as a whole. /d. at 10-11. If
the meaning of the statute is plain on its face, then we must give effect to that meaning
as an expression of legislative intent. /d. If, after this inquiry, the statute remains
ambiguous or unclear, it is appropriate to resort to canons of construction and
legislative history. !d. at 12.
Counties are "but arms or agencies of the state organized to carry out or
perform some functions of state government." State ex ref. Taylor v. Superior Court,
2 Wash. 2d 575, 579, 98 P.2d 985 (1940). They, as "instrumentalities of the state, have
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no powers except those expressly conferred by the constitution and state laws, or
those which are reasonably or necessarily implied from the granted powers." /d.
A. Specific Statutory Authority Under RCW 36.32.200
The parties dispute whether compliance with procedures required under RCW
36.32.200 are both necessary and sufficient to make a contract lawful. In determining
the implications of RCW 36.32.200, we must first consider the words of the statute,
which reads in full:
Special attorneys, employment of. It shall be unlawful for a county
legislative authority to employ or contract with any attorney or counsel to
perform any duty which any prosecuting attorney is authorized or required
by law to perform, unless the contract of employment of such attorney or
counsel has been first reduced to writing and approved by the presiding
superior court judge of the county in writing endorsed thereon. This
section shall not prohibit the appointment of deputy prosecuting attorneys
in the manner provided by law.
Any contract written pursuant to this section shall be limited to two
years in duration.
The implications of the statute's negative phrasing ("unlawful ... unless") are not
immediately obvious. Ms. Drummond and the Board construe RCW 36.32.200 to
mean that any contract that is in writing, approved by a superior court judge, and for
a term not exceeding two years is necessarily lawful. Asked to describe the statute's
full implications, the Board's counsel explained, "Maybe the easier way to understand
[RCW 36.32.200] is to flip the condition. And so if the contract is less than two years,
reduced to writing, approved by the superior court judges, then it's fine. There's no
restriction on the Board's ability to do that."
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"Flipping" the reading of the statute in this manner violates rules of formal logic
in a manner known as the fallacy of the inverse or "denying the antecedent." State v.
Brush, 183 Wash. 2d 550, 568 n.8, 353 P.3d 213 (2015) (Wiggins, J., concurring in part
and concurring in result) (citing PATRICK J. HURLEY, A CONCISE INTRODUCTION TO LOGIC
323 (9th ed. 2005)). Under the rules of formal logic, conditional statements take the
form, '"If P, then Q."' /d. Pis the antecedent and Q is the consequent. The fallacy of
the inverse occurs when one takes a true statement presented in this form, negates
both the antecedent and consequent, and concludes that "if not P, then not Q" must
also be true. Denying the truth of the antecedent does not necessarily negate the
consequent. For example:
Premise 1: If it is snowing, then it is cold outside.
Premise 2: It is not snowing.
Conclusion: It is not cold outside.
The structure of RCW 36.32.200 is "if P (procedures are not followed), then Q
(contract is unlawful)." It does not follow that "if not P (procedures are followed), then
not Q (contract is lawful)." In sum, a more accurate restatement of RCW 36.32.200
would be: "When the Board can retain special counsel, its contract to do so must be
in writing, be approved by the presiding superior court judge, and last no longer than
two years." The Board's authority to contract must stem from an independent source.
Understanding RCW 36.32.200 as a limit on, rather than as an expansion of,
the Board's authority to contract is consistent with the statute's legislative history. In
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1983, four senators proposed Senate Bill 3151 (S.B. 3151), which would have
established a new and affirmative grant of authority for boards of commissioners:
NEW SECTION. Sec. 1. There is added to chapter 4, Laws of
1963 and to chapter 36.27 RCW a new section to read as follows:
Duties of the prosecuting attorney, as set forth in RCW 36.27.020,
shall in any county entering into a contract pursuant to section 2 of this
act, be modified to the extent and in the manner provided by the contract.
NEW SECTION. Sec. 2. There is added to chapter 4, Laws of
1963 and to chapter 36.27 RCW a new section to read as follows:
The legislative authority of any county may contract to employ or
retain one or more persons admitted as attorneys and counselors by the
courts of this state to perform any or all of the following legal services on
behalf of the county:
(1) Act as legal advisor to the county officers, providing them with
legal advice regarding the conduct of their public duties and drafting legal
instruments used by them to perform their official business; and
(2) Appear for and represent the county in all civil proceedings to
which the county or its officers are parties.
S.B. 3151, 48th Leg., Reg. Sess. (Wash. 1983). The significance of the proposed
changes was synopsized by the senate bill report, describing the proposed new
authority to hire legal advisers and noting that the former statute "prohibit[ing] a county
board of commissioners from hiring special attorneys is repealed." S.B. REP. ON S.B.
3151, 48th Leg., Reg. Sess., Synopsis at 1 (Wash. 1983).
The potential impact of S.B. 3151 was conveyed in a letter from the Jefferson
County Prosecuting Attorney at the time, John Raymond, to the Washington
Association of Prosecuting Attorneys, which was lobbying the legislature on the issue.
Letter from John F. Raymond, Jefferson County Prosecuting Att'y, to Michael
Redmond, Wash. Ass'n of Prosecuting Att'ys 1 (Jan. 25, 1983) (Raymond Ltr.); H.
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Local Gov't Comm., Agenda & Minutes (Apr. 5, 1983). If boards of commissioners
can hire their own counsel, Raymond objected, the boards could reduce the office of
the prosecuting attorney's budget dramatically, requiring the prosecuting attorney to
"[lay] off one-third to one-half of his staff." Raymond Ltr. at 1. Then, because boards
would also be able to "fire their 'County Attorney' at any time," the prosecuting attorney
would be left to "take up the workload again at a minute's notice." /d. The passage
of S.B. 3151, Raymond summarized, "could be catastrophic." /d. at 2.
Of greater constitutional significance is Raymond's concern that S.B. 3151
could "turn[] the office of Prosecuting Attorney into a political football" by transforming
civil counsel into a patronage position. /d. at 1. It was precisely this patronage
concern that stirred many of the western states' constitutional conventions to establish
the election of county attorneys. See Michael J. Ellis, Note, The Origins of the Elected
Prosecutor, 121 YALE L.J. 1528, 1531 (2012). (The implications of Wash. Const. art.
XI, § 5, establishing the election of county prosecuting attorneys, are discussed in
greater detail in Section Ill, below.)
While S.B. 3151 sought "to unfetter a legislative authority's ability to hire
attorneys related to all aspects of civil matters," this bill was ultimately rejected. Br. of
Amicus Curiae Wash. State Ass'n of Counties (WSAC) at 12; 1 SENATE JOURNAL, 48th
Leg., Reg. Sess., at 554-55 (Wash. 1983). As passed, Substitute S.B. 3151 included
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only modest changes to the original RCW 36.32.200 statute. 4 /d. Respondents Board
and Ms. Drummond urge us to read into RCW 36.32.200, as reenacted, an affirmative
grant of authority for boards of commissioners to hire outside counsel-authority that
the legislature rejected when it rejected S.B. 3151. 5
It is this court's duty to discern and give effect to the intent of the legislature.
Hama Hama Co., 85 Wash. 2d at 445. The legislature specifically declined to grant
boards the affirmative authority to hire outside counsel. Instead, the legislature
reenacted a statute that, by its plain language, limits rather than grants
commissioners' ability to hire. We must look elsewhere for a source of the Board's
asserted authority to hire outside counsel; it is not to be found within the scope of
RCW 36.32.200.
4These changes included allowing a single superior court judge to review outside counsel
contracts, rather than the previous majority requirement. SUBSTITUTE S.B. 3151, 48th Leg.,
Reg. Sess. (Wash. 1983).
5 The Board and WSAC also stress the policy reasons for finding an affirmative grant of
authority in RCW 36.32.200. WSAC argues that requiring approval by prosecuting attorneys
before appointing outside counsel would "establish a new, onerous and unnecessary legal
bar." The Board echoes this claim in its reply to the WSAC brief, claiming that "Banks' theory
will ... destroy the balance of powers, substituting an unworkable system that invests him
with the power to control the Board's legislative and executive actions." Both briefs, however,
cite to letters filed by Washington county boards of commissioners indicating that prosecuting
attorneys' approval is widely sought and regularly granted. Thus, no additional procedures
beyond what are routinely employed would be required for compliance.
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B. General Statutory Authority under RCW 36.32.120 and RCW 36.01.010
The Board argues that it has implied authority to hire outside counsel under
counties' general powers statutes: RCW 36.01.010 and RCW 36.32.120(6). 6 The
first, RCW 36.01.01 0, details a county's "corporate powers" and provides the authority
"to sue and be sued." (Formatting omitted.) The second, RCW 36.32. 120(6), requires
a county's board of commissioners "in the name of the county to prosecute and defend
all actions for and against the county." These two statutes, the Board and Ms.
Drummond argue, provide the implied authority to hire outside counsel.
Our ability to infer authority where not explicitly stated is limited: "Boards of
county commissioners are creatures of the statute. They must pursue and exercise
the powers conferred upon them in strict compliance with the statute." Nw.
Improvement Co. v. McNeil, 100 Wash. 22, 28, 170 P. 338 (1918).
As a general matter, we have declined to infer permission to appoint private
service providers to perform the duties of a public officer. /d. at 27-34. In McNeil, a
board of commissioners hired a private assessor to value undeveloped coal and
timber for purposes of taxation. /d. at 25. The board justified its claim of authority to
hire an outside assessor by reference to its general powers statute, requiring the
board to '"have the care of the county property and the management of the county
6
The Board's implied powers are also embedded in RCW 36.01.010: "The several counties
... shall have capacity ... to do all other necessary acts in relation to all the property of the
county."
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funds and business.'" /d. at 27 (quoting Rem. 1915 Code, subdiv. 6, § 3890). This
court framed the issue thus:
Whether the county commissioners, however necessary a thing may
seem to be, have the power to appoint a private individual to do a thing,
or perform a duty, which the law imposes upon one of the regular county
officers-one who is charged with the doing of the very thing sought to
be accomplished by independent contract with a stranger to the county.
/d. at 33. Whether the expert assessor provided a service superior to the county
assessor was not considered. Instead, we reasoned that the county cannot require
the public to pay for performance of those "duties expressly delegated by statute to
other administrative county officers." State ex ref. Hunt v. Okanogan County, 153
Wash. 399,421,280 P. 31 (1929) (restating our holding in McNeil). If we allowed a
county board to enter into contracts for services already delegated to a public officer,
then county commissioners might "entirely usurp the powers of the [public official] and
functions of his office on the theory that he or they were incompetent.'' McNeil, 100
Wash. at 33. Even incompetence, we held, was inadequate justification to deprive
the voters of their chosen public officer.
However, McNeil appears to be in tension with two early pre- and post-
statehood cases acknowledging that at least some authority to employ outside
counsel is inherent in RCW 36.32.120(6). Martin v. Whitman County, 1 Wash. 533,
536, 20 P. 583 (1889) (noting that the right to employ private counsel was established
by a territorial statute permitting county officers to "prosecute and defend all actions");
Reed v. Gormley, 47 Wash. 355, 91 P. 1093 (1907) (rejecting the notion that removing
a provision in the prosecutor's duties statute, expressly providing for the
19
State v. Drummond (Susan E.) & Island County
Bd. of Comm'rs, No. 927 49-9
commissioners to employ their own attorneys, substantively changed the general
powers statute). Neither of these cases involved any objection by the prosecuting
attorney. In Reed, a letter from the prosecuting attorney supported the contract. 47
Wash. at 356. Despite this express consent, a taxpayer sought to enjoin the payment
of outside counsel, arguing the commissioners lacked any power to contract for legal
services. We noted, '"[l]t is not unfrequently the case that [the prosecuting attorney]
may be unable to attend to the business of the county, or [the county's] interests in
some particular suit may be of such magnitude that the assistance of other counsel
would be very desirable, or possibly indispensable."' /d. at 357-58 (quoting Ellis v.
Washoe County, 7 Nev. 291, 293 (1872)). Thus, with the consent of the prosecuting
attorney, the board was permitted to commit public resources to an outside contract.
The possibility of necessity, touched on only briefly in Reed, was expanded by
our subsequent decision in State v. Gage. 107 Wash. 282, 284-85, 181 P. 855 (1919)
(construing the general powers phrase "may sue and be sued"). In Gage, we held
that the general power to "'sue and be sued"' allows a local government entity to
employ outside counsel "when ... the prosecuting attorney cannot act and the
necessity for legal aid is urgent." /d. at 285 (quoting LAWS OF 1909, ch. 97, § 2, at
265). Taken together with Reed and Martin, Gage refines our previous holdings
concerning the power to hire outside counsel: To perform their own duties,
commissioners understandably require the assistance of counsel, and when the
prosecuting attorney is unable to perform his duties, the board's general powers
statutes fill the gap.
20
State v. Drummond (Susan E.) & Island County
Bd. of Comm'rs, No. 927 49-9
We can harmonize Reed and Gage with our holdings in McNeil and Hunt by
understanding that, in order for a board to hire an outside party to perform duties
delegated to a public official, that official must be, not simply "incompetent" or
otherwise undesirable, but truly unavailable or unable to perform. 7 McNeil, 100 Wash.
at 31. A conflict of interest is construed as adequate grounds to find a prosecuting
attorney "unavailable" or "disabled." See Westerman v. Cary, 125 Wash. 2d 277, 301,
892 P.2d 1067 (1994).
Here, the Board alleges that Prosecutor Banks and his office lack adequate
expertise to advise on GMA issues, that Prosecutor Banks's office fails to respect the
Board's policy goals, and that outside counsel would provide a superior service. Yet
the county prosecuting attorney is indisputably required to provide the Board with legal
advice. RCW 36.27.020(1) ("The prosecuting attorney shall ... [b]e legal adviser of
the legislative authority .... "). Under our holdings in the McNeil and Gage line of
cases, dissatisfaction with (or even incompetence by) a county official fails to justify
billing the public for the cost of an outside replacement.
While the Board further argues that Prosecutor Banks is unable to perform the
required services, Prosecutor Banks disputes this argument; he contends that his
office, although seeking more resources, has cultivated the expertise to provide
7Courts similarly distinguish disagreement from inability when considering the appointment
of special counsel pursuant to RCW 36.27.030 (providing for the temporary court appointment
of "some qualified person" when the prosecuting attorney is "unable to perform his or her
duties"). See Hoppe v. King County, 95 Wash. 2d 332, 340, 622 P.2d 845 (1980) (holding that
a county official was not entitled to second-guess the judgment of the prosecuting attorney
by means of outside counsel hired at the taxpayers' expense).
21
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quality GMA counsel. Moreover, any arguments by the Board that Prosecutor Banks's
office is unable to perform due to resource constraints are undercut by the fact that
the Board controls the office's budget and staffing. On appeal from a motion for
summary judgment, we consider the facts in the light most favorable to Prosecutor
Banks, the nonmoving party. Thus, we are obliged to entertain Prosecutor Banks's
version of events: that the Board, dissatisfied with the relatively conservative legal
advice provided by his office, deliberately underfunded the civil division and used the
retained public funds to hire more amenable outside counsel.
Far from conclusively establishing that Prosecutor Banks was unable to
perform the required services, the facts here demand the reverse. Reversing the
summary judgment presumption and construing the evidence in the light most
favorable to the Board and to Ms. Drummond, we find no evidence sufficient to
persuade a reasonable jury that Prosecutor Banks was unable or unwilling to serve.
While there are facts to support an argument that Prosecutor Banks and his office
have offered less than a satisfactory performance, we reiterate that incompetence is
insufficient to find a public official unavailable or disabled. And while there is evidence
that the prosecuting attorney's office lacked adequate resources to provide the
services demanded by the Board, one cannot simultaneously prevent and demand
performance. 8
8 Nor was the Board denied its right to counsel. Even in the criminal context, the accused is
not entitled to new appointed counsel merely because of dissatisfaction or disagreement with
appointed counsel. See, e.g., State v. Stenson, 132 Wash. 2d 668, 734, 940 P.2d 1239 (1997)
(holding that an irreconcilable conflict may justify appointing new counsel, but that a "general
22
State v. Drummond (Susan E.) & Island County
Bd. of Comm 'rs, No. 927 49-9
Thus, even allowing for the implied general authority to retain counsel in case
of Banks's inability to perform his duties, the Board has not established that it is
entitled to a judgment as a matter of law premised on the prosecuting attorney's
office's inability to provide GMA counsel. 9 And because we find, as a matter of law,
that Prosecutor Banks is able and willing to perform his duties, the Board lacks
statutory authority to appoint outside counsel. 10
Ill. Constitutional Authority
Our statutory analysis is consistent with the dictates of article XI, section 5 of
the Washington Constitution. Because we dispose of this case on statutory grounds,
we discuss the constitutional implications only briefly.
loss of confidence or trust is not sufficient to substitute new counsel" under the Sixth
Amendment), cert. denied, 523 U.S. 1008 (1998). Here, the fact that the voters, rather than
the Board, selected Prosecutor Banks, does not deny the Board adequate counsel. And while
the Board is entitled to make the ultimate decision as to its objectives, it is not entitled to
counsel that shares the Board's views. RPC 1.2(a) ("a lawyer shall abide by a client's
decisions concerning the objectives of representation"), (b) ("A lawyer's representation of a
client ... does not constitute endorsement of the client's political, economic, social or moral
views.").
9 There remains other recourse for a county dissatisfied with its prosecuting attorney. See
In re Recall of Sandhaus, 134 Wash. 2d 662, 670, 953 P.2d 82 (1998) (noting that "whether [the
prosecuting attorney] is doing a satisfactory job of managing his office is a quintessential
political issue which is properly brought before the voters at a regular election"); see a/so
Osborn v. Grant County, 130 Wash. 2d 615, 624, 926 P.2d 911 (1996) (noting that when "an
official makes a poor hiring decision, the official is accountable not to the board of
commissioners, but to the public. If the public dislikes [the decision], the ballot is its
recourse").
1o In addition to the unavailability of the prosecuting attorney, there are two other
circumstances, not relevant here, that would justify the use of RCW 36.32.200: (1) the office
is vacant (pursuant to RCW 36.16.115) or (2) the prosecuting attorney consents (see, e.g.,
Reed, 47 Wash. 355 (wherein the prosecuting attorney approved the hiring of private counsel
in writing).
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State v. Drummond (Susan E.) & Island County
Bd. of Comm'rs, No. 927 49-9
Article XI, section 5 provides, in part, as follows: "The legislature, by general
and uniform laws, shall provide for the election in the several counties of ...
prosecuting attorneys." When the voters choose an elected official, they necessarily
choose who will be responsible for the duties of that office. It 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. As we
stated in State ex ref. Johnston v. Melton:
"The naming of [constitutional] officers amounted to an implied restriction
upon legislative authority to create other and appointive officers for the
discharge of such functions. . . . If these constitutional offices can be
stripped of a portion of the inherent functions thereof, they can be
stripped of all such functions, and the same can be vested in newly
created appointive officers, and the will of the framers of the constitution
thereby thwarted."
192 Wash. 379, 390, 73 P.2d 1334 (1937) (quoting Ex Parte Corliss, 16 N.D. 470,
475, 114 N.W. 962 (1907)); see a/so THOMAS M. COOLEY, A TREATISE ON THE
CONSTITUTIONAL LIMITATIONS 136 (5th ed. 1883) ('That such powers as are specially
conferred by the constitution upon the governor, or upon any other specified officer,
the legislature cannot require or authorize to be performed by any other officer or
authority; and from those duties which the constitution requires of him he cannot be
excused by law.").
In the case of prosecuting attorneys, this section means that the legislature
"cannot interfere with the core functions that make them 'prosecuting attorneys' in the
first place." State v. Rice, 174 Wash. 2d 884, 905, 279 P .3d 849 (2012) (noting that "the
legislature is free to establish statutory duties that do not interfere with core
24
State v. Drummond (Susan E.) & Island County
Bd. of Comm'rs, No. 927 49-9
prosecutorial functions"). We construe "core functions" according to a given office's
historical usage: '"In naming the county officers in § 5, Article 11 of the constitution,
the people intended that those officers should exercise the powers and perform the
duties then recognized as appertaining to the respective offices which they were to
hold."' /d. (emphasis added) (quoting Melton, 192 Wash. at 388). 11
The historical functions and concomitant duties of prosecuting attorneys have
remained largely unr~hanged since territorial times. In 1879, the general laws
described the prosecuting attorney's responsibilities as follows:
Each prosecuting attorney shall be the legal advisor of the board of
county commissioners of his county or district; he shall also prosecute
all criminal and civil actions, in which the territory is a party, the
jurisdiction of the action being in his county or district, or in which his
county or district is a party; defend all suits brought against the territory,
the jurisdiction of which is in his county or district; and all suits brought
against the county or district in which he was elected .... 1121
The prosecuting attorney's responsibilities are much the same today, beginning as
follows:
Be legal adviser of the legislative authority, giving it his or her written
opinion when required by the legislative authority or the chairperson
thereof touching any subject which the legislative authority may be called
or required to ect upon relating to the management of county affairs.
RCW 36.27.020(1). The fact that the prosecuting attorney also prosecutes
11At least one other state Supreme Court has held that certain duties are "merely incidental
and casual, and without relation to the characteristics" of a particular office. Ex Parte Corliss,
16 N.D. at 492 (describing the drawing of jurors as a duty only incidental to any county office).
We have no comparable precedent.
12 LAWS OF 1879, § 6, at 93.
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State v. Drummond (Susan E.) & Island County
Bd. of Comm'rs, No. 92749-9
crimes does not diminish the history and centrality of the office's role as "legal
adviser" to the county. 13
Here, the Board argues that "it cannot be rationally asserted that GMA advice
is a 'core function' ... when there was no such thing as the GMA in the 1820s or later
years leading up to statehood in 1889." Similarly, the superior court in this case stated
that "[g]rowth management and land use are ... certainly not core functions that
flowed from something back in the 1880s because I don't think they had that kind of
law back then."
The flaw in this reasoning is that the terms "legal" in "legal adviser" would be so
narrowly construed as to exclude any dealings with laws postdating the ratification of
the constitution. By this logic, the prosecuting attorney's duty to "prosecute all criminal
and civil actions" would be similarly confined to those laws enacted by 1889. If we
construe the constitution, as we construe our statutes, to effectuate the will of the
drafters, then we poorly serve their intent by constraining "legal adviser" to mean only
that advice concerning statutory frameworks of a particularly advanced vintage.
13
The inference that providing legal services to county officials is a central role of the
prosecuting attorney is supported by the persuasive opinion of the Washington attorney
general. In a 19731etler opinion, the attorney general described "the problem confronting the
legislature in any attempt to authorize the employment of attorneys by county agencies
without a constitutional amendment" 1973 Letter Op. Att'y Gen. No. 115. Specifically referring
to our decision in Melton, 192 Wash. 379, the opinion warned that any legislation permitting
outside attorneys "to be vested with any of the present powers and functions of the
prosecuting attorney as legal counsel for all county officers ... would in all probability be held
to be in conflict with Article XI, § 5." 1973 Letter Op. Att'y Gen. No. 115.
26
State v. Drummond (Susan E.) & Island County
Bd. ofComm'rs, No. 92749-9
The prosecuting attorney provides legal advice; this service has been the
responsibility of the prosecuting attorney's office since well before the constitution was
adopted. Prosecutor Banks seeks to perform his duty as the official chosen by Island
County's electors. Even if a board of commissioners had statutory authority to hire
outside counsel over the objection of an able and willing prosecuting attorney-which
it does not-the appointment would unconstitutionally deny the electorate's right to
choose who provides the services of an elected office.
CONCLUSION
We hold that county boards of commissioners do not possess statutory
authority to appoint outside counsel over the objection of an able and willing
prosecuting attorney. RCW 36.32.200 does not provide county boards of
commissioners with an affirmative grant of authority to hire outside counsel, but
instead requires compliance with additional procedures as a check on any authority
otherwise granted. Nor do county boards of commissioners' general powers statutes,
particularly RCW 36.32.120 and RCW 36.01.01 0, authorize paying outside counsel
from the public purse where the county's prosecuting attorney is available. Allowing
a county board of commissioners to unilaterally contract with outside counsel over the
objection of an able and willing prosecuting attorney would unconstitutionally curtail
the right of the county's voters to choose their elected official.
27
State v. Drummond (Susan E.) & Island County
Bd. of Comm'rs, No. 92749-9
Therefore, we reverse the decision of the superior court. Island County Board
of Commissioners Resolution C-48-15, providing for Ms. Drummond's retention, is
ultra vires and void. We remand for an entry of judgment of ouster against Ms.
Drummond and for further proceedings, if any, consistent with this opinion.
28
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Bd. ofComm'rs, No. 92749-9
WE CONCUR.
29