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Osborn v. Grant County

November 27, 1996


Appeal from Superior Court, Grant County; 93-2-00603-5. Honorable Philip Borst, Judge. Honorable Philip Thompson, Judge. Judgment Date: 1-18-94.

Authored by James M. Dolliver. Concurring: Charles Z. Smith, Barbara A. Madsen, Gerry L. Alexander, Philip A. Talmadge. Dissenting: Richard B. Sanders, Charles W. Johnson, Barbara Durham

The opinion of the court was delivered by: Dolliver

En Banc

DOLLIVER, J.--The Grant County Board of Commissioners appeals from a Court of Appeals decision affirming a superior court's grant of declaratory relief to Dedra Osborn, a former Grant County Clerk. The Court of Appeals upheld the appointment of a private law firm as a special prosecutor for Osborn, and the court found that the Grant County Board of Commissioners had improperly interfered with the clerk's absolute right to choose employees for the clerk's office. We affirm the declaratory relief, but we reverse the appointment of a special prosecutor.

On July 7, 1993, Dedra Osborn, the elected Grant County Clerk, hired Shirley Keenan as a temporary employee in the clerk's office for a 10-day period. The clerk's office had been budgeted funds for hiring temporary employees at the beginning of the 1993 fiscal year, and that budget contained sufficient funds to pay for Keenan's 10-day employment. Shirley Keenan normally worked for the district court, but the district court Judges had placed Keenan on a disciplinary 10-day suspension without pay. Keenan's temporary work for Osborn was performed during Keenan's 10-day suspension from her district court job. By July 8, 1993, the Grant County Board of Commissioners had learned of Keenan's working for Osborn, and the Board sent Osborn a letter. In the letter the Board disapproved of Osborn's hiring Keenan while Keenan was on suspension from her district court job. The letter expressed the Board's intent not to authorize payment of Keenan's wages for hours accrued after receipt of the Board's letter.

After receiving the Board's letter, Osborn asked the county prosecutor for advice on the Board's power to decline payment of Keenan's wages and interfere with Osborn's hiring decisions. The county prosecutor refused to give Osborn advice on the matter because of a potential conflict with the Board. Osborn then retained the law firm of McCormick, Dunn & Black, P.S., to represent her.

Keenan continued to work for the full 10-day period. She was only paid for 12 hours of work, at the rate of $8.00 an hour. Osborn submitted a pay voucher to the county auditor for the remainder of Keenan's wages. On August 19, 1993, the auditor sent Osborn a letter stating that the auditor would not pay out those wages because the Board refused to authorize the voucher. Keenan is still owed $544.00 for 68 hours of work.

On September 9, 1993, Osborn brought an action for declaratory judgment against the Board. Besides requesting a declaration of her right to hire whomever she wanted as a temporary clerk, Osborn also requested that the law firm she hired be appointed as a special prosecutor. After several hearings, the superior court entered a judgment in favor of Osborn on January 18, 1994. The court held that the Board had no authority to interfere with Osborn's hiring decisions, and it enjoined the Board from engaging in such future conduct. The court appointed McCormick, Dunn & Black, P.S., as special prosecutor for Osborn and awarded $19,103.12 in attorney fees. Finally, the court ordered the county to pay Keenan's remaining wages.

The Board appealed from the judgment. Before the Court of Appeals heard the case, Osborn lost her bid for re-election as the county clerk. The race for her seat was widely publicized, and Osborn's involvement with this lawsuit was a leading issue in the race. Despite losing the office of county clerk, Osborn continued to defend her lawsuit in the Court of Appeals. Osborn's successor, Gordon E. Harris, was allowed to intervene in the action.

The Court of Appeals sustained the superior court judgment, and awarded Osborn additional attorney fees generated by defending the appeal. Osborn v. Grant County (part unpublished), No. 13833-0- III, June 22, 1995 (part published), 78 Wash. App. 246, 896 P.2d 111 (1995). The record does not reveal the total amount of attorney fees requested by Osborn's attorney for the appellate work, but the case file contains one letter written by Osborn's attorney indicating an amount of $49,121.25 owing as of March 8, 1995 -- an amount which presumably included the superior court's award of $19,103.12. The Board sought review by this court, and the petition for review was granted. Osborn v. Grant County, 128 Wash. 2d 1001, 907 P.2d 296 (1995).

The central issue in this case involves the Board's attempt to interfere with Osborn's hiring of a temporary employee. Once a board of county commissioners creates and funds a position in a county office, does the board then have the power to control who the elected county officer hires for that position?

In its briefs and in oral argument before this court, the Board claimed a collective bargaining agreement prevented Keenan from working in any other county department while on disciplinary leave from her district court position. This claim has no merit. In two different hearings before the superior court Judge, the Board's attorneys admitted that no such agreement prevented Osborn's hiring of Keenan.

THE [superior] COURT: Okay. Does Grant County have any kind of agreement between their officials that they have to -- that one office has to abide by the hiring and firing of another office?

MR. HALLSTROM [deputy prosecuting attorney]: Not that I'm aware of.

THE COURT: All right. Do they have any agreements that say that one office's disciplining of an employee has to be recognized by the other offices within Grant County?

MR. HALLSTROM: Not that I'm aware of.

Report of Proceedings at 52 (Dec. 14, 1993). During the January 4, 1994, hearing, the Judge presented the same question to Mr. Knodell, the Grant County Prosecutor.

THE COURT: Is there something in [the collective bargaining agreement] that says they can't -- one official can't hire temporary help if somebody else has been suspended from a different department?

MR. KNODELL: No, your Honor. . . .

Report of Proceedings at 22 (Jan. 4, 1994). Defendants admitted to the superior court that no agreement expressly prevented Osborn from hiring Keenan. Despite these earlier admissions, Defendants now boldly argue before this court that Osborn's act violated some agreement. The court record contains a copy of two collective bargaining agreements, but Defendants have not cited to any page in either agreement wherein Osborn's hiring of Keenan is disallowed. Additionally, one agreement covers employees working for the Board and numerous specified county departments, including the clerk's office. The district court Judges, however, have a separate agreement with their employees. Any disciplinary action against Keenan pursuant to the bargaining agreement with the district court Judges had no effect on the Grant County Clerk, who was not a party to that separate agreement.

The Board also asserts it has jurisdiction over other elected officials' hiring decisions under RCW 36.16.070, which states:

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 and shall require what deputies shall give bond and the amount of bond required from each. The sureties on deputies' bonds must be approved by the board and the premium therefor is a county expense.

A deputy may perform any act which his principal is authorized to perform. The officer appointing a deputy or other employee shall be responsible for the acts of his appointees upon his official bond and may revoke each appointment at pleasure.

Defendants argue RCW 36.16.070 "expressly and unequivocally required the consent of the Grant County Commissioners, either explicit or implicit, before [Osborn] hired Keenan." Pet. for Review at 15.

The first paragraph of RCW 36.16.070 allows county officers, "with the consent of the board of county commissioners," to hire extra deputies or employees if necessary to perform the duties of the office. The board sets the salary of the employees. It is clear from this paragraph that the board has the power to create and fund employee positions in county offices. It is not clear from the first paragraph whether the board has any power over who fills those employee positions.

The second paragraph of RCW 36.16.070 resolves the ambiguity. The last sentence makes clear that the county officer is the one to appoint a deputy or other employee, and the officer has the power to revoke each appointment at pleasure. This sentence excludes any mention of the board; thus, the board has no role in those hiring decisions. Once the board has created and funded the positions for needed deputies or employees, the county officer is the party who names the individuals to fill those positions.

This reading of RCW 36.16.070 is supported by an early decision by this court which construed two former statutes which used much of the language found in the current version of RCW 36.16.070. See Thomas v. Whatcom County, 82 Wash. 113, 143 P. 881 (1914). Thomas is directly on point with the facts of this case. Thomas was the elected sheriff of Whatcom County. The board of county commissioners refused to pay the salaries of the sheriff's three deputies because the board objected to the three particular individuals named for those positions. The board did not deny that the sheriff's office was allowed three deputies. The sheriff ...

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