WA – Sovcit – Stevens Cty – Deputy Prosecutor and oath of office

Nick Force is a “deputy prosecutor” and does not have an Oath of Office on file with the Stevens County Auditor’s office as required by RCW 36.16.060. In fact “deputy prosecutor” Lloyd Nickel has had written a letter responding to a public records request in 2012 stating, “This is in response to your request dated September 5, 2012 and received by this office September 7, 2012. Mr. Rasmussen has asked me to respond to you that we can find no documents meeting the description(s) of this request. Our research has convinced us and at least one Superior Court Judge that deputies do not hold an “office” and therefore do not have “oaths of office”. Nor are deputies required to file bonds. Deputy Prosecuting attorneys are not state employees.” Now read RCW 36.16.060, in part “Oaths and bonds of deputies shall be filed in the offices in which the oaths and bonds of their principals are required to be filed.” So Stevens County Washington is full of people impersonating public officials including the prosecutor who’s Oath of Office is not FILED into the official public records of the County nor are they archived in Olympia.

Source

Rasmussen is correct that since deputy officers are not elected county officials, RCW 36.16.060 does not apply.

The ruling Rasmussen refers to is likely the Supreme Court of WA affirmation of a Superior Court ruling:

Critical to the analysis and outcome of this issue is  the specific language of RCW 41.56.030, the statute defining the term “public employee,” and RCW 36.27.040, the statute providing authority to an elected prosecutor to appoint deputies.  RCW 41.56.030(2)(b) provides an exception to the definition of “public employee,” stating that a “public employee” is “any employee of a public employer except any person ․ (b) appointed to office pursuant to statute, ordinance or resolution for a specified term of office by the executive head or body of the public employer[.]”  (Emphasis added).   If the Deputy Prosecutors are not public employees, then the Act would have no application to them.

– See more at: http://caselaw.findlaw.com/wa-supreme-court/1091568.html#sthash.UvwGD5Z4.dpuf

15 thoughts on “WA – Sovcit – Stevens Cty – Deputy Prosecutor and oath of office

  1. RCW 36.16.070
    Deputies and employees.

    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 or her principal is authorized to perform. The officer appointing a deputy or other employee shall be responsible for the acts of his or her appointees upon his or her official bond and may revoke each appointment at pleasure.
    ————-
    Seems pretty straight forward. Deputies don’t hold the office, they have duties delegated to them by the holder of the office. The officer is responsible for the actions, not the deputy.

  2. Plus the definition of office:

    RCW 36.16.040
    Oath of office.

    Every person elected to county office shall before he or she enters upon the duties of his or her office take and subscribe an oath or affirmation that he or she will faithfully and impartially discharge the duties of his or her office to the best of his or her ability. This oath, or affirmation, shall be administered and certified by an officer authorized to administer oaths, without charge therefor.
    ————-
    Deputies aren’t elected to office.

  3. Although there is a reference in RCW which suggests that oaths and bonds for deputies should be filed as with their superiors. However, the court addressed how this would create some contradictions and means that only those deputies who by explicit statute have been ordered to file their bond and oath are caught by this rule.

    So far, a Superior Court Judge ruled accordingly and thus I doubt that without any judicial resolution otherwise, Clark will have any chance. Which is why the courts have been rejecting his arguments. Even if the oaths were not properly filed, they would still be de facto ‘officers’.

    He has been fighting this losing battle for quite some time now with no hope of any positive results.

  4. A superior court judge in the case law cited above was ruling specific to the collective bargaining RCW and stating that DP’s are not state employees and Rasmussen’s clever use of semantics to also state that whereas the author above interprets that (incorrectly, IMHO) to mean they are not ‘elected county officials’. Those are not the same thing, of course. ‘State employee’ is not the same words as ‘elected county official.’ And the RCWs they bespeak of have nothing to do with each other. Now, of course appointed deputies are also not ‘elected county officials’ and yet we do have to consider that beyond RCW 36.16.040 which states ‘every person elected to county office’…take an oath and add in the pertinence of RCW 36.16.060 which now noticeably states ‘every county officer’ (dropping the word ‘elected’ cannot be considered by accident) and specifically mentions deputies and that they file the same oaths and bonds in same place as their primaries. You need to consider why lawmakers put this RCW in the same chapter and not keep jumping (Like Rasmussen and author above) to the RCW 41.56 chapter which has nothing to do with it. In truth, public records request to say, King County, for a copy of an oath of office for any deputy prosecutor are immediately responded to providing a document showing they took an oath at their appointment. Seems silly for a County to do if they didn’t have to, huh? Especially when you see how many DPs are employed in King County as opposed to piddling little Stevens. Now, if we wanna pull in some other RCW chapters, take a look at RCW 2.32.180. Here we find it CLEARLY stated all in one RCW several things that negate the faulty reasoning of using the WA Supreme Court decision using RCW 41.56 chapter to decide if Nick Force or any Stevens County deputy prosecutor (or deputy sheriff for that matter) needs an oath or not. RCW 2.32.180 shows us an instance where an appointed County officer takes an oath (and here also a bond) and that the appointment is at will and coincides with the judge’s elected term. At issue is not collective bargaining or ‘state employees ‘ or “appointed” as opposed to “elected” An appointed officer takes an oath just as RCW 36.16.060 talks about those oaths for ‘every county officer’ So unless you and Rasmussen want to say a DP is not a “county officer” then we have an issue to contend. (Because wipe my butt It doesn’t mater if he’s not a “state employee.” It is also pretty much a no-brainer to say that someone who holds the power that a DP does over us all should have a requirement to take an oath to uphold the Constitution. Now if we look one last place, examine this at the WA State Association of Municipal Attorney’s website: http://wsama.org/legalforms/Oath%20of%20Office.pdf which states, regarding oaths and who takes them. that ‘other appointed officers may be required….based upon loal charters or ordinances.” So if we start to think that maybe possibly even at the COUNTY level the only detail yet to be resolved–as nobody has seemed to look for it including Clark and Rasmussen–is :are there any LOCAL COUNTY carters, ordinances, or written rules that say if an oath is or is not required of our appointed County officials? (And here I’d prefer to find a written ordinance or rule that says none is required and that its writing preceded the non-oath taking. Not simply that there is an absence of the positive: no ordinance or rule requiring an oath. Further, with it being such a bone of contention I’d also not be willing to accept ‘tradition’ of not taking an oath even though an entire Catholic religion is mainly based upon ‘tradition.’

  5. You raise some good questions and different counties may have different interpretations but at the moment, the court has concluded that deputies need not have sworn oaths on file.. And remember that these people took an oath, it was just not filed.

    As to the WA State Association’s website, the relevant statute is again ambiguous RCW 35A.12.080.

    In the end, nothing here is really a big issue and it will eventually be resolved.

  6. And here’s another interesting gem. Why did this (read second article under that link the one written by Brian Moran, Kitsap County deputy prosecutor,. He says he took an oath and yet are we to believe that in Stevens County a deputy prosecutor does not? http://seattletimes.com/html/editorialsopinionpages/2022966008_should-death-penalty-be-abolished.html

    To further clarify this, I’ll complete the amputated reference made by author above to RCW 36.27.040. That RCW clearly states under the heading “Appointment of deputies — Special and temporary deputies” that “The prosecuting attorney may appoint one or more deputies who shall have the same power in all respects as their principal. Each appointment shall be in writing, signed by the prosecuting attorney, and filed in the county auditor’s office. Each deputy thus appointed shall have the same qualifications required of the prosecuting attorney, except that such deputy need not be a resident of the county in which he or she serves.”

    And, clearly, in order to qualify as an elected prosecuting attorney, or for that matter to qualify as any elected County official we go back to Chapter 36.16 which gives provisions for holding a County Office

    RCW 36.16.040
    Oath of office.

    Every person elected to county office shall before he or she enters upon the duties of his or her office take and subscribe an oath

    and

    RCW 36.16.050
    Official bonds.

    Every county official before he or she enters upon the duties of his or her office shall furnish a bond conditioned that he or she will faithfully perform the duties of his or her office

    And specific to prosecutor:

    (6) Prosecuting attorney: In the amount of five thousand dollars with sureties to be approved by the proper county legislative authority;

    You can read more about County Elected and Appointed Officials here: http://www.mrsc.org/subjects/governance/locgov17.aspx and this tells you more about how counties are organized (and not Kitsap is not among any operating any differently from Stevens)

    Lastly take look-see at this published reference manual http://www.mrsc.org/publications/gio13.pdf GETTING INTO OFFICE: Being Elected or Appointed into Office in Washington Counties, Cities, Towns, and Special Districts and simply hit CTRL F and type in ‘oath’ to search for where it mentions taking an oath of office.

    Got it now folks?

  7. NBC says: The court has concluded that deputies need not have sworn oaths on file.. And remember that these people took an oath, it was just not filed.

    Did I miss something? When did any court conclude that deputies need not have sworn oaths on file? And if it’s not filed anywhere at all how do we know they took their oath? Are we to take their word for it? Come on,. How about I tell people I paid my bills but I have no record of it?

    There are some people I’ve seen discussion about who apparently did not take any oath or at least it cannot be located. Deputy Prosecutor Force for one, I believe (correct me if I am wrong, please).

  8. Did I miss something? When did any court conclude that deputies need not have sworn oaths on file? And if it’s not filed anywhere at all how do we know they took their oath? Are we to take their word for it? Come on,. How about I tell people I paid my bills but I have no record of it?

    What if it is just kept on the records but not officially filed? Not all records need to be filed in order for them to exist.

  9. From this letter

    This is in response to your request dated September 5, 2012 and received by this office September 7, 2012. Mr. Rasmussen has asked me to respond to you that we can find no documents meeting the description(s) of this request. Our research has convinced us and at least one Superior Court Judge that deputies do not hold an “office” and therefore do not have “oaths of office”

  10. He says he took an oath and yet are we to believe that in Stevens County a deputy prosecutor does not?

    That’s not what the argument is. The argument is whether or not such an oath needs to be filed. All take oaths, including deputies.

  11. Every person elected to county office shall before he or she enters upon the duties of his or her office take and subscribe an oath

    There is a difference between taking an oath and filing an oath

  12. Got it now folks?

    Yes, all swear oaths but only officers need to file said oaths. I have seen several deputy oaths and they do not appear to have been filed. They are found on certificates of appointment

  13. Let me also point out that even absent a filed oath, these people are still de facto officers and therefor their official actions have remained lawful.

    The oath issue is a relatively minor one, which will eventually be resolved one way or the other.

    Clark tried the same with judges and was rebuked, however the statutes for judges is phrased differently.

  14. An interesting court ruling is also

    The majority decides the scope of “public officers” subject to the public office forfeiture statute, RCW 9.92.120, by relying on a statutory definition that, by its terms, applies to only Title 9A RCW. The statutory definition is broader than the common law meaning of “public officer,” under which “[a]n employee or a deputy is not an officer.” State ex rel. McIntosh v. Hutchinson, 187 Wash. 61, 63, 59 P.2d 1117 (1936) (citing Nelson v. Troy, 11 Wash. 435, 39 P. 974 (1985)).

    The result is to expand the operation of the forfeiture statute so that all “assistants, deputies, clerks, and employees” of any public officer are now subject to quo warranto ouster from government jobs. The forfeiture statute has never been applied that broadly, nor, consistent with other statutes, can it be. I disagree with the majority’s construction of the statute and conclude that Grant County Coroner Craig Morrison is entitled to recover his attorney fees.

    Lee v. JASMAN, Wash: Court of Appeals, 3rd Div. 2014

    They differentiate between criminal and civil statutes and since I believe that the oath statutes is not a criminal statute, the courts would continue to apply the common law definition which does not include deputies as “public officers”

    More importantly the court refers to a WA Supreme Court ruling

    Washington’s Supreme Court, in Nelson, narrowly phrased the issue as: what is meant by the term “officer” used in the section of the constitution? The court held that a deputy of an elected officer is not an “officer” for purposes of the constitutional provision.

    So at least for purpose of the constitutional provision, deputies are not officers. In other words, the position stated by Rasmussen is not without foundation in law and may eventually be settled in court.

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