Attorney General’s Office responds to request for opinion from interim county prosecutor on Grays Harbor Prosecutor appointment

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OLYMPIA — The Attorney General’s Office today released an informal opinion that addresses the most time-sensitive part of a four-part request made by Interim Grays Harbor County Prosecutor Gerald Fuller.

The opinion addresses the process for filling the vacancy in the Grays Harbor County Prosecutor’s office caused by the retirement of former prosecutor, Stew Menefee, in September.

The opinion concludes that the Constitution requires the Grays Harbor County Commissioners to select an appointee from a list of three candidates nominated by the County Central Committee of the same political party as the person who vacated the position.  Article II, section 15 of the Constitution clearly states that “the person appointed to fill the vacancy must be from . . . the same political party as the [person] whose office has been vacated, and shall be one of three persons who shall be nominated by the county central committee of that party.”

How and when the Attorney General issues opinions

The Washington Attorney General, as the chief law officer of the state, provides official opinions on questions of law at the request of designated public officials, such as legislators and prosecutors, on issues arising in the course of their duties.

On Dec. 12, Interim Grays Harbor County Prosecutor, Gerald Fuller, requested an opinion from the Office of the Attorney General related to the process for filling vacancies.

Background

Menefee retired on Sept. 30, 2013. He was an elected Democrat, whose term expires on Dec. 31, 2014. The County Commission appointed Fuller to serve as interim prosecutor.

The Grays Harbor Democratic Party submitted to the Grays Harbor County Commission a list of three nominees to fill the vacancy on Oct. 4, 2013.

On Oct. 24, the county commission selected Montesano attorney Vini Samuel.  Samuel formally declined the position. The party then requested the governor make the appointment from the two remaining nominees.

The chair of the County Commission announced on Dec. 9 that the party must submit a new list of nominees within 10 days or the Commission would select its own Democratic nominee outside the list provided by the party.

Fuller submitted a request for an Attorney General’s opinion on Thursday, December 12, asking:

  1. Is the County board of Commissioners legally and constitutionally entitled to demand a new list of nominees from the local Democratic Party and, if so, what is the source of that authority?
  2. With the expiration of 60 days from the date of Mr. Menefee’s retirement and Ms. Samuel’s declining the board’s Oct. 24 appointment, does the appointment fall to the governor under article II, section 15 of the Washington Constitution, or some other provision of Washington law?
  3. May the County Commissioners pick an individual not on a list supplied by the local county Democratic Party?
  4. If the County Commissioners appoint a person whose name is not on a list submitted by the county Democratic Party, will such a person appointed have legal authority to act as prosecuting attorney?

What is being released today

Because the commission stated it would select its own candidate if the party did not provide a new list within 10 days of Dec. 9,  the Attorney General’s Office is releasing an informal opinion today answering the third question to provide relevant information to county officials before the stated day of action.

The Attorney General’s Office will designate the rest of the request as a formal attorney general’s opinion. Formal opinions take more time and require more rigorous review.

What the informal opinion concludes

In response to Fuller’s question, the Attorney General’s Office informal opinion states that the Grays Harbor County Commissioners may not appoint an individual who is not on the list provided by the local Democratic Party to serve as Grays Harbor County Prosecutor.

The opinion points to Washington’s Constitution, which states that when a vacancy occurs in a partisan, county elective office, the county legislative authority must fill the vacancy with a person of the same political party as the person who vacated the position. The Constitution further says the nominee must be chosen from a list of three provided to the commission by the county political party.

There are no exceptions to these requirements.

The Attorney General’s Office hopes that the opinion will provide helpful guidance to the Grays Harbor County Commission as it seeks to abide by the law in carrying out this important duty.

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