Chelan County Deputy Sheriffs' Ass'n v. Chelan County

• Citation: 725 P.2d 1001,45 Wn.App. 812
• Decision Date: 18 September 1986
• Docket Number: No. 7045-0-III,7045-0-III
• Court: Court of Appeals of Washington
• Parties: , 27 Wage & Hour Cas. (BNA) 1389 CHELAN COUNTY DEPUTY SHERIFFS' ASSOCIATION, Steven A. Worden, Richard A. Peterson, Brian A. Harris, William D. Robinson, Conrad T. Winn, Jr., Patrick J. Haster, Daryl D. Mathena, William K. DePew, Steven R. McCormick, Donald R. King, Mitch Thompson, Harry Hansen, Ronald F. Martin, Herb Whaley, Katherine B. Breda, Ragina Lea Bruggman, Shirley Nichols, Michael Lyons, Michael L. Brickert, Eugene E. Daniels, Thomas Schell, Jerry W. Yonaka, Don O. Danner, Richard Haynes, Jack M. Lyon, Mike Harum, Jerry Monroe, Wanda Hively, D.A. "Pat" Allen, Michael G. Mathena, Jim Brown, Dennis R. Hanks, Leon E. Milligan, C.M. Mikelson, Joe Larkin, Dick Winn, Scott Edie, Mike Hartnett, Bud Fritz, and John Does 1 through 50, Respondents, Cross-Appellants, v. The COUNTY OF CHELAN, and its Commissioners, Alan Kronschnabel, Tom Green, and James L. Young, in their capacity as Commissioners of the County of Chelan, Appellants.

Page 812

45 Wn.App. 812

725 P.2d 1001, 27 Wage & Hour Cas. (BNA) 1389

CHELAN COUNTY DEPUTY SHERIFFS' ASSOCIATION, Steven A.

Worden, Richard A. Peterson, Brian A. Harris, William D.

Robinson, Conrad T. Winn, Jr., Patrick J. Haster, Daryl D.

Mathena, William K. DePew, Steven R. McCormick, Donald R.

King, Mitch Thompson, Harry Hansen, Ronald F. Martin, Herb

Whaley, Katherine B. Breda, Ragina Lea Bruggman, Shirley

Nichols, Michael Lyons, Michael L. Brickert, Eugene E.

Daniels, Thomas Schell, Jerry W. Yonaka, Don O. Danner,

Richard Haynes, Jack M. Lyon, Mike Harum, Jerry Monroe,

Wanda Hively, D.A. "Pat" Allen, Michael G. Mathena, Jim

Brown, Dennis R. Hanks, Leon E. Milligan, C.M. Mikelson, Joe

Larkin, Dick Winn, Scott Edie, Mike Hartnett, Bud Fritz, and John Does 1 through 50, Respondents, Cross-Appellants, v. The COUNTY OF CHELAN, and its Commissioners, Alan

Kronschnabel, Tom Green, and James L. Young, in

their capacity as Commissioners of the

County of Chelan, Appellants.

No. 7045-0-III.

Court of Appeals of Washington,

Division 3, Panel One.

Sept. 18, 1986.

Review Granted Dec. 2, 1986.

As Amended Dec. 9, 1986.

Gary A. Riesen, Prosecuting Atty., Ernest R. Whitemore, Jr., Sp. Deputy, Wenatchee, for appellants.

Craig A. Nelson, Wenatchee, for respondents, cross-appellants.

McINTURFF, Judge.

This case raises the fundamental issue of whether the Minimum Wage Act (MWA) applies to sheriffs' deputies. The Chelan County Deputy Sheriffs' Association (Association), comprised of approximately 40 Chelan County deputy sheriffs, brought this action against Chelan County seeking compensation for time spent "on call". Following a bench trial concluding that the deputies were entitled to overtime compensation for on-call duty, Chelan County appealed, and the Association cross-appealed.

The basic facts are undisputed. Chelan County deputies are paid a monthly salary and historically receive no extra pay for on-call time. In 1976, however, certain overtime allowances were made for deputies appearing in court while off duty. Since 1979, Chelan County and the Association have had a collective bargaining agreement. While this agreement does not designate "on-call" time as compensable, on-call employees are paid overtime wages once called to duty.

Normally, deputies are scheduled for an 8-hour work day, 40 hours per week. During this time deputies actively patrol the "beat area" or perform other assigned duties. While on lunch breaks, deputies may not leave the beat area to which they have been assigned and must remain in uniform, armed at all times, to respond to any and all calls. When the deputies are not serving their 8-hour shifts, they may be subject to "on-call" duty, depending upon three situations: (1) When the county demands increased law enforcement protection, i.e., holiday weekends, including the Apple Blossom Festival, Memorial Day, Independence Day and Labor Day. (2) When there is a void in law enforcement coverage. The sheriff's office operates two shifts per day, discharging deputies at various times between 3, 4 and 5 a.m. Since the next shift commences at 7 a.m., there are hours before the 7 o'clock shift when officers may be on call. Either the deputy who has just gone off duty or the deputy about to come on duty will be called to incidents arising during these periods. (3) Deputies in the detective division are on call at any time during a 24-hour period for a 7-day week once every month.

On-call duty restricts deputies in their conduct and activities. They may not leave the immediate vicinity of Chelan County nor may they seek outside employment or involve themselves in other activities which may interfere with their ability to immediately respond to a call from their superiors. Deputies may not consume any alcoholic beverages while on call, nor engage in a large variety of activities which could conflict with their official duties, i.e., camping, attending movies or sporting events.

Following trial November 2, 1984, the court entered its findings of fact and conclusions of law, holding: (1) plaintiffs were employees for purposes of the MWA and were not excluded "appointees"; (2) on-call time, including lunch breaks, was "work"; (3) sleeping and eating time were not excluded if the deputy was on call during that time; and (4) the collective bargaining agreement did not act as a bar to this action.

CHELAN COUNTY'S APPEAL

The first issue concerns the scope of the MWA coverage regarding sheriffs' deputies. The County claims the deputies are excluded from coverage from the MWA as appointive officers, RCW 49.46.010(5)(l ), or because they serve substantial portions of their time subject to call. RCW 49.46.010(5)(j). The deputies having been hired and permitted to work, are "employees", entitled to the benefits of the MWA, unless they fall within any one of the specific categories expressly excluded from the definition of employee. RCW 49.46.010(3), (5). Whether an exclusion under the act applies in a particular case, however, should be reviewed pursuant to the "clearly erroneous" standard. Goff v. Airway Heights, --- Wash.App. ----, --- P.2d ---- (No. 6718-1-III, slip opinion filed December 9, 1986); see Worthington v. Icicle Seafoods, Inc., 749 F.2d 1409 (9th Cir.1984), (construing Fair Labor Standards Act [FLSA], superseded by, 774 F.2d 349 (9th Cir.1985), vacated and remanded, --- U.S. ----, 106 S.Ct. 1527, 89 L.Ed.2d 739, on remand, 791 F.2d 802 (9th Cir.1986); A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 808, 89 L.Ed. 1095 (1944); cf., Peterson v. Hagan, 56 Wash.2d 48, 56, 351 P.2d 127 (1960) (Washington's MWA has purposes similar to FLSA and is based upon it).

THE "APPOINTED OFFICER" EXCLUSION

RCW 49.46.010(5)(l ) excludes from coverage any individual "who holds a public elective or appointive office of ... any county". Whether a deputy sheriff is indeed an appointive officer turns upon the interchange between common law and statutory enactments. At common law, a deputy sheriff held an appointed position, as distinguished from employment. State ex rel. Day v. King Cy., 50 Wash.2d 427, 429, 312 P.2d 637 (1957); Carter v. King Cy., 120 Wash. 536, 208 P. 5 (1922). In the absence of specific language to the contrary, a deputy sheriff was deemed an official, not an employee, because: (1) all deputy officers had the same power and authority as the sheriff, and all official acts by the deputy were indeed the acts of the sheriff; Pfister v. Niobrara Cy., 557 P.2d 735, 740 (Wyo.1976); Winnebago Cy. v. Industrial Comm'n, 39 Ill.2d 260, 234 N.E.2d 781 (1968); Hensley v. Holder, 228 Ark. 401, 307 S.W.2d 794 (1957); State ex rel. Geyer v. Griffin, 80 Ohio App. 447, 76 N.E.2d 294, 298 (1947); Bigham v. State, 141 Tex.Crim. 332, 148 S.W.2d 835 (1941); (2) the position of deputy sheriff was prescribed by law, requiring the deputy to take an official oath, and perhaps to provide an official bond; State ex rel. Day, 50 Wash.2d at 430-31, 312 P.2d 637; In re Bowden, 123 Me. 359, 123 A. 166 (1924); Toomey v. New York State Legislature, 2 N.Y.2d 446, 161 N.Y.S.2d 81, 141 N.E.2d 584 (1957) (legislator is officer because position was created by the legislature); cf., State ex rel. Running v. Jacobson, 140 Mont. 221, 370 P.2d 483 (1962) (clerk to school board was not an officer because position was not created by the legislature); and (3) the sheriff was vested with absolute discretion to appoint deputies and could hire and fire without cause. State ex rel. Day, 50 Wash.2d at 430-31, 312 P.2d 637.

Here, two of the three criteria are satisfied. The sheriff is authorized to employ deputies and other necessary employees with the consent of the board of county commissioners. RCW 36.16.070. The deputy sheriff may perform any act which his principal is authorized to perform. RCW 36.28.010, .020. Furthermore, the sheriff shall be responsible on his official bond for any deputy sheriff's default or misconduct. RCW 36.28.020. While it is apparent deputy sheriffs must take an oath, the board of county commissioners decides whether the deputies will be required to post a bond. RCW 36.16.060, .070. Based upon these two criteria, the Attorney General's office concluded sheriffs' deputies hold appointive offices and are therefore excluded from the MWA. AGO 12 (1977).

The third criterion, however, whether the sheriff is vested with absolute discretion to appoint the deputies, is not satisfied. In State ex rel. Day v. King Cy., supra, the court considered whether a deputy sheriff was a servant of the county or a public officer. Placing significant reliance upon the fact the sheriff appointed deputies and could revoke such appointments at will, the court concluded deputy sheriffs were public officers. State ex rel. Day, at 431, 312 P.2d 637.

One year after that opinion, however, Washington voters passed Initiative 23 in 1958, enacting a civil service system for all deputies and severely restricting the sheriff's power to employ and discharge personnel. Under the act, deputies were made members of the "classified civil service". RCW 41.14.070. As a result, all deputy appointments are to be made solely on merit, ascertained by open, competitive examination and impartial investigation. RCW 41.14.080. Contrary to common law, the sheriff can no longer discharge at will since those permanently appointed into the classified civil service can be removed or discharged only for cause. Furthermore, whenever a vacancy occurs, the sheriff cannot appoint any person, but must ask the civil service commission for the names of eligible appointees. RCW 41.14.130.

We conclude that given the significant change mandated by this statutory enactment, a deputy should not be considered an appointed officer because a sheriff can no longer "appoint" a deputy sheriff as that term was understood at common law. Accordingly, we hold the court properly ruled that this exemption did not apply here.

THE "ON-CALL" EXCLUSION

The County also...