¶108 (dissenting in part) — 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 (1895)).
¶109 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.
I. “Public Office” Forfeiture under RCW 9.92.120
¶110 The public office forfeiture statute, RCW 9.92.120, was enacted in 1909 as a part of Senate Bill 300, a criminal code. Laws op 1909, ch. 249. The 1909 criminal code included a number of provisions that applied to “officers” or “public officers.” The forfeiture of public office provision was included in chapter 1 of the law, entitled “General Provisions.” Id. A number of crimes by or against public officers appeared in chapter 4, entitled “Crimes By or Against Public Officers.” Id.
*73¶111 In the more than 100 years since its enactment, the forfeiture statute has been applied exclusively to elected public officials, with one distinguishable exception.1 It was applied to the office of county commissioner of Pierce County in State ex rel. Guthrie v. Chapman, 187 Wash. 327, 60 P.2d 245 (1936); to the office of mayor of the city of Bremerton in State ex rel. Knabb v. Frater, 198 Wash. 675, 89 P.2d 1046 (1939); to the office of judge of city of Seattle municipal court in State ex rel. Carroll v. Simmons, 61 Wn.2d 146, 377 P.2d 421 (1962); to the office of sheriff of Snohomish County in State ex rel. Zempel v. Twitchell, 59 Wn.2d 419, 367 P.2d 985 (1962); to the office of sheriff of Klickitat County in Matsen v. Kaiser, 74 Wn.2d 231, 443 P.2d 843 (1968); and to the office of state legislator in Kitsap County Republican Central Committee v. Huff, 94 Wn.2d 802, 620 P.2d 986 (1980).
¶112 This appears to be no accident. Cases applying the forfeiture provision imply that limiting the statute’s application to elected officials is consistent with its purpose. In 1936, the Washington Supreme Court, noting the few cases decided under the statute, stated, “In the very nature of things, we may not expect to find very much legal authority touching the question under consideration, for the reason that cases of this kind are, fortunately, infrequent.” Guthrie, 187 Wash. at 332. Two later decisions treat the forfeiture statute as a corollary to RCW 42.12.010, which addresses events creating a vacancy in an elected office. Carroll, for instance, characterized the forfeiture statute as “more specifically spell [ing] out” one of the qualifications for holding an office of public trust, which is that “one may not be convicted ‘of any offense involving a violation of his official oath.’ ” 61 Wn.2d at 150 (quoting RCW 42.12.010). Zempel similarly referred to “the sound and reasonably necessary public policy inherent in RCW 42.12.010 and RCW 9.92-.120.” 59 Wn.2d at 432. Elsewhere, the Zempel court (ex*74plaining why the statutorily imposed vacancy or removal of a public officer from office is not a punishment) quoted State ex rel. Lysons v. Ruff, 4 Wash. 234, 243, 29 P. 999 (1892) (Dunbar, J., dissenting) for the proposition that “ ‘[o]ffleers are elected not for the benefit of the individuals, but for the benefit of the community.’ ” 59 Wn.2d at 430 (emphasis added).
¶113 A broader definition of “officer” or “public officer” is provided by RCW 9A.04.110(13); it includes elected officials but also extends to their assistants, deputies, clerks, and employees. But following the overhaul of Washington’s criminal code in 1975, its application has been limited to statutes that define criminal offenses.
¶114 In 1967 and 1969—reportedly “[bjecause of the deficiencies in the existing criminal code”—the Washington State Senate adopted resolutions requesting that the Legislative Council prepare a proposed revision of the criminal code. Perry B. Woodall, Symposium—The Revised Washington Criminal Code, 48 Wash. L. Rev. 1, 2 (1972). The then-existing criminal code, enacted in 1909, was described by former State Senator Woodall as “by and large . . . very poorly drafted, replete with ambiguities, and, in many instances, extremely difficult to comprehend and apply.” Id. at 1. The Legislative Council’s Judiciary Committee and a Citizens’ Advisory Committee created by the Judiciary Committee prepared the Revised Washington Criminal Code, which was first introduced in the 1971 regular session of the Washington Legislature. See id. at 2. Passage of the Revised Washington Criminal Code was delayed pending submission of an alternative set of bills prepared by the state prosecutors’ association, submitted to the legislature in 1973. State v. Thompson, 88 Wn.2d 13, 25 n.5, 558 P.2d 202 (1977) (Utter, J., dissenting). The revised criminal code was ultimately enacted in 1975, to be effective July 1, 1976. Laws of 1975, 1st Ex. Sess., ch. 260, codified as Title 9A RCW.
¶115 The 1975 legislation repealed the definition section enacted in 1909, which had been codified at former RCW *759.01.010. Among definitions repealed was the definition of “officer” and “public officer” provided by former RCW 9.01.010(24), which had broadly defined the terms to include assistants, deputies, clerks, and employees for all purposes of Title 9 RCW, “save when otherwise plainly declared or clearly apparent from the context.” The 1975 legislature reenacted a broad definition of “officer” and “public officer,” codified at RCW 9A.04.110(13), but it limited the definition provision as applying “[i]n this title,” and no public office forfeiture provision was included in Title 9A RCW. Recognizing that criminal offenses are defined in statutes outside of Title 9A, the legislature provided in RCW 9A.04.090 that Title 9A’s definition section (among other general provisions of the title) would apply to “offenses defined by this title or another statute, unless this title or such other statute specifically provides otherwise”—but here again, it did not provide that the broad definition would apply to the public officer forfeiture provision, which remained in Title 9 RCW. (Emphasis added.) The 1975 legislature also enacted a statutory principle of construction that “provisions governing the definition of offenses” should be interpreted to further a principal purpose of such provisions, which is “[t]o forbid and prevent conduct that inflicts or threatens substantial harm to . . . public interests.” RCW 9A.04.020(1)(a), (2). Viewed as a whole, the 1975 legislation reflects an intent to define “officer” and “public officer” broadly for the purpose of defining crimes but not for other purposes.
¶116 By contrast, Washington statutes that deal with whether conviction of a felony forecloses public employment make distinctions between elected officials and their subordinates. Chapter 9.96A RCW, enacted in 1973 (while the Revised Washington Criminal Code was in development) declares it to be the policy of the State of Washington
to encourage and contribute to the rehabilitation of felons and to assist them in the assumption of the responsibilities of citizenship, and the opportunity to secure employment or to *76pursue, practice or engage in a meaningful and profitable trade, occupation, vocation, profession or business is an essential ingredient to rehabilitation and the assumption of the responsibilities of citizenship.
RCW 9.96A.010. To this end, the chapter provides protections for ex-felons’ opportunities to be employed by public entities. While the statute does not preclude a public employer from considering an applicant’s prior conviction of crime in making a hiring decision, RCW 9.96A.020(1) provides (subject to exceptions not applicable to Jerry Jasman) that
unless there is another provision of law to the contrary, a person is not disqualified from employment by the state of Washington or any of its counties, cities, towns, municipal corporations, or quasi-municipal corporations, nor is a person disqualified to practice, pursue or engage in any occupation, trade, vocation, or business for which a license, permit, certificate or registration is required to be issued by the state of Washington or any of its counties, cities, towns, municipal corporations, or quasi-municipal corporations solely because of a prior conviction of a felony
¶117 As for elected officials, RCW 42.12.010(5), dealing with elective offices, provides that “[e]very elective office shall become vacant,” among other events, on the incumbent’s “conviction of a felony, or of any offense involving a violation of his or her official oath.” The statute under examination in this case, RCW 9.92.120, provides that the “conviction of a public officer of any felony or malfeasance in office shall entail, in addition to such other penalty as may be imposed, the forfeiture of his or her office, and shall disqualify him or her from ever afterward holding any public office in this state.” As previously explained, no statute defines “public officer” or “public office” for purposes of RCW 9.92.120. In the absence of a specific statutory definition, words in a statute are given their common law or ordinary meaning. State v. Chester, 133 Wn.2d 15, 22, 940 P.2d 1374 (1997). Because the 1975 legislature explic*77itly modified the broad statutory definition of “public officer” and “officer” so that it no longer applies to the public office forfeiture statute, the need to give those words in the forfeiture statute their common law meaning is especially clear.
¶118 The reasonable construction of chapter 9.96A RCW, RCW 9.92.120, and RCW 42.12.010 in pari materia (which is appropriate since all deal with eligibility for public employment) is that the legislature intended to strictly disqualify felons from elected office but not to disqualify felons from other employment by a public entity solely because of a prior conviction of a felony. See Hallauer v. Spectrum Props., Inc., 143 Wn.2d 126, 146, 18 P.3d 540 (2001) (we construe statutes that relate to the same subject matter together as constituting a unified whole, to the end that a harmonious, total statutory scheme evolves that maintains the integrity of the respective statutes).
¶119 The majority, needless to say, construes these statutory provisions differently. It places substantial reliance on Hoflin v. City of Ocean Shores, 121 Wn.2d 113, 847 P.2d 428 (1993) and State v. Korba, 66 Wn. App. 666, 832 P.2d 1346 (1992). I view the language in Hoflin on which the majority relies as dicta. As to Korba, I disagree with the court’s reasoning, although not its result.
¶120 Hoflin is the only reported case that has applied the forfeiture statute to an unelected public official. I have several reasons for viewing its statement about public officer status as dicta. First, the Supreme Court observed early in the opinion that the issue of whether the forfeiture statute applied to Mr. Hoflin at all
was not formally decided by the trial court because it found “just cause” for the dismissal under [Ocean Shores’s] Municipal Code. It was mentioned, but not formally appealed, to the Court of Appeals. That court did not address it because it ruled that the entire forfeiture statute did not apply. The issue was not mentioned nor argued before this court.
121 Wn.2d at 117 n.15 (emphasis added).
*78¶121 Second, the Supreme Court, like the trial court, examined the employment termination issue not as a public office forfeiture issue but, instead, as turning on (1) whether Mr. Hoflin was either terminable at will or terminable for cause under the Ocean Shores Municipal Code, which identified conviction of a crime as a basis for dismissal for cause and (2) whether Mr. Hoflin was afforded due process in connection with the termination of his employment, particularly in light of the city’s reliance on the forfeiture statute. The Supreme Court’s only references to case law addressing whether the nonelected status of a government employee might matter was to point out (twice) that certain cases it reviewed “all concern [ed] elected officers.” Id. at 131, 132 n.72.
¶122 Third, it is not until the demarcated “conclusion” of the Hoflin opinion (its last three paragraphs) that the court states—supported by literally no analysis—that “[a]s a public official of the City of Ocean Shores, [Mr. Hoflin] was subject to RCW 9.92.120 which mandated forfeiture of his office.” Id. at 135.
¶123 My colleagues conclude that this statement in Hoflin necessarily means that the term “public officer” as used in the forfeiture statute includes unelected government employees like Mr. Hoflin. Standing alone, that is what it appears to say. But taking into consideration the lack of any analysis that would support that legal conclusion and the court’s focus, instead, on the fact that the parties never formally appealed, mentioned, or argued the scope of “public officer,” the most reasonable reading is that the Hoflin court used the unappealed finding that Mr. Hoflin was a public officer as a “law of the case” basis for its decision. It might have felt bound to, since the city of Ocean Shores characterized itself as reluctant to discharge Mr. Hoflin but required to do so by the forfeiture statute, and the city disclaimed reliance on the municipal code provisions that the trial court seized on as a more solid basis for his discharge.
*79¶124 The majority also relies on Korba, in which an employee of the vital records office of a county department of health was convicted, among other offenses, of two offenses (injury to record and misappropriation of record) defined by RCW 40.16.020. On appeal, Ms. Korba challenged the broad definition of “officer and public officer” that the trial court included in its instructions to the jury on the offenses charged under chapter 40.16 RCW—a definition it derived from RCW 9A.04.110(13). Division Two of our court appears to have concluded that the definitions in RCW 9A.04.110(13) did not directly apply to offenses defined in chapter 40.16 RCW, and so relied on the fact that both the criminal statute and the broad definition could be traced to chapter 249 of the Laws of 1909. It reasoned that “[cjlearly, the 1909 Legislature intended for the criminal code definition of public officer to apply to the public records provisions” and “[ojur duty is to give effect to the intent of the Legislature”; and, from that, it applied the 1909 statutory definition. 66 Wn. App. at 670.
¶125 It was a mistake, in my view, for the Korba court to rely on the 1909 legislature’s intent in enacting legislation that had since been repealed. A change in legislative intent is presumed when a material change is made in a statute. Davis v. Dep’t of Licensing, 137 Wn.2d 957, 967, 977 P.2d 554 (1999). The court should not have ignored, nor can we, the fact that the changes made by the 1975 legislature limited the application of the broad statutory definition of “officer” and “public officer” to statutes that define criminal offenses. The Korba court would have reached the same result, and for a better reason, had it relied on the intent of the 1975 legislature as reflected in RCW 9A.04.090, which extended the definitions in chapter 9A.04 RCW to “offenses defined by . . . another statute,” such as RCW 40.16.020.
¶126 Because the public office forfeiture statute disqualified Mr. Jasman from holding only “any public office in this state,” with “public office” having its narrow common law meaning, the trial court erred in granting the prosecut*80ing attorney’s motion for summary judgment and enjoining Mr. Jasman from signing death certificates as a deputy and investigator for the Grant County coroner.
II. Appointment of Special Prosecutor
¶127 I also part ways with the majority on Coroner Morrison’s right to appointment of a special prosecutor. His circumstances present a question of first impression as to the prosecuting attorney’s duties under RCW 36.27.020.
¶128 From the perspective of Coroner Morrison, the quo warranto action was politically motivated, reflecting “longstanding harassment” that he claimed his office had been subjected to by Prosecuting Attorney D. Angus Lee. Clerk’s Papers (CP) at 163. His first response to the action was to submit a request to the Grant County commissioners to defend and indemnify Mr. Jasman, whom he contended had merely followed his instructions and acted in good faith within the scope of his employment. The county commissioners initially approved Coroner Morrison’s request for indemnification of Mr. Jasman but later reversed their decision “[biased on legal advice from the Prosecuting Attorney’s office.” CP at 164.
¶129 The fact that Prosecuting Attorney Lee advised the county commissioners not to indemnify Mr. Jasman resulted in the disqualification of his office from representing Mr. Lee as plaintiff in the quo warranto action. While the disqualification itself has no bearing on Coroner Morrison’s right to appointment of a special prosecutor, the trial court’s reasoning in disqualifying the prosecutor’s office does. The trial court’s order on the conflict of interest stated:
The Court believes that the Coroner is the real party in interest. It is clear that the Coroner can hire any individual the elected Coroner chooses, as long as the position and funding have been created by the County Commission. . . . Osborn[ ] v. Grant County, 130 Wn.2d 615[, 926 P.2d 911] (1996). . . . Further, as indicated in Osborn[ ], supra, the Grant County *81Prosecutor does have an obligation to advise the County Coroner and the County Commission.
CP at 349. While the county filed a notice of cross appeal of these determinations, it later abandoned the appeal, with the result that these rulings are the law of the case.
¶130 After the prosecutor’s office was disqualified, Coroner Morrison moved to intervene in the quo warranto action on grounds that the action interfered with his authority to hire deputies and employees as well as his authority to delegate tasks. The motion was granted, and Coroner Morrison was aligned with Mr. Jasman as a defendant. It was after Coroner Morrison had been added as a party and aligned as a defendant that he requested appointment of a special prosecutor in light of Prosecuting Attorney Lee’s conflict of interest.
¶131 RCW 36.27.020(2) provides that the prosecuting attorney “shall . . . [b]e legal adviser to all county . . . officers ... in all matters relating to their official business.” RCW 36.27.020(3) provides that the prosecuting attorney “shall... [a]ppear for and represent the ... county ... in all criminal and civil proceedings in which . . . the county . . . may be a party.” And in Washington, because the prosecuting attorney is also the county attorney,
the relations of [the prosecuting attorney] to the county may be such as possibly require him to appear in behalf of the county in some instances, even if the specific duty may not be particularly and expressly prescribed by statute. If so, the duty arises out of the obligations he has assumed as an officer of the county to discharge the general functions of an attorney in his behalf.
Bates v. Sch. Dist. No. 10, 45 Wash. 498, 502, 88 P. 944 (1907).
¶132 In In re Welfare of Lewis, 51 Wn.2d 193, 202, 316 P.2d 907 (1957), our Supreme Court held that the “letter and spirit of the statute prescribing the duties of the prosecuting attorney are broad enough to include the duty *82to assist the court in a juvenile court proceeding when his services are needed,” even though the party requiring representation in that case was a county probation officer rather than the county itself. The court reasoned in part that the county was the real party in interest, but it also recognized that
the probation officer, untrained in and unacquainted with . . . technical questions, cannot be expected to aid the court in their solution. Nevertheless, the court must dispose of these questions. ... The effective and orderly conduct of juvenile hearings is a matter with which the state and county are both deeply concerned.
Id.; accord Fuqua v. Fuqua, 88 Wn.2d 100, 102, 558 P.2d 801 (1977) (“The authority of the prosecuting attorney to appear in actions which present issues concerning county officials and their operation of county departments has been broadly construed in this state.”); Neal v. Wallace, 15 Wn. App. 506, 507-08, 550 P.2d 539 (1976) (holding that where a superior court judge was named a defendant in an action for a writ of mandamus, “the prosecuting attorney is the proper court representative of the Superior Court judge”).
¶133 “RCW 36.27.020 does not except from the duty to defend those matters in which the prosecutor disagrees with his county or state client.” Westerman v. Cary, 125 Wn.2d 277, 300, 892 P.2d 1067 (1994). A disagreement between a prosecutor and a county officer entitled to representation can create a disabling conflict of interest, however, requiring the appointment of a special prosecutor to represent the officer. To justify the appointment of a special prosecutor, “a prosecutor must have both a duty to represent an official and a disability that prevents the prosecutor from representing the official.” Id. at 298.
¶134 The majority recognizes that the Grant County prosecuting attorney’s conflict of interest created a disability, but it concludes that the prosecuting attorney had no duty to Coroner Morrison because Grant County was not the real party in interest and Coroner Morrison “voluntarily *83inserted himself” into the litigation. Majority at 67. Washington cases have relied on the county being the real party in interest as one basis for requiring a prosecutor to represent a county official but have never held that it is the only basis on which an official is entitled to representation. See, e.g., Lewis, 51 Wn.2d at 202; Osborn, 130 Wn.2d at 629 (holding that the Grant County prosecutor had a statutory duty to be legal advisor to the county clerk even though she was not embroiled in litigation in which the county was the real party in interest). And to say that Coroner Morrison “voluntarily inserted himself” into the quo warranto action is to ignore the trial court’s unappealed determination that the coroner was the real party in interest. Mr. Jasman could not and did not hire himself and assign himself responsibilities—it was Coroner Morrison’s hiring and management decisions that were threatened by the quo warranto action. The prosecuting attorney knew that it was the coroner’s perceived prerogative that he placed at issue by bringing the action below.
¶135 There are only a half dozen or so reported cases analyzing a prosecuting attorney’s duty under RCW 36.27-.020 to represent a county officer in civil litigation relating to the business of his or her office. That may be due to the enactment in 1979 of former RCW 36.16.134, now codified at RCW 4.96.041, authorizing local governments to enact indemnification ordinances or resolutions under which an officer or employee can often more readily request and be entitled to a defense at local government expense. It was the county commissioner’s ultimate refusal to indemnify Coroner Morrison and Mr. Jasman under that provision (the subject matter of their separate lawsuit, not at issue in this appeal) that led the coroner to rely, alternatively, on the prosecuting attorney’s duty of representation under RCW 36.27.020.
¶136 No reported case presents the following combination of circumstances present here and that, under the cases described above, support Coroner Morrison’s right to *84have had the court appoint a special prosecutor under RCW 36.27.020:
An elected county official who was the real party in interest (an unappealed determination that is law of the case);
Who was entitled by statute to be advised in the matter by the prosecuting attorney (also an unappealed determination, and law of the case);
Who could not be provided with the needed legal advice by the office of the prosecuting attorney in light of the conflict of interest, whose request for appointment of a special prosecutor was deferred and ultimately denied, and who necessarily sought legal advice elsewhere;
Who did not initiate the quo warranto lawsuit but, as the real party in interest, reasonably intervened and responded to it; and
Who responded through his necessarily retained lawyer to legal issues to which he could not have been expected to respond pro se, and as to which both the trial court and this court depended on his competent legal representation to resolve the legal issues.
¶137 Since we can no longer provide the relief of ordering appointment of a special prosecutor, Coroner Morrison’s attorney fees are recoverable as the equivalent of legal service that the prosecutor was directed by statute to provide. See Nichols v. Snohomish County, 109 Wn.2d 613, 620, 746 P.2d 1208 (1987). I would award Coroner Morrison his attorney fees and costs incurred in the trial court and on appeal.
¶138 For these reasons, I respectfully dissent on the issues of Mr. Jasman’s removal from the position of deputy coroner and Coroner Morrison’s entitlement to recover his fees incurred from Grant County.
Review granted for defendant Jasman and review denied for plaintiff Lee at 182 Wn.2d 1002 (2015).
Hoflin v. City of Ocean Shores, 121 Wn.2d 113, 847 P.2d 428 (1993), discussed infra.