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AGO 1957 No. 90 - July 02, 1957
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John J. O'Connell | 1957-1968 | Attorney General of Washington

(1) INCOMPATIBLE OFFICES
(2) OFFICES AND OFFICERS ‑- INCOMPATIBLE OFFICES ‑- CITY ‑- COUNTY
(3) CITIES AND TOWNS ‑- OFFICES AND OFFICERS ‑- INCOMPATIBLE OFFICES
(4) COUNTIES ‑- OFFICES AND OFFICERS ‑- INCOMPATIBLE OFFICES
(5) COUNTY COMMISSIONERS‑-INCOMPATIBLE OFFICES

The offices of county commissioner and mayor of a third class city are incompatible.

                                                                   - - - - - - - - - - - - -

                                                                     July 2, 1957

Honorable Maloy Sensney
Prosecuting Attorney of Benton County
Fisk Building
Prosser, Washington                                                                                                                Cite as:  AGO 57-58 No. 90

Attention:  Mr. Herbert H. Davis, Deputy

Dear Sir:

            You have requested our opinion as to whether a county commissioner can be appointed the mayor of a third class city and serve in both capacities.

            We answer your question in the negative.

                                                                     ANALYSIS

            We find no constitutional or statutory prohibition against the holding of these offices simultaneously by the same person.  However, it has been long and universally recognized that no one should hold incompatible public offices.  Kennett v. Levine, 150 Wash. Dec. 189 [[50 Wn.2d 212]].  Therefore, your inquiry necessitates a discussion of what constitutes incompatibility in public offfices.

            There is no one universal criterion of incompatibility, the determination resting upon the circumstances of each case.  Throop on Public Officers  [[Orig. Op. Page 2]] (1892) 37, § 33.  However, certain general considerations are stated by the various authorities.  In 3 McQuillin, Municipal Corporations (3rd Ed.), 261, 265, § 12.67, it is said:

            "Incompatibility is not simply a physical impossibility to discharge the duties of both offices at the same time, it is an inconsistency in the functions of the two offices, as where one is subordinate to the other, or where a contrariety and antagonism would result in the attempt by one person to discharge faithfully and impartially the duties of both.  Two offices are said to be incompatible when the holder cannot in every instance discharge the duties of each.  Incompatibility arises, therefore, from the nature of the duties of the offices, when there is an inconsistency in the functions of the two, where the functions of the two are inherently inconsistent or repugnant, as where antagonism would result in the attempt by one person to discharge the duties of both offices, or where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both.  The true test is whether the two offices are incompatible to their natures, in the rights, duties or obligations connected with or flowing from them."

            In an opinion of this office dated January 21, 1925, to the supervisor of the division of municipal corporations [[25 OAG 4 or 1925 OAG 4]], a copy of which is attached, we said:

            "Offices are incompatible when one has power of supervision over the other, or when the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both."

            InKennett v. Levine, supra, our supreme court stated the rule as follows:

            "Offices are incompatible when the nature and duties of the offices are such as to render it improper, from consideration of public policy, for one person to retain both . . ."

             [[Orig. Op. Page 3]]

            Our research discloses no case authority directly in point.  However, the case ofPeople v. Bagshaw, 55 Cal. App. (2d) 155, 130 P. (2d) 243, presented the question of whether the offices of city councilman and county supervisor were incompatible.  The question was answered in the affirmative.  The factors influencing the decision in that case were the power of the board of supervisors to declare any highway within a city to be a county highway, and to levy taxes for expense of work; the power of the city council to contract with supervisors for fire protection; certain other mutual contractual relations; and the respective auditing powers and duties of supervisors and councilmen.  The court reasoned that the necessity of one officer's representing conflicting interests in each instance made these offices incompatible, saying:

            "It appears that an auditing power exists not only in the supervisors over the council, but in the council over the supervisors.  The existence of this power, the right to vote, to affirm, deny, correct or modify the official actions of the other official body, in which the same official took part, or had the right to do so, results in incompatibility of the offices.  In a word, it is the existence of a right of one person to contract on behalf of the city and another distinct entity‑-the county‑-as the representative of each body. . . ."

            We see no distinction in principle between that situation and the one presented here.  It cannot be doubted that the mayor of a third class city occupies a position of great influence, if not control, over the city council, in view of his presidency over its meetings and his veto power over any ordinance.  See RCW 35.24.200 and 34.24.210.  The powers of the county, on the other hand, can only be exercised by the county commissioners or by agents or officers acting under their authority or authority of law.  RCW 36.01.030.

            With these considerations in mind we find several instances under our statutes wherein the person holding both offices would be placed in the position of representing conflicting interests.

            One example may be found in the laws relating to the making of local improvements by cities and towns under chapters 35.43 and 35.44 RCW, as follows: RCW 35.43.040, as amended by § 2, chapter 144, Laws of 1957, authorizes any city or town to make local improvements, and RCW 35.44.010, as amended by § 16 of the same act, provides for the assessment of property within the improvement district.  RCW 35.44.140  [[Orig. Op. Page 4]] specifically authorizes the assessment of county property for that purpose and authorizes county commissioners to cause the assessment to be paid.  Under RCW 35.43.070 and 35.43.080 a local improvement may be ordered only by ordinance, and its limits are to be determined by the same means. RCW 35.44.100 provides for the confirmation of the assessment roll by ordinance.  Means for opposing the action of the city are found in RCW 35.44.070 through 35.44.120 (1955 Supp.), which provide for taking objections to assessments; and in RCW 35.44.200, as amended by § 2, chapter 143, Laws of 1957, which allows appeals therefrom.  Then again, RCW 35.44.340 and 35.44.350 contemplate that reassessments shall be by ordinance.

            As indicated above, the powers of the mayor throughout these proceedings are influential and in some cases may be controlling.  Then, in a case where county lands are involved, it would become his duty as a county commissioner to take formal objection to questionable action of the city council.  RCW 35.44.070 (1955 Supp.),et seq.; RCW 35.49.070; RCW 36.32.120 (5) and (6).  Hence, there may frequently arise situations where the same person would be in a position to propose for one group which he represents, a course of action which his duty to another group would require him to oppose.

            Other occasions where a commissioner-mayor would represent conflicting interests could arise under RCW 36.75.160 and 36.75.170, which authorize joint participation by any city and county in acquiring and paying for bridges, pursuant to joint resolution of the governing authorities involved.  (See also RCW 35.24.290 andBarr v. Cowlitz County, 127 Wash. 14, confirming the power of the city in such matters); under RCW 36.63.150 and 36.63.160 which authorize joint county and city jails and the joint keeping and custody of prisoners; and under RCW 36.64.010 and 36.64.020 (which apply particularly to the city and county in question) authorizing a joint courthouse and city hall, and providing for joint contracts with reference thereto.  (Such contracts can be made only upon a proper resolution of the county commissioners and a proper ordinance of the city (RCW 36.64.030).)

            We are convinced that a sound public policy would forbid placing a municipal officer in the position of being forced to choose to which of his two offices he should be the more loyal, or the even more difficult position of trying to remain impartial and to strike an equitable balance between the opposing interests of two groups which he represents.  We conclude that the offices of mayor of a third class city and that of county commissioner are incompatible.

             [[Orig. Op. Page 5]]

            We note that an opinion of this office to the prosecuting attorney of Grays Harbor County dated September 22, 1941, held to the contrary.  It was cited and followed in our opinion to the state auditor dated November 2, 1942.  However, neither of these opinions cites any statute or case authority in support of its conclusion, and in so far as they are inconsistent with the foregoing, those opinions are expressly overruled.

            We trust that this information will be helpful to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General

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