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AGO 1960 No. 169 - December 23, 1960
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John J. O'Connell | 1957-1968 | Attorney General of Washington

CITIES AND TOWNS - ALIEN - APPOINTMENT AS CITY PLANNING DIRECTOR.

The City of Renton may not appoint an alien to the position of city planning director.

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

                                                               December 23, 1960

Honorable Avery Garrett
State Representative
District No. 47
Renton, Washington                                                                                            Cite as:  AGO 59-60 No. 169

Dear Sir:

            By letter previously acknowledged, you have requested the opinion of this office on the following question:

            May the City of Renton appoint an alien to the position of city planning director?

            We answer your question in the negative.

                                                                     ANALYSIS

            The position of city planning director was created by Ordinance No. 1708 of the City of Renton, which was enacted on November 25, 1958, and which provides in part as follows:

            "An Ordinance of the City of Renton, Washington Amending Chapters 11 and 13 of Title I (Administrative) and Relating to the Qualifications and Duties of Superintendent of Utilities and Planning Director, of Ordinance No. 1628, Entitled 'Code of General Ordinances of the City of Renton.'

             [[Orig. Op. Page 2]]

            "BE IT ORDAINED BY THE MAYOR AND THE CITY COUNCIL OF THE CITY OF RENTON AS FOLLOWS:

            "SECTION I:  Existing Section 1-1102 of Chapter 11, Title I (Administrative), of Ordinance No. 1628 reading as follows: . . .

            "BE AND THE SAME IS HEREBY AMENDED TO READ AS FOLLOWS:

            "Section 1-1102, Chapter 11, as amended: SALARIES OF APPOINTIVE OFFICERS:  The following appointive officers shall receive such salaries as are heretofor from time to time fixed by the governing body:

            Deputy Clerk                            Comptroller

            Assistant Treasurer                   Purchasing Agent

            Attorney                                               Assistant Attorney

            Street Commissioner                 Chief of Police

            Engineer                                               Chief of the Fire Department

            Health Officer                           Superintendent of Utilities

            Planning Director

           . . .

            "Section IV: There are hereby established new sections in Chapter 13 to be known as Sections 1-1306, 1307 and 1308, Chapter 13, Title I, reading as follows:

            "Section 1-1306, Chapter 13:  APPOINTMENT OF PLANNING DIRECTOR:  The Planning Director shall be appointed by the Mayor, subject to confirmation by the Council, and shall hold office for his respective term or until such time as he may be removed by the Mayor and/or the City Council.

            "Section 1-1307, Chapter 13:  QUALIFICATIONS: To be eligible for the office of Planning Director, the appointee must be a graduate of an accredited college or university or in lieu thereof have at least five years practical experience in the fields of either municipal  [[Orig. Op. Page 3]] planning, field engineering, land surveying, or general urban development and designing, or a combination of any of these.

            "Section 1-1308, Chapter 13: GENERAL DUTIES:  The duties of the Planning Director shall include supervision, administration and general planning of the physical development of the Municipality; the preparation of comprehensive and coordinated plans therefor; the administration and enforcement of all platting, zoning and land use ordinances and regulations and the establishment of proper liaison and cooperation thereof with the Planning Commission, the City Council and the Executive Department.  The Planning Director shall perform such further general and specific duties as may be prescribed by the City Council from time to time."

            This ordinance was passed pursuant to RCW 35.23.120, which provides in part as follows:

            "The appointive officers of a city of the second class shall be a chief of police, city attorney, health officer, and street commissioner; the council may also create by ordinance the offices of superintendent of irrigation, city engineer, harbor master, pound keeper, city jailer, chief of the fire department, and any other offices necessary to discharge the functions of the city and for whose election or appointment no other provision is made. . . ."  (Emphasis supplied.)

            We assume, for purposes of this opinion, that there is no question concerning the validity of this ordinance.

            Although there are a number of specific statutory provisions making United States citizenship a prerequisite for the holding of certain positions with the government of a second class city, none have been found which are applicable to the appointive positions authorized by RCW 35.23.120.  In the absence of such a provision, of course, common law will be controlling.

             [[Orig. Op. Page 4]]

            Although, on the one hand, there seems to be no prohibition on hiring aliens as mere employees, (see AGO No. 2081, April 24, 1928, to the Honorable William Cole [[1927-28 OAG 678]]; letter to James Bertell, March 25, 1938; and letter to the Honorable Tom A. Durham, June 14, 1960) on the other hand the common law does not allow an alien to serve as a public officer.  State v. Smith, 14 Wis. 497 (1861), Walter v. Rabolt, 30 Cal. 186 (1866), and State v. Van Beek, 87 Iowa 569, 54 N.W. 525 (1893).

            "At the very foundation of all independent popular governments lie the principles, the enforcement of which needs the aid of neither statutory nor constitutional enactments or restrictions, that the government is instituted by the citizens, and that it is to be administered, and its powers and functions exercised, only by them and through their agency.  Viewed in the light of these principles, it is obvious that an alien is ineligible to hold public office unless specially authorized by statute.  So, if a person who is not an elector because he is an alien attempts to exercise the functions of a public office, the courts, on proper proceedings being instituted for the purpose, will oust him. . . ." (2 Am.Jur., Aliens, § 20.)

            This prohibition is applicable not only to elective public offices, but to appointive offices as well.  See AGO No. 2081, supra, a copy of which is enclosed for your reference.

            The determinative question, therefore, is whether the planning director is a public officer rather than a mere employee.  In Fitts v. Gibbs, 40 Wn. (2d) 444, 446; 244 P. (2d) 241 (1952) we find:

            "The test of a public office of a civil nature is laid down in State ex rel. McIntosh v. Hutchinson, 187 Wash. 61, 59 P. (2d) 1117, 105 A.L.R. 1234, wherein we quoted, with approval, State ex rel. Barney v. Hawkins, 79 Mont. 506, 257 Pac. 411, 53 A.L.R. 583, as follows:

             [[Orig. Op. Page 5]]

            "'"After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity and not be only temporary or occasional.  In addition, in this state, an officer must take and file an official oath, hold a commission or other written authority, and give an official bond, if the latter be required by proper authority."'"

            This same test was quoted with approval and applied in State ex rel. Brown v. Blew, 20 Wn. (2d) 47, 145 P. (2d) 554 (1944) and inState ex rel. Hamblen v. Yelle, 29 Wn. (2d) 68, 185 P. (2d) 723 (1947).

            That the first, third, fourth and fifth tests are met is obvious from an examination of the ordinance and the authorizing statute, both quoted above.  See also, AGO 59-60 No. 157, November 10, 1960 to the Honorable Roger L. Olson, a copy of which is also attached.  And the general duties of the planning director, as set out in the ordinance, show that he is to be delegated a portion of the sovereign power of government, to be exercised for the benefit of the public, for he is given the duty, among others, of administering and enforcing all platting, zoning, and land use ordinances and regulations.  Thus, the second test is also met.

             [[Orig. Op. Page 6]]

            Moreover, throughout the relevant portions of the ordinance and in the authorizing statute, the terms "office" and "officer" are used, and such terms as "employment" or "employee" nowhere appear.

            Accordingly, we conclude that the position of planning director in a second class city is a public office, and that therefore, only a United States citizen is eligible to hold that office.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

TIMOTHY R. MALONE
Assistant Attorney General

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