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AGO 1952 No. 321 - June 05, 1952
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Smith Troy | 1941-1952 | Attorney General of Washington

COUNTY COMMISSIONERS ‑- COMPATIBILITY OF THE OFFICES OF COUNTY COMMISSIONERS AND SCHOOL BOARD DIRECTOR AND PART TIME EMPLOYMENT WITH A PUBLIC UTILITY DISTRICT

A county commissioner may hold the office of school board director, and also be a part time employee of a public utility district, provided such positions do not create such a multiplicity of business that they cannot be executed with care and ability.

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                                                                    June 5, 1952

Honorable James E. Duree
Prosecuting Attorney
Pacific County
P.O. Box 552
Raymond, Washington                                                                                                              Cite as:  AGO 51-53 No. 321

Dear Sir:

            Receipt is hereby acknowledged of your letter of May 5, 1952, in which you request an opinion on the following questions:

            1. Are the offices of county commissioner and school board director, of a school district within the county, compatible?

            2. Is it incompatible and contrary to public policy for a county commissioner to be a part time employee of the local public utility district?

            Our conclusions may be summarized as follows:

            The office of county commissioner is not incompatible with the office of school board director, and also the office of county commissioner is not incompatible with being a part time employee of a public utility district, provided the above mentioned positions do not create such a multiplicity of business that they cannot be executed with care and ability.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            In the matter of the compatibility of the offices of county commissioner and school board director, this office in the most recent opinion on that subject, holds that the said offices are not incompatible.  The opinion to which we make reference is under the date of December 23, 1940, addressed to Honorable R. L. Ponder, Prosecuting Attorney of Lewis County.

            A reexamination of the question reveals nothing which could be a reasonable basis for our retreating from the position laid down in the above cited opinion.

            We have had this question of incompatibility before us a number of times, but never before has this precise combination of positions been brought to our attention.

            The only offices in this state which by legislative enactment are declared incompatible are those of justice of the peace and sheriff; justice of the peace and coroner; justice of the peace and clerk of the superior court (Rem. Rev. Stat., § 7547, RCW 3.04.040).  In the absence of statutory provision as applied to our present inquiry we must apply the common law rule.

            Our Supreme Court has never defined the common law rule regarding the incompatibility of offices.  However, the question of public employment under the rule has been raised and passed upon in other jurisdictions.

            InKnuckles v. Board of Education of Bell County, 114 S.W. 2d. 511, 272 Ky. 431, the court states:

            "* * * Furthermore, * * * the consequences of incompatibility (either at common law or under the Constitution or statutes) not only as between public positions expressly designated as an 'office,' but such incompatibility is also applied, with the same consequences, as between what might be termed publicemployees when the functions to be performed by the incumbent partakes of the nature of the duties and functions of an officer, although the incumbent might be designated as only an 'employee,' or he may be so regarded by necessary inference."  (Emphasis supplied)

            The test of incompatibility of office has been expressed in a variety of ways.  The Supreme Court of Montana has said:

             [[Orig. Op. Page 3]]

            "Public offices are 'incompatible' when the incumbent of one has power of removal over the other, or when one has power of supervision over the other, or when the nature and duties of the two render it improper from a consideration of public policy, for one person to retain both."  (Emphasis supplied).  State v. Wittmer, 144 Pac. 649.

            The Supreme Court of Kansas has said:

            "Offices are incompatible when the performance of the duties of one interferes in some way with the duties of the other and there is an inconsistency in the functions of the two offices.  It is difficult to define with precision this incompatibility.  The question must be determined upon the facts in each case."  Dyche v. Davis, 142 Pac. 264 [[92 Kan. 971]].

            InPeople v. Green, 46 How. Prac. (N.Y.) 169, the court announced an often cited rule, which we quote:

            "Offices are said to be incompatible and inconsistent so as to be executed by the same person: 1st:  When, from the multiplicity of business in them, they cannot be executed with care and ability; or 2d.  When, their being subordinate and interfering with each other, it induces the presumption that they cannot be executed with impartiality and honesty."

            This seems to be a sound rule to be adopted in determining whether employment which one accepts is incompatible with the duties of the office which he holds.

            The mere fact that the question of incompatibility is in regard to an employment, and, further, the employment is to be with the local public utility district, would lead us to believe that it would not be a position which would be "subordinate and interfering" with the office of county commissioner; a public utility district being to a great extent a self-governing body and independent of the county commissioners in most matters.

            Inasmuch as we are not aware of how onerous or time consuming this combination of positions would be, we must make the exception that the offices of county commissioner and school board director and county commissioner  [[Orig. Op. Page 4]] and part time employee with the local public utility district are compatible, provided, that such positions do not create such a multiplicity of business that they cannot be executed with care and ability.

Very truly yours,

SMITH TROY
Attorney General

STEPHEN C. WAY
Assistant Attorney General

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