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AGLO 1976 No. 49 - August 06, 1976
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Slade Gorton | 1969-1980 | Attorney General of Washington

COUNTIES ‑- OFFICERS ‑- ELECTIONS ‑- FREEHOLDERS ‑- NONPARTISAN COUNTY OFFICERS

A county charter may provide for the nonpartisan election of county council members.

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                                                                  August 6, 1976

Honorable David F. Thiele
Prosecuting Attorney
Island County Court House
Coupeville, Washington 98239                                                                                                               Cite as:  AGLO 1976 No. 49

Dear Sir:

            This is written in response to your recent letter requesting our opinion on the following question:

            "May the Freeholders for Island County legally provide for the non-partisan election of County Councilmembers who will be the members of the Island County legislative body if the Charter passes?"

            We answer the foregoing question in the affirmative.

                                                                     ANALYSIS

            Article XI, § 4 (Amendment 21) of the Washington constitution provides, in material part, that:

            "Any county may frame a 'Home Rule' charter for its own governmentsubject to the Constitution and laws of this state, . . ."  (Emphasis supplied.)

            This constitutional provision then states, in an ensuing paragraph, that:

            "Any home rule charter proposed as herein provided, may provide for such county officers as may be deemed necessary to carry out and perform all county functions as provided by charter or by general law, and for their compensation, but shall not affect the election of the prosecuting attorney, the county superintendent of schools, the judges of the superior court, and the justices of the peace, or the jurisdiction of the courts."

             [[Orig. Op. Page 2]]

            Because your question is limited to the members of a proposed county council, however, the restriction contained in this last quoted paragraph of Article XI, § 4,supra, has no bearing thereon.  Thus, the basic question presented is whether a county charter provision establishing a nonpartisan county council (i.e., legislative body) would be in conflict with any state statute or consititutional provision to the contrary.

            Our search of the constitution and statutes of our state reveals nothing which, in our opinion, would be in conflict with a county charter provision such as you have described.  Particularly, we find nothing in either RCW 29.18.010 (relating to partisan primary elections) or in chapter 29.21 RCW (dealing with nonpartisan primaries and elections) which would preclude the framers of a county charter from establishing a nonpartisan county council.

            Generally speaking, the pattern of the various laws dealing with the election of county or other municipal officers in this state is one whereby the election is conducted on a partisan basis under the procedures set forth in chapter 29.18 RCW (along with chapters 29.24 and 29.30 RCW as well) unless the particular office is declared by law to be a nonpartisan position.  Examples of the latter are RCW 29.21.010 (first, second and third class cities), RCW 29.21.040 (offices in commission form cities), RCW 29.21.070 (judicial offices), RCW 29.21.080 (the office of state superintendent of public instruction) and RCW 29.21.200 (school directors).  Thus, for example, even a first class city operating under a charter adopted pursuant to Article XI, § 10 (Amendment 40) of the constitution could not, without violating state law, establish its elective offices as partisan political offices.  But the converse is not true because there is no statute or constitutional provision whichrequires any particular officers to run and be elected only on the basis of partisan (political party) nominations in one form or another.

            Although RCW 29.18.010, which you have cited in your letter does, at first blush, appear to impose such a requirement in the case of county offices, a complete reading of its provisions indicates to us otherwise.  This statute reads as follows:

            "All candidates for state, congressional, legislative, county, municipal, and precinct elective offices shall be nominated at a partisan primary election held pursuant to the provisions of this chapter:  Provided,  [[Orig. Op. Page 3]] That this chapter shall not apply to elections:

            "(1) To fill unexpired terms occasioned by vacancies;

            "(2)For nonpartisan elective offices;

            "(3) For presidential electors;

            "(4) In first class cities whose charters provide a nonpartisan method of nominating candidates;

            "(5) In fourth class cities or towns;

            "(6) In first, second and third class cities holding nonpartisan elections under RCW 29.21.010."  (Emphasis supplied.)

            Thus, if a county office has been expressly established as a nonpartisan office ‑ either by a statute or constitutional provisions or by a local charter adopted pursuant to Article XI, § 4 (Amendment 21), supra ‑ none of chapter 29.18 RCW including RCW 29.18.010, supra, is applicable to elections to that office.

            In accordance with the foregoing reasoning we answer your question in the affirmative.  There being no state constitutional provision or statute to the contrary the freeholders of a county, in framing a charter under Article XI, § 4 (Amendment 21),supra, may provide for the nonpartisan election of county council members in the manner apparently contemplated by that question.

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

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

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