OFFICES AND OFFICERS ‑- STATE ‑- LEGISLATOR ‑- COUNTY COMMISSIONERS ‑- VACANCY IN OFFICE
(1) A board of county commissioners may not appoint one of its members to fill a vacancy in the state House of Representatives.
(2) If a county commissioner were to resign for the sole purpose of accepting an appointment to the House of Representatives under a prior agreement to that effect with the board of which he was a member, the member would still be ineligible for the appointment notwithstanding his resignation.
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October 24, 1973
Honorable Kenneth O. Eikenberry
State Representative, 36th District
Suite 500 Third & Lenora Building
Seattle, Washington 98121
Cite as: AGLO 1973 No. 101
By recent letter you have asked for our opinion on the following three questions:
"(1) If a vacancy occurs in one position of a house of representative district which is entirely within a single county, may a board of county commissioners appoint one of its members to fill such vacancy?
"(2) If a board member may be appointed to fill such a vacancy, may he vote for himself if necessary to provide a majority vote for himself to fill the vacancy?
"(3) If the answers to (1) and (2) are in the negative, would the situation be changed if a county commissioner resigned as such prior to being appointed as the representative of the district, where such resignation was made for the sole purpose of accepting an appointment from the board from which he resigned, by prior agreement with the other board members that such would be the result of his resignation?"
We answer your first question in the negative, thereby rendering consideration of your second question unnecessary; we also answer question (3) in the negative.
In submitting this request you have indicated an awareness of AGO 65-66 No. 20 [[to George A. Kain, Prosecuting Attorney, Spokane County on May 26, 1965]], an opinion written to the then prosecuting attorney of Spokane county on May 26, 1965, in which precisely these same questions were asked with respect to the filling of a vacancy in the office of county [[Orig. Op. Page 2]] auditor. Like the position of state representative from a legislative district located entirely within a single county, vacancies occurring in that or any other partisan county office are also filled by appointment by the applicable county commissioners. See, Wash. Const., Article II, § 15 (Amendment 52) and compare this provision with Article XI, § 6 as it then read. Accordingly, we responded to the first question there posed by concluding that a board of county commissioners may not appoint one of its own members to fill a vacancy in the office of county auditor, relying, largely, upon certain principles which were expressed in 42 Am.Jur., Public Officers, § 97 (p. 955) as follows:
"'An officer intrusted with the power of appointment should exercise it with disinterested skill and in a manner primarily for the benefit of the public, for it is the policy of the law to secure the utmost freedom from personal interest in such appointments. So, it is contrary to public policy to permit an officer having an appointing power to use such power as a means of conferring an office upon himself, or to permit an appointing body to appoint one of its own members." (Emphasis supplied.)'"1/
Then, noting that this answer rendered any further consideration of question (2) unnecessary, we turned to and answered the prosecuting attorney's third and final question as follows:
"If a county commissioner were to resign his office for the sole purpose of accepting an appointment as the county auditor under a prior agreeement to that effect with the board of which he was a member, the member would still be ineligible for the appointment notwithstanding his resignation."
Accord, State ex rel. Bove v. McDaniel, 52 Del. 304, 157 A.2d 463 (1960), a case that was factually "on all fours" from which we quoted extensively on pp. 8 and 9 of this prior opinion.
[[Orig. Op. Page 3]]
We can see no basis at this time for distinguishing the question which you have asked with respect to the filling of a legislative vacancy from those which were considered in this earlier, 1965 opinion and, likewise, we can see no basis for any present departure from the underlying principles enunciated therein. For this reason, we must likewise answer your first and third questions in the negative ‑ with these answers similarly rendering consideration of your second question unnecessary.
In so concluding we should, however, note here as we did in AGO 65-66 No. 20, that insofar as question (3) is concerned, our negative answer thereto
". . . is not to say, of course, that the same result would necessarily follow in the absence of the specific factual pattern involved, wherein the resignation was made by prearrangement solely to qualify for appointment to the new office‑-which appointment was pre‑arranged [[prearranged]]prior to the time of resignation."
We trust the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Accord, 63 Am.Jur.2d Public Officers, § 96 (p. 960).