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February 5, 1971
Honorable Paul Barden
State Representative, 30th District
Olympia, Washington 98501
Cite as: AGLO 1971 No. 17 (not official)
This is written in response to your recent letter requesting our opinion on a question which we paraphrase as follows.
Does chapter 42.23 RCW prohibit a member of a board of fire commissioners of the fire protection district from legally serving as a fire commissioner, if the firm by which he is employed does business with the fire district, and the average monthly expenditure to the firm is $300 per month?
Chapter 42.23 RCW codifies the provisions of chapter 268, Laws of 1961, by which the legislature repealed a number of previous statutes barring various municipal corporations from doing business with private firms in which certain of their officers or employees might be financially interested. In place of these earlier statutes, which differed in wording as between the various types of municipalities, the legislature enacted a comprehensive "interest in contracts" statute covering all classes of municipalities on a uniform basis. See, AGO 61-62 No. 174 [[to Prosecuting Attorney, Franklin County on October 23, 1962]] We have paraphrased your question so as to include therein a specific reference to this statute because of your mention of a certain monthly dollar level of business done between the fire protection district and the firm by which one of its commissioners is employed. This leads us to surmise that the individuals who asked you to obtain our opinion were particularly concerned with the meaning and effect of so much of RCW 42.23.030 as we will underscore in setting forth its material provisions below:
"No municipal officer shall be beneficially interested, directly or indirectly, in any [[Orig. Op. Page 2]] contract which may be made by, through or under the supervision of such officer, in whole or in part, or which may be made for the benefit of his office, or accept, directly or indirectly, any compensation, gratuity or reward in connection with such contract from any other person beneficially interested therein. This section shall not apply in the following cases:
". . .
"(5) The employment of any person by a municipality, other than a county of the first class or higher, a city of the first or second class, or a first class school district, for unskilled day labor at wages not exceeding one hundred dollars in any calendar month; and any other contract in such a municipality except a sale or lease by the municipality as seller or lessor: Provided, That the total volume of business represented by such contract or contracts in which a particular officer is interested, singly or in the aggregate, as measured by the dollar amount of the municipality's liability thereunder, shall not exceed two hundred dollars in any calendar month: . . ." (Emphasis supplied.)
Actually, as you will note, the permissible dollar level of business under this statute is two hundred dollars per month ‑ and not three hundred as your letter would infer. However, the more important point to be noted and understood with respect to chapter 42.23 RCW is that this statute does not, in any way, purport to establish any sort of qualifications which must be met or possessed by an individual in order to hold any particular municipal office. Instead, the statute simply prohibits any municipal officer from being beneficially interested, subject to certain specified exceptions, in any contract involving his municipality which might be made by, through or under his supervision in whole or in part. Accord, AGO 61-62 No. 174, supra.
This is the prohibition expressed in RCW 42.23.030, supra, and in implementation of it, RCW 42.23.050 declares any contract made in violation of the provisions of the act to be void,
". . . and the performance thereof, in full or in part, by a contracting party shall not be the basis of any claim against the municipality. . . ."
[[Orig. Op. Page 3]]
In addition, RCW 42.23.050 also states that
". . . Any officer violating the provisions of this act shall be liable to the municipality of which he is an officer for a penalty in the amount of three hundred dollars, in addition to such other civil or criminal liability or penalty as may otherwise be imposed upon him by law.
"In addition to all other penalties, civil or criminal, the violation by any officer of the provisions of this act shall work a forfeiture of his office."
Another feature of the statute to be noted is its definition of "remote interest" in RCW 42.23.040. Under this statute, for instance, a municipal officer is not to be regarded as being "interested" in a contract involving his municipality if his only relationship with the contracting party is that he is,
". . . an employee or agent of a contracting party where the compensation of such employee or agent consists entirely of fixed wages or salary; . . ."
We point out this provision, particularly, because of the absence of any statement in your letter describing the nature of the particular fire commissioner's employment status with the firm with which his district is reportedly doing business; i.e., is he paid only by a fixed salary, or does he also receive commissions, etc.?
In summary, then ‑ except for the possibility under RCW 42.23.050 of a forfeiture of office as a penalty for a specific violation of chapter 42.23 RCW ‑ we answer your question in the negative in so far as it merely goes to the issue of whether a fire commissioner is disqualified for office by reason of business done between his district and a firm by which he is employed. However, in so far as particular contracts are concerned, may we suggest in closing, because of the complexities of this chapter and the different factual situations which may or may not give rise to a violation thereof in connection with a particular municipal contract, that so long as the fire protection district in [[Orig. Op. Page 4]] question continues to do any business with the firm by which one of its commissioners is employed, it should have each transaction carefully reviewed by its own legal counsel.
We trust the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Deputy Attorney General