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AGO 1971 No. 28 - September 07, 1971
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTY ‑- PROSECUTING ATTORNEY ‑- CITY COUNCILMAN ‑- INCOMPATIBILITY OF OFFICES AND PROSECUTING ATTORNEY AND CITY COUNCILMAN

The prosecuting attorney of a fourth class county may simultaneously serve as a member of the city council of a third class city located in such county.

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

                                                               September 7, 1971

Honorable Caswell J. Farr
State Representative, 42nd District
1800 C Street
Bellingham, Washington 98225

                                                                                                                 Cite as:  AGO 1971 No. 28

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            May the prosecuting attorney of a fourth class county simultaneously serve as a member of the city council of a third class city located in such county?

            We answer this question in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            We begin our response to your question by noting the absence of anystatutory barriers to this instance of dual office holding.  As the prosecuting attorney of a fourth class county, the individual in question is not required to ". . . serve full time . . ." in this capacity ‑ for the current requirement of full-time service applies only to the prosecuting attorneys of ". . . class three counties and counties with population larger than class three counties . . ."  See, RCW 36.27.060.

            The only statutory requirements for holding the office of  [[Orig. Op. Page 2]] prosecuting attorney in any county are those set forth in RCW 36.27.010, as follows:

            "No person shall be eligible to the office of prosecuting attorney in any county of this state, unless he is a qualified elector therein, and has been admitted as an attorney and counselor of the courts of this state."

            The counterpart statute with respect to the qualifications which must be possessed by a city councilman in a third class city, to which your question refers, is RCW 35.24.030, which provides that:

            "No person shall be eligible to hold an elective office in a city of the third class unless he be a citizen of and a legal resident therein."

            However, of course, this absence of any statutory prohibitions against simultaneous service as the prosecuting attorney of a fourth class county and a city councilman of a third class city located therein is not entirely dispositive of your question.  In this state, as in most others, the common-law doctrine of incompatible public offices is applicable in various instances of dual office holding not covered by express statutes.  Accord,Kennett v. Levine, 50 Wn.2d 212, 216, 217, 310 P.2d 244 (1957).  As stated therein,

            ". . . it has been long and universally recognized that no one should hold incompatible public offices.  Throop on Public Officers (1892), 37 § 33;People ex rel. Ryan v. Green (1873), 5 Daly (N.Y.) 254, 46 How. Pr. 169.

            "Offices are incompatible when the nature and duties of the offices are such as to render it improper, from consideration of public policy, for one person to retain both.  State ex rel. Klick v. Wittmer (1914), 50 Mont. 22, 144 Pac. 648; State ex rel. Nebraska Republican State Central Committee v. Wait (1912), 92 Neb. 313, 138 N.W. 159; State v. Anderson (1912), 155 Iowa 271,  [[Orig. Op. Page 3]] 136 N.W. 128; Mechem on Public Officers (1890), 268 § 422.  Or, as was said inBarkley v. Stockdell (1933), 252 Ky. 1, 66 S.W. (2d) 43:

            "'The question [of incompatibility] is . . . whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest.'

            "The question of what is compatible and what is incompatible is often difficult of solution, and the principles upon which its solution depends cannot always be stated with exactness.  Throop on Public Officers (1892), 37, § 33.  This must of necessity be so, inasmuch as what public policy should be, and what is, detrimental to the public interest may, in many instances, be subject to a legitimate difference of opinion."

            In several previous opinions, we have advised that a prosecuting attorney may not simultaneously serve as a member of the board of directors of a school district located within his county.  See, e.g., opinion dated April 30, 1968, to the King county prosecuting attorney and opinion dated April 1, 1921, to the superintendent of public instruction, copies enclosed.  However, both of these opinions were based upon a fact that the prosecuting attorney of a county is required by statute to serve as the legal adviser not only to allcounty officers but toschool directors as well.  See, RCW 36.27.020 (2).  Obviously, this factor is not present in the case of a prosecuting attorney who is simultaneously serving as a member of the council of a third class city, for the legal adviser to the council is the city attorney ‑ appointed either by the council or by the mayor as provided for in RCW 35.24.020.

            Unquestionably, a county and a city are separate and independent political subdivisions, or municipal corporations.  Thus, your inquiry does not raise the issue of simultaneous office holding within a single municipality ‑ such as was the case in various opinions of this office dealing with the ability of a city councilman to hold some other public  [[Orig. Op. Page 4]] office at the same time.  See, e.g., opinion dated January 10, 1922, to the supervisor of municipal corporations (member of city council cannot legally hold the office of city health officer at the same time); opinion dated September 24, 1919, to the bureau of inspection and supervision of public offices [[1919-20 OAG 158]](city councilman may not simultaneously serve as city street superintendent); cf., opinion dated July 12, 1948, to the state auditor [[1947-48 OAG 110a]](city councilman may not be employed by a city to perform street maintenance work, etc.)1/

             Next to be noted and disposed of is the argument that the prosecuting attorney has a power of removal with respect to a city councilman, by means of quo warranto proceedings under chapter 7.56 RCW, where a question arises with regard to the possible disqualification of the councilman for further service by reason, perhaps, of asserted misconduct in office.  It is most certainly true that this power does exist; e.g., State ex rel. Whitney v. Friars, 10 Wash. 348, 39 Pac. 104 (1894).  However, this authority does not impart to the prosecuting attorney any discretionary power of removal with respect to a city councilman such as would give rise to an application of the doctrine of incompatible public offices.  See,State ex rel. Chapman v. Truder, 35 N.M. 49, 289 Pac. 594 (1930), in which the court held that the offices of district attorney and mayor of a city were not incompatible in spite of the existence of a similar authority on the part of the district attorney to initiate proceedings for the removal of the mayor for malfeasance.  Addressing itself to the particular point in issue, the New Mexico court there observed as follows:

            "This is not like a case where one officer has the power to exercise a discretion of removal of another.  The district attorney has no power to remove the officers named in the removal statute.  He may only present charges based upon sworn evidence, presented to him.  If the district attorney should then fail to proceed, the offending officer is not thereby immune. . . ."

            Next we must make note of AGO 57-58 No. 90 [[to Prosecuting Attorney, Benton County on July 2, 1957]], a previous  [[Orig. Op. Page 5]] opinion of this office dealing with a somewhat similar dual-office holding situation.  In that opinion we concluded that the doctrine of incompatible offices precluded the same person from simultaneously serving as a county commissioner and as the mayor of a third class city located in such county.  In so ruling we first made various statutory references to instances in which the respective interests of the county and the city might be anticipated to come into conflict.  See, AGO 57-58 No. 90 at pages 3-5.  Because of these possibilities, we then concluded as follows:

            "We are convinced that a sound public policy would forbid placing a municipal officer in the position of being forced to choose to which of his two offices he should be the more loyal, or the even more difficult position of trying to remain impartial and to strike an equitable balance between the opposing interests of two groups which he represents.  We conclude that the offices of mayor of a third class city and that of county commissioner are incompatible."

            However, it is important to recognize in considering the applicability of this prior opinion that we were there dealing with two policy-making offices.  Under the various circumstances therein referred to, one could conceive of the possibility that the respective governing bodies of the two political subdivisions ‑ i.e., the county commission on the one hand and the city council and mayor on the other ‑ would from time to time be voting upon courses of action under the cited statutes which would be in conflict with the best interests of the other political subdivision.  However, in the situation presently at hand, we do not believe that a county prosecuting attorney may be said to possess any of the discretionary policy-making functions of his board of county commissioners.  Instead, the function of the prosecutor is merely to provide legal counsel and representation to the commissioners in their policy-making deliberations.  Therefore, we find  [[Orig. Op. Page 6]] the reasoning of AGO 57-58 No. 90,supra, inapplicable to the present situation.

            In conclusion, then, for the various reasons above stated, it is our best judgment that the offices of fourth class county prosecuting attorney and third class city councilman of a city located therein would not be regarded as incompatible public offices by a court were this matter to be litigated.  For this reason, together with the absence of any statutory provisions as noted at the outset hereof, we answer your question, as paraphrased, in the affirmative.

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

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
D
eputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Copies of each of these opinions are enclosed herewith for your reference.

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