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AGO 1965 No. 7 - February 09, 1965
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS ‑- COUNTY ‑- COMMISSIONERS ‑- SCHOOL BOARD MEMBER ‑- INCOMPATIBLE OFFICES.

In a county in which federal forest funds or public utility district funds are disbursed to the school districts of the county, the offices of county commissioner and school district director are incompatible.

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                                                                 February 9, 1965

Honorable R. A. Hensel
Prosecuting Attorney
Douglas County Court House
Waterville, Washington 98858

                                                                                                                  Cite as:  AGO 65-66 No. 7

Dear Sir:

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

            In a county in which federal forest funds and/or P.U.D. funds1/ are distributed to the school districts of the county, are the offices of county commissioner and school board director compatible?

            We answer your question in the negative.

                                                                     ANALYSIS

            The doctrine of incompatible offices is the common-law limitation upon the right of a person to hold more than one public office at the same time.  Public offices are considered incompatible where the duties and functions of each are inherently inconsistent and repugnant, so that because of the contrariety and antagonism which would result from the attempt of one person to discharge faithfully, impartially and efficiently the duties of both offices, considerations of public policy render it improper for an incumbent to retain both.  See, 42 Am.Jur., Public Officers, § 70; and 3 McQuillin (3rd ed.), Municipal Corporations, Public Officers, § 12.67, and AGO 61-62 No. 146 [[to Robert Bernethy, State Representative on July 18, 1962]]§ 12.67, and AGO 61-62 No. 146.

            A county commissioner is a public officer.  See, Article XI, §§ 5 and 6, of the Washington Constitution; State ex rel.  [[Orig. Op. Page 2]] Carroll v. Munro, 52 Wn. (2d) 522, 327 P. (2d) 729 (1958);State ex rel. Pendergast v. Fulton, 37 Wash. 271, 79 Pac. 779 (1905).  A school director is also a public officer.  See, AGO 17-18 p. 38 [[1917-18 OAG 38 to Prosecuting Attorney, Lincoln County on March 24, 1917]]and RCW 28.01.080, 28.57.338 and 28 See, AGO 17-18 p. 38 and RCW 28.01.080, 28.57.338 and 28.58.095; also, as to the elements of "public office" in general, see, State ex rel. Brown v. Blew, 20 Wn. (2d) 47, 145 P. (2d) 554 (1944).

            Pursuant to chapter 54.28 RCW, the county commissioners must distribute not less than 35% of the privilege taxes collected from P.U.D's to those school districts which contain P.U.D. property within their boundaries, and not less than an amount determined by statutory formula to certain cities in the county.  The remainder is then distributed to any "taxing district" in the county in the manner deemed most equitable by the commissioners.  This means that the county commissioners may, in the exercise of their discretion, distribute that portion of the privilege taxes remaining after the statutory amounts are paid to certain school districts and certain cities, to any school district in the county.

            In like manner, pursuant to chapter 36.33 RCW, the county commissioners have the authority, in the exercise of their discretion, to determine the division of federal forest funds between public schools and county roads.  See, AGO 59-60 No. 86 [[to Lloyd J. Andrews, Superintendent of Public Instruction on November 20, 1959]]86.

            In AGO 63-64 No. 92 [[to Prosecuting Attorney, Gray Harbor County on March 18, 1964]], after citing 3 McQuillin, Municipal Corporations (3rd ed.) § 12.67, we expressed one facet of the doctrine of incompatible offices in these terms:

            "Thus, one significant consideration is the question of whether one of the two offices is subordinate to the other. . . ."

            Washington case law is devoid of any clarification of this principle.  However, McQuillin amplifies the principle with the statement that:

            "Of course subordination clearly evidences incompatibility, even if the subordination is less than complete, as for example if the . . . fiscal needs of one office are within the control of the other. . . ."  (3 McQuillin, Municipal Corporations (3rd ed.), § 12.67, p. 298, note 57.)

             [[Orig. Op. Page 3]]

            A good example of this type of subordination may be found in De Feo v. Smith, 17 N.J. 183, 110 A. (2d) 553 (1955).  In theDe Feo case, the defendant held two offices whereby he allotted, as a member of a particular board or commission, money to be used by another board of which he was also a member, the amount of money allotted being within the board's discretion.  Although the offices involved in theDe Feo case are not in both instances the same as those in question here, the similarity in the factual situation is immediately apparent.  In passing upon the question of incompatibility, the court noted:

            ". . . The performance of one of his offices would automatically enrich the coffers of the other, thereby eliminating an element of independent control of the public moneys to be expended.  These two capacities may well conflict in the public interest and are difficult of reconciliation.  Not only might the dual office‑holding hinder the defendant's own freedom of discretion, but his conclusions could conceivably also unconsciously impair and influence the free choice of the remaining members of both boards."  (De Feo v. Smith, 110 A. (2d) at 557.)

            For this reason, it is our conclusion that this subordination, whereby a member of a commission has the duty to allot money to certain other taxing districts in the manner which his discretion deems advisable, and he also serves as a member of one of the boards to which he may in his discretion allot said money, renders these two positions incompatible.

             [[Orig. Op. Page 4]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

                                                         ***   FOOTNOTES   ***

1/Privilege taxes collected to chapter 54.28 RCW.

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