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AGO 1978 No. 22 - July 26, 1978
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- DISTRICT ‑- FIRE PROTECTION ‑- WIFE COMMISSIONER AS SECRETARY OF FIRE PROTECTION DISTRICT

(1) The provisions of chapter 42.23 RCW are not violated by the appointment, by a board of fire commissioners, of the wife of one such commissioner to serve as secretary of the district.

(2) It is not a violation of RCW 52.12.010 for the wife of a fire protection district commissioner who has been appointed to serve as secretary of the district to be compensated for her services as such.

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                                                                    July 26, 1978

Honorable Robert V. Graham
State Auditor
Legislative Building
Olympia, Washington 98504

                                                                                                                 Cite as:  AGO 1978 No. 22

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on the following questions:

            "I.  Is Chapter 42.23 RCW violated where the board of commissioners of a fire protection district appoints the spouse of one of the commissioners as secretary of the district?

            "II.  Under the facts as set forth in question I, where a commissioner's spouse has been appointed secretary, received compensation and that the married couple has executed no valid separate property agreement, is the result a violation of RCW 52.12.010?

            "III.  If the answer to question I is in the affirmative, is Chapter 42.23 RCW violated  [[Orig. Op. Page 2]] where a commissioner of a fire protection district marries the person then already serving as secretary, either (a) when the secretary is formally reappointed subsequent to the marriage, or (b) when the commissioners, subsequent to the marriage, renew or modify the terms of the secretary's compensation?"

            We answer your first two questions in the negative thereby rendering consideration of your third question unnecessary.

                                                                     ANALYSIS

            Question (1):

            In AGO 59-60 No. 157 [[to Roger L. Olson, Prosecuting Attorney, Franklin County on November 10, 1960]], this office concluded that the secretary of a fire protection district is a public officer and not a mere employee.  Based upon that characterization of the position we then advised that it was contrary to the common law doctrine of incompatible public offices for the same individual simultaneously to serve as a commissioner and secretary of the same fire protection district.1/   The principal reasons for this conclusion were (a) that the position of secretary is specifically provided for by statute (RCW 52.12.080) and (b) that the secretary of a fire protection district shares with the commissioners thereof the statutory responsibility for reviewing and approving all vouchers covering claims against the district (see RCW 52.16.050).

            This same characterization of the position of secretary of a fire protection district as a public office, however, necessitates a negative answer to your present question.  Chapter 42.23 RCW, which you have cited, prohibits municipal officers (including fire protection district commissioners) from being beneficially interested in contracts which may be executed by, through or under their supervision.  Thus, in various instances involving the employment, by a public officer or board, of the spouse of that official or of one of the members of the board‑-as the case may be‑-this office has  [[Orig. Op. Page 3]] previously said that this RCW chapter applies because of the interest which one spouse has in the earnings of the other under Washington community property law.  Accord, State v. Miller, 32 Wn.2d 149, 201 P.2d 136 (1948), a case which involved, specifically, a certain county auditor's employment of his own wife as an employee in the county auditor's office.  On the other hand where, as here, the position involved is a public office (instead of an employment position) there consequently exists no employment contract to which the provisions of chapter 42.23 RCW might attach.  See,e.g., Bartholomew v. Springdale, 91 Wash. 408, 157 Pac. 1090 (1916), quoting with approval from Throop on Public Officers, § 443, as follows:

            "'It has been often held, that an officer's right to his compensation does not grow out of a contract between him and the state, or the municipality by which it is payable.  The compensation belongs to the officer, as an incident of his office, and he is entitled to it, not by force of any contract, but because the law attaches it to the office.'"

            It is our opinion, therefore, that whatever interest one spouse (who is a member of a municipal governing body) may have in the salary of the other (who holds another office within the same municipality), it is not an interest in a "contract . . . made by, through, or under the supervision of such officer . . ." within the meaning of chapter 42.23 RCW.  Accordingly, as above indicated, our answer to your first question is in the negative.

            Question (2):

            Your second question involves the same factual situation as your first but it deals with a different statute; namely, RCW 52.12.010 which provides, in material part, as follows:

            ". . .  The members of any district . . . shall each receive twenty-five dollars per day, not to exceed seventy-five dollars per month, for attendance at board meetings and for performance of other services in behalf of the district. . . ."

            The question posed is whether this statute prohibits the spouse of a fire protection district commissioner who has been appointed to the office of secretary of the district from being  [[Orig. Op. Page 4]] compensated for his or her services in that position.  Again, we answer in the negative.  RCW 52.12.010 relates only to the compensation payable to a fire commissioner himself (or herself), as a commissioner‑-and while the additional salary of the commissioner's spouse (as secretary) benefits him (or her) and even, under community property principles, constitutes income to him, it simply is not his own salary.2/

            Question (3):

            The foregoing negative answer to your first question renders consideration of this question (which presupposed, instead, an affirmative answer to question (1)) unnecessary.

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

Very truly yours,

SLADE GORTON
Attorney General


ROBERT F. HAUTH
Senior AssistantAttorney General

                                                         ***   FOOTNOTES   ***

1/Subsequently, however, as you know, the legislature (as is its prerogative) expressly amended the applicable statutes in such a manner as to permit a fire protection district commissioner simultaneously to serve as secretary of the district under certain prescribed circumstances.  See, RCW 52.12.080 as amended by § 2, chapter 112, Laws of 1965.

2/Parenthetically, it is to be noted that if the answer to your second question was, instead, in the affirmative the appointment and compensation of the spouse of a fire protection district commissioner as secretary of the district would also constitute a violation of Article XI, § 8 (Amendment 57) of our state constitution which provides as follows:

            "The salary of any county, city, town, or municipal officers shall not be increased except as provided in section 1 of Article XXX or diminished after his election, or during his term of office; nor shall the term of any such officer be extended beyond the period for which he is elected or appointed."

            We do not, however, believe that a court would so rule.

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