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AGO 1968 No. 16 - April 29, 1968
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John J. O'Connell | 1957-1968 | Attorney General of Washington


DISTRICTS - FIRE PROTECTION - CIVIL SERVICE - INCOMPATIBLE OFFICES.

(1) A fire protection district which has both full time, paid firemen and volunteer firemen in its fire service may provide civil service coverage for its full time, paid firemen under the provisions of RCW 52.36.060.

(2) A fire protection district which determines to provide civil service coverage for its full time, paid firemen under RCW 52.36.060, is thereby governed by all the provisions of chapter 41.08 RCW to the same extent as a city or town.

(3) Members of a board of fire commissioners of a fire protection district which establishes a civil service system for its full time paid firemen under RCW 52.36.060 may not simultaneously serve as members of the civil service commission.

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                                                                   April 29, 1968

Honorable Ronald L. Hendry
Prosecuting Attorney
Pierce County Court House
Tacoma, Washington 98402

                                                                                                                 Cite as:  AGO 1968 No. 16

Dear Sir:

            This is written in response to your recent request for an opinion of this office on several questions pertaining to civil service commissions in certain fire protection districts.  We paraphrase your questions as follows:

            (1) May a fire protection district which has both full time, paid firemen and volunteer firemen in its fire service provide civil service coverage for its full time, paid firemen under the provisions of RCW 52.36.060 ". . . in the same manner with the same powers and with the same force and effect as to such districts as that provided by chapter 41.08 RCW for cities, towns and municipalities . . ."?

            (2) In the event such a fire protection district determines to provide civil service coverage for its full time, paid firemen under RCW 52.36.060, is it thereby governed by all  [[Orig. Op. Page 2]] of the provisions of chapter 41.08 RCW to the same extent as a city or town?

            (3) May the members of a board of fire commissioners of a fire protection district which establishes a civil service system for its full time paid firemen under RCW 52.03.060 simultaneously serve as members of the civil service commission?

            We answer questions (1) and (2) in the affirmative and question (3) in the negative for the reasons set forth in the following analysis.

                                                                     ANALYSIS

            By its enactment of chapter 31, Laws of 1935, now codified as chapter 41.08 RCW, the legislature established civil service for full time, paid municipal firemen.  However, the act did not by its original terms include firemen employed by a fire protection district as distinguished from full time paid members of the fire department of a city or town.  Accordingly, by § 1, chapter 72, Laws of 1949 (RCW 52.36.060), the legislature made the following provision:

            "Any fire protection district organized and existing under chapter 34, Laws of 1939, and subsequent amendments thereof, having a full paid fire department, shall have authority by resolution of its Board of Fire Commissioners to provide for civil service in its fire department in the same manner with the same powers and with the same force and effect as to such district as that provided by chapter 31, Laws of 1935 (sec. 9558-1,et seq., Rem. Rev. Stat. Supp.), for cities, towns and municipalities."  (Emphasis supplied.)

            Question (1):

            The issue raised by your first question is whether a fire protection district which has both full time, paid firemen and volunteer firemen can be said to have ". . . a full paid fire department . . ." within the meaning of this statutory provision.  While a review of our prior opinions reveals no expression of a holding on this question, as relating to fire protection districts, we have found two opinions which, at least by implication, answer the same question in terms of a city or town which has both full time, paid firemen and volunteer  [[Orig. Op. Page 3]] firemen in its fire service.  We refer to an opinion dated June 12, 1941, to State Senator Agnes N. Gehrman, and AGO 53-55 No. 249, to State Auditor Cliff Yelle, copies enclosed.

            In the first of these opinions the initial question considered was whether a person had to be a full time employee of a city's fire department in order to be covered by the civil service system provided for by chapter 31, Laws of 1935,supra § 3 of which read in pertinent part as follows:

            "There is hereby created in every city, town or municipality except those referred to in section 1, [RCW 41.08.010] having a full paid fire department a civil service commission which shall be composed of three persons."1/   (Emphasis supplied.)

            Notably, the underscored phrase in this provision is identical to the qualifying language regarding fire protection districts in § 1, chapter 72, Laws of 1949 (RCW 52.36.060).  Had this language been seen to exclude a city having part time or volunteer firemen, in addition to full time, paid firemen, from coverage under the act, such would have provided a complete answer to the question presented in the opinion; i.e., it would have followed that the city in question would have had no statutory basis for having a firemen's civil service system at all, so the question of membership in such system of the city's part time or volunteer firemen would not have been reached.

            Nevertheless, the question was reached and was disposed of by language in the opinion reading as follows:

            "The applicable statutes are: Rem. Rev. Stat. (Supp.), sec. 9558-1 to 9558-25, inclusive (Ch. 31, Laws of 1935, as amended).

            "Rem. Rev. Stat. (Supp.), sec. 9558-4, provides:

            "'The classified civil service and provisions of this act shall includeall full paid employees of the fire department of each city, town or municipality coming within its purview, including the chief of that department.  * * *'  (Italics supplied.)

     [[Orig. Op. Page 4]] "and Rem. Rev. Stat. (Supp.), sec. 9558-        24,       defines the term 'full paid fire department' as meaning

            "'* * * that the officers and firemen employed in such are paid regularly by thecity and devote their whole time to fire fighting:  * * *'  (Italics supplied)

            "The answer to your first question is, accordingly, that the civil service act applies to full time employees only."2/

             Precisely this same approach was again taken in the second opinion above noted, AGO 53-55 No. 249.  There, we were concerned with whether the mayor of a certain third class city had the power to remove the chief of the fire department, or whether the chief was a civil service employee removable only as provided for in chapter 41.08 RCW.  Based upon the factual proposition that the chief of the fire department in the particular city served only on a part time basis, and had other income from private employment, we concluded that this particular individual was not covered by the civil service system.  Again we did not, by way of contrast, take the road of saying that because the city had a part time fire chief it had no business having a civil service system at all, under the provisions of the 1935 act.

            Based upon these two prior opinions, and again pointing out the identical qualifying phraseology in both RCW 41.08.030, supra (relating to cities and towns) and RCW 52.36.060,supra (providing for civil service in fire protection districts), we therefore answer your first question, as paraphrased, in the affirmative.  A fire protection district which has both full time, paid firemen and volunteer firemen in its fire service may3/ provide civil service coverage for its full  [[Orig. Op. Page 5]] time, paid firemen under the provisions of RCW 52.36.060 ". . . in the same manner with the same powers and with the same force and effect as to such district as that provided by chapter 41.08 RCW for cities, towns and municipalities."4/

             Question (2):

            With respect to your second question, we believe that RCW 52.36.060,supra, provides the only means by which fire protection districts desiring to establish civil service coverage for their full time, paid firemen can do so.  The existence of this express provision negates any implied power to establish civil service by some other means.  Compare,State ex rel. State Board Etc. v. Clausen, 84 Wash. 279, 146 Pac. 630 (1915), andState ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956).  Therefore, if a fire protection district determines to provide civil service for its full time, paid firemen, it follows that it must do so as provided in RCW 52.36.060 with the result that it will then be governed by all of the provisions of chapter 41.08 RCW to the same extent as a city or town.

            Question (3):

            Your final question is whether, in the event a fire protection district determines to provide civil service coverage for its full time, paid firemen under RCW 52.36.060, the commissioners of the fire protection district can simultaneously serve as members of the civil service commission for the district.

            In our opinion, this question is clearly answerable in the negative for the reason that the respective offices come within the purview of the doctrine of incompatible public offices.

            This common law doctrine, and its applicability to specific instances of dual office holding, has been the subject of a considerable number of prior opinions of this office.  However, because it also dealt with fire district commissioners, we have selected one of these prior opinions as an appropriate reference source for a description of the scope of the doctrine and of the criteria for its application.  In AGO 59-60 No. 157, copy enclosed, we considered the question of whether the same person could simultaneously hold the offices of secretary and commissioner of a fire protection district.  In negatively  [[Orig. Op. Page 6]] answering this question, based upon then existing statutory provisions,5/ we said:

            ". . . It is the rule that the same person may hold different offices which are not incompatible, unless forbidden by law.  3 McQuillin, Municipal Corporations, § 12.67.  Conversely, however, it has been long and universally recognized that no one should hold incompatible public offices.  Kennett v. Levine, 50 Wn.2d 212, 216, 310 P.2d 244 (1957); 42 Am.Jur. Public Officers, § 59.

            "Whether particular offices are incompatible is a judicial question.  3 McQuillin, Municipal Corporations, § 12.67, supra, p. 264.  In a previous opinion of this office, AGO 57-58 No. 90 to the prosecuting attorney of Benton County, July 2, 1957, we pointed out that there is no one universal criterion of incompatibility, the determination resting upon the circumstances of each case.  However, in that opinion we set out some general considerations stated by various authorities, as follows:

            "'In 3 McQuillin, Municipal Corporations (3rd Ed.) 261, 265, § 12.67, it is said:

            "'"Incompatibility is not simply a physical impossibility to discharge the duties of both offices at the same time, it is an inconsistency in the functions of the two offices, as where one is subordinate to the other, or where a contrariety and antagonism would result in the  [[Orig. Op. Page 7]] attempt by one person to discharge faithfully and impartially the duties of both.  Two offices are said to be incompatible when the holder cannot in every instance discharge the duties of each.  Incompatibility arises, therefore, from the nature of the duties of the offices, when there is an inconsistency in the functions of the two, where the functions of the two are inherently inconsistent or repugnant, as where antagonism would result in the attempt by one person to discharge the duties of both offices, or where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both.  The true test is whether the two offices are incompatible to their natures, in the rights, duties or obligations connected with or flowing from them."

            "'In an opinion of this office dated January 21, 1925, to the supervisor of the division of municipal corporations, a copy of which is attached, we said:

            "'"Offices are incompatible when one has power of supervision over the other, or when the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both."

            "'InKennett v. Levine, supra, our supreme court stated the rule as follows:

            "'"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 . . ."'"

            We then applied these principles and criteria as follows:

            "In the present situation, if both offices were held by one person, the secretary of the district would also be a member of the board which makes his appointment, sets his term of office, and fixes his compensation.  In addition, some of his duties as secretary are left to the determination and supervision of the board.  See RCW  [[Orig. Op. Page 8]] 52.12.080, supra, and RCW 52.12.100.  Furthermore, as a commissioner, he would be in a position of passing approval upon his own claims for compensation and expenses as secretary, and as secretary his approval is required on all expenditures of the district authorized by the commissioners. . . .

            "We conclude therefore, that the offices of commissioner and secretary of a fire protection district are incompatible. . . ."

            The first point to be noted in applying these same principles and criteria to the offices of fire district commissioner and fire district civil service commissioner relates to the manner of appointment of the members of the civil service commission.  In answering your second question, we have concluded that a fire protection district which establishes a civil service system for its full time, paid firemen, under RCW 52.36.060, would then be governed by all of the provisions of chapter 41.08 RCW to the same extent as a city or town.  Thus, with respect to the appointment of the civil service commission, the district which adopts such a civil service system will be governed by the following provision of RCW 41.08.030:

            "The members of such commission shall be appointed by the person or group of persons who, acting singly or in conjunction, as mayor, city manager, council, common council,commission, or otherwise, is or are vested by law with power and authority to select, appoint, or employ the chief of a fire department in any such city, prior to the enactment of this chapter. . . ."  (Emphasis supplied.)

            In the case of a fire protection district, the appointment or employment of the chief of the fire department is a function vested in the board of fire commissioners.  See, RCW 52.08.020.  Therefore, it is the board of fire commissioners who are to appoint the civil service commission in a fire protection district which has established a civil service system as hereinbefore described.  We have just seen that in AGO 59-60 No. 157, supra, the fact that the commissioners had the power of appointment with respect to the secretary of the district was expressed as one of the reasons for concluding  [[Orig. Op. Page 9]] that those two offices were incompatible.

            The next point to be noted, in terms of the relationship between the board of commissioners of the fire protection district and the district's civil service commission, arises from the provisions of RCW 41.08.090.  This statute, dealing with the procedure for removal, suspension, demotion or discharge of a fireman covered by the civil service system, reads:

            "No person in the classified civil service who shall have been permanently appointed or inducted into civil service under provisions of this chapter, shall be removed, suspended, demoted or discharged except for cause, and only upon the written accusation of the appointing power, or any citizen or taxpayer, a written statement of which accusation, in general terms, shall be served upon the accused, and a duplicate filed with the commission.  Any person so removed, suspended, demoted or discharged may within ten days from the time of his removal, suspension, demotion or discharge, file with the commission a written demand for an investigation, whereupon the commission shall conduct such investigation.  The investigation shall be confined to the determination of the question of whether such removal, suspension, demotion or discharge was or was not made for political or religious reasons and was or was not made in good faith [f]or cause.  After such investigation the commission may affirm the removal, or if it shall find that the removal, suspension, or demotion was made for political or religious reasons, or was not made in good faith for cause, shall order the immediate reinstatement or reemployment of such person in the office, place, position or employment from which such person was removed, suspended, demoted or discharged, which reinstatement shall, if the commission so provides in its discretion, be retroactive, and entitle such person to pay or compensation from the time of such removal, suspension, demotion or discharge.  The commission upon such investigation, in lieu of affirming the removal, suspension, demotion or discharge may modify the order of removal, suspension, demotion or discharge by  [[Orig. Op. Page 10]] directing a suspension, without pay, for a given period, and subsequent restoration to duty, or demotion in classification, grade, or pay; the findings of the commission shall be certified, in writing to the appointing power, and shall be forthwith enforced by such officer.

            ". . ."

            Thus, in a proceeding before the civil service commission under this section, the board of fire district commissioners, as "the appointing power"6/ takes the role of accuser; i.e., it files a written statement of accusation, which may be countered by the accused person, thereby raising a disputed issue of fact, or possibly of law, between the board and the individual fireman which dispute is to be resolved by the civil service commission.  Because of this factor in the relationship between the board of fire district commissioners and the fire district civil service commission, it seems apparent that, to use McQuillin's phraseology, ". . . a contrariety and antagonism would result in the attempt by one person to discharge faithfully and impartially the duties of both. . . ."

            It is for this reason, and as well because of the appointive relationship between the two offices, as provided for in RCW 41.08.030, supra, that we conclude that the doctrine of incompatibility bars the same person from simultaneously serving as a fire protection district commissioner and as a civil service commissioner for the same fire protection district.  Therefore, as indicated, we answer your final question, as paraphrased, in the negative.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Now codified as RCW 41.08.030.

2/Notably, Rem. Rev. Stat., subsection 9558-4, which was enacted as § 4, chapter 31, Laws of 1935, remains in effect today as originally enacted, and is now codified as RCW 41.08.050; likewise, the quoted portion of Rem. Rev. Stat., subsection 9558-24, which was enacted as part of § 24, chapter 31, Laws of 1935, continues to read as originally enacted and is now codified as a part of RCW 41.08.220.

3/In the case of a city or town, on the other hand, this word is obviously "must."  RCW 41.08.030, supra.

4/Compare AGO 65-66 No. 104, copy enclosed, in terms of a similar permissive rather than mandatory application of the paid firemen's pension system (chapter 41.18 RCW).

5/But see § 2, chapter 112, Laws of 1965, expressly amending RCW 52.12.080 so as to authorize a member of the board of fire commissioners to serve, simultaneously, as secretary of the district.  Since the doctrine of incompatibility in public offices is a common law doctrine, based upon public policy in the absence of a contrary statute, it was most certainly permissible for the legislature, in declaring public policy by statute, to overcome the common law result and declare it permissible for the two offices in question to be held by the same person at the same time.

6/See, RCW 52.08.020, supra.

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