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AGO 1969 No. 7 - March 04, 1969
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Slade Gorton | 1969-1980 | Attorney General of Washington


OFFICES AND OFFICERS - COUNTY - PROSECUTING ATTORNEY - JUVENILE COURTS - INCOMPATIBLE OFFICES

(1) The supreme court's adoption of the new juvenile court rules does constitute a "nondebatable" emergency so as to justify the expenditure of those county funds which are necessary to implement, and comply with, the rules, under authority of RCW 36.40.180.

(2) The duties which are imposed upon a prosecuting attorney by the new juvenile court rules are such as to render his office and that of the county juvenile probation officer incompatible, to the end that the two positions may not simultaneously be held by the same person.

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

                                                                   March 4, 1969

Honorable Arthur E. Sherman, Jr.
Prosecuting Attorney
Pacific County
P.O. Box 563
Raymond, Washington 98577

                                                                                                                   Cite as:  AGO 1969 No. 7

Dear Sir:

            This is written in response to your recent letter requesting our opinion on three questions pertaining to the implementation of the supreme court's new juvenile court rules which became effective on January 10, 1969.

            We paraphrase your questions as follows:

            (1) Does the supreme court's adoption of these new juvenile court rules constitute a "nondebatable" emergency so as to justify the expenditure of those county funds which are necessary to implement, and comply with, the rules, under authority of RCW 36.40.180?

            (2) Are the duties which are imposed upon a prosecuting attorney by the new juvenile court rules such as to render his office and that of the county juvenile probation officer incompatible, to the end that the two positions may not simultaneously be held by the same person?

             [[Orig. Op. Page 2]]

            (3) In the event that the two positions are not incompatible, may the prosecuting attorney, in occupying both positions, receive his full salary as prosecuting attorney and, in addition, be compensated for his services as juvenile probation officer?

            We answer questions (1) and (2) in the affirmative, thereby rendering consideration of question (3) unnecessary.

                                                                     ANALYSIS

            As indicated, your questions have arisen in consequence of the supreme court's adoption, effective January 10, 1969, of new rules of procedure for all juvenile court matters.1/

             Question (1):

            Your first question assumes that certain expenditures of unbudgeted county funds will be necessary in order to fully implement, and comply with, the procedures set forth in these rules.  You ask whether such expenditures can be made under authority of RCW 36.40.180, which reads as follows:

            "Upon the happening of any emergency caused by fire, flood, explosion, storm, earthquake, epidemic, riot, or insurrection, or for the immediate preservation of order or of public health or for the restoration to  [[Orig. Op. Page 3]] a condition of usefulness of any public property the usefulness of which has been destroyed by accident, or for the relief of a stricken community overtaken by a calamity, or in settlement of approved claims for personal injuries or property damages, exclusive of claims arising from the operation of any public utility owned by the county,or to meet mandatory expenditures required by any law, the board of county commissioners may, upon the adoption by the unanimous vote of the commissioners present at any meeting the time and place of which all of such commissioners have had reasonable notice, of a resolution stating the facts constituting the emergency and entering the same upon their minutes, make the expenditures necessary to meet such emergency without further notice or hearing."  (Emphasis supplied.)

            We have underscored the portion of this statute which appears to bear upon the question at hand.  Among the specified conditions which will justify the emergency expenditure of county funds, under RCW 36.40.180, is the condition that such expenditures are necessary "to meet mandatory expenditures required by law."  Without doubt, the supreme court's new juvenile court rules may be said to have the force and effect of law.  See, State v. Currie, 200 Wash. 699, 94 P.2d 754 (1939).  Therefore, to the extent that it is determined by a board of county commissioners that it will be immediately necessary, during the current budget year, for unbudgeted county funds to be expended in order to implement and comply with the procedures required by these new court rules, it is our opinion that a "nondebatable" emergency may be said to exist so as to authorize such expenditures in the manner provided for by this statute.  See, AGO 61-62 No. 73, copy enclosed, and cases cited therein.

            Question (2):

            Your second question inquires as to whether the new duties which have been imposed upon the several prosecuting attorneys by the new juvenile court rules have created a situation where, under the doctrine of incompatible public offices, the same person may not simultaneously serve as prosecuting attorney and juvenile probation officer.

             [[Orig. Op. Page 4]]

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

            Whether particular offices are incompatible is a judicial question.  3 McQuillin, Municipal Corporations, 3rd Ed. rev., § 12.67, supra, p. 294.  In a previous opinion of this office, AGO 57-58 No. 90, copy enclosed, 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 the 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 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,  [[Orig. Op. Page 5]] 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 . . .'"

            With these tests of incompatibility in mind, we next turn to the respective duties of a juvenile probation officer and a prosecuting attorney in connection with future juvenile court proceedings under the supreme court's new rules.

            (a)The Juvenile Probation Officer:

            The appointment and functioning of juvenile probation officers is provided for in RCW 13.04.040, as follows:

            "The court shall, in any county or judicial district in the state, appoint or designate one or more persons of good character to serve as probation counselors during the pleasure of the court.  In case a probation counselor shall be appointed by any court, the clerk of the court, if practicable, shall notify him in advance when a child is to be brought before said court.  The probation counselor shall make such investigations as may be required by the court.  The probation counselor shall inquire into the antecedents, character, family history, environments and cause of dependency or delinquency of every alleged dependent or delinquent child brought before the juvenile court and shall make his report in writing to the judge thereof.  He shall be present  [[Orig. Op. Page 6]] in order to represent the interests of the child when the case is heard;. . ."  (Emphasis supplied.)

            Based upon this statute, the court, in State ex rel. Raddue v. Superior Court, 106 Wash. 619, 180 Pac. 875 (1919), refused to set aside a judgment determining the dependency of a child on the ground of lack of adequate representation absent a showing that the probation officer was not present to "represent the interests of the child" as required by the statute.  Clearly, nothing contained in the supreme court's new juvenile court rules in any way derogates from this statutory relationship of the juvenile probation officer to the child whose dependency or delinquency is in issue before the juvenile court.  In fact, as noted above, these new rules are expressly declared to be supplementary to the applicable statutes and not replacements therefor.

            (b)The Prosecuting Attorney:

            Chapter IV of the juvenile court rules provides for the procedures to be followed in the event that a fact-finding hearing is necessary in order to pass upon a petition alleging juvenile dependency or delinquence.  JuCR. 4.4 (f) contains the following provision regarding the duty of the prosecuting attorney at such a hearing:

            "It shall be the duty of the prosecuting attorney or his deputy to present the evidence supporting any petition where the facts are contested, whenever requested to do so by the court."

            Thus, in any juvenile court proceeding where a fact-finding hearing is held, the prosecutor (upon request of the court) will be required to perform a function clearly incompatible with the juvenile probation officer's statutory function (under RCW 13.04.040,supra) of representing the interests of the child.  Therefore, one of the fundamental tests of incompatibility, as spelled out above, must be said to be present in regard to the relationship which has been created between a prosecuting attorney and a county juvenile probation officer by the new juvenile court rules.

            From this it follows, in direct answer to your second question, that the same person may not, simultaneously, serve as a county prosecuting attorney and as a county juvenile probation  [[Orig. Op. Page 7]] officer appointed pursuant to RCW 13.04.040.

            Question (3):

            This answer to your second question, of course, renders consideration of your third question unnecessary.

            It is hoped that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/The scope of these new rules is set forth in JuCR. 1.1, as follows:

            "These rules shall govern the procedure of all matters within the jurisdiction of the Juvenile Court, including actions taken by probation officers, and shall supplement the applicable statutes."

            Unquestionably, the purpose of these rules is to establish procedures in juvenile court proceedings which will issue the requisites of procedural due process which are required by virtue of the recent decision of the United States Supreme Court inIn re Gault, 387 U.S. 1, 18 L.Ed. 527, 87 S.Ct. 1428 (1966).

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