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AGO 1959 No. 11 - February 16, 1959
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John J. O'Connell | 1957-1968 | Attorney General of Washington

INCOMPATIBLE OFFICES ‑- COUNTY COMMISSIONER AND MEMBER OF COUNTY BOARD OF EDUCATION.

The office of county commissioner is not incompatible with the elective position as member of county board of education.

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

                                                                February 16, 1959

Honorable Alf M. Jacobsen
Prosecuting Attorney
Wahkiakum County
Cathlamet, Washington                                                                                                  Cite as:  AGO 59-60 No. 11

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on the following question:

            May one appointed to the board of county commissioners continue to hold his elective position as a member of the county board of education?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            There is no constitutional or statutory provision declaring the offices of county commissioner and member of a county board of education incompatible.  Therefore, if these offices are legally incompatible, it must be by virtue of their nature, and/or in the rights, duties or obligation connected with or flowing out of them.

            Our court in the case ofKennett v. Levine, 50 Wn. (2d) 212, 310 P. (2d) 244 (1957) stated:

            ". . . 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.

             [[Orig. Op. Page 2]]

            "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, 136 N.W. 128; Mechem on Public Officers (1890), 268, § 422.  Or, as was said in Barkley 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."  (pp. 216-217) (Emphasis supplied.)

            In 42 Am.Jur, Public Offices, § 71, p. 937, we find the following statement pertinent to our inquiry:

            "One of the most important tests as to whether offices are incompatible is found in the principle that the incompatibility is recognized whenever one is subordinate to another in some of its important and principle duties, andsubject in some degree to its revisory power. . . ."  (Emphasis supplied.)

            Hence, in order to resolve the question presented, it is necessary for us to consider the various powers granted, and duties imposed by the legislature upon the board of county commissioners and the county board of education.

             [[Orig. Op. Page 3]]

            A county board of education consists of five members elected for a term of four years.  RCW 28.20.010.  Each member must be a qualified voter and resident of the district for which he files, but he may not be an employee of any school district.  RCW 28.20.020.  The powers and duties of the board are set forth in RCW 28.20.040, which provides as follows:

            "Every county board of education shall:

            "(1) Advise with and pass upon the recommendation of the county superintendent in the preparation of manuals, courses of study, rules and regulations for the circulating libraries, and to perform such other duties as may be required by him;

            "(2) Advise with and pass upon the recommendation of the county superintendent as to a choice of textbooks of all school districts not maintaining a four year accredited high school;

            "(3) Adopt rules and regulations for the schools of the county, not inconsistent with the code of public instruction or with the rules and regulations of the state board of education or the superintendent of public instruction;

            "(4)Approve the budget of the county superintendent, and certify to the board of county commissioners and to the state board of education the estimates of the amounts needed for such budget;

            "(4) Meet regularly according to the schedule adopted at the organization meeting, and in special session upon the call of the chairman, or the secretary, or a majority of the board."  (Emphasis supplied.)

            From a reading of the above statute and from our examination of all the statutory provisions relating to the powers and duties of the board of county commissioners, we are convinced that if there is any conflict between the respective offices here in question, such conflict must arise in connection to subsection (4) of the above statute, concerning the school budget.  It is obvious that the legislature has imposed the mandatory duty upon the county board of education to approve the budget of the county superintendent of schools and to certify such budget to the board of county commissioners.  Unquestionably, if the board of county commissioners  [[Orig. Op. Page 4]] exercise any discretion or power of revision over the budget approved and submitted, the offices of county commissioner and member of the county board of education must be held incompatible since the latter would be subordinate to the former and would clearly render it improper, from a consideration of public policy, for one person to retain both offices.

           However, the legislature has not vested the board of county commissioners with any discretion in respect to the budget certified to it by the county board of education.  AGO 55-57 No. 315 [[to Charles O. Carroll, Prosecuting Attorney, King County on September 11, 1956]].

            RCW 28.19.110 provides as follows:

            "The board of county commissioners of each county annually at the time the budgets are prepared for the several county offices shall allocate from county funds to the county superintendent for his budget, the amount certified to the board of county commissioners by the county board of education as the amount needed from county funds for the county superintendent's budget."

            In construing the effect of this statute upon the power of the board of county commissioners, this office in an opinion to the prosecuting attorney of King County (AGO 55-57 No. 315, a copy of which is attached hereto) stated:

            "At the outset we must consider what effect the legislature intended the foregoing statute to have in view of its terms and provisions.  The language of RCW 28.19.110 (1955 Supp.) indicates that it is the legislative command to the county commissioners to allocate to the county superintendent of schools annually the amount of money which the county board of education certifies to the county commissioners as needed by the superintendent.  Nowhere are the county commissioners given discretion to redetermine the amount, nor would any reading of this statute allow such an implication.  The command is clear, forthright and unambiguous.

            "On the contrary, the very purpose of this enactment appears to be to withdraw from the board of county commissioners the discretion it formerly possessed in this matter.  If this were not the case there would appear to be no reason for enacting this statute.

             [[Orig. Op. Page 5]]

            "Therefore, in our opinion, the legislature intended this statute to transfer the discretionary authority of the board of county commissioners to determine the amount of funds annually allocated to the county superintendent of schools to the county board of education."

            Thus, we conclude that the rights, duties and obligations connected with or flowing out of the offices of county commissioner and member of a county board of education are not inherently inconsistent or repugnant and that the occupancy of both offices by the same person would not be detrimental to the public interest; therefore, the offices are not incompatible.

            Our conclusion is consistent with that expressed by this office in an opinion to the prosecuting attorney of Lewis County on December 23, 1940, wherein it is stated that the offices of county commissioner and school director are not incompatible.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. DORAN
Assistant Attorney General

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