AGO 1985 No. 1 - Jan 7 1985
OFFICES AND OFFICERS ‑- STATE ‑- LEGISLATOR ‑- APPOINTMENT OF COUNTY COMMISSIONER TO VACANCY IN MULTI-COUNTY LEGISLATIVE POSITION
If a vacancy occurs in one position of a House of Representatives district which encompasses two counties and part of a third county, the boards of county commissioners of the three counties, acting jointly pursuant to Wash. Const. Art. II, § 15 (Amendment 52), may not appoint one of their own members to fill such vacancy.
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January 7, 1985
Honorable Robert K. Leick
Stevenson, Washington 98648
Cite as: AGO 1985 No. 1
By recent letter you requested our opinion on the following question:
If a vacancy occurs in one position of a House of Representatives district which encompasses two counties and part of a third county, may the boards of county commissioners of the three counties, acting jointly pursuant to Wash. Const. Art. II, § 15 (Amendment 52), appoint one of their own members to fill such vacancy?
We answer your question in the negative for the reasons set forth in our analysis.
In submitting this request you have indicated your awareness of AGLO 1973 No. 101, copy enclosed, in which the same question was asked in the context of a vacancy in the House of Representatives from a legislative district located entirely within a single county. In that opinion, relying on another prior opinion (AGO 65-66 No. 20) relating to the ability of a board of county commissioners to appoint one of its own members to a vacant county elective office, we answered in the negative. The basis for our [[Orig. Op. Page 2]] answer, in both instances, was the common law principle of public policy set forth in 42 Am.Jur., Public Officers, § 97 (page 955) as follows:
"An officer intrusted with the power of appointment should exercise it with disinterested skill and in a manner primarily for the benefit of the public, for it is the policy of the law to secure the utmost freedom from personal interest in such appointments. So, it is contrary to public policy to permit an officer having an appointing power to use such power as a means of conferring an office upon himself, or to permit an appointing body to appoint one of its own members." (Emphasis supplied)
The text material upon which we thus relied has since been updated by its publisher. The current version now appears in 63A Am.Jur.2d, Public Officers and Employees, § 100 (page 743). The rule, however, remains essentially the same. We quote, for ease of comparison:
"An officer entrusted with the power of appointment should exercise it with disinterested skill and in a manner primarily for the benefit of the public, for it is the policy of the law to secure the utmost freedom from personal interest in such appointments. Thus, it is contrary to public policy to permit an officer having an appointing power to use such power to confer an office on himself in the absence of specific legislative authorization, or to permit an appointing body to appoint one of its own members. . . ."
In addition the same rule is stated, with supporting case authority, in 67 CJS, Officers and Employees, § 23(a) and in 3 McQuillin, Municipal Corporations (3rd ed.), § 12.75. In turn, while no Washington cases appear to have considered the question, we have no reason to think that our court would rule otherwise if presented with the issue.
We further note that all three situations1/ fall within the purview of the same provision of our State Constitution, Article II, § 15 (Amendment 52). Under that provision the board of county commissioners (or other county legislative authority) is to fill [[Orig. Op. Page 3]] vacancies both in the legislature and in partisan county elective offices‑-with the qualification that in the case (as here) of a multi-county legislative district,
". . . the vacancy shall be filled from a list of three nominees selected by the state central committee, by appointment by the joint action of the boards of county commissioners of the counties composing the joint senatorial or joint representative district, . . ."
Conversely, in the case of a single‑county legislative district such as was before us in AGLO 1973 No. 108, supra, the nominating process involves the county central committee rather than the state central committee and the appointment is made by the single board of county commissioners or other legislative authority.
Your request calls upon us to consider (a) whether AGLO 1973 No. 101 is still a correct statement of the law; and (b) whether there is any basis for not applying that rule in the case of a multi-county (rather than single‑county) legislative district.
In response to the first of those questions we have already seen that the principle,i.e., that it is contrary to public policy ". . . to permit an appointing body to appoint one of its own members . . .", has not been altered by any subsequent court decisions. As for the second, the only difference between the appointment process in a single‑county legislative district and in a multi-county district is purely a matter of degree. The appointing body in the latter situation is larger and thus the prospective appointee may be only one of six, or nine, members of the body rather than one of three in a typical single‑county district governed by a three‑member board of county commissioners. But nowhere in the cases do we find any indication that the size of the appointing body effects the applicability of the public policy principle.
Of course, consistent with the foregoing there may well be instances where, by reason of some specific statute, county or city charter, or local ordinance it is permissible for a multi-member appointing authority to select one of its own members for a particular appointment. All that means, however, is that the applicable common-law principle has been overridden in the particular instance by specific legislation. Accord RCW 4.04.010. In addition, it should similarly be understood that even under the common-law rule it is only those public officials who are members [[Orig. Op. Page 4]] of the appointing authority itself who are disqualified. Thus, contrary to a further thought expressed in your letter, the rule we here apply does not also serve to disqualify a member of the state or county central committee (which merely nominates) from being appointed to a legislative vacancy. Moreover, we also note that members of a state or county central committee hold political, and not public, offices.
With those points in mind, however, we adhere to the reasoning of our prior opinions and, based thereon, answer your present question, as well, in the negative. We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
PHILIP H. AUSTIN
Senior Deputy Attorney General
*** FOOTNOTES ***
1/I.e., the two which were covered by our prior opinions and the situation involved in your present request.