AGLO 1973 No. 8 - Jan 12 1973
CITIES AND TOWNS ‑- NONCHARTER CODE CITY ‑- CHANGE OF GOVERNMENT ‑- ELECTION OF NEW OFFICERS
Where a noncharter code city which has been operating as such for more than one year but less than six has been authorized by its voters in accordance with RCW 26A.06.030 to change its plan of government from mayor-council plan under which it has previously been operating to the council-manager plan authorized by chapter 35A.13 RCW, such city may not utliize the provisions of RCW 35A.02.050 so as to cause the new officers prescribed by this new plan to be elected at a special election to be conducted prior to the city's next general election, even when an approval of the change is obtained more than 180 days prior to the city's next general election.
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January 12, 1973
Municipal Research & Services
Center of Washington
4719 Brooklyn Avenue N.E.
Seattle, Washington 98105 Cite as: AGLO 1973 No. 8
Attention: Ernest H. Campbell, Agent
By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:
Where a noncharter code city which has been operating as such for more than one year but less than six years has been authorized by its voters in accordance with RCW 36A.06.030 to change its plan of government from mayor-council plan under which it has previously been operating to the council-manager plan authorized by chapter 35A.13 RCW, and this approval is obtained more than one hundred eighty days prior to the city's next general election, may such city utilize the provisions of RCW 35A.02.050 so as to cause the new officers prescribed by this new plan of government to be elected at a special election to be conducted prior to the city's next general election?
We answer this question in the negative for the reasons set forth in our analysis.
As explained in AGO 1970 No. 5 [[to Municipal Research Council on February 17, 1970]], copy enclosed, any city, upon becoming a noncharter code city as provided in chapter 35A.02 RCW,1/ may further elect either to retain its preexisting plan of government or to adopt one of the governmental plans outlined in the code itself [[Orig. Op. Page 2]] (i.e., mayor-council plan, chapter 35A.12 RCW; or council-manager plan, chapter 35A.13 RCW). The first of these actions is referred to throughout the code as "reclassification" whereas the second ‑ that of adopting a new plan of government ‑ is referred to as "reorganization."
Your request, as we understand it, involves a city which, upon its initial reclassification as a noncharter code city in 1971, determined not additionally to reorganize but, instead, to retain the governmental structure under which it had previously been operating as a third class city under chapter 35.24 RCW. Subsequently, however, after having operated in this manner for more than one but less than six years, a decision was made to propose the abandonment of this existing plan of government and, instead, to adopt the council-manager plan provided for in chapter 35A.13 RCW. Accord, RCW 35A.06.030, as last amended by § 13, chapter 251, Laws of 1971, Ex. Sess., which provides that:
"By use of the resolution for election or petition for election methods described in RCW 35A.06.040, any noncharter code city which has operated for more than six years under one of the optional plans of government authorized by this title, may abandon such organization and may either adopt another plan of government authorized for noncharter code cities, or may adopt a plan of government authorized by the general law for municipalities of the highest class for which the population of such city qualifies it, or authorized for the class to which such city belonged immediately prior to becoming a noncharter code city, if any. When a noncharter code city adopts a plan of government other than those authorized for noncharter code cities, such city ceases to be governed under this optional municipal code and shall be classified as a city or town of the class selected in the proceeding for adoption of such new plan, with the powers granted to such class under the general law. Any city is authorized to adopt any plan of government provided for noncharter code cities any time after one year from the date of becoming a noncharter code city." (1971 amendment underscored.)
[[Orig. Op. Page 3]]
Thereafter, on November 7, 1972, a special election was conducted as provided for in RCW 35A.06.050, and a majority of the voters of the subject city approved the proposed change. Your question pertains to the timetable to be followed in electing new officers to fill the positions provided for under the city's resulting new governmental structure.
In our opinion, this question is wholly answered by the following express provisions of RCW 35A.06.060:
"If a majority of votes cast at the election favor abandonment of the plan of government under which the noncharter code city is then organized and reorganization under the plan proposed in the resolution or petition, the officers electedat the next succeeding general municipal election shall be those prescribed by the plan of government so adopted. Upon the election and qualification of such officers the reorganization of the government of such municipality shall be complete and such municipality shall thereafter be governed under such plan. . . ." (Emphasis supplied.)
Where a constitution or statute specifies that a particular act is to be done in a particular way, such specification imparts an implied prohibition against performing that act in any other way. See, e.g.,State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956), and cases cited therein. In this case, the legislature has clearly provided that the first election of a city's new officers following its voters' approval of a change in governmental plans under RCW 35A.06.030,etseq., supra, is to take place "at the next succeeding general municipal election"; and only after this has been done in this manner will "reorganization" be complete. In the meantime, even though a new governmental plan has been approved, the city is to continue to be governed under its prior plan by its incumbent officers.
In arriving at this conclusion, we have given careful consideration to the contrary point of view expressed by an assistant city attorney for the particular city here in question in a memorandum which you have appended to your request. In this memorandum it is concluded that since, in this case, the next general municipal election will not [[Orig. Op. Page 4]] occur until November, 1973 (see, RCW 29.13.020), a special election may, instead, be conducted earlier for the purpose of electing new officers under the following provisions of RCW 35A.02.080 and 35A.02.050:
"If the majority of votes cast at an election for organization under a plan provided in this title favor the plan, the city or town shall elect in accordance with RCW 35A.02.050 the officers for the positions created. . . ." (RCW 35A.02.080.)
"The first election of officers under a plan of government adopted in the manner provided in RCW 35A.02.020 or 35A.02.030 shall be at the next general municipal election if one is to be held more than ninety days but not more than one hundred and eighty days after certification of a reorganization ordinance or at a special election to be held for that purpose not less than ninety days nor more than one hundred and eighty days from the certification of such ordinance. . . ." (RCW 35A.02.050.)
In making this suggestion, the assistant city attorney has pointed to the fact that under the original version of the optional municipal code, as enacted by the legislature in 1967,2/ a noncharter code city was not permitted to change its plan of government from that adopted or retained at the time of its initial reclassification until it had operated under the code for at least six years. See, § 35A.06.030, chapter 119, Laws of 1967, Ex. Sess., which was amended by § 13, chapter 251, Laws of 1971, Ex. Sess., so as to add the now final sentence of RCW 35A.06.030,supra, stating that:
". . . Any city is authorized to adopt any plan of government provided for noncharter code cities any time after one year from the date of becoming a noncharter code city."
He then reasons, as we understand it, that this 1971 amendment manifests a legislative intent to permit [[Orig. Op. Page 5]] a city taking advantage of its provisions to accelerate the electoral schedule for the selection of new officers by means of calling a special election under RCW 35A.02.050, supra, where the city's next general election will not occur for more than one hundred eighty days after voter approval of the proposed reorganization.
Our inability to accept this point of view stems from the fact that RCW 35A.02.050,supra, makes specific reference to "The first election of officers under a plan of government adopted in the manner provided in RCW 35A.02.020 or 35A.02.030 . . ." These two referenced statutes, as well as RCW 35A.02.080, supra, are in turn keyed solely to a city's initial adoption of a new plan of government (reorganization) when done in conjunction with its adoption of the code (reclassification) under chapter 35A.02 RCW, and not to a subsequent change in a code city's previous plan of government as provided for in chapter 35A.06 RCW. In other words, the statutes upon which the assistant city attorney here relies would have applied to the first election of new officers for the subject city if it had opted for a new form of government at the same time it came under the optional municipal code; however, in our opinion, those statutes, as quoted above, are inapplicable to the current situation which is, instead, governed exclusively by the provisions of RCW 35A.06.060, supra. For this reason we believe that your question, as above paraphrased, must be answered in the negative.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Encompassing §§ 35A.02.010 ‑ 35A.02.140 of the optional municipal code.
2/Chapter 119, Laws of 1967, Ex. Sess.