AGO 1983 No. 3 - Mar 17 1983
OFFICES AND OFFICERS ‑- CITIES AND TOWNS ‑- FIRE PROTECTION DISTRICTS ‑- INCOMPATIBILITY OF OFFICES ‑- CITY COUNCIL MEMBER AND DISTRICT FIREFIGHTER
Neither the common law doctrine of incompatible public offices nor any other state law precludes a person from simultaneously serving as a member of the council of a city or town proposing to be annexed by a fire protection district and as a paid or volunteer firefighter for the subject district.
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March 17, 1983
Honorable John Martinis
St. Rep., 38th District
230 House Office Building
Olympia, Washington 98504
Cite as: AGO 1983 No. 3
By recent letter you requested our opinion on a question which we paraphrase as follows:
Does the doctrine of incompatible public offices, or any other law, preclude a person from simultaneously serving as a member of the council of a city or town proposing to be annexed by a fire protection district and as a paid or volunteer firefighter for the subject district?
We answer the foregoing question in the negative for the reasons set forth in our analysis.
RCW 52.04.170 sets forth the procedure by which a city or town with a population of 10,000 or less, lying contiguous to a fire protection district, may be annexed to the district. The city or town council or other legislative authority may initiate the annexation by adopting an ordinance stating an intent to join the [[Orig. Op. Page 2]] district. If the board of fire commissioners concurs in the annexation, the issue is then submitted for voter approval in accordance with RCW 52.04.180.
Your question is whether the doctrine of incompatible public offices, or any other law, would preclude a person from simultaneously serving as a member of the council of a city or town proposing to be so annexed and as either a paid or volunteer firefighter for the subject fire protection district. And our research, in turn, has disclosed no "other law" to that effect. The remainder of this opinion, therefore, will be devoted to a consideration of the possible impact of the common law doctrine of incompatible offices.
Kennett v. Levine, 50 Wn.2d 212, 310 P.2d 244 (1957) recognized this common law doctrine as follows:
". . . it has been long and universally recognized that no one should hold incompatible public offices. . . .
"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. . . ." (Citation omitted.)
To answer your question it is first appropriate to resolve the threshold issue of whether the positions here involved (i.e., city or town council and district firefighter) are both public offices. Plainly, a city or town council position is such an office. State ex rel. Cornell v. Smith, 149 Wash. 173, 270 Pac. 306 (1928). Likewise, a municipal firefighter has also been considered to be a public officer in three early cases,State ex rel. Knez v. Seattle, 176 Wash. 23, 28 P.2d 1020 (1934);Benefiel v. Eagle Brass Foundry, 154 Wash. 330, 282 Pac. 213 (1929); andLynch v. North Yakima, 37 Wash. 657, 80 Pac. 79 (1905). In turn, citing these cases we have twice held in recent opinions that a municipal firefighter occupies a "public office" under the doctrine of incompatible offices. See, AGO 1973 No. 24 and AGO 61-62 No. 162. We see no reason, now, to depart from that conclusion.
Next, therefore, it must be determined whether the two offices are "incompatible". There are two different types of situations in which the doctrine may apply. The first type of incompatibility arises when one office is subordinate to another. For example, a member of the board of a fire protection district could not, prior to an enabling statutory amendment,1/ also serve as board [[Orig. Op. Page 3]] secretary. AGO 59-60 No. 157. Similarly, again prior to an enabling amendment,2/ a city fireman could not be a city or town council member. AGO 1973 No. 24. And, under the same approach, we concluded in AGO 63-64 No. 92 that a county commissioner may not simultaneously serve as the chairman of a local civil defense council.
The second type of incompatibility arises where offices, although separate and distinct, are statutorily interrelated. For example, because county commissioners have discretionary power to distribute money to school districts the same person may not be both a county commissioner and a school board member within the same county. AGO 65-66 No. 7. And because a port district is subject to city zoning and building codes, the same individual may not be both mayor and port commissioner. AGO 1978 No. 12.
It is clear that the instant situation does not involve the first type of incompatibility. Cities and towns, on the one hand, and fire protection districts on the other, are separate and distinct types of municipal corporations. Neither the office of city or town council member nor the position of district firefighter may therefore be considered as subordinate‑-one to the other.
When we look to the second type of incompatibility, however, a somewhat more difficult problem is presented. In AGO 61-62 No. 162,supra, we concluded that a member of the fire department of a city which provides fire protection services to a fire protection district by contract, as authorized by RCW 52.08.020, may not also be a commissioner of that district. In so concluding we pointed out that the commissioners must decide whether the districts should contract for fire protection services from an adjacent city or, instead, either perform their own fire protection function or deal with some other public or private entity for that purpose. And, we noted, that decision could be influenced by the particular commissioner's other role as a city firefighter.
[[Orig. Op. Page 4]]
Superficially, at least, the reasoning of that 1962 opinion would suggest a similar incompatibility in the instant situation. In deciding whether the city or town should request annexation to the fire protection district under RCW 32.04.170,supra, the subject council member likewise "could be influenced" by his or her other role as a firefighter for the adjacent fire protection district. Moreover, since a city or town may propose annexation at any time, the potential conflict exists, under this reasoning, whether or not the council is actively considering the annexation issue. And likewise, incompatibility under this theory (or approach) would continue to exist even after the annexation had been completed because of the further possibility, three years later, that the city might propose to withdraw from the district in accordance with RCW 52.04.200.
Upon reflection, however, we do not believe our courts would adopt this line of reasoning in the instant situation. In short, we do not believe that this potential conflict meets the test established inKennett v. Levine,supra, that incompatibility exists where two positions:
". . . could be, with some reason, regarded as inherently repugnant, and detrimental to the public interests and contrary to public policy."3/ (Emphasis supplied)
Were we speaking, instead, of the simultaneous occupancy of the positions of city or town council member and fire protection district commissioner, we would quite probably view the matter differently. Cf., AGO 1978 No. 12, supra. Or if we were not here merely speaking of a member of the fire department but, rather, the fire chief, a similar basis for invoking the doctrine of incompatibility would likewise exist. But, in the final analysis, we see no such inherent, obvious, repugnance in the case of a city or town council member who also serves, simply, as a member of the adjacent district's fire department.
[[Orig. Op. Page 5]]
Finally, in so concluding, we have not overlooked the fact that if annexation should occur the city or town council might then transfer certain portions of its property to the district for fire protection purposes. In doing so, however, the city or town would exercise little discretion since, under RCW 43.09.210, the assets would have to be transferred for "full and true value." In our opinion, therefore, the mere power to transfer assets does not give rise to incompatibility.
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
PHILIP H. AUSTIN
Senior Deputy Attorney General
Assistant Attorney General
*** FOOTNOTES ***
1/See RCW 52.12.080 as amended by § 2, chapter 112, Laws of 1965. Since the doctrine of incompatible offices is a common law doctrine it may, of course, be abbrogated by statute. Accord, RCW 4.04.010.
2/See RCW 35.21.770, codifying § 1, chapter 60, Laws of 1974, 1st Ex. Sess.
3/50 Wn.2d at 217-18.