AGO 1962 No. 162 - Sep 10 1962
DISTRICTS ‑- FIRE PROTECTION ‑- INCOMPATIBLE OFFICES ‑- FIRE DISTRICT COMMISSIONER AND MEMBER OF A FIRE DEPARTMENT.
A member of a fire department which is furnishing fire protection to a fire protection district may not simultaneously be a commissioner of the district since the two public offices are incompatible.
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September 10, 1962
Honorable Martin J. Durkan
State Senator, 47th District
908 American Building
Seattle 1, Washington
Cite as: AGO 61-62 No. 162
By letter previously acknowledged you requested the advice of this office on a question which we paraphrase as follows:
May a member of a fire department which is furnishing fire protection to a fire protection district simultaneously be a commissioner of the district?
We answer your question in the negative.
There can be no doubt that a commissioner of a fire protection district is a public officer. SeeState ex rel. Brown v. Blew, 20 Wn. (2d) 47, 145 P. (2d) 554 (1944), which sets out the elements necessary to constitute a public office. A fireman is likewise a public officer. SeeState ex rel. Knez v. Seattle, 176 Wash. 283, 28 P. (2d) 1020 (1934) and cases cited therein.
Our research has failed to reveal any constitutional or statutory objections to an individual being both a member of a fire department, which is furnishing fire protection to a fire protection district, and a commissioner of the district. Therefore, if any objection exists it must rest upon the basis that the two public offices are incompatible.
In 3 McQuillin, Municipal Corporations (3rd Ed.) 261, 265, § 12.67, we find the following statement:
[[Orig. Op. Page 2]]
"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 in their natures, in the rights, duties or obligations connected with or flowing from them."
Also, inKennett v. Levine, 50 Wn. (2d) 212, 216, 310 P. (2d) 244 (1957) our supreme court stated that:
"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. [Citations omitted.]"
It is not the probability of "inconsistency of the functions" of the two public offices which makes them incompatible. A possibility is sufficient. Kennett v. Levine, supra.
RCW 52.08.030, insofar as pertinent, provides:
"Any fire protection district organized under this act shall have authority:
". . .
"(3) To enter into contract with any incorporated city or town whereby such city or town shall furnish fire prevention and fire extinguishment service to the districts and the inhabitants thereof under the provisions of this act upon such terms as the board of directors of the district shall determine. To contract with another county fire protection district, or with any town, city or municipal [[Orig. Op. Page 3]] corporation or governmental agency or private person or persons to consolidate or cooperate for mutual fire fighting protection and prevention purposes. . . ."
It is our opinion that regardless which of the two methods outlined above is adopted the offices are incompatible. It is conceivable that at some time in the future the individual, while acting in his capacity as commissioner, would choose one method over the other because of the fact that he occupies the position of fireman. Thus, the position of fireman would be influencing a decision he is required to make as commissioner. We do not mean to imply that the individual would choose the method that would result in some benefit inuring to him as a fireman. To avoid this, he might very well choose the other method. However, his doing so might not be in the best interest of the district.
As an alternative to the methods outlined in RCW 52.08.030 a fire protection district may provide its own fire protection. See RCW 52.03.020. Here, the incompatibility between the two offices is actual and does not rest upon possibility. The commissioners of the district hire the firemen, fix their salaries and prescribe the duties they are to perform. Thus, we have not only the objection that one position is subordinate to the other, but also the objection that public policy dictates against an individual fixing his own compensation.
Thus, it is our conclusion that a member of a fire department which is furnishing fire protection to a fire protection district cannot simultaneously be a commissioner of the district.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
EARL E. YATES
Assistant Attorney General