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Bob Ferguson

AGO 1953 No. 31 - May 5 1953
Attorney General Don Eastvold

EXPENSES OF CITY COUNCIL-ELECT IN SOLICITATION AND CONSIDERATION OF APPLICATIONS FOR POSITION OF CITY MANAGER, AND FOR CONSIDERATION OF ORDINANCES NECESSARY FOR TRANSITION TO COUNCIL-MANAGER ADMINISTRATION, WHERE CHARTER PROVIDES SUCH ADMINISTRATION TO BEGIN ON SAME DATE COUNCIL-ELECT ASSUMES DUTIES AS REGULAR COUNCIL.  CHAIRMAN OF COUNCIL-ELECT MAY SIGN VOUCHERS AS PUBLIC OFFICER, UNDER RCW 42.24.060.

Chairman of Council-elect is "officer" within meaning of RCW 42.24.060 and 42.04.010, and may sign vouchers for expenses under RCW 42.24.060 in that capacity.

 Payment of expenses of Council-elect, incurred pursuant to charter in anticipation of change to council-manager administration, from city treasury is lawful.

 

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                                                                    May 5, 1953 

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                                Cite as:  AGO 53-55 No. 31

 Attention:  !ttMr. A. E. Hankins,  Chief Examiner

Dear Sir:

             We have received your letter of April 30, 1953, enclosing correspondence which sets out the following facts:  The charter recently adopted by the City of Tacoma provides for council-manager government.  It directs the Council-elect to meet on the third business day following the certification of the election results to consider appointment of a city manager and preparation of ordinances necessary for the transition to city-manager government.  It authorizes the Council-elect to incur expenses for these purposes, and for advertising for and investigation of applications for the position of manager.  These expenses are to be paid from the treasury on vouchers signed by the Chairman of the Council-elect.  Thereafter the city council passed an ordinance  [[Orig. Op. Page 2]] authorizing payment of such expenses in the manner prescribed by the new charter.

            You request an opinion on the following question: Will payment of the described expenses be legally authorized?

             In our opinion, the answer to your question is "Yes."

                                                                      ANALYSIS

             By the terms of RCW section 35.18.010 and 35.18.040 the City Council is to appoint a city manager, solely on the basis of qualifications and experience.  Under the new charter the appointment cannot be made until the first Monday in June, 1953.  On that day the newly elected Council will hold its first regular meeting.  The charter therefore contemplates that the present council-elect will make the appointment.  Consequently the duty of selecting a manager under RCW 35.18.040 will also fall upon the Council-elect.  To make possible appointment of a Manager and full transfer to council-manager administration without delay, the charter contains the described provisions.  The Council-elect is enabled to make necessary preparation for the functions it will assume in full at its first regular meeting.  The clear purpose of the provisions in question is to avoid a potential and undesirable gap in permanent administration.

             By Ordinance No. 14744 the present Council appropriated money from the general fund to cover the expenses involved.  The Ordinance is regular on its face.  It is authorized by RCW 35.32.130 as a necessary appropriation not included in the budget for the year, having been unforeseeable at the time the budget was composed.

             It follows that the expenses are lawful and duly authorized.

             The specific question raised in connection with your request relates to the requirement of RCW 42.24.060; that every expense account submitted by a city officer must be accompanied by a certificate containing the following:

             "I, holding the office of      ,"

             The charter provides that expenses incurred for this purpose are to be paid from the treasury on vouchers signed by the Chairman of the Council-elect.  Doubt has been expressed that the Chairman would be able to sign such a certificate.  The problem is whether or not the Chairman holds an office within the meaning of this statute.

              [[Orig. Op. Page 3]]

            RCW 42.24.060 is clearly an accounting security measure, intended to guard against false claims.  It does not purport to name the officers who may make such a certificate.  If the Chairman is an "officer," he may sign the certificate.

             RCW 42.04.010 provides that a public officer is

             "* * * any person elected * * * to perform duties prescribed by statute on behalf of the state or any of its political subdivisions * * *."

             In State ex rel. Brown v. Blew, 20 Wn. (2d) 47, it is said that whether or not particular duties constitute a public office depends upon the specific facts and the purpose of the statute considered.  Five criteria are given as determinative on this question:  The duties must be (1) created by a municipality through authority created or conferred by the legislature, (2) a delegated portion of the sovereign power of government to be used for the benefit of the public, (3) defined through legislative authority, (4) performed independently, and must have (5) permanency or continuity, as opposed to temporary or occasional functions.  We believe that the duties of the Council-elect and its Chairman, as described, fulfill these requirements.  Under the statutes, charter and ordinance as cited above, the first four conditions are clearly met.  In view of the fact that the Council-elect will continue to administer city affairs for its full term of office after performing the preparatory duties specified in the charter, there can be no doubt that continuity exists.  The Council-elect and the Chairman fall squarely within the quoted definition of RCW 42.04.010, being elected to perform duties for the city under the new charter as authorized by statute.

             We conclude that the Chairman of the Council-elect holds an office within the purview of RCW 42.24.060, and may sign the required certificate in that capacity.

 Very truly yours,
 DON EASTVOLD
Attorney General

A. J. HUTTON, JR.
Assistant Attorney General