Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1980 No. 2 -
Attorney General Slade Gorton


The failure of a newly elected county clerk to execute and furnish an official bond pursuant to RCW 36.16.050 does not cause a vacancy in the office to exist pursuant to RCW 42.12.010; instead, such omission merely bars the newly elected clerk from qualifying and, thus, continues the term of his or her predecessor who, however, may, by resigning or refusing to serve, cause a vacancy to come into existence.

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                                                                 January 11, 1980

Honorable James E. Carty
Prosecuting Attorney
Room 301
Clark County Court House
P.O. Box 5000
Vancouver, Washington 98663                                                                                                                 Cite as: AGLO 1980 No. 2

Dear Sir:

            By recent letter you advised us that the successful candidate for election in 1978 as Clark County clerk, although purporting to assume and hold office, has failed to comply with so much of RCW 36.16.050 as provides that:

            "Every county official before he enters upon the duties of his office shall furnish a bond conditioned that he will faithfully perform the duties of his office . . ."

            Then, noting that RCW 42.12.010 includes an incumbent's refusal or neglect to take his oath of office or to give or renew his official bond as one of the stated causes of a vacancy, you have requested our opinion on the following two questions:

             [[Orig. Op. Page 2]]

            "(1) Does RCW 42.12.010, stating near the end thereof:  '. . . his refusal or neglect to take his oath of office or to give or renew his official bond . . .' constitute a cause of vacancy in the office, and at what time is the vacancy created?

            "(2) Assuming that your answer to Query number 1 is that a vacancy exists, does the prior clerk continue to hold office, or is the office declared vacant and filled by the applicable appointment procedure involving the political party and the county commission?"

            We answer your first question in the negative and respond to your second question in the manner set forth below.


            Question (1):

            Preliminarily, you have advised us that the individual presently serving as the Clark County clerk is not the same person who previously held that office before January 8, 1979.  You have further informed us that the prior incumbent did not run to succeed herself but, instead, chose not to do so.

            As above noted, RCW 36.16.050 characterizes the execution of an official bond as a condition precedent to the assumption of a county elective office.  In addition, RCW 36.16.020 provides that:

            "The term of office of all county and precinct officers shall be four years and until their successors are elected and qualified. . ."  (Emphasis supplied)

            Therefore, it necessarily follows, in our judgment, that even though the person who was elected as the new Clark County clerk at the November, 1978, election is now serving in that office, he is (under the facts you have stated) only doing so in a de facto capacity.  Conversely, the de jure county clerk remains the prior incumbent.  Accord,State ex rel. Vanderveer v. Gormley, 53 Wash. 543, 102 Pac. 435 (1909); and see also,  [[Orig. Op. Page 3]] our opinions of December 4, 1918 to the Clallam County prosecuting attorney and April 20, 1944 to the executive secretary of the Washington State Association of County Commissioners, copies enclosed.

            As described in the more recent of those two attorney general's opinions, the facts and holding inState ex rel. Vanderveer v. Gormley, supra, were as follows:

            ". . . In the Gormley case, it appeared that Gormley had been twice elected treasurer of King County, the second term expiring on the second Monday of January, 1909.  George F. Russell was a candidate at the 1908 election and was elected.  Having been appointed postmaster of Seattle, Russell personally appeared before the board of county commissioners of King County on the second Monday of January, 1909, and declared his intention not to take the office or to file the official bond required by law of county treasurers.  Thereupon, the official bond of Gormley was continued in force.  A few days later, the board of county commissioners declared a vacancy in the office of county treasurer by reason of the failure of Russell to qualify, and appointed J.P. Smith to fill the same.  Smith took the oath of office and executed and filed the official bond and demanded of Gormley that he vacate and deliver up the office and control thereof, which demand Gormley refused.  Thereupon, Vanderveer, the then prosecuting attorney of King County, brought the action in question.

            "The court discussed the various sections of the law pertaining to vacancies and election of county treasurers, and called attention to the fact that the law provided that county treasurers 'shall continue in office for the term of two years,and until his successor is elected and qualified.'  The court then considered theMeredith case, supra.  The court also considered the constitutional provision precluding county officials from holding  [[Orig. Op. Page 4]] office for more than two terms in succession and held in substance that the second term was to continue 'until his successor is elected and qualified,' and then held:

                        "'We are of the opinion that the term of office of the respondent had not expired when the county commissioners assumed to appoint his successor, and that there was no vacancy warranting such an appointment.'"  (Emphasis theirs)

            In so concluding the Court specifically noted the language of RCW 42.12.010 which you have quoted in your letter; i.e.,

            "Every office shall become vacant on the happening of either of the following events before the expiration of the term of such officer.  First, the death of the incumbent; . . . sixth, his refusal or neglect to take his oath of office, or to give or renew his official bond, or to deposit such oath or bond within the time prescribed by law; . . ."

            The Court ruled, however, that this quoted statutory provision relates to the tenure of the de jure incumbent and not to his purported successor who, because of his failure to qualify, only holds office in a de facto status.  In so doing, the Court explained its reasoning on that point as follows, at page 549:

            "At first thought the word 'incumbent,' in connection with this provision, might seem to apply only to persons who are elected and have not yet qualified, but when other possible conditions arising under our laws are noticed, it is easy to see the virtue and force of this provision without giving the word 'incumbent' any other than its ordinarily accepted meaning.  For instance, it is a matter of common knowledge that an [[Orig. Op. Page 5]] incumbent actually in office is often reelected for a succeeding term.  In such case he is not permitted to continue in office upon his former oath and bond but must again qualify.  He cannot decline to qualify and continue in office under his former tenure.  One in this situation must hold under his new tenure or not at all.  The term of office will not expire until the successor, though it be himself, is elected and qualified under the decision in the Tallman case, but unless he qualifies under his new tenure, he forfeits the right to hold under either . . ."

            What all of this seems to us to mean is that while the failure of the present de facto Clark County clerk to have executed and filed an official bond under RCW 36.16.050,supra, is of considerable legal significance insofar as his de jure entitlement to that office is concerned, it is irrelevant for the purposes of RCW 42.12.010, supra.  Why? Because he is not the "incumbent" referred to in that statute.  Instead, the incumbent for RCW 42.12.010 purposes is the prior de jure county clerk.

            Therefore, in direct answer to your first question, it is our opinion that the failure of the person now holding himself out as Clark County clerk (i.e., the individual elected in 1978) to have executed the official bond required by RCW 36.16.050,supra, does not mean that the office is now vacant.

            Question (2):

            Having thus answered your first question, however, we next turn to the current status of the prior Clark County clerk.  In theory, under the reasoning ofState ex rel. Vanderveer v. Gormley, supra, the term of that individual has not yet expired because of the failure of his elected successor to have qualified.  Accord, RCW 36.16.020,supra.  Therefore, until and unless her successor does execute his official bond and, thereby, changeshis status from de facto to de jure, it is this prior county clerk who remains the de jure clerk of Clark County.

            Finally, there is one further point to be noted.  Presumably, the prior (and still de jure) county clerk has likewise executed no additional bond‑-beyond the bond she executed upon  [[Orig. Op. Page 6]] assuming office pursuant to her own initial or most recent election thereto.  A question which you might want to explore, therefore, is whether, by its terms, that bond is still in effect.  In other words, did that bond cover only a specified period of time as opposed to a certain term of office regardless of its duration?  If so, then the execution of a new bond would appear to be required of the prior clerk if she desires now actually to continue serving.  And forher failure to execute that bond, the office could now be declared vacant under RCW 42.12.010, supra, in accordance with the rationale ofState ex rel. Vanderveer v. Gormley, supra.1/

             We trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Likewise, of course, the prior (and still de jure) county clerk could in any event now simply resign and, thereby, also create a vacancy in accordance with RCW 42.12.010, supra.  If she should do so, or if the office should be deemed vacant because of the present insufficiency ofher official bond, it would then be up to the board of county commissioners to fill the vacancy by making an appointment pursuant to Article II, § 15 (Amendment 52) of the state constitution.  Then that appointee, in turn, would (upon qualifying) become the de jure county clerk whose resultant claim to the office would be superior to all others, even including the present de facto clerk, at least until and unless the latter alters his status from de facto to de jure by executing the official bond which he has thus far failed to sign.