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Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1975 No. 69 - Aug 8 1975
Attorney General Slade Gorton


Persons other than those nominated by the board of county commissioners under RCW 52.04.070 may be candidates for election to a board of fire protection district commissioners upon the initial formation of such a district.

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                                                                  August 8, 1975

Honorable Jeffrey C. Sullivan
Prosecuting Attorney
Yakima County Court House
Yakima, Washington 98901                                                                                                               Cite as:  AGLO 1975 No. 69

Dear Sir:

            This is written in response to your recent letter requesting our opinion on the following question:

            "May electors of a proposed fire protection district, as well as the three resident electors named as candidates by the Board of County Commissioners, file as candidates and run for election as first fire commissioners of a proposed district?"

            We answer this question in the manner set forth in our analysis.


            Chapter 52.04 RCW governs the formation of fire protection districts ". . . for the elimination of fire hazards and for the protection of life and property in territories outside of cities and towns . . ."  RCW 52.04.020.  The procedures to be followed involve, first, the submission of a petition for the formation of such a district to the board of county commissioners of the county in which it is to be established.  See, RCW 52.04.030 ‑ 52.04.060.  RCW 52.04.070 then provides for the conduct of an election, to be called by the county commissioners, upon the question of whether or not the proposed district should be established.  The final sentence of this statute, however, which gives rise to your question, goes on to state that:

            ". . .  Said board shall, prior to the calling of said election, name three resident electors of said district as candidates for election as the first fire commissioners of said district."

             [[Orig. Op. Page 2]]   Likewise, RCW 52.04.080, relating to the form of notice to be given of the election, says, in part, that:

            ". . .  The notice of said election shall state generally and briefly the purpose thereof, shall give the boundaries of the proposed district, define the election precinct or precincts, designate the polling place for each, mention the names of the candidates for the first fire commissioners of the district, and shall name the day of the election and the hours during which the polls will be open."  (Emphasis supplied.)

            Accord, RCW 52.04.090, which describes the election ballots to be used at the election.  RCW 52.04.100 then provides for the canvassing of election returns, and RCW 52.04.110 spells out the procedures to be followed in declaring the results of the election.  This statute reads, in full, as follows:

            "If it is found upon examination of certificate of the canvassing officials that three‑fifths of all the votes cast at said election were cast for the proposition '....... County Fire Protection District No. ...... Yes,' the board of county commissioners shall by resolution entered in the minutes of its proceedings, declare such territory duly organized as a fire protection district under the name theretofore designatedand shall declare the three candidates receiving the highest number of votes for fire commissioners the duly elected first fire commissioners of said district."  (Emphasis supplied.)

            In our opinion, the underscored language of this last quoted statute clearly demonstrates an intent on the part of the legislature that candidates other than the three nominated by the board of county commissioners under RCW 52.04.070,supra, can run and be voted upon for positions on the first district board of commissioners at the election for the formation of a fire protection district.  Thus, our basic response to your question is that persons other than those thus nominated by the county commissioners may be candidates for election to these positions.

             [[Orig. Op. Page 3]]   In so concluding, however, we must also note and acknowledge the apparent absence of any statutory filing procedure which is specifically applicable to the initial election of fire protection district commissioners who, in the words of RCW 52.12.010,

            ". . . shall serve until after the next general election for the selection of commissioners and until their successors have been elected or appointed and have qualified."

            Yet there is a filing statute later on in this chapter of the code; namely, RCW 52.12.040 which provides as follows:

            "Not more than sixty nor less than forty-six days prior to the day of election any resident elector of the district, desiring to become a candidate for office of fire commissioner, shall file with the county auditor of his county a statement of his candidacy, for which no fee shall be charged.  Such resident electors so filing shall be entitled to have their names appear as candidates on the ballot for said election."

            Although the context in which this provision appears suggests an applicability only to later elections ‑ after the district has been formed or gone into operation ‑ the statute is not by its express terms so limited.  Moreover, unless this section can be made applicable to an initial election of fire protection district commissioners, the only procedure which would be available to enable additional persons to become candidates (over and above the three nominated by the county commissioners) would be the conduct of write‑in campaigns as provided for in RCW 29.51.170.  See, also, RCW 29.51.100 and the recent decision of the Washington supreme court inKnowles v. Holly, 82 Wn.2d 694, 513 P.2d 18 (1973), explaining this electoral procedure.

            In the instant case, there still remains a sufficient time to allow the use of the filing procedure provided for in RCW 52.12.040, for you have advised us that the election itself will not take place until November 4, 1975 ‑ in conjunction with the state general election to be held on that date under RCW 29.13.010.  Thus, a two-week filing period from September 5 through September 19 would still be possible in this case.

             [[Orig. Op. Page 4]]   In our opinion, if such an approach were to be taken by your county auditor it would be legally defensible if challenged in court.  The only apparent purpose of the nominating procedure provided for in RCW 52.04.070, et seq., is to insure that there will be a board of commissioners to govern the proposed fire protection district if it is approved by the voters.  However, there is no hint in the statute ‑ and such in any event could well be violative of constitutional "equal protection" principles ‑ that the three nominees of the county commissioners are theonly candidates entitled actually to have their names appear on the ballot.  Therefore, the establishment of a filing period patterned after RCW 52.12.040 would not be in conflict with those other statutes.

            To provide for an orderly, and constitutionally defensible, election procedure, it is therefore our opinion that RCW 52.12.040 should in this case be utilized so as to allow those persons in the proposed district who desire to run against the three nominees of the county commissioners to file their declarations of candidacy, and thereby cause their names to appear on the election ballot, during the two-week period in September which we have above outlined.

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

Very truly yours,

Attorney General

Deputy Attorney General