AGLO 1974 No. 39 - Mar 28 1974
OFFICES AND OFFICERS ‑- COUNTY COMMISSIONERS ‑- HOUSING AUTHORITY
(1) A board of county commissioners may not rescind a prior appointment of a member of the board of commissioners of a housing authority but it may remove such a member for cause under RCW 35.82.060.
(2) Under RCW 35.82.050, a county housing authority commissioner may not also serve as a manager of a housing facility.
(3) The prosecuting attorney of a county is required under RCW 35.82.040 to provide legal representation to a county housing authority.
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March 28, 1974
Honorable David F. Thiele
Island County Court House
Coupeville, Washington 98239 Cite as: AGLO 1974 No. 39
Attention: Mr. David B. Strong
This is in response to your recent letter posing the following three questions with respect to a county housing authority operating under chapter 35.82 RCW:
"Where a Board of County Commissioners appoints commissioners of a housing authority pursuant RCW 35.82.040, may the Board of County Commissioners subsequently terminate the appointment of one of the members of the Housing Authority Commission?
"Is there any legal conflict of interest in a situation where a Housing Authority Commissioner (a) manages a housing authority facility, or (b) is a resident of a housing authority facility?
"Is the Prosecuting Attorney of a county required to provide legal advice and representation for a housing authority formed under the provisions of RCW 35.82?"
We answer these questions as follows:
Whenever the governing body of a county determines to activate a county housing authority under chapter [[Orig. Op. Page 2]] 35.82 RCW, it is required by RCW 35.82.040 to appoint five persons to serve as commissioners of the authority for designated fixed terms set forth in that statute. There is no provision in the statute or in any other law we have found which would authorize the county commissioners, after having made such an appointment, to revoke it at a later date prior to the expiration of the particular appointee's term. Housing commissioners may, however, be removed from office during their respective terms under the following provisions of RCW 35.82.060:
"For inefficiency or neglect of duty or misconduct in office, a commissioner of an authority may be removed by the mayor (or in the case of an authority for a county, by the governing body of said county), but a commissioner shall be removed only after he shall have been given a copy of the charges at least ten days prior to the hearing thereon and had an opportunity to be heard in person or by counsel. In the event of the removal of any commissioner, a record of the proceedings, together with the charges and findings thereon, shall be filed in the office of the clerk."
With respect to the possibility of a legal conflict of interest in a situation where a housing authority commissioner (a) manages a housing facility operated by the authority or (b) is a resident of such facility, RCW 35.82.050 provides that:
"No commissioner or employee of an authority shall acquire any interest direct or indirect in any housing project or in any property included or planned to be included in any project, nor shall he have any interest direct or indirect in any contract or proposed contract for materials or services to be furnished or used in connection with any housing project. If any commissioner or employee of an authority owns or controls an interest direct or indirect in any property included or planned to be included in any housing project, he immediately shall disclose the same in writing to the authority and such disclosure [[Orig. Op. Page 3]] shall be entered upon the minutes of the authority. Failure so to disclose such interest shall constitute misconduct in office. Upon such disclosure such commissioner or employee shall not participate in any action by the authority affecting such property."
By reason of this statute it would not be permissible for a housing authority commissioner to serve as manager of a housing facility operated by the authority because that would cause him to have an interest in a contract for services (his own) to be furnished in connection with a housing project.
Nor, as a commissioner, could he then become a tenant of such a housing facility because by becoming a tenant he would be acquiring some form of leasehold interest in a housing project ‑ a thing also prohibited by the first sentence of RCW 35.82.050, supra. On the other hand, if the individual involved was already a tenant before becoming a commissioner that sentence would not apply; and thus, under the second sentence of the statute he could lawfully remain a tenant for the duration of his then existing lease while also serving as a commissioner by disclosing his interest and thereafter not participating in any action of the authority affecting the project in which he lives. The extent to which this would effectively impair his ability to serve as a commissioner would then depend upon the number of other housing facilities also being operated by the authority.
Insofar as legal services for a county housing authority are concerned, RCW 35.82.040 provides that:
". . . For such legal services as it may require, an authority may call upon the chief law officer of the city or the county or may employ its own counsel and legal staff. . . ."
In the case of a county housing authority, the reference in this statute to the "chief law officer" is, [[Orig. Op. Page 4]] obviously, a reference to the prosecuting attorney of a county. See, RCW 36.27.010, et seq.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General