AGO 1951 No. 481 - Mar 28 1951
JUSTICE OF THE PEACE ‑- NEWSPAPER, PARTNERSHIP IN ‑- QUALIFIED TO BID IN COUNTY WORK.
Although a county justice of the peace may, as a partner, not be criminally liable for bidding for county printing contracts, it is an unhealthy situation, and would be void as against public policy.
- - - - - - - - - - - - -
March 28, 1951
Honorable Robert S. Campbell, Jr.
Prosecuting Attorney, Grant County
Ephrata, Wash. Cite as: AGO 49-51 No. 481
Whether a newspaper, partly owned by a justice of the peace, might bid for county printing contracts.
Our conclusion is that he cannot.
Rem. Rev. Stat. § 2334, prohibits any public office upon penalty of gross misdemeanor, to
"(2) Be beneficially interested, directly or indirectly, in any contract, sale, lease or purchase * * *"
made through him for the benefit of his office. A close analysis of the above statute would indicate that in most county contracts, the situation you describe is not prohibited by criminal sanctions. Although a justice of the peace is a county officer, his duties do not usually lend themselves to control of county contracts.
[[Orig. Op. Page 2]]
However, this does not preclude the contract from being void as contrary to public policy. The question is close, with few Washington decisions of aid. See, however, the language of 43 Am. Jur., 103, § 294 (1942):
"A contract, made by a public officer, is against public policy and unenforceable * * * if it places him in a position inconsistent with his duty as trustee for the public, or even if it has a tendency to induce him to violate such duty. Such contracts are invalid although there may be no statute or charter provision prohibiting them."
See also 43 Am. Jur. 105, § 297 (1942):
"It is a rule, embodied in the statutes of many states that public officers are debarred from contracting with the public agency they represent or from having a private interest in its contracts."
The text writers of A.L.R. appear somewhat inconsistent. See 73 A.L.R. 1344 and 74 A.L.R. 792, with special reference to Moody v. Shuffleton, 203 Cal. 100, 262 Pac. 1095 (1928).
The Washington cases involving the same general subject are not much in point. See Cunningham v. High School Dist., 131 Wash. 41, 228 Pac. 855 (1924);Directors of School Dist. v. Libby, 135 Wash. 233, 237 Pac. 505 (1925),Kitsap County v. Bubar, 14 Wn. (2d) 379, 128 P. (2d) 379 (1942);State ex rel. Becker v. Wiley, 16 Wn. (2d) 340, 133 P. (2d) 507 (1943). See also the stronger language used in Northport v. Northport Townsite Co., 27 Wash. 543, 549 (1902).
Our conclusion, therefore, is although there may be no criminal sanctions prohibiting a county justice of the peace from participating in county contracts, the contract would be void as contrary to public policy. The situation would appear unhealthy and should be discouraged.
Very truly yours,
JENNINGS P. FELIX
Assistant Attorney General