Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1971 No. 2 -
Attorney General Slade Gorton

- - - - - - - - - - - - -
                                                                  January 7, 1971
Honorable Daniel J. Evans
Legislative Building
Olympia, Washington 98501
                                                                                              Cite as:  AGLO 1971 No. 2 (not official)
Dear Governor Evans:
            By letter previously acknowledged, you have requested an opinion of this office on a question which we have divided and paraphrased as follows:
            (1) Is the position of a county boundary review board member incompatible with that of a member of the governing body of a fire protection district or similar municipal corporation which is located within and subject to the jurisdiction of the particular boundary review board?
            (2) Are the positions of county boundary review board member and housing authority member incompatible?
            We answer your first question in the affirmative and your second question in the negative.
            In submitting this request you have cited, as a possible specific basis of conflict, RCW 36.93.050.  This statute relates to membership on a county boundary review board1/ and provides as follows:
            "No nominee for membership and no member shall be a consultant or adviser on a contractual or regular retaining basis of the state of Washington, or of any municipal corporation thereof within the county in which the board is established, or any agency or association thereof."
             [[Orig. Op. Page 2]]
            However, in our opinion the provisions of this statute do not apply to the dual office holding situations which your questions have posed.  The positions to which you have referred are municipal offices, and the persons who hold them do not do so by contract or on a retainer basis within the meaning of RCW 36.93.050.  This difference is illustrated in 4 McQuillin, Municipal Corporations, § 12.174 (b), as follows:
            "The right of a public officer to the salary of his office is a right created by law, is incident to the office, and is not the creature of contract nor dependent upon the fact or value of services actually rendered."
            Therefore, in the absence of any other evidence of legislative intent, your questions must be answered, instead, on the basis of common law principles respecting dual office holding.  The most basic of these principles, which has been recognized by our supreme court in Kennett v. Levine, 50 Wn.2d 212, 310 P.2d 244 (1957), is that the same individual may not legally hold two public offices which are incompatible.  Offices are incompatible when the nature and duties of the offices are such as to render it improper, from a consideration of public policy, for one person to retain both.  Kennett v. Levine, supra; also, AGO 65-66 No. 6 [[to Prosecuting Attorney, Franklin County on January 25, 1965]], a copy of which is enclosed.
            Possibly the most comprehensive statement of the rule is that which appears in 3 McQuillin, Municipal Corporations, § 12.67, p. 298-299 (3rd ed. Rev. Vol.):
            "While incompatibility has been described as physical impossibility to perform the duties of both offices, it is not simply a physical impossibility to discharge the duties of both offices at the same time, it is an inconsistency in the functions of the two offices, as where one is subordinate to the other, or where a contrariety and antagonism would result in the attempt by one person to discharge faithfully and impartially the duties of both.  Two offices are said to be incompatible when the holder cannot in every instance discharge the duties of each.  Incompatibility arises, therefore, from the nature of the duties of the offices, when there is an inconsistency in the functions of the two, where the functions of the two are inherently inconsistent or repugnant, as where antagonism would result in the attempt by one person to discharge the duties of both offices, or where the nature and duties of the two offices are such as to  [[Orig. Op. Page 3]] render it improper from considerations of public policy for one person to retain both.  The true test is whether the two offices are incompatible in their natures, in the rights, duties or obligations connected with or flowing from them."
            Unquestionably, in our opinion, the position of a county boundary review board member is a "public office."  The test is summarized in AGO 65-66 No. 6, supra, quoting from 42 Am.Jur., Public Officers, § 2, as follows:
            "'. . .  Ordinarily and generally, a public office is defined to be the right, authority, and duty created and conferred by law, the tenure of which is not transient, occasional, or incidental, by which for a given period an individual is invested with power to perform a public function for the benefit of the public.  . . ."
            Some specific criteria of "public office" are outlined in State ex rel. Brown v. Blew, 20 Wn.2d 47, 51, 145 P.2d 554 (1944), quoting from an earlier case as follows:
            "'"After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature:  (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office created or authorized by the legislature and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity and not be only temporary or occasional.  In addition, in this state, an officer must take and file an official oath, hold a commission or other written  [[Orig. Op. Page 4]] authority, and give an official bond, if the latter be required by proper authority."'"2/
             The office of a member of a county boundary review board meets each of these tests.  First, the office is created by statute, RCW 36.93.020.  Second, its functions are neither clerical nor advisory.  Its purpose is clearly to exercise a delegation of sovereign power of the state of Washington in the accomplishment of a statewide objective described in RCW 36.93.010 and 36.93.180.  It adopts rules and expends public funds.  Third, the powers of the board are conferred upon it by statute.  Fourth, its duties are performed independently, subject only to review by the superior court.  RCW 36.93.160.  Fifth, and finally, the members of the board are appointed for fixed terms and the board itself has a permanent status regardless of the changing of its membership from time to time.
            For similar reasons, the positions held by the members of the governing bodies of such municipal corporations as fire protection districts are also public offices.  See, AGO 1968 No. 16 [[to Prosecuting Attorney, Pierce County on April 29, 1968]], a copy of which is enclosed.  Thus, the status of the members of the governing bodies of each of these two agencies as public officers is clearly established.
            On the subject of incompatibility between the particular offices in question, RCW 36.93.090 provides for review by a boundary review board of the following actions affecting other governmental entities within its jurisdiction:
            "(1) The creation, dissolution, incorporation, disincorporation, consolidation, or change in the boundary of any city, town, or special purpose district; or
            "(2) The assumption by any city or town of all or part of the assets, facilities, or indebtedness of a special purpose district which lies partially within such city or town; or
            "(3) The establishment of or change in the boundaries of a mutual water and sewer system or separate sewer system by a water district pursuant to RCW 57.08.065."
             [[Orig. Op. Page 5]]
            RCW 36.93.100, et seq., then vests in the boundary review board substantive authority to approve, disapprove, or modify any such action.  It is clearly evident that a boundary review board must be free of bias or self-interest or avoidable conflict in any of these activities.  To the extent that the status or actions of any municipal corporation may potentially fall subject to the jurisdiction of the board, the members of its governing body would have an inherent antagonism of interests if they were also members of the boundary review board.  That would be true of all of the specified classes of municipal corporations3/ which may propose or be the subject of a proposal for the dissolution, disincorporation, consolidation, or change in their boundaries; or which may be annexed by a city or town with a consequent possibility of assumption of indebtedness by the city or town.  Fire protection districts, to which you have particularly referred, fall into several of those categories.  See, for instance, RCW 52.04.155 (dissolution); also, RCW 52.22.060 (withdrawal of territory).  We conclude, therefore (in direct response to question (1) as we have paraphrased it) that the office of boundary review board member is incompatible with that of a fire protection district commissioner or member of any other governing body of a municipal corporation which is within, and subject to, the jurisdiction of the particular board.4/
             [[Orig. Op. Page 6]]
            Your second question, however, must be answered in the negative for the reason that housing authorities do not fall within the jurisdiction of boundary review boards under RCW 36.93.090; i.e., they are neither a ". . . city, town, or special purpose district; . . ." within the meaning of that chapter.  The term "special purpose district" is defined in RCW 36.93.020 as follows:
            "(2) 'Special purpose district' means any sanitary district, sewer district, water district, fire protection district, drainage improvement district, drainage and diking improvement district, flood control zone district, irrigation district, metropolitan park district, drainage district, public utility district engaged in water distribution, or water distribution district."
            The commissioners of housing authorities, under the tests of State ex rel. Brown v. Blew, supra, are undoubtedly public officers.  The housing authority is initially formed by a city and its commissioners, in the case of a city, are appointed by the mayor.  However, after its creation, a housing authority functions as an independent body, its commissioners serve for terms and are removable only for cause, and the housing authority's territorial jurisdiction is not even limited to that of the city for which it is created.  See, RCW 35.82.020 ‑ 35.82.070.

            Therefore, having found no statutory or common law principle which would disqualify a commissioner of a housing authority from membership on a boundary review board, we conclude that there is no imcompatibility between those offices and that the same individual may legally hold both.
            We trust the foregoing will be of assistance to you.
Very truly yours,
Robert F. Hauth
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/To be appointed by the governor ‑ hence your concern with these questions of eligibility.
2/These elements are explained in a letter dated February 2, 1959, by this office to Messrs. Houghton, Cluck, Coughlin and Henry, attorneys for a public utility district, following an examination report by the state auditor.  A copy of that letter is enclosed for your reference.
3/See, RCW 36.93.020.
4/An argument could be made, from the wording of portions of RCW 36.93.050, that the legislature showed therein an intention to override the common law doctrine of incompatibility and expressly permit members of the governing bodies of included municipal corporations to be simultaneously members of boundary review boards.  A similar result was accomplished by the legislature in amending RCW 53.12.080, following the opinion of this office that the positions of commissioner and secretary of a fire protection district were incompatible.  AGO 59-60 No. 157 [[to Prosecuting Attorney, Franklin County on November 10, 1960]], a copy of which is enclosed.  However, the language in question in RCW 36.93.050 (providing for the appointment of members by the governor from "nominees of each special purpose district . . .") does not sufficiently evidence that intention so as to warrant an overriding of the necessary common law doctrine of incompatibility.  In our opinion what the legislature intended was merely that these special purpose districts, like mayors and individual members of the board of county commissioners who are also similarly empowered, nominate qualified persons other than themselves.