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AGLO 1971 No. 77 -
Attorney General Slade Gorton

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                                                                   June 11, 1971
Honorable Jack Metcalf
State Senator, 21st Dist.
7421 46th West
Mukilteo, Washington 98275                                                                    Cite as:  AGLO 1971 No. 77 (not official)
Dear Sir:
            By letter previously acknowledged you have requested the advice of this office concerning the general authority of a noncharter code city, operating under the mayor-council form of government, to adopt a code of ethics for the conduct of its officers.  Secondly, you have also asked that we consider the validity of several specific regulatory provisions of such a code which you have described as follows:
            "1. Elected and appointed officials, ethics and conflicts of interest
            "a. Prohibiting appearance before any local board or commission of the city on his own behalf or on behalf of a client on a matter in which he may have a personal interest.
            "b. Prohibit the seeking of inside information for personal gain.
            "c. Disqualification of an elected official from voting, or expressing an opinion, of a matter concerning a person or group which contributed over a stated per cent of the elected official's total campaign expense in money or material.
            "d. Disqualification for other specifically stated possible conflicts of interest such as voting on rezones involving areas in which the elected official may have land or may have a similar regulated use in another geographical area within the city.
             [[Orig. Op. Page 2]]
            "2. Additional qualifications for elected officials
            "a. File a list with the city clerk of all property, real, personal and intangible (not stating the dollar amount), including such things as bank accounts and corporate stock, in which he or his family has a financial interest.
            "b. File with the city clerk a state [sic] of his principal place of employment and sources of income from commissions, gratuities, special treatment of concessions from any individual, group or corporation doing business with or contemplating doing business with the city (not necessarily stating the dollar amount).
            "c. Requiring that the above‑referenced list be maintained on a current basis during the term of office of the elected official.
            "d. Filing with the city clerk a list of campaign contributors in both the primary and general elections including the dollar amount of each campaign contributor over a specified minimum amount.
            "e. In the event of failure to file any of the foregoing lists, or keep them current within a specified period of time, or the failure to disclose the specifically stated conflicts of interest, the dismissal of the elected official upon a vote of a majority of the city council following proof of the errant elected official at a public hearing before the city council upon written charges."
            Question (1):
            In answer to your first question, it is our opinion that every noncharter code city does have the authority by ordinance to adopt a code of ethics for its officers, to the extent that such code does not conflict with any constitutional or statutory provision.  That type of regulation is undoubtedly within the police power of a city to adopt under Article XI, § 11 of the Washington state constitution, providing as follows:
            "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."
             [[Orig. Op. Page 3]]
            In addition, RCW 35A.11.020 provides in pertinent part as follows:
            "The legislative body of each code city shall have power to organize and regulate its internal affairs within the provisions of this title and its charter, if any; and to define the functions, powers, and duties of its officers and employees; . . . may adopt and enforce ordinances of all kinds relating to and regulating its local or municipal affairs and appropriate to the good government of the city, and may impose penalties of fine not exceeding five hundred dollars or imprisonment for any term not exceeding six months, or both, for the violation of such ordinances, constituting a misdemeanor or gross misdemeanor as provided therein.  The legislative body of each code city shall have all powers possible for a city or town to have under the Constitution of this state, and not specifically denied to code cities by law.  . . ."
            In view of this very broad constitutional and statutory language on the subject, we must conclude that the power of a noncharter code city to adopt such regulations as you have described is as broad as the power of the legislature itself ‑ except to the extent that the actual exercise of the city's power may conflict with a particular constitutional or statutory provision.  See, Winkenwerder v. Yakima, 52 Wn.2d 617, 328 P.2d 873 (1958).
            Our research discloses no state law with which the adoption of such a city code would conflict, as a general concept.  There are state laws governing the conduct of city officers and other officers, such as chapter 42.23 RCW; portions of chapter 42.22 RCW, and others.  However, there appears to be no legislative intention, generally, for the state to preempt the regulation of such conduct.  See, Seattle v. Long, 61 Wn.2d 737, 380 P.2d 472 (1963).
            Question (2):
            Therefore, our discussion progresses to the second portion of your request; namely, our opinion as to the validity of the specific proposed regulations described above.  From our examination thereof, we conclude that they all appear to be reasonable and that with one possible exception to be noted they are consistent with state statutes on the subject.
             [[Orig. Op. Page 4]]
            The possible exception we note involves proposal 2 (e); but even in that example the existence or nonexistence of a conflict would depend upon the actual wording of the regulation as it is finally enacted.  Our purpose at this point is merely to suggest caution in the drafting of it in order to avoid any such problem.
            Our concern is prompted by the fact that proposal 2 (e) deals with a remedy for violations of the proposed code; and there are some specific statutory provisions on that subject.  One of them, RCW 35A.11.020, supra, expressly authorizes a code city, for violation of its ordinances, to ". . . impose penalties of fine not exceeding five hundred dollars or imprisonment for any term not exceeding six months, or both, for the violation of such ordinances, constituting a misdemeanor or gross misdemeanor as provided therein.  . . ."  In addition, RCW 35A.12.060 (not previously quoted) provides as follows:
            "A mayor or councilman shall forfeit his office, creating a vacancy, if he ceases to have the qualifications prescribed for such office by law, charter, or ordinance, or if he is convicted of a crime involving moral turpitude or an offense involving a violation of his oath of office.  A councilman shall also forfeit his office if he fails to attend three consecutive regular meetings of the council without being excused by the council."
            There is a notable exception to the power of a city to enact legislation on subjects which are also the subject of state statute.  Even the broad power of a city to adopt police regulations under Article XI, § 11 of the Washington state constitution has been held to cease when the state enacts a general law upon the particular subject, unless there is room for concurrent jurisdiction, a matter which depends upon the legislative intent to be derived from an analysis of the statute involved.  Lenci v. Seattle, 63 Wn.2d 664, 388 P.2d 926 (1964).  In other words, a city ordinance may prohibit or punish the same acts which constitute an offense under state laws, provided the state enactment does not show upon its face that it was intended to be exclusive.  State v. Lundquist, 60 Wn.2d 397, 374 P.2d 246 (1962).
            Our examination of RCW 35A.11.020 and RCW 35A.12.060, leads us to believe that the penalties and causes of forfeiture described in those statutes were meant to be exclusive.  In the first of those two statutes, the legislature has expressly declared that a code city may impose certain specific penalties for violations of its ordinances; namely, fines and/or imprisonment.  In addition, in a code city with a mayor-council form of government (the type of entity described in your request),  [[Orig. Op. Page 5]] the legislature by the second statute has prescribed the causes for forfeiture of office.  The implication in that statute is that unless and until one of those specified causes occurs, a mayor or councilman shall have the right to continue in office.  Those causes include:  (1) Ceasing to have the qualifications prescribed for office; (2) the commission of a crime involving moral turpitude or a violation of the officer's oath of office; (3) the unexcused failure to attend three consecutive regular meetings.
            To the extent that proposal 2 (e) would result in a forfeiture of office on the part of an officer who failed to meet properly prescribed "qualifications" for office (e.g., the filing of appropriate statements before taking office) such a regulation would appear to be in conformity to that statute.  However, such a regulation should not attempt to prescribe as a sanction for the violation of purely regulatory provisions, the dismissal of the offending elected official without regard to his actual intent or any bad faith on his part.  To be consistent with the statute, the regulation should extend that penalty only to such a violation as would also constitute ". . . a crime involving moral turpitude or an offense involving a violation of his oath of office . . ." in the language of RCW 35A.12.060, supra.
            For that reason, it would probably be most appropriate for the regulation simply to declare that an intentional violation of the code would be a misdemeanor (or gross misdemeanor), leaving the ultimate effect of such a violation to a determination under state law.  Whether or not such a violation would also be a cause for forfeiture of office would depend upon the factual nature of the offense actually committed ‑ a determination to be made at that time.  However, in all probability any intentional violation of such a code of ethics would be held to constitute a "crime involving moral turpitude."  Certainly it would constitute a violation of the offender's oath of office to perform his duties faithfully, if such an oath is required.1/

             We trust the foregoing will be of assistance to you.
Very truly yours,
Robert F. Hauth
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/Under RCW 35A.12.080, every officer of a code city operating under the mayor-council form of government ". . . may be required to take an oath or affirmation as prescribed by charter or by ordinance for the faithful performance of his duties.  . . ."