Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1972 No. 85 -
Attorney General Slade Gorton

- - - - - - - - - - - - -
                                                               November 30, 1972
Honorable John Martinis
State Representative, 38th District
2304 ‑ 8th Street
Everett, Washington 98201
                                                                                            Cite as:  AGLO 1972 No. 85 (not official)
Dear Sir:
            This is written in response to your request for our opinion with respect to the eligibility of various local governmental elected officials to serve as members of a board of freeholders convened under Article XI, § 4 (Amendment 21) of the state Constitution to prepare and propose a county "home rule" charter.  You have specifically identified the following local officials as being within the ambit of your question:
            ". . . mayors and councilmen of cities, county commissioners, port district commissioners, and commissioners of sewer, water and fire districts."
            Article XI, § 4 (Amendment 21) of our state Constitution delineates the procedures by which any county in this state may frame a "home rule" charter.  Basically, these procedures involve, first, the selection of a board of "freeholders" to frame and propose such a charter; and, secondly, the submission of the proposed charter to the voters of the county for their approval or disapproval.
            These procedures may be initiated either by the legislative authority (e.g., county commissioners) of the county or by petition signed by ". . . registered voters equal in number to ten (10) percentum of the voters of . . . such county voting at the last preceding general election, . . ."  However, regardless of whether the procedures to elect a board of freeholders are initiated by the legislative authority of the county or by petition of the voters, the actual election of these persons is governed by the following constitutional language:
             [[Orig. Op. Page 2]]
            ". . . [At the freeholders] election there shall be chosen by the qualified voters of said county not less than fifteen (15) nor more than twenty-five (25) freeholders thereof, as determined by the legislative authority, who shall have been residents of said county for a period of at least five (5) years preceding their election and who are themselves qualified electors, . . ."
            Before proceeding to address ourselves, directly, to the question which you have posed, we should call your attention to the recent decision of the Washington State Supreme Court in the case of Sorenson v. Bellingham, 80 Wn.2d 547, 496 P.2d 512 (1972).  In this case, the supreme court specifically invalidated an identical requirement of Article XI, § 10 of the state Constitution calling for freeholder status (i.e., the ownership of property) within a city in order to serve on a board convened to frame or amend a city charter.  The court held this requirement to be in violation of the equal protection clause of the 14th Amendment to the United States Constitution.  Based upon this decision, we have since advised the prosecuting attorney of San Juan county (by opinion dated August 4, 1972, copy enclosed) that a requirement of property ownership may, likewise, no longer be enforced with respect to the eligibility of persons to serve on a board of county freeholders under Article XI, § 4 (Amendment 21), supra.  In so advising we said:
            "Even though this decision dealt with Article XI, § 10 rather than Article XI, § 4 (Amendment 21), supra, we can see no basis for distinguishing the two provisions and thereby limiting the applicability of the decision to cases involving city charters only.  . . ."
            This leaves, then, as the only remaining constitutional qualification for service on a board of county freeholders the requirement that a candidate for this office have been a resident of the county for a period of at least five years ‑ and as indicated in another prior opinion written on July 14, 1970, to former State Representative Arlie U. DeJarnatt (copy enclosed), these five years of residence need not be consecutive.  In so concluding we relied, in part, upon a principle which is of equal applicability here; namely, that
            "'A strong public policy exists in favor of  [[Orig. Op. Page 3]] eligibility for public office, and the constitution, where the language and context allows, should be construed so as to preserve this eligibility.  State ex rel. Weston v. Schragg, 158 Wash. 74, 291 Pac. 321 (1930).  . . .'"
            Unquestionably, the members of a board of county freeholders are "public officers" for the purposes of this rule, for our court has held that persons holding these positions possess all of the elements of the judicially determined definition of the term "public officer" which has evolved from many court decisions over the years.  See, Fitts v. Gibbs, 40 Wn.2d 444, 244 P.2d 241 (1952).  This leads us, then, to the question of whether, by virtue of being "public officers," any of the local governmental elected officials to whom you have referred would be disqualified from service on a board of county freeholders by virtue of eligibility standards to be found elsewhere than in Article XI, § 4 (Amendment 21), supra, itself.
            The first such possibility to be considered is that a particular local governmental elected official ‑ e.g., the mayor or councilmen of a certain city ‑ may be restricted by the governing provisions of his own city charter or ordinances from simultaneously serving in any other public office.  We are aware that such a restrictive provision is contained in the charter of the city of Seattle,1/ and, possibly, in those of certain other first class cities which have their own charters.  We would, therefore, suggest that the initial point to be explored by any city officer or other local governmental elected official, in terms of his eligibility to serve as a county freeholder, is that of whether the particular laws, charter provisions or ordinances governing his situation contain any prohibition against dual office holding.  An answer to this question, in any given case, should be readily available from the appropriate city attorney or other local legal counsel for the municipality involved.
            Beyond this possibility of the existence of  [[Orig. Op. Page 4]] restrictions in the particular statutes or ordinances governing a given local governmental office, the only remaining potential prohibition, in a given case, would be that arising by reason of the common-law doctrine of incompatible public offices.  Accord, Kennett v. Levine, 50 Wn.2d 212, 216, 310 P.2d 244 (1957); and 42 Am.Jur., Public Officers, § 59.  The full extent of this doctrine is explained in some detail in AGO 59-60 No. 157 [[to Roger L. Olson, Prosecuting Attorney, Franklin County, November 10, 1960]], copy enclosed, in which we quoted with approval from 3 McQuillin, Municipal Corporations (3rd ed.) 261, § 12.67 as follows:
            "'Incompatibility 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 render it improper from considerations of public policy for one person to retain both.  The true test is whether the two offices are incompatible to their natures, in the rights, duties or obligations connected with or flowing from them.'"
            We have examined all of the pertinent statutes and constitutional provisions governing each of the local governmental officials you have listed in light of the functions of a board of county freeholders under Article XI, § 4 (Amendment 21), supra, and are of the opinion that there would be no incompatibility, under this common-law doctrine, in the case of simultaneous service by a mayor or city councilman, or a port district commissioner, or the commissioner of a water, sewer or fire district as a member  [[Orig. Op. Page 5]] of a county board of freeholders under this constitutional provision.2/

             However, in the case of county commissioners, the situation is different.  Under Article XI, § 4 (Amendment 21), supra, these offices are subject to being abolished in the establishment of a "home rule" charter county ‑ precisely as was done in King county several years ago in the formation of its new governmental structure.  Therefore, we think it obvious that the doctrine of incompatibility, as described above, would be violated if a member of the board of commissioners of the subject county were to attempt to serve, simultaneously, as a member of a board of freeholders convened to frame and propose a county charter under Article XI, § 4 (Amendment 21).
            We trust that the foregoing will be of some assistance to you.
Very truly yours,
Philip H. Austin
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/See, Seattle City Charter, Article XIX, § 10.
2/At this point we should emphasize that we are answering your question only within the context of Article XI, § 4 (Amendment 21).  In all probability, a contrary answer would be required if we were here dealing, instead, with the service of these local governmental officials on a board of freeholders convened to prepare and propose a combined county-city governmental charter under Article XI, § 16 of the Constitution, as it was amended by H.J.R. No. 21, at the recent, November 7, 1972, general election.  Under this constitutional amendment, one of the functions to be performed by a board of freeholders in preparing and proposing a charter is that of determining whether, as a part of the governmental structure to be established under the charter, existing municipal corporations within the area are to be retained or otherwise provided for.  Accordingly, it seems evident that it would be incompatible for any of the elected officials of these "other" municipalities to serve on a board of freeholders convened under this constitutional amendment.