AGO 1949 No. 184 - Dec 20 1949
MEMBERS OF STATE LEGISLATURE BECOMING CANDIDATES FOR ELECTIVE POSITIONS IN CITIES
State law does not restrict the right of present senators and representatives from becoming candidates for elective positions in cities, but city charters might contain some restrictions.
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December 20, 1949
Honorable R. E. Morris
Representative, 32nd District
4729 Roosevelt Way
Seattle 5, Washington Cite as: AGO 49-51 No. 184
We have your letter of November 28, 1949, in which you ask the following question:
May members of the State Senate and House of Representatives become candidates for a city office?
The conclusions reached may be summarized as follows:
State law does not restrict the right of present senators or representatives from becoming candidates for elective positions in cities, but city charters might contain some restriction.
You ask for a clarification of the law regarding state senators and representatives being candidates for city office. First, permit the following general observation.
Section 13, Article II of the Washington State Constitution provides:
"No member of the legislature during the term for which he is elected shall be appointed or elected to any civil office in the state which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected."
[[Orig. Op. Page 2]]
InState ex rel. Pennick v. Fall, 25 Wn. (2d) 172, 173 P. (2d) 153, this section was held to bar a member of the legislature, which increased the annual salaries of county officers, from being a candidate for county auditor at the election of 1946, although the term of office of such member would have expired on the same day as the term of office of the county auditor, who would be elected at the time of election in 1946, would commence.
We know of no law passed at either of the legislative sessions in 1947 or 1949 which affected either the emoluments of city or township officers or the creation of the position of city or town civil officials. Therefore, at the present time, section 13, Article II, of the Constitution has no application to your inquiry.
We know of no court decision in this state on the question of whether the offices of elective city officials and of members of the state legislature are incompatible. We have issued no opinion on the question. A mere physical incompatibility is not incompatibility at law. That is to say, the mere inability of an officer at all times to efficiently discharge the duties of one or of both of the offices does not amount to incompatibility within legal contemplation. Ops. Atty. Gen. 1911-12, p. 228.
We know of several instances where elected city officials have served as members of the legislature during the terms of their respective city positions, and as far as we are aware, without any challenge to their right to hold both a city elective office and the office of member of the state legislature. It would therefore seem that at the present time members of both the present State Senate and State House of Representatives may become candidates for a city office.
The above expresses what we believe is the law of the state on the subject under discussion. Possibly some provision in some city charters adopted under the various state laws for the adoption of city home rule charters contain provisions which would be a bar to a member of the [[Orig. Op. Page 3]] state legislature becoming a candidate for or qualifying as an elective city official in such city. Since we have no official knowledge as to such charters, we express no opinion thereon.
Possibly you may have in mind the case of State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P. (2d) 94. In that case, Griffiths, while holding office as a school director in King County School District No. 1, became a candidate for and was elected to the office of city councilman in the city of Seattle. He qualified for such office and announced that he would hold both offices -school director and city councilman. Section 13, Article XIX of the charter of the city of Seattle provided in part:
"No head of department or other elective or appointive officer, councilman or member of any board, commission or bureau, created by or under this charter, except policemen or firemen, shall hold any other offices, federal, state, county or municipal, except in the National Guard or as a notary public. * * *"
A decree prohibiting Griffiths from holding the office of councilman unless he should resign or retire from the office of school director was affirmed. If the city of Seattle or any other of the home rule charter cities still has the same or a similar provision in its charter, then any member of the state legislature would probably be required to resign or retire as such state legislator before he could take or hold the office in the city to which he had been elected.
Very truly yours,
Assistant Attorney General