AGO 1973 No. 24 - Nov 29 1973
OFFICES AND OFFICERS ‑- CITY COUNCILMEN ‑- FIREMEN ‑- INCOMPATIBLE OFFICES ‑- CITY COUNCILMAN AND MEMBER OF A FIRE DEPARTMENT
Under present law of a city or town council may not simultaneously serve as a member of the volunteer fire department of his city or town because these two public offices are incompatible under the common-law doctrine applicable in the absence of a statute to the contrary; however, the enactment of Senate Bill No. 2989 (43rd Legislature) would permit a member of a city or town council simultaneously to serve in these dual capacities.
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November 29, 1973
Honorable Michael Mattingly
State Senator, 30th District
3818 S.W. Dash Point Road
Federal Way, Washington 98002
Cite as: AGO 1973 No. 24
By letter previously acknowledged you have requested an opinion of this office upon two questions which we paraphrase as follows:
(1) Under present law, may a member of a city or town council simultaneously serve as a member of the volunteer fire department of such city or town?
(2) If the answer to question (1) is in the negative, would the enactment of Senate Bill No. 2989 (43rd Legislature) permit a member of a city or town council simultaneously to serve as a member of the volunteer fire department of such city or town?
We answer your first question in the negative, and your second question in the affirmative, for the reasons which appear in our analysis below.
[[Orig. Op. Page 2]]
Before addressing ourselves directly to your questions let us make two preliminary points. First, our negative answer to question (1) is based upon the common-law doctrine of incompatible offices which applies in this state only in the absence of a statute to the contrary1/ - and not upon any present statutory prohibition. Thus, as we will note again in responding to your second question, this result can readily be altered by a grant of specific authorization from the legislature for city or town councilmen to serve, simultaneously, as members of their volunteer fire departments.
Secondly, while we have heretofore issued a formal opinion on the analogous question of whether afire protection district commissioner can simultaneously serve as a member of his district's volunteer fire department (see, AGO 61-62 No. 162 [[to Martin J. Durkan, State Senator on September 10, 1962]], copy enclosed, in which we likewise answered in the negative), we have not previously addressed ourselves in such an opinion to the immediate situation now before us. We point this out because of our awareness of the conflicting views on the question of incompatibility of the positions here involved that have been previously expressed, informally, by this office in two letters written during the early 1950's, which have occasionally been incorrectly referred to as attorney general's opinions. Neither of these two letters, however, were actually processed and issued as such ‑ inasmuch as they were both written in response to questions posed by persons other than those state officers (including legislators and prosecuting attorneys) who are entitled to request such opinions under the pertinent provisions of RCW 43.10.030. The first of them, a letter dated February 19, 1951, in which it was said that the positions of city councilman and volunteer fireman are incompatible, was written to a private citizen while the second, a letter dated January 24, 1954, in which a contrary conclusion was expressed, was written to a city attorney and not to a state officer.
[[Orig. Op. Page 3]]
That RCW 4.04.010,supra, at least impliedly incorporates the common-law doctrine of incompatible public offices has been recognized by the state supreme court inKennett v. Levine, 50 Wn.2d 212, 216, 310 P.2d 244 (1957), and by this office in numerous prior opinions. As stated in theKennett case,
". . . it has been long and universally recognized that no one should hold incompatible public offices. Throop on Public Officers (1892), 37, § 33;People ex rel. Ryan v. Green (1873), 5 Daly (N.Y.) 254, 46 How. Pr. 169."
An incompatibility under this doctrine is said to arise where,
". . . 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. . . ." 3 McQuillin, Municipal Corporations, § 12.67, pp. 298-299 (3rd ed. 1963.)
In determining whether the offices of city or town councilman and volunteer fireman are "incompatible," it will first be necessary to determine whetherboth are "public offices."
The elements of a "public office" are as stated in State ex rel. Brown v. Blew, 20 Wn.2d 47, 51, 145 P.2d 554 (1944), quoting from the earlier decision in State ex rel. McIntosh v. Hutchinson, 187 Wash. 61, 63-64, 59 P.2d 1117 (1936), as follows:
"'". . . (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 [[Orig. Op. Page 4]] 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 authority, and give an official bond, if the latter be required by proper authority."'"2/
Obviously, a member of the city council is a "public officer" within the meaning of the above test. The matter is so obvious, in fact, that it seems not to have been litigated in [[Orig. Op. Page 5]] this state, although there is clearly analagous authority extant. For example, it has been held that a commissioner of a port district is a "public officer." State ex rel. Port of Seattle v. Wardall, 107 Wash. 606, 183 Pac. 67 (1919). And, further, it is plainly implicit that the members of a city commission are "public officers" inState ex rel. Cornell v. Smith, 149 Wash. 173, 270 Pac. 306 (1928), aff'd on rehearing enbanc, 155 Wash. 422, 284 Pac. 796 (1930). We think that further citation of authority on this point would be repetitious.
We next consider whether a volunteer fireman is a "public officer" within the five tests ofState ex rel. Brown v. Blew, supra. Very early, although without specific reference to the authorities upon which the decisions inState ex rel. Brown v. Blew, and State ex rel. McIntosh v. Hutchinson, supra, were based, our supreme court ruled that a full-time fireman was a "public officer" and that a city, engaged in the operation of a fire department, was engaged in a "governmental" rather than a "proprietary" activity. Lynch v. City of North Yakima, 37 Wash. 657, 80 Pac. 79 (1905). In that case, the court made the following statement:
". . . The city, possessing, as it does, a portion of the sovereignty of the state, in the exercise thereof provides and maintains a fire department. The services of this department are for the benefit of all persons who may have property in the city limits capable of injury by fire. It would seem, therefore, that in creating, maintaining, and operating the fire department, the city was exercising governmental functions. This seems to have been the view entertained by the courts that have considered this subject. . . ." (Id., at 661-662.)
This doctrine has been upheld by the court as recently as Lakoduk v. Cruger, 48 Wn.2d 624, 658, 296 P.2d 690 (1956), andLakoduk v. Cruger, 47 Wn.2d 286, 289, 287 P.2d 338 (1955), and the above quotation appears most recently in Johnson v. Pease, 126 Wash. 163, 167, 217 Pac. 1005 (1923). There seem to be no indications subsequent to these cases that the court is any the less committed now than it was then to the view that a fireman is a public officer.
[[Orig. Op. Page 6]]
The above quotation is striking inasmuch as, and in spite of the fact that the five‑pronged test ofState ex rel. Brown v. Blew is not referred to in so many words, the court's words in Lynch v. City of North Yakima, supra, strikingly parallel those used in State ex rel. Brown v. Blew. Comparison of the two quotations will, we think, clearly demonstrate that the description of the operation of a fire department in the Lynch case adequately satisfies the first three tests ofBrown v. Blew. There, thus, remain but two additional criteria, derived from Brown v. Blew, to be considered in determining whether a volunteer fireman is a "public officer": These are; (a) the duties of the officer 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; and (b) the office must have some permanency and continuity and not be only temporary or occasional.
The first of these last remaining elements of the Brown v. Blew test is that the officer in question must exercise his powers independently; i.e., without the control of another officer. To this qualification there is an exception; namely, that an individual may be regarded as a "public officer" if the office he holds is ". . . 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." State ex rel. Brown v. Blew, supra, 20 Wn.2d 47 at page 51. A volunteer fireman, it must be said, does not exercise his powers independently but rather acts under the direction of a fire chief. While we have not had the occasion to examine the ordinances of any particular city or town on the question of what degree of control is to be exercised by the fire chief of that city or town, we believe it safe to assume that such control will prove to be of a general nature, as contemplated by the above‑quoted language fromBrown v. Blew,supra. In other words, the status of volunteer firemen as "public officers" is not diminished because of the fact that they serve under the direction of a superior officer.
Likewise, the second of these last two aspects of the Brown v. Blew rule may be satisfied, although it is seemingly the most difficult of all. The final requirement is that the office have some permanency and continuity and not be only temporary or occasional. At first blush, it might seem that there is nothing more "temporary or occasional" than a volunteer fireman. This does not seem to us to represent a [[Orig. Op. Page 7]] close enough analysis of the matter. The office of volunteer fireman is permanent and continuous, inasmuch as a volunteer fireman, no matter what his primary employment may be, is a volunteer fireman all of the time; although the occasions for performance of duty by him are only occasional, there is nothing temporary about his status as a fireman. In brief, a volunteer fireman is a volunteer fireman all of the time, although he is required to exercise his powers as a fireman only occasionally.3/
Upon the basis of the above analysis, we believe, then, that the positions of both city or town councilman and city or town volunteer fireman are "public offices" within the requirements which must be satisfied before application of the rule against "incompatibility" may be considered. Having established that both positions constitute "public offices," we shall now proceed to a consideration of the potential "incompatibility" of the two "public offices." Here, our analysis will proceed along lines comparable to those employed in AGO 61-62 No. 162,supra,4/ - although that opinion does not, in our view, emphasize the most obvious example of "incompatibility" imaginable; i.e., where one office is necessarily subordinate to the other. See, 3 McQuillin, Municipal Corporations, 297-299 (3rd ed. 1963), and authorities collected therein. And, we think it apparent [[Orig. Op. Page 8]] that no more clear instance of this "subordination" aspect of the "incompatibility" doctrine could be presented than one wherein one of the two offices is that of a member of the legislative body of a municipal corporation. Inasmuch as the legislative body of any municipal corporation is responsible for the enactment of the budget under which all of the municipal activities are to be conducted, responsible for the enactment of ordinances relative to salaries and working conditions, and, in brief, responsible for all of the governmental acts of the municipality, we believe that it is a sheer impossibility for one person to hold office as a member of the legislative body of a municipal corporation and simultaneously hold any other "public office" of the same municipality without giving rise to an instance of "incompatibility."
In addition, there is a further related problem to be noted. In the performance of their duties, as we have above observed, the members of a volunteer fire department are subordinate to their fire chief. Yet the chief, in turn, is subordinate to the mayor and council of his city. Thus, the presence of a member of the council within the fire department could well lead to at least some degree of subversion of the authority over the department which is supposed to be vested in the chief.
For these reasons we conclude, in response to your first question, that under the common-law doctrine of incompatible public offices which applies in this state in the absence of a statute to the contrary, a member of a city or town council may not simultaneously serve as a member of the city's or town's volunteer fire department.
Your second question assumes that answer to question (1) and proceeds, in effect, to ask whether the enactment of Senate Bill No. 2989 (43rd Legislature) would "cure" the "incompatibility" found to exist between the offices of city or town councilman and city or town volunteer fireman. We believe that it would.
Senate Bill No. 2989, as introduced during the 2nd extraordinary session of the 43rd Legislature, contains two substantive sections (in addition to an "emergency clause") which read as follows:
"NEW SECTION. Section 1. There is added to chapter 35.21 RCW a new section to read [[Orig. Op. Page 9]] as follows:
"Notwithstanding any other provision of law, the legislative body of any city or town, by resolution adopted by unanimous vote, may authorize any of its members to serve as volunteer firemen and to receive the same compensation, insurance and other benefits as are applicable to other volunteer firemen employed by the city or town.
"NEW SECTION. Sec. 2. There is added to chapter 35A.11 RCW a new section to read as follows:
"Notwithstanding any other provision of law, the legislative body of any code city, by resolution adopted by unanimous vote, may authorize any of its members to serve as volunteer firemen and to receive the same compensation, insurance and other benefits as are applicable to other volunteer firemen employed by the code city."
As we observed at the outset, the common-law doctrine of the "incompatibility" of public offices is incorporated into the laws of the state of Washington solely by virtue of the enactment of RCW 4.04.010, supra. Further, RCW 4.04.010 expressly states that the common law shall obtain in this stateonly ". . . so far as it is not inconsistent with the . . . laws . . . of the state of Washington . . . ." That is to say that the legislature may, by appropriate enactment, render any common-law doctrine inoperative in this state. Indeed, just this has been done in at least one instance of a perceived "incompatibility" before this. Following our issuance of AGO 61-62 No. 162, supra, in which we concluded that the commissioner of a fire protection district could not simultaneously serve as a member of the fire department of the district, the legislature enacted chapter 51, Laws of 1967, by which it amended RCW 52.12.010 to read as follows:
"The affairs of the district shall be managed by a board of fire commissioners composed of three resident electors of the district. The members may each receive not to exceed ten dollars per day or thirty dollars per month for attendance [[Orig. Op. Page 10]] at board meetings and for performance of other services in behalf of the district to be fixed by resolution and entered in the minutes of the proceedings of the board. In addition, they shall receive necessary expenses incurred in attending meetings of the board or when otherwise engaged on district business, and may participate in insurance available to all firemen of the district: Provided, That in any district which has a fire department employing personnel on a full time, fully paid basis, fire commissioners, in addition to expenses as aforesaid, may each receive not to exceed fifteen dollars per day or seventy-five dollars per month for attendance at board meetings and for performance of other services on behalf of the district to be fixed by resolution and entered in the minutes of the proceedings of the board.
"The board shall fix the compensation to be paid the secretary and all other agents and employees of the district. The board may, by resolution adopted by unanimous vote, authorize any of its members to serve as volunteer firemen without compensation. Only a commissioner actually serving as a volunteer fireman may enjoy the rights and benefits of a volunteer fireman. The first commissioners shall serve until after the next general election for the selection of commissioners and until their successors have been elected or appointed and have qualified." (Emphasis supplied.)
The underscored portion of this enactment is strikingly similar to the language employed in the two sections of Senate Bill No. 2989, supra. And, just as the amendment to RCW 52.12.010, supra, had the effect of removing the barrier of "incompatibility" to simultaneous service as a fire district commissioner and fire fighter, so would enactment of Senate Bill No. 2989 remove the "incompatibility" barrier [[Orig. Op. Page 11]] between simultaneous service as a city or town councilman and a city or town volunteer fireman which we found in responding to your first question. Accordingly, we answer your second question in the affirmative.5/
We trust the foregoing will be of assistance to you.
Very truly yours,
DONALD FOSS, JR.
Assistant Attorney General
*** FOOTNOTES ***
1/See, RCW 4.04.010 which provides that:
"The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state."
2/There is reason to believe that the definition of "public officer" contained in the quotation from State ex rel. Brown v. Blew, supra, does not actually include the requirements of filing an oath, holding a commission or other written authority, and giving an official bond, if required as stated in the last paragraph of the above quotation. In three of the four cases in which this definition has been referred to and quoted, this last sentence in the quotation has been simply omitted. Oceanographic Commission of Washington v. O'Brien, 74 Wn.2d 904, 909-910, 447 P.2d 707 (1968); State ex rel. O'Connell v. Yelle, 51 Wn.2d 620, 632, 320 P.2d 1086 (1958) (dissenting opinion): State ex rel. Hamblen v. Yelle, 29 Wn.2d 68, 76, 185 P.2d 723 (1947). And, in the one other case in which this quotation appeared in full, the requirements of the final sentence were ignored by the court in finding that "freeholders" elected to draft a "home rule" charterwere "public officers." Pitts v. Gibbs, 40 Wn.2d 444, 446-447, 244 P.2d 241 (1952). On the authority ofPitts v. Gibbs, supra, we think that we would be justified in ignoring the material in the last sentence of the above quotation fromState ex rel. Brown v. Blew,supra.
3/It may be noted in passing that the fireman in the case of Lynch v. City of North Yakima, 37 Wash. 657, 80 Pac. 79 (1905), in which our court first adopted the rule that a fireman is a "public officer," himself clearly satisfied the fourth aspect of the Brown v. Blew rule (inasmuch as he was subordinate to the fire chief, one Hauser), and in all probability satisfied the fifth aspect as well (inasmuch as the population of the City of North Yakima ‑ a city of the third class under § 715, Ballinger's Code, i.e., a city of less than 10,000 ‑ prior to 1905, may not have been large enough to require more than a full-time fire chief at most).
4/Holding that the offices of fire protection district commissioner and volunteer fireman for the district were incompatible.
5/That Senate Bill No. 2989 would go farther than the amendment to RCW 52.12.010 and authorize compensation to be paid to volunteer firemen is no argument against its effectiveness in removing the "incompatibility" barrier, since the payment of compensation is irrelevant to the question of "incompatibility." 3 McQuillin, Municipal Corporations, § 12.67, pp. 294-299 (3rd ed. 1963).