AGO 1978 No. 12 - Apr 25 1978
OFFICES AND OFFICERS ‑- CITY ‑- MAYOR ‑- POST COMMISSIONER ‑- INCOMPATIBLE PUBLIC OFFICES ‑- SIMULTANEOUS SERVICE AS MAYOR OF FOURTH CLASS CITY AND PORT DISTRICT COMMISSIONER
(1) Because of the common law doctrine of incompatible public offices, the same individual may not simultaneously serve as a port district commissioner and as mayor of a town (fourth class city) which is situated entirely within the boundaries of such a district.
(2) Unless an individual who is so serving voluntarily resigns from one or the other of the two incompatible public offices, he will be vulnerable to ouster, from one or the other, by court action; however, based upon the de facto officer doctrine, even though the simultaneous holding of the two offices here in question is not permissible, this does not mean that the past actions of the individual involved in the position which is not retained would thereby be null and void.
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April 25, 1978
Honorable Frank Hansen
State Representative, 13th Dist.
Star Route, Box 73
Moses Lake, Washington 98837
Cite as: AGO 1978 No. 12
By letter previously acknowledged you requested our opinion on certain questions which we paraphrase as follows:
(1) Does the doctrine of incompatible public offices prohibit the same individual from simultaneously serving as a port commissioner and as mayor of a town (fourth class city) which is situated entirely within the boundaries of such a district?
[[Orig. Op. Page 2]]
(2) If the simultaneous holding of such offices is illegal, may the individual in question choose which office he or she may retain, or how is the retained office to be determined?
(3) If the simultaneous holding of such offices is illegal, are the past actions of the official in the position which is not retained, which actions were done while he or she simultaneously held both offices, null and void?
We answer your first question in the affirmative, your third question in the negative and your second in the manner set forth in our analysis below.
At the outset, we note that there is no existing statutory prohibition against simultaneous service, by the same individual, as a member of the board of commissioners of a port district and as mayor of a town (fourth class city) which is situated within such a district. The problem that we see is, instead, one which arises by reason of the common law doctrine of incompatible public offices and we have thus paraphrased your question accordingly. As explained in the leading Washington case of Kennett v. Levine, 50 Wn.2d 212, 310 P.2d 244 (1957):
". . . 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.
"Offices are incompatible when the nature and duties of the offices are such as to render it improper, from consideration of public policy, for one person to retain both. State ex rel. Klick v. Wittmer (1914), 50 Mont. 22, 144 Pac. 648; State ex rel. Nebraska Republican State Central Committee v. Wait (1912), 92 Neb. 313, 138 N.W. 159; State v. Anderson (1912), 155 Iowa 271, 136 N.W. 128; Mechem on Public Officers [[Orig. Op. Page 3]] (1890), 268 § 422. Or, as was said inBarkley v. Stockdell (1933), 252 Ky. 1, 66 S.W. (2d) 43:
"'The question [of incompatibility] is . . . whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest.'"
Clearly, both of the positions with which we are here concerned (mayor and port commissioner) are public offices.1/ The issue, therefore, is whether there exists such a relationship between those two offices, under the circumstances described in your letter, as to render them incompatible. Our answer, as above indicated, is in the affirmative.
Incompatibility as between public offices can arise under various circumstances. But basically, there are two different kinds of cases to be noted. The first of these involve offices which are both within the same public agency ‑ one of which, however, is subordinate to the other. See,e.g., [[Orig. Op. Page 4]] AGO 59-60 No. 157 [[to Roger L. Olson, Prosecuting Attorney of Franklin County, on November 10, 1960]], copy enclosed, in which this office concluded that the positions of commissioner of a fire protection district and secretary of the same district were incompatible because of the fact that, under RCW 52.12.080, the secretary of the district is to be appointed by the commissioners and is to perform ". . . such . . . duties as shall be prescribed by the board or by law. . . ."2/
Conversely, in the other context in which incompatibility can arise the two offices in question are (as here) in separate, or different, public agencies but there exists such an interrelationship between those agencies as to render the two positions incompatible. For a previous example of this latter application of the doctrine we would refer you to AGO 65-66 No. 7 [[to R.A. Hensel, Prosecuting Attorney of Douglas County, on February 9, 1965]], a copy of which is also enclosed, where we concluded that in a county in which federal forest funds are dispersed to the school districts therein the offices of county commissioner and school district director are incompatible.
While it is possible, in the multiple agency situation, that incompatibility can arise as a consequence of an existing contractual relationship between the two agencies, as well as because of some statutory interrelationship, it is the considered judgment of this office that the mere possibility of future contracts is not, by itself, sufficient to bar a person from simultaneously holding offices in both agencies. See,e.g., our recent letter opinion of October 17, 1977, to State Representative Earl Tilley, copy enclosed, regarding the positions of (a) school director and (b) city attorney of a city located within the particular school district. Therefore, in the instant case, we likewise do not rely upon the [[Orig. Op. Page 5]] mere possibility that the port district and city involved may, from time to time, do business with each other to sustain our conclusion that the two positions in question are incompatible. We should caution, however, that even if we were not to reach that conclusion for the further reason which we will next explain, the validity of given contracts between the port district and the city involved could well be affected, under such statutes as RCW 42.23.010, et seq., by the dual office‑holding situation here at issue.
What, then, is the source of the problem, insofar as the doctrine of incompatible public offices is concerned, in this case? Basically, it stems from two separate but interrelated sources; namely, our state supreme court's ruling some eight years ago in Edmonds Sch. Dist. v. Mountlake Terrace, 77 Wn.2d 609, 465 P.2d 177 (1970) and the legislature's ensuing enactment, in 1974, of RCW 19.27.010,et seq., commonly referred to as the state building code. As a result of (a) that case and (b) the subsequent, cited, legislation, it is now clear that to the extent they are territorially situated within the boundaries of an incorporated city or town, the various public port districts in our state are now subject to both the zoning codes and the building codes of those municipalities. They thus may make only such use of lands owned by them within those municipalities as is permitted by the zoning ordinances of the latter ‑ and they may only construct their necessary buildings or other structures upon those lands in accordance with the applicable building codes.
There remains one further issue to be considered, and that is the role of the mayor in the legislative process of the particular class of city involved;i.e., here a fourth class city, commonly known as a town. Under RCW 35.27.290 the mayor of such a city presides over meetings of the council and votes in case of a tie. The mayor also signs ordinances, by virtue of RCW 35.27.290. In our opinion, these factors give the mayor a sufficiently close connection with the adoption of zoning and building codes by the town to give rise to an incompatibility of the nature we have described; and it is for that reason, in summary, that we must answer your first question, as above paraphrased, in the affirmative.
Questions (2) and (3):
Having so concluded we turn, briefly, to your other two questions. First, of course, it is clear that the individual in question may readily solve the problem by voluntarily [[Orig. Op. Page 6]] resigning from one, or the other, of the two offices. The choice as to which office he will continue to hold and which he will thus resign is entirely up to him. However, unless he voluntarily resigns from one office or the other he will be vulnerable to ouster, from one or the other, by court action ‑ in which case the choice between the two offices will no longer be his.
As for your third question, we would refer you to another well-established common law doctrine which has been recognized by the courts of our state and is known as the de facto officer doctrine. See,e.g.,State v. Franks, 7 Wn.App. 594, 501 P.2d 622 (1972) and cases cited therein. In essence, this doctrine serves to validate the acts of de facto offices as to the public and third persons on the ground that, although not officers, de jure, they are, by virtue of the particular circumstances, officers in fact whose acts of public policy required should be considered valid. Accordingly, based on this principle we answer your third question in the negative ‑ which is to say that even though (in our opinion) the simultaneous holding of the two offices here in question is not permissible this does not mean that the past actions of the individual involved in the position which is not retained would thereby be null and void.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
JAMES K. PHARRIS
Assistant Attorney General
*** FOOTNOTES ***
1/The five requisites of a public office, which distinguish such a position from a mere employment, were most recently set forth in Oceanographic Comm'n v. O'Brien, 74 Wn.2d 904, 909, 447 P.2d 707 (1968) as follows:
"'. . . 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.'"
2/This particular case, which came before the attorney general's office in 1960, also illustrates the legal significance of the common law doctrine of incompatible public offices in terms of the authority of the legislature to override that doctrine by statute. Subsequent to the issuance of AGO 59-60 No. 157 [[to Roger L. Olson, Prosecuting Attorney of Franklin County, on November 10, 1960]],supra, the legislature expressly amended RCW 52.12.080 in such a manner as to permit a board of fire commissioners to appoint one of its own members as secretary of the district. See § 2, chapter 112, Laws of 1965.