AGO 1963 No. 66 - Oct 18 1963
OFFICES AND OFFICERS ‑- COUNTY ‑- SHERIFF ‑- CIVIL DEFENSE DIRECTOR ‑- OFFICES NOT INCOMPATIBLE ‑- COMPENSATION
(1) The offices of county sheriff and civil defense director are not incompatible.
(2) A sheriff who also holds the office of civil defense director may receive compensation for said office in addition to his regular salary as sheriff.
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October 18, 1963
Honorable R. A. Hensel
Cite as: AGO 63-64 No. 66
By letter previously acknowledged you have requested the opinion of this office on the following questions:
(1) Are the offices of county sheriff and local civil defense director incompatible?
(2) In the event of a negative answer to question (1) would it be permissible to pay a sheriff who also acts as civil defense director compensation in addition to his regular salary as sheriff?
We answer question (1) in the negative; question (2) in the affirmative.
There are no constitutional or statutory provisions expressly declaring the offices of county sheriff and local director of civil defense incompatible. This fact, however, is not dispositive of the question.
It is a well established common-law principle that a public officer could not hold two incompatible offices. 42 Am.Jur., Public Offices, § 59. Offices may be incompatible by virtue of their nature, and/or in the rights, duties or obligations connected with them. Incompatibility arises, therefore, from a subordination of offices, where either has [[Orig. Op. Page 2]] power of removal over the other; or, where public policy prohibits a dual performance by one individual. 3 McQuillin, Municipal Corporations, § 12.67 pp. 298-299 (3rd ed. rev. 1963); AGO 59-60 No. 11 [[to Prosecuting Attorney, Wahkiakum County on February 16, 1959]].
The rationale of the incompatibility rule is succinctly set forth in McQuillin on Municipal Corporations as follows:
". . . Public policy demands that an office holder discharge his duties with undivided loyalty. The doctrine of incompatibility is intended to assure performance of that quality. Its applicability does not turn upon the integrity of the person concerned or his individual capacity to achieve impartiality, for inquiries of that kind would be too subtle to be rewarding. The doctrine applies inexorably, if the offices come within it, no matter how worthy the officer's purpose or extraordinary his talent. . . ." 3 McQuillin, Municipal Corporations, § 12.67 (3rd ed. rev. 1963) pp. 294-295.
This rule was commented upon in Kennett v. Levine, 50 Wn.2d 212, 216, 217, 310 P.2d 244 (1957), as follows:
". . . 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 (1890), 268 § 422. Or, as was said in Barkley 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.'
[[Orig. Op. Page 3]]
"The question of what is compatible and what is incompatible is often difficult of solution, and the principles upon which its solution depends cannot always be stated with exactness. Throop on Public Officers (1892), 37, § 33. This must of necessity be so, inasmuch as what public policy should be, and what is, detrimental to the public interest may, in many instances, be subject to a legitimate difference of opinion."
A county sheriff is an elected county officer. RCW 36.16.030. His salary is fixed by RCW 36.17.020. His powers and duties are provided for generally in RCW 36.28.010, which reads as follows:
"The sheriff is the chief executive officer and conservator of the peace of the county. In the execution of his office, he and his deputies:
"(1) Shall arrest and commit to prison all persons who break the peace, or attempt to break it, and all persons guilty of public offenses;
"(2) Shall defend the county against those who, by riot or otherwise, endanger the public peace or safety;
"(3) Shall execute the process and orders of the courts of justice or judicial officers, when delivered for that purpose, according to law;
"(4) Shall execute all warrants delivered for that purpose by other public officers, according to the provisions of particular statutes;
"(5) Shall attend the sessions of the courts of record held within the county, and obey their lawful orders or directions;
"(6) Shall make complaint of all violations of the criminal law which shall come to their knowledge within their jurisdiction;
"(7) May call to their aid such persons or power of their county as they deem necessary [[Orig. Op. Page 4]] to keep and preserve the peace of the county and quiet and suppress all affrays, riots, unlawful assemblies, and insurrections, and to apprehend or secure any person for felony or breach of the peace.
"The county is not responsible for the acts of the sheriff."
RCW 38.52.010 contains the following comprehensive definition of civil defense:
"As used in this chapter:
"'Civil defense' means the preparation for and the carrying out of all emergency functions, other than functions for which the military forces are primarily responsible, to minimize and repair injury and damage resulting from disasters caused by enemy attack, sabotage, or other hostile action, or by fire, flood, storm, earthquake, or other natural causes. These functions include, without limitation, fire fighting services, police services, medical and health services, rescue, engineering, air raid warning services, communications, radiological, chemical and other special weapons defense, evacuation of persons from stricken areas, emergency welfare services, emergency transportation, existing or properly assigned functions of plant protection, temporary restoration of public utility services and other functions related to civilian protection, together with all other activities necessary or incidental to the preparation and for carrying out of the foregoing functions.
"'Local organization for civil defense' means an organization created in accordance with the provisions of this chapter by state or local authority to perform local civil defense functions.
"'Mobile support unit' means an organization for civil defense created in accordance with the provisions of this chapter by state or local authority to be dispatched by the governor to supplement local organizations for civil defense in stricken areas.
[[Orig. Op. Page 5]]
"'Political subdivision' means any county, city or town.
"'Civil defense worker' means any person who is registered with a state or local civil defense organization and holds an identification card issued by the state or local civil defense director for the purpose of engaging in authorized civil defense service or is an employee of the state of Washington or any political subdivision thereof who is called upon to perform civil defense service.
"'Civil defense service' means and includes all activities authorized by and carried on pursuant to the provisions of the Washington civil defense act of 1951, including training necessary or proper to engage in such activities.
"'Injury' as used in this chapter shall mean and include accidental injuries and/or occupational diseases arising out of civil defense service."
RCW 38.52.070 provides that each local organization for civil defense shall have a director who shall be appointed by the executive head of the political subdivision. The local director is charged with the responsibility for implementing a civil defense program within his area in accordance with the general framework established in RCW 38.52.010,supra.
When the above statutes are compared, it becomes apparent that there are no areas of conflict. Neither officer has power of removal over the other; one is not subordinate to the other; and the nature and duties of the two offices are not such, in the opinion of this office, as to render a dual performance by one individual contrary to public policy.
As RCW 36.28.010 indicates, the sheriff is the chief executive officer of the county whose primary responsibility is the preservation of public order.
The concept of civil defense, on the other hand, embraces a new and entirely distinct area of authority and responsibility.
Reference to RCW 38.52.010, supra, shows that such duties as fire fighting, health services, welfare services, etc., all contribute to the makeup of a governmental function which differs in purpose and performance from that of county sheriff.
All factors having been considered it is the opinion of this office that a county sheriff may also act as local director of civil defense.
[[Orig. Op. Page 6]]
With regard to the question of whether or not a sheriff who also performs additional duties of civil defense director may be granted compensation in addition to his regular pay as sheriff, we must consider a specific constitutional provision pertaining to the increase or decrease in salary of public officers.
A sheriff is a public officer who is elected for a term certain at a stated salary and therefore his salary cannot be increased or diminished during the term for which he is elected. Article II, § 25, as amended by Amendment 35; Article XI, § 8, Washington State Constitution. This constitutional provision is applicable only where there is an increase in compensation and the duties and functions remain the same. See, letter written to Division of Municipal Corporations dated July 27, 1942, and letter written to the Board of County Commissioners, Mason County, dated February 18, 1942, copies of which are enclosed.
In 43 Am.Jur. 151, § 364, the following is found:
"The law does not, of course, forbid extra compensation for extra services which have no affinity or connection with the duties of the office. Where the duties newly imposed upon the officer are not merely incidents of and germane to the office, but embrace a new field, and are beyond the scope and range of the office as it theretofore existed and functioned, the incumbent may be awarded extra compensation for the performance of such duties without violating a constitutional inhibition against increase of salary during the term. . . ."
The duties of the director of civil defense are for all practical purposes separate and distinct from those of the county sheriff. RCW 36.28.010; RCW 38.52.010. While there may be areas of debatable overlapping, the overall purpose, function and duties related to civil defense embrace a new field, and constitute an essentially different and additional sphere of authority and responsibility.
The sheriff is not required by virtue of his office or by the civil defense statutes to actively participate in civil defense activities. Consequently, by assuming the compatible office of civil defense director he is functioning outside the scope of his elective office and is not prohibited from receiving additional compensation. See, also, AGO 51-53-230 [[to Wally Carmichael, State Representative on January 28, 1952]]. also, AGO 51-53-230.
[[Orig. Op. Page 7]]
In reaching this conclusion, we are not unmindful of RCW 36.17.010, which provides:
"The county officers of the counties of this state, according to their class, shall receive a salary for the services required of them by law, or by virtue of their office, which salary shall be full compensation for all services of every kind and description rendered by them."
However, we are satisfied that this statute does not prohibit a county officer from holding two separate offices and receiving the salary attached to each.
We trust that the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
Assistant Attorney General