AGO 1962 No. 146 - Jul 18 1962
OFFICES AND OFFICERS ‑- STATE ‑- LEGISLATOR ‑- EMPLOYMENT ‑- POSITION COVERED BY STATE CIVIL SERVICE LAW ‑- LEAVE OF ABSENCE ‑- REINSTATEMENT REGISTER.
(1) A member of the 37th legislature may accept an office or employment covered by the state civil service law provided the position is not a public office created by the 37th legislature or a public office the emoluments of which were increased by the 37th legislature provided the office is not incompatible with the office of a legislator or creates a conflict of interest.
(2) A state employee or officer covered by the state civil service law may not engage in the management of partisan political campaigns, including his own, unless the campaign be one for a part-time public office in a political subdivision of the state. Resignation or termination must precede engagement in the management of a campaign for legislative office.
(3) A state employee who resigns his civil service position would be eligible for reinstatement provided he meets the requirements set forth in the merit system rule.
- - - - - - - - - - - - -
July 18, 1962
Honorable Robert Bernethy
State Representative, 39th District
Cite as: AGO 61-62 No. 146
You have requested an opinion of this office upon three questions which we paraphrase as follows:
1. May a member of the legislature accept a state position covered by the state civil service law (Initiative 207; chapter 1, Laws of 1961, now codified as chapter 41.06 RCW)?
2. May a state employee covered by the civil service law take a leave of absence to become a candidate for the legislature?
3. In the event the answer to question 2 is in the negative, may a state employee who terminates his employment to become a candidate for the legislature have his name placed upon a reinstatement register?
[[Orig. Op. Page 2]]
We answer questions 1 and 3 in the affirmative, subject to the various qualifications noted below; question 2 in the negative.
The answers to your questions do not depend alone upon the application of the state civil service law. There are other doctrines or provisions which alone may prevent a legislator from accepting a position covered by civil service. Therefore, we have considered not only the provisions of the state civil service law, but also the provisions of Article II, §§ 13 and 14, of the Washington State Constitution, the common-law doctrine of incompatible offices and statutes governing conflict of interest.
A.Article II, § 13, Washington State Constitution
Article II, § 13, 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."
The term "civil office" as used in Article II, § 13, has been interpreted to mean "public office,"State ex rel. McIntosh v. Hutchinson, 187 Wash. 61, 59 P. (2d) 1117 (1936). For the judicial definition of the term "public office" see, State ex rel. Brown v. Blew, 20 Wn. (2d) 47, 145 P. (2d) 554 (1944).1/
[[Orig. Op. Page 3]]
Thus, our office in AGO 45-46-196 [[1945-46 OAG 196 to State Auditor on June 5, 1945]], a copy of which is enclosed, held that Article II, § 13, did not bar a member of the legislature from accepting state "employment," in contrast to an "office," even though the position may have been created or the emoluments increased during the legislator's term of office.
Therefore, Article II, § 13, will not prevent a legislator from acceptingany state position as an "employee." However, it does prevent a legislator from accepting a position covered by the state civil service law if that position is a "public office" which was created or which had its emoluments increased during the term for which the member was elected to the legislature.
B.Article II, § 14, Washington State Constitution
Article II, § 14, provides:
"No person, being a member of congress, or holding any civil or military office under the United States [or any other power,] shall be eligible to be a member of the legislature; and if any person after his election as a member of the legislature, shall be elected to congress or be appointed to any other office, civil or military, under the government of the United States, [or any other power,] his acceptance thereof shall vacate his seat, provided, [that officers in the militia of the state who receive no annual salary, local officers and postmasters, whose compensation does not exceed three hundred dollars per annum, shall not be ineligible.]" (Brackets supplied.)
It is readily apparent that Article II, § 14, supra, does not apply to "employees"; it is concerned only with "officers," public and military. Thus this provision, like Article II, § 13, does not prevent a legislator from accepting a position as an "employee," covered by civil service. However, the question which this provision raises is whether the phrase "or any other power" relate to the state of Washington thereby preventing a legislator from acceptingany position which is a "public office." We conclude that it does not.
[[Orig. Op. Page 4]]
Our court has never specifically passed upon the question, and has only invoked this particular constitutional provision twice since its enactment in 1889. However, several cases have dealt with Article II, § 13, and under the facts of most of these cases § 14 would have been applicable if the phrase "or any other power" includes the state of Washington. Since the court in these cases did not consider this question, we can only conclude that (1) most lawyers feel the phrase does not apply to Washington public offices, but only to public offices of powers other than Washington, and (2) that the court has concluded without discussion that the phrase "or any other power" cannot include Washington or else § 14 would cover the same area as § 13 by prohibiting a legislator from holding any other public office in the stateregardless of whether its emoluments were increased or whether it was created during the term for which the legislator was elected.
Historical research seems to bear out this view. The constitutional convention of 1889 adopted the present Article II, § 14, originally in the same form as it is today. It was not taken from the earlier form adopted by the 1878 constitutional convention, but rather was adopted from Article IV, § 13, of the Wisconsin Constitution, to which was added the bracketed portions, as seen on page 3, supra, and from Article IV, § 20 of the California Constitution.2/
At the time the people of this state adopted their constitution, several states had specifically precluded public officers from being eligible for the legislature and vice versa. If the framers of our constitution had desired this result they would have more likely adopted such a provision than the one they did. The phrase which the framers added is indicative of the idea that they wished to go beyond Wisconsin but not to the point of states like Indiana and others which specifically say‑-"no person holding a lucrative office or appointment under the United States or under this state, shall be eligible to a seat in the general assembly."
The California constitutional provision, Article IV, § 20, from which Washington borrowed the proviso and also the phrase "or any other power" has been construed several times. Although no case has specifically construed the phrase "or any other power," several have used language indicating that it was not meant to include the state of California. For example, inMcCoy v. Board of Supervisors, 18 Cal. (2d) 193, 114 P. (2d) 569 (1941), is found the following language:
". . . Its primary object . . . is to prohibit [[Orig. Op. Page 5]] a conjunction of a federal and state office of profit in the same person, . . . that is, to prevent 'dual office‑holding by one person under two separate and distinct governments, . . .'" (Emphasis supplied.)
Similar language is found in People v. Leonard, 73 Cal. 230, 14 Pac. 853 (1887), where it is said:
"If the section in controversy can be so construed as to permit the holder of a civil office of profit under the state to be appointed to and hold at the same time a lucrative office under the United States, then the prime object of the members of the constitutional convention . . . the prevention of dual office‑holding by one person under two separate and distinct governments, . . . would be defeated, . . ." (Emphasis supplied.)
See, also, California Attorney General's opinion No. NS 5225, November 22, 1943, where it is said:
"A state officer may not accept a federal office but may accept federal employment which does not interfere with the exercise of his duties as a state officer. He is prohibited from accepting any position other than a state office if such position permits the exercise of some of the sovereign powers of government." (Emphasis supplied.)
The California court inPeople v. Leonard, supra, also felt that the proviso in Article IV, § 20 of the California constitution, was not meant to apply to state offices. The court said in this respect:
". . . The words 'local office,' immediately preceding 'postmasters,' refer evidently to local federal officers. The words 'officers of the militia' probably mean such officers when called into the federal service. . . ."
It must be pointed out here that the Leonard case, supra, had already been decided when Washington incorporated the phrase "or any other power," and the proviso, from the California constitution. The general rule in such a case is that when a constitutional provision has been borrowed from another state after it has been construed by the court of last resort of such state, the construction given the provision in the other state is considered to have been adopted with the provision. See,State ex rel. Kantoor v. Superior Court, 15 Wash. [[Orig. Op. Page 6]] 668, 47 Pac. 31 (1896); 11 Am. Jur., Constitutional Law, § 68.
Thus we conclude that Article II, § 14, of the Washington State Constitution does not prevent a member of the legislature from accepting any state position whether or not covered by Washington state civil service.
C.Incompatible Offices and Conflict of Interest.
The doctrine of incompatible offices is the common-law limitation upon the right of a person to hold more than one public office at the same time. Public offices are considered incompatible where the duties and functions of each are inherently inconsistent and repugnant so that because of the contrarity and antagonism which would result from the attempt of one person to discharge faithfully, impartially and efficiently the duties of both offices, considerations of public policy render it improper for an incumbent to retain both. See, 42 Am. Jur., Public Officers, § 70; and 3 McQuillin (3rd ed.), Municipal Corporations, Public Officers, § 12.67.
A member of the legislature is a public officer. State ex rel. French v. Clausen, 107 Wash. 667, 182 Pac. 610 (1919); State ex rel. Hamblen v. Yelle, 29 Wn. (2d) 68, 185 P. (2d) 723 (1947). Since public policy prohibits the holding of one public office that is incompatible with another,Kennett v. Levine, 50 Wn. (2d) 212, 310 P. (2d) 244 (1957), a member of the legislature may not accept a position covered by the state civil service law if the position is a public office and is incompatible with his office as a member of the legislature. (For a good discussion of the general public policy prohibiting dual office holding, seeKennett v. Levine, supra, at 216 and 217.)
Inasmuch as you have not specified a particular state position, we will not attempt to say specifically what offices may be incompatible. However, the common-law doctrine of incompatibility of offices does not bar a public official from accepting other public "employment." Therefore, assuming that a legislator accepts "employment" under the state civil service law rather than an "office," the validity of the employment would be governed by the rules of conflicting interests. These rules are statutory. Chapter 42.20 RCW.3/
[[Orig. Op. Page 7]]
D.Civil Service Law ‑ Initiative 207.
We now must determine what changes, if any, were made to the above body of law by the passage of Initiative 207, Laws of 1961, chapter 1. In this respect we direct your attention to § 25 (2) (RCW 41.06.250 (2)) of the state civil service law, which provides:
"(2) Employees shall have the right to vote and to express their opinions on all political subjects and candidates, but shall not hold any political party office or participate in the management of a partisan, political campaign. Nothing in this section shall prohibit a classified employee from participating fully in campaigns relating to constitutional amendments, referendums, initiatives, and issues of a similar character, and for nonpartisan offices."
Specifically, the question is whether a member of the legislature holds a "political party office" within the prohibition of § 25 (2). We think not. In reaching this conclusion we are of the opinion that the prohibition is directed to offices of political parties and not offices of a political nature.
As we have stated above, a member of the legislature is a public officer. As such, his duties are in their very nature public. That is, they involve in their performance the exercise of some portion of the sovereign power in which all citizens, irrespective of party, are interested. A political party officer, on the other hand, has duties confined to matters pertaining to the party to which he belongs. The political party alone is interested in its proper performance. The prohibition of the statute is directed against the latter activity, not the former. The distinction is an obvious one and we have recognized it in our prior rulings concerning the term "political party office" as used in this section of the state civil service law. See, AGO 59-60 No. 171, December 30, 1960, to Honorable Sam Smith.
Question No. 2:
For ease of reading we restate your second question:
May a state employee take a leave of absence to become a candidate for the legislature?
At the outset we should point out that § 15 of the civil service act, now codified as RCW 41.06.150, authorizes the Washington state personnel board to adopt rules and regulations providing the basis for and procedures to be followed for the granting of leaves of absence.
[[Orig. Op. Page 8]]
The board has adopted rules on this subject which may be found in Article XXI, § 7, of the state merit system rules. Our review of this article leads us to the conclusion that a leave of absence to become a candidate for partisan office is not within the terms of the rule establishing permissible leaves of absence.
Moreover, our governor has, on at least three occasions, issued executive orders, copies of which are attached, which provide that when a state employee under the jurisdiction of the governor's office becomes a candidate for public office he should immediately resign or be terminated.
Even absent these considerations, it is our opinion that all state employees subject to the state civil service law must terminate their employment if they desire to be candidates for the office of state legislator; the civil service act does not permit such candidacy even if the employee takes a leave of absence.
Section 25 of the civil service law (RCW 41.06.250) provides:
"(1) Solicitation for or payment to any partisan, political organization or for any partisan, political purpose of any compulsory assessment or involuntary contribution is prohibited. No person shall solicit on state property and contribution to be used for partisan, political purposes.
"(2) Employees shall have the right to vote and to express their opinions on all political subjects and candidates, but shall not hold any political party office or participate in the management of a partisan, political campaign. Nothing in this section shall prohibit a classified employee from participating fully in campaigns relating to constitutional amendments, referendums, initiatives, and issues of a similar character, and for nonpartisan offices.
"(3)Nothing in this section shall prohibit appointment, nomination or election to part time public office in a political subdivision of the state when the holding of such office is not incompatible with, nor substantially interferes with, the discharge of official duties in state employment.
"(4) For persons employed in state agencies the operation of which is financed in total or in part by federal grant-in-aid funds political activity will be regulated by the rules and regulations of the United States civil service commission." (Emphasis supplied.)
[[Orig. Op. Page 9]]
As we have stated in prior opinions, subsection 2 prohibits participation by covered employees in the management of partisan political campaigns and it also prohibits acceptance of political party office by covered employees. (AGO 59-60 No. 171 and AGO 61-62 No. 22 [[to Ann O'Donnell, State Representative on April 14, 1961]], copies of which are attached.) A candidate for membership in the legislature is not a candidate for political party office, as that term is used in the statute, but he would necessarily participate in the management of a partisan political campaign, his own.
We note in passing that subsection 3 of the statute allows civil service employees to hold "part time public office in a political subdivision of the state," under certain circumstances not here material. This, of course, is an exception to the general prohibition set forth in subsection 2. However, candidates for the office of state legislator cannot take advantage of this statutory exception because a member of the legislature is not an officer of a "political subdivision of the state"; a member of the legislature is an officer of the state itself.
Furthermore, it must be remembered that resort must be had to regulations of the Federal civil service act if the state employee is engaged in any Federal grants-in-aid program. RCW 41.06.250 (4),supra. Federal civil service pamphlet 20, November 1959, contains the following regulation and comment:
"CANDIDACY FOR PUBLIC OFFICE
"Candidacy for nomination or for election to a National, State, county, or municipal office is not permissible. The prohibition against political activity extends not merely to formal announcement of candidacy but also to the preliminaries leading to such announcement and to canvassing or soliciting support or doing or permitting to be done any act in furtherance of candidacy. An employee may not solicit others to become candidates for nomination or for election to such an office.
"The Attorney General held in an opinion to the Secretary of the Interior dated April 17, 1940 (39 Op. Atty. Gen. 423), that the Hatch Act does not apply to the acceptance and holding of a local office to which an employee was elected without being a candidate, his name not appearing on the ballot but being written in by voters. However, the Commission interprets this opinion as applicable only in cases where the writing in of an employee's name is a spontaneous action on the part [[Orig. Op. Page 10]] of the voters and does not come about as a result of prearrangement whereby the employee was in effect a candidate before the vote was cast.
"This decision is authority for the statement that the mere holding of a public office is not in itself a violation. (See, also Attorney General's Circular No. 3301, October 26, 1939.)"
Finally, it is our opinion that a civil service employee cannot avoid the prohibition against management of a political campaign by taking a leave of absence. The reason for this conclusion is readily apparent. If employees on leave of absence enjoy the benefits of a tenure law such as our state civil service act, as they do, (see, for example, RCW 41.40.010 (28), pertaining to the state retirement system) they must also accept the restrictions imposed by such a law. See, State v. Akron Civil Service Commission, 120 N.E.2d 127 (Ohio 1953);Thompson v. Young, 63 F.Supp. 890 (1945);State v. Hummel, 51 N.E.2d 900 (Ohio 1943); and People ex rel. Davie v. Lynch, 164 App. Div. 517, 149 N.Y.S. 895 (1914).
In other words, a state employee subject to the state civil service act may not engage in political activity while on leave of absence if such activity would be prohibited while in a pay status. This is the same conclusion reached by the Federal civil service commission. See, FCS Pamphlet 20,supra; cf. subdivision 4 of RCW 41.06.250.
In concluding, we wish to make it clear that under our Washington statute, it is not the acceptance of the elective office but rather the engagement in the management of the campaign that comes within the ban of the civil service act.
In the event the answer to question 2 is in the negative, may a state employee who terminates his employment to become a candidate for the legislature have his name placed upon a reinstatement register?
Initially, we direct your attention to § 22 (1) [RCW 41.06.220 (1)] and § 24 (3) [RCW 41.06.240 (3)] which read as follows:
Section 22 (1):
"An employee who is terminated from state service may request the Board to place his name on an appropriate re‑employment [[reemployment]]list and the Board shall grant this request where the circumstances are found to warrant re‑employment [[reemployment]]."
[[Orig. Op. Page 11]]
Section 24 (3):
"The Board shall give due consideration to any prior state service of an applicant in its establishment of rules and regulations for the making of appointments under this act."
The Washington state personnel department has adopted the following rules applicable to re‑employment [[reemployment]]or reinstatement of former employees:
Article XIII, § 3:
"Section 3. Reinstatements
"A. Any person who has received permanent appointment to a position in the service and who has resigned therefrom may be reinstated to a position with the same or similar duties to those he previously performed, provided he has been certified by the Director from the Reinstatement Registers described in Article IX.
"B. Prior to making a certification from the Classified Service‑Wide Register, the Director may require an employee to pass a qualifying examination.
"C. All persons being reinstated shall serve a six months probationary period."
Article IX, § 1, subsections E and F:
"E.Departmental Unranked Reinstatement Register
"This register will be established by the appropriate classes and will include the names of all past permanent employees of a department who resigned while performing similar duties to the satisfaction of the appointing authorities as indicated in a final supervisor's evaluation and who have submitted a written request to be reinstated within two years from the date of resignation. If the Director has determined a critical need for eligibles exists in a certain class and geographic area, he may extend the time during which an employee may apply for reinstatement. Persons on this register will indicate the geographic areas in which they are available. (Emphasis supplied.)
[[Orig. Op. Page 12]]
"F.Classified Service‑Wide Unranked Reinstatement Register
"This register will be established by appropriate classes and will include the names of all past permanent employees of the classified service who resigned and have submitted a written request to be reinstated within one year of resignation and have passed the qualifying examinations that may be required by the Director. If the Director has determined a critical need for eligibles exists in a certain class and geographic area, he may extend the time during which an employee may apply for reinstatement. Persons on this register will indicate the geographic areas in which they are available."
We would conclude from these rules that should a state employee resign to be a candidate for partisan political office and thereafter make application for re‑employemnt [[reemployment]]as provided above he could be reinstated to a civil service position.
To summarize, a member of the 37th legislature may accept an office or employment covered by the state civil service law provided the position is not a public office created by the 37th legislature or a public office the emoluments of which were increased by the 37th legislature and provided further that the office is not incompatible with that of a member of the legislature. A state employee or officer covered by the state civil service law may not be engaged in the management of partisan political campaigns, including his own, unless the campaign be one for a part-time public office in a political subdivision of the state. Resignation or termination must precede engagement in the management of a campaign for legislative office. A state employee who resigns his civil service position would be eligible for reinstatement provided he meets the requirements set forth in the merit system rule.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
R. TED BOTTIGER
Assistant Attorney General
BRUCE W. COHOE
Assistant Attorney General
*** FOOTNOTES ***
1/In this case the court held that a court reporter, although statutorily referred to as in "officer," was not in fact a public officer. The court held the following elements necessary to make any public position a public office:
"'". . . (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. 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/See: Beardsley, Sources of the Washington Constitution, Article II, § 24 (1941); and Smith, The Journal of the Washington State Constitution, p. 532 (1962).
3/The main distinction between the doctrine of incompatible offices and the rules of conflicting interests is the fact that in the former the disability runs to the offices and is impersonal whereas in the latter the disability is a personal matter which runs to the individual.