Applicability of Code of Ethics for Municipal Officers to Water District Commissioner and Part-time Employee

WATER DISTRICT COMMISSIONERS--OFFICES AND OFFICERS--EMPLOYERS AND EMPLOYEES--CONFLICT OF INTEREST--CONTRACTS--Applicability of Code of Ethics for Municipal Officers to Water District Commissioner and Part-time Employee.

1.         A water district commissioner is a municipal officer subject to the Code of Ethics for Municipal Officers, chapter 42.23 RCW.  Under RCW 42.23.030 a water district commissioner cannot have a beneficial interest in a contract with the district where the water district's total liability exceeds $750 in any calendar month.

2.         A part-time employee, operating under the control of a board of water commissioners is not a municipal officer subject to the Code of Ethics for Municipal Officers.  Thus, the restrictions in RCW 42.23.030 do not apply to the part-time employee.

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                                                                   June 29, 1992

The HonorableH. Steward Menefee
Grays Harbor County Prosecuting Attorney
Post Office Box 550
Montesano, Washington  98563

                                                                                                                 Cite as:  AGO 1992 No. 11

Dear Mr. Menefee:

            By letter previously acknowledged, you have asked for our opinion on two questions which we paraphrase as follows:

            1.         Can a water district commissioner, who is listed on the district's small works roster, receive contracts from the district when the total liability of the district would exceed $750 in any calendar month?

            2.         Can a part-time employee of a water district be listed on the district's small works roster and receive contracts for district projects?

For the reasons set out in the following analysis, we answer your first question in the negative and your second question in the affirmative.

                                                                    ANALYSIS

            Question 1:

            Can a water district commissioner, who is listed on the district's small works roster, receive contracts from the district when the total liability of the district would exceed $750 in any calendar month?

            At issue is whether a water district commissioner is subject to the ban on beneficial interests in contracts set forth in RCW 42.23.030.  The main clause of that statute provides:

                        No municipal officer shall be beneficially interested, directly or indirectly, in any contract which may be made by, through or under the supervision of such officer, in whole or in part, or which may be made for the benefit of his office, or accept, directly or indirectly, any compensation, gratuity or reward in connection with such contract from any other person beneficially interested therein.

            The first question is whether a water district commissioner is a "municipal officer".  We conclude the answer is yes.  The governing body of a water district is a board of water commissioners consisting of three members.  RCW 57.12.010.  The term of office for a water commissioner is six years.  RCW 57.12.030.  A board of water commissioners has the authority, interalia, to create and fill positions of employment, acquire property and property rights, lease both real and personal property, institute proceedings in eminent domain, establish rates and charges for provision of water to residents within the district, and to construct, operate and maintain a public or private water system.  See chapter 57.08 RCW.

            The required factors of a municipal officer are present in this case, particularly the requirements that the officer have continuity and that the incumbent possesses independent governmental discretion.  SeeState ex rel. Brown v. Blew, 20 Wn.2d 47, 50-51, 145 P.2d 554 (1944); accord AGO 1971 No. 13 (concluding that public utility district commissioners are municipal officers within the meaning of RCW 42.23.030).

            Since a water district commissioner is a municipal officer, RCW 42.23.030 generally prohibits the officer from having a beneficial interest in contracts "made by, through or under [his or her] supervision".  Contracts for material or work by a water district are let under the supervision of the district's water commissioners (see RCW 57.08.050), and are thus subject to the ban in RCW 42.23.030.  There is an exception to this prohibition, but it is very limited.  RCW 42.23.030(6) provides in part:

                        The letting of any other contract (except a sale or lease as seller or lessor) by a municipality . . . Provided, That the total volume of business represented by such contract or contracts in which a particular officer is interested, singly or in the aggregate, as measured by the dollar amount of the municipality's liability thereunder, shall not exceed seven hundred fifty dollars in any calendar month[.]

Thus, a commissioner may only have a beneficial interest in a contract where the water district's total liability does not exceed $750 in any calendar month.

            We note that under RCW 57.08.050, water districts may use a small works roster for contract projects of up to $50,000.  (Contract projects of $50,000 or more must be competetively bid.)  It is conceivable, then, that a commissioner could be listed on the small works roster--this in itself is not a violation of RCW 42.23.030--but the officer may not be selected from the roster for a contract when the district's liability would exceed $750 in any calendar month.

            Question 2:

            Can a part-time employee of a water district be listed on the district's small work rosters and receive contracts for district projects?

            As we have demonstrated, the prohibition on beneficial contract interests set forth in RCW 42.23.030 extends to a municipal officer, and water commissioners are municipal officers.  The issue presented by your second question is whether a part-time employee of the district must also be considered to be a "municipal officer" and hence subject to the prohibition in RCW 42.23.030.  We conclude the answer is no.

            A part-time employee is under the control of a board of water commissioners.  A part-time employee cannot exercise control over the letting of small works contracts.  That discretionary authority is vested in a board of water commissioners.  RCW 57.08.050(2).  A board of water commissioners also has authority to create and fill positions of employment, including terms and conditions of employment.  RCW 57.08.050(1).  Clearly, a part-time employee is subject to control by a water district board.  In light of these factors, we conclude that a part-time employee of a water district is not a municipal officer as that term is used in RCW 42.23.030.  Accord AGO 65-66 No. 53 (concluding that a director of a school district may be employed as a consultant in an education program in his district where the consultant position is under the exclusive control of an independent committee over which the school district exercises no authority).  See also AGO 1971 No. 13 (concluding that public utility district employees are not municipal officers subject to RCW 42.23.030).

            We hope these responses will be of assistance to you.

                                    Very truly yours,

                                    J. LAWRENCE CONIFF
                                    Senior Counsel
                                    Assistant Attorney General

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