CITIES AND TOWNS ‑- COUNTIES ‑- ELECTIONS ‑- OFFICES AND OFFICERS ‑- CHARTERS ‑- OPTIONAL MUNICIPAL CODE ‑- AUTHORITY TO IMPOSE TERM LIMITATIONS ON ELECTED LOCAL GOVERNMENT OFFICIALS

CITIES AND TOWNS ‑- COUNTIES ‑- ELECTIONS ‑- OFFICES AND OFFICERS ‑- CHARTERS ‑- OPTIONAL MUNICIPAL CODE ‑- AUTHORITY TO IMPOSE TERM LIMITATIONS ON ELECTED LOCAL GOVERNMENT OFFICIALS

1.   Charter cities, charter counties, noncharter first class cities and noncharter code cities have the authority to impose a limit on the number of terms a locally elected official can serve.

2.   Depending upon the provisions of their charter, charter cities and charter counties can adopt a term limitation as a charter provision by ordinance or through the initiative process.  Noncharter first class cities and noncharter code cities can only adopt a term limitation through the passage of an ordinance.

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                                                                   June 24, 1991

Honorable Gary A. Nelson
State Senator, District 21
106-A Institutions Building, AS-32
Olympia, Washington 98504
                                                                                                                 Cite as:  AGO 1991 No. 22

Dear Senator Nelson:

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

            1. Can a city, town or county impose a limit on the number of terms an elected official can serve?
            2. If the answer to question 1 is yes, how can the term limitation be enacted?

                                                                BRIEF ANSWER

            The answer to question 1 is year for charter cities, charter counties, noncharter first class cities and noncharter code cities.  For other cities, towns and counties, the answer is no.  With regard to question 2, depending on the provisions of their charter, charter cities and charter counties can adopt a term  [[Orig. Op. Page 2]] limitation as a charter provision, by ordinance or through the initiative process.  First class cities and noncharter code cities can only adopt term limitations by ordinance.

                                                                     ANALYSIS

            Question 1:

            Can a city, town or county impose a limit on the number of terms an elected official can serve?

            We begin our analysis with a brief review of the types of local governments authorized in Washington.  The Legislature classifies cities and towns as first class, second class, third class and forth class.  RCW 35.01.010-[35.01].040.  These classifications depend upon population.  For example, a first class city is defined as "one having at least twenty thousand inhabitants at the time of its organization or reorganization."  RCW 35.01.010.  On the other hand, a fourth class municipal corporation‑-called a town instead of a city‑-is one "having not less than three hundred inhabitants and not more than fifteen hundred inhabitants at the time of its organization."  RCW 35.01.040.

            Cities may also be organized pursuant to article 11, section 10 (amendment 40) of the Washington Constitution, which provides:  "Any city containing a population of ten thousand inhabitants, or more, shall be permitted to frame a charter for its own government, consistent with and subject to the Constitution and laws of this state . . . ."

            In addition to the plan for organizing cities and towns in Title 35 RCW, the Legislature has enacted another scheme for the organization of municipal corporations‑-the optional municipal code set forth in Title 35A RCW.  The optional municipal code authorizes two kinds of cities, a noncharter code city and a charter code city.  A noncharter code city is defined as:

                        A noncharter code city is one, regardless of population, which has initially incorporated as a noncharter code city, subject to the provisions of this title, or is an incorporated municipality which has elected, under the procedure prescribed in this title, to be classified as a noncharter code city and to be governed according to the provisions of this title under one of the optional forms of government provided for noncharter code cities.

RCW 35A.01.020.

             [[Orig. Op. Page 3]]

A charter code city is defined as:

                        A charter code city is one having at least ten thousand inhabitants at the time of its organization or reorganization which has either initially incorporated as a charter code city and has adopted a charter under the procedure prescribed in this title; or which, as an incorporated municipality, has elected to be classified as a charter code city and to be governed according to the provisions of this title and of its adopted charter.

RCW 35A.01.030.

            The Legislature has set up a somewhat similar organization for counties.  Counties are classified by population ranging from AA counties which contain a population of 500,000 or more, to ninth class counties which have a population of less than 3,300.  RCW 36.13.010.  In addition, article 11, section 4 (amendment 21) of the Washington Constitution provides that "[a]ny county may frame a 'Home Rule' charter for its own government subject to the Constitution and laws of this state . . . ."

            Your question is whether any of these unites of local government have the authority to limit the number of terms their elected officials can serve.  In AGO 1991 No. 17 we discussed the principles governing the authority of municipal corporations:

                        The general rule is that municipal corporations are limited to those powers expressly granted to them by the Legislature and to powers necessarily or fairly implied in or incident to the powers expressly granted.  Chemical Bank v. WPPSS, 99 Wn.2d 772, 792, 666 P.2d 329 (1983); City of Spokane v. J-R Distributors, Inc., 90 Wn.2d 722, 585 P.2d 784 (1978).

                        At least as to matters of local concern, however, this general rule does not apply to cities and counties that have adopted charters pursuant to article 11, sections 4 and 10, of the Washington Constitution, respectively, or to cities operating under the Optional Municipal Code, Title 35A RCW.  These cities and counties have legislative power akin to that of the state, except that their actions cannot contravene any constitutional provision or legislative enactment.  Thus, such a city or county has broad legislative power except when restricted by enactments of the state.  King Cy. Coun. v. Public Disclosure Comm'n, 93 Wn.2d 559, 562-63, 611 P.2d 1227 (1980);Winkenwerder v.  [[Orig. Op. Page 4]] Yakima, 52 Wn.2d 617, 622, 328 P.2d 873 (1958);La Mon v. Westport, 22 Wn. App. 215, 217-18, 588 P.2d 1205 (1978);Chemical Bank v. WPPSS, 99 Wn.2d 772, 792-93, 666 P.2d 329 (1983).

AGO 1991 No. 17 at 2.

            To answer your first question we must resolve two issues:

            (1) Does a term limitation contravene any constitutional provision or legislative enactment?
            (2) Do the various units of local government have the authority to enact a term limitation?

            Turning to the first issue, we are persuaded that a term limitation for local elected officials does not contravene a provision of the Washington Constitution or legislative enactment.

            Article 3, section 25 (amendment 31) sets out qualifications for state office.  However, the Constitution is silent on the qualifications for local elected officials.1/

            Article 3, section 25 provides:  "No person, except a citizen of the United States and a qualified elector of this state, shall be eligible to hold any state office."  These qualifications only apply to state officers.  For example, inIn re Bartz, 47 Wn.2d 161, 287 P.2d 119 (1955) the court ruled that a justice of the peace is a judicial officer, rather than a state officer.  Accordingly, the court ruled that article 3, section 25 did not apply and that the legislature had the authority to require that a justice of the peace be an attorney.  Since article 3, section 25 does not apply to the elected officials of cities, towns and counties and the Constitution is otherwise silent, a term limitation for these officials cannot conflict with a provision of the Constitution.

            Under the Constitution, the Legislature is authorized to enact laws for the organization of cities and counties.  Article 11, section 10 provides that "the legislature, by general laws, shall provide for the incorporation, organization and classification . . . of cities and towns . . . ."  Article 11, section 4 provides that "[t]he legislature shall establish a  [[Orig. Op. Page 5]] system of county government . . . throughout the state . . . and by general laws shall provide for township organization, under which any county may organize . . . ."

            Pursuant to this authority, the Legislature has enacted some qualifications for local officials.  These qualifications are scattered throughout Titles 35, 35A and 36 RCW.  The prescribed qualifications are very general.  They usually require that the candidate be a voter and a resident of the jurisdiction for some specified period of time.  For example, RCW 35.23.030 provides:

                        No person shall be eligible to hold any elective office in any city of the second class unless he is a registered voter therein and has resided therein for at least one year next preceding the date of his election.

RCW 35.24.030 provides:

                        No person shall be eligible to hold an elective office in a city of the third class unless he be a citizen of and a legal resident therein.

RCW 35.27.080 provides:

                        No person shall be eligible to or hold an elective office in a town unless he is a resident and elector therein.

RCW 35A.12.030 provides:

                        No person shall be eligible to hold elective office under the mayor-council plan unless the person is a registered voter of the city at the time of filing his declaration of candidacy and has been a resident of the city for a period of at least one year next preceding his election.

RCW 36.16.030 provides:

                        In every county there shall be elected from among the qualified voters of the county [authorized county officials] . . . .

RCW 36.32.040 provides:

            [T]he qualified electors of each county commissioner district, and they only, shall nominate from among their own number, candidates for the office of county commissioner of such commissioner district to be voted for at the following general election.

             [[Orig. Op. Page 6]]

            A limitation on the number of terms an elected official can serve has the effect of imposing an additional qualification that must be met by the candidate.  To use RCW 35.23.030 as an example, if a two-term limitation were in place, a candidate for elective office in a second class city would have to meet the following requirements:

            1. The candidate must be a registered voter.
            2. The candidate must have resided in the city for at least one year preceding the date of the election.
            3. The candidate must not have held the office sought for two terms.

            The Washington Supreme Court reached the conclusion that imposing an additional qualification does not contravene statutes setting forth the qualifications for the election of local officials in State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P.2d 94 (1934).  This case concerned a provision in a city charter that no member of the city council "shall hold any other office, federal, state, county or municipal . . . ."  177 Wash. at 620-21.  The relator, who had been elected to the city council and also held office as a director of a school district, disputed the application of this provision in the charter.  One basis of the challenge was that the charter provision conflicted with statutes enacted by the legislature setting forth the qualification for election of city officials.  The statute provided that to hold elective office one must be a citizen of the United States and the State of Washington and an elector of the jurisdiction.2/

            The court rejected this argument stating:

                        The only attack made by the relator upon the charter is that it purports to superadd certain qualifications necessary for elective officers to those imposed by the legislature. . . .  Had the framers of the charter sought to lessen the requirements demanded  [[Orig. Op. Page 7]] by the statute, a different question would be presented, for then the charter would be in direct conflict with the statute.  But that is not the case here.  Section 9929 merely provides that no person shall be competent to hold elective office unless he possesses certain qualifications.  It does not say that no other requirements shall be prescribed, nor does it say that the political subdivision therein named may not impose restrictions not inconsistent with the statute.

                        After all, the statute merely fixes a minimum of qualification below which its political subdivisions may not go.  It does not say that other qualifications may not be required, in so far as they affect only the particular subdivision.

177 Wash. at 623-24 (emphasis added).  The statutory qualification in Griffith is substantially the same as those previously cited in this opinion.  Compare Rem. Rev. Stat. § 9929 and RCW 35.23.030; 35.24.030; 35.27.080; 35A.12.030; 36.16.030.  Applying the same line of reasoning in this situation, we must conclude that a term limitation, which would constitute an additional qualification for a candidate, would not contravene the statutes which have been enacted by the Legislature.

            This brings us to the second issue raised by your first question:  Do the various units of local government have the authority to enact a term limitation?  We begin with charter counties and charter cities.  These units of local governments clearly have the authority to enact term limitations.  Charter cities and charter counties have legislative power, at least as to matters of local concern, akin to that of the state.  AGO 1991 No. 17 at 2.

            InState ex rel. Griffiths, 177 Wash. 619 (1934), the court specifically recognized the authority of a charter city to impose an additional requirement for candidates seeking office in that city.  More recently, the court has approved the exercise of authority by charter counties in the election area.

            InState ex rel. Carrol v. King Cy., 78 Wn.2d 452, 474 P.2d 877 (1970), the court considered a provision of the King County charter that provided for the election of certain county officials in odd-numbered years and adjusted the terms of certain officials to match the new election dates.  In sustaining this charter provision the court stated:

            We think that . . . the framers of amendment 21 meant to confer upon counties adopting home rule charters those powers which had theretofore been conferred upon  [[Orig. Op. Page 8]] the legislature under Const. art. 11, § 5, including the power to fix the terms of office of county officers, with certain exceptions expressly set forth.  It will be observed that the power to frame its own organic law is conferred in broad terms upon the county adopting a charter.  While it is not permitted to "affect the election" of the prosecuting attorney, the superintendent of schools, the judges of the superior court and the justices of the peace (all offices in which the state has an interest), there are no restrictions placed upon its right to provide for the election of, prescribe the duties of, and fix the compensation of those officers which it deems necessary to handle its purely local concerns.

78 Wn.2d at 456.  The court followed State ex rel. Carroll in a subsequent decision,Henry v. Thorne, 92 Wn.2d 878, 602 P.2d 354 (1979).  Henry concerned a charter provision that provided a greater restriction on the timing of elections to fill vacancies than those set forth in the State Constitution or statutes enacted by the Legislature.  The court approved this charter provision stating:

            [Amendment 21] providing for county home rule expressed the intent of the people of this state to have "the right to conduct their purely local affairs without supervision by the State, so long as they abided by the provisions of the constitution and did not run counter to considerations of public policy of broad concern, expressed in general laws.

92 Wn.2d at 881.

            Since charter cities and charter counties have broad legislative powers in matters of local concern, we conclude that they have the authority to impose term limitations on locally elected officials.

            We next turn to local governments that have not adopted a charter.  The rule for such governments is that they are limited to those powers expressly granted to them by the Legislature and the power necessarily or fairly implied in or incident to the powers expressly granted.  AGO 1991 No. 17 at 2.

            In reviewing the powers delegated to local governments, we find two that have been delegated sufficient authority by the Legislature to impose term limitations‑-first class cities, that have not adopted a charter, and non charter code cities under the optional municipal code.

             [[Orig. Op. Page 9]]

            With regard to first class cities, RCW 35.22.280(1) provides:

                        Any city of the first class shall have power:

                        (1) To provide for general and special elections, for questions to be voted upon, and for the election of officers[.]

This power is granted to all first class cities, even cities that have not adopted a charter.  In light of the specific grant of authority to provide for the election of officers, we conclude that a first class city may impose a term limitation upon city officers.

            Our conclusion here is consistent with our opinion in AGO 1991 No. 3.  In that opinion we concluded that RCW 35.22.280(1) authorized a noncharter first class city to enact an ordinance imposing an additional residency requirement on candidates for the office of freeholder, elected to frame a city charter.  AGO 1991 No. 3 at 11.

            Noncharter code cities have also been granted broad powers by the Legislature.  RCW 35A.01.010 provides:

                        The purpose and policy of this title is to confer upon two optional classes of cities created hereby the broadest powers of local self-government consistent with the Constitution of this state.  Any specific enumeration of municipal powers contained in this title or in any other general law shall not be construed in any way to limit the general description of power contained in this title, and any such specifically enumerated powers shall be construed as in addition and supplementary to the powers conferred in general terms by this title.  All grants of municipal power to municipalities electing to be governed under the provisions of this title, whether the grant is in specific terms or in general terms, shall be liberally construed in favor of the municipality.

RCW 35A.21.160 provides:

                        A code city3/

             organized or reorganized under this title shall have all of the powers which any city  [[Orig. Op. Page 10]] of any class may have and shall be governed in matters of state concern by statutes applicable to such cities in connection with such powers to the extent to which such laws are appropriate and are not in conflict with the provisions specifically applicable to code cities.

RCW 35A.11.020 provides in part:

                        The legislative body of each code city shall have power to organize and regulate its internal affairs within the provisions of this title and its charter, if any; and to define the functions, powers, and duties of its officers and employees; within the limitations imposed by vested rights, to fix the compensation and working conditions of such officers and employees and establish and maintain civil service, or merit systems, retirement and pension systems not in conflict with the provisions of this title . . . .

            After reviewing the statutes in AGO 1972 No. 24 we stated:

            The critical point to be drawn from these statutes is that by electing to come under the optional municipal code a city ceases to be governed by the traditional rules of delegated powers. . . .  Instead, a city so opting thereby becomes possessed of all powers which either have been specifically granted by the legislature to any class of city (RCW 35A.21.160, supra) or which could be granted by the legislature (RCW 35A.01.010 and 35A.11.020,supra), subject only to such restrictions or limitations as are contained in the statutes themselves or within the state constitution; which is but another way of saying that the optional municipal code entitles cities operating thereunder to the equivalent of the home rule powers otherwise available only to first class charter cities.

AGO 1972 No. 24 at 7.

            There is no Washington case authority directly on point relating to local governments that have not adopted a charter.  However, we have discovered a decision from Pennsylvania that appears directly on point and we find the decision persuasive.  InCommonwealth of Pennsylvania v. Clark, 515 A.2d 1320, 512 Pa. 1 (1986), the court considered the authority of a city to enact an ordinance that limited the office of mayor to two terms.

            The city in question had chosen to be governed by the Code and the Charter Law, Mayor-Council Plan A.  515 A.2d at 1322.  The law granted the city broad powers somewhat similar to those  [[Orig. Op. Page 11]] granted in the optional municipal code.4/

            One of the issues before the court was whether "a third class municipality operating under Mayor-Council Plan A of the Charter Law has authority to promulgate an ordinance limiting the number of time a municipal officer can stand for reelection."  515 A.2d at 1324.  The court concluded that the city did have the authority to enact the ordinance:

                        (4) Under section 303(1), supra, the Legislature does empower the Council to administer local affairs.  The power of the Council to limit incumbent municipal officers, including mayors to one term of reelection, as in the case at bar, is well within the scope of authority granted by the Legislature through section 303(1).  Further, section 304 (53 P.S. § 41304, Supp. 1986) provides "[a] general grant of municipal power . . . intended to confer the greatest power of local self-government consistent with the Constitution of the State."  Moreover, section 304 also provides that "[a]ll grants of municipal power to cities governed by an optional plan under this act, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the city."

515 A.2d at 1324 (footnote omitted).  In our judgment the court's reasoning is equally applicable to powers granted noncharter first class cities and noncharter code cities.  These jurisdictions have been granted the authority to impose term limitations on their elected officials.

            We do not find a similar grant of authority to second and third class cities, towns or the various classifications of counties.  see e.g., RCW 35.23.010; 35.27.010; 36.32.120.  In absence of a delegation of authority from the Legislature these levels of local government do not have the authority to limit the terms of their elected officials.

             [[Orig. Op. Page 12]]

            Question 2:

            If the answer to question 1 is yes, how can the term limitation be enacted?

            The starting point for our analysis of your second question is the power of the Legislature to enact laws for the organization of city and county government.  Const. art. 11, §§ 5, 10.  Clearly, the Legislature has the authority to enact term limitations for city and county officials.  By the same token, the Legislature could specifically prohibit term limitation for local officials or enact statutes setting forth the exclusive qualification for local officials, which would have the same effect.

            Before any city, town or county can impose a term limitation it must carefully review the statutes governing its elections to determine if the Legislature has enacted exclusive qualifications or acted in some other way to prohibit term limitations.  We have reviewed some statutes.  See infra. p. 5.  However, given the broad nature of your question, we have not made an exhaustive review of the law in this area.  Accordingly, any jurisdiction considering a term limitation should conduct its own review.

            With regard to charter cities and charter counties, the means of enacting a term limitation depends on the provisions of the charter.  Obviously, the limitation can be adopted as a provision in the charter.  This can be done when the charter is initially drafted or by amendment.  See e.g., RCW 35.22.050 ‑ [35.22].190; 35A.08.030 ‑ [35A.08].120; 35A.09.010 ‑ [35A.09].070.

            A term limitation also might be accomplished by ordinance. However, this also depends on the provisions of the charter.  If the charter sets out the exclusive qualifications for a candidate seeking city or county office, the legislative authority would be without power to change those qualifications.  In this situation, a charter amendment would be necessary to enact a term limitation.  On the other hand, if the charter sets out certain minimum qualifications, the legislative authority would have the power to add a term limitation by ordinance, so long as it did not conflict with the qualifications contained in the charter.

            A term limitation in a charter city or charter county might also be enacted by initiative of the people.  Again, this can only be done if the charter provides for initiatives.  If the charter does not provide an initiative process, the people have no direct legislative powers.  If the charter does provide an initiative process, the people must exercise their legislative power in accordance with the charter.  Thus, as with the city or  [[Orig. Op. Page 13]] county legislative authority, the people would have the power to add a term limitation, so long as it did not conflict with the qualifications contained in the charter.

            We turn next to noncharter first class cities and noncharter code cities.  These units of local government can only adopt term limitation by ordinance.  Since these jurisdictions have not adopted a charter, the term limitation cannot be included as a charter provision.  In addition, the people of noncharter first class cities and noncharter code cities do not have power to legislate directly through the initiative process.  RCW 35.22.200; AGO 1970 No. 8 at 4.

            We trust the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

WILLIAMS B. COLLINS
Assistant Attorney General