CITY ATTORNEY ‑- THIRD CLASS CITIES ‑- LEAVE OF ABSENCE FOR MILITARY SERVICE ‑- STATUS OF SUCCESSOR

CITY ATTORNEY ‑- THIRD CLASS CITIES ‑- LEAVE OF ABSENCE FOR MILITARY SERVICE ‑- STATUS OF SUCCESSOR

Where the duly elected city attorney of a third class city is called into military service and granted a leave of absence his office is not vacant.  The person appointed acting city attorney holds office at the pleasure of the mayor.

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                                                                     July 9, 1953

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                                Cite as:  AGO 53-55 No. 82

Attention:  !ttMr. A. E. Hankins,
            Chief Examiner

Dear Sir:

            You have requested the opinion of this office on a question arising from the following factual situation.  In 1951, a third class city elected a city attorney, who assumed office for a term to end on the first Monday in June, 1955.  In September of 1951, the incumbent was recalled to duty in the U. S. Marine Corps, was granted leave of absence without pay by the mayor and council, and remains in military service at this time.  The mayor appointed a second lawyer to be acting city attorney until his return.  In 1953, a new mayor was elected, who, upon assuming office in June, 1953, appointed a third lawyer as acting city attorney.  The third lawyer has filed his oath and bond with the city clerk, and the second lawyer refuses to relinquish his office.

            You ask which lawyer is legally entitled to the office as acting city attorney.

            In our opinion the last lawyer appointed is the lawful acting city attorney.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            In a third class city the city attorney is an elective officer with a term of four years.  RCW 35.24.020 and 35.24.050.  RCW 35.24.100 provides in part:

            "* * * Vacancies in offices other than that of mayor or city councilman shall be filled by appointment of the mayor.

            "If avacancy occurs in an elective office the appointee shall hold office only until the next regular election at which a person shall be elected to serve for the remainder of the unexpired term.

            "If there is atemporary vacancy in an appointive office due to illness, absence from the city or other temporary inability to act, the mayor may appoint a temporary appointee to exercise the duties of the office until the temporary disability of the incumbent is removed."  (Italics supplied)

            RCW 73.16.040 provides in part:

            "Whenany elective officer of this state or any political subdivision thereof, * * * shall be ordered into active service as provided in RCW 73.16.030, he shall be deemed to have been granted leave of absence for such period of service.  * * *During such leave of absence the position of any elective official may be filled temporarily by any appointment to be made by the officer, board, or other agency which would beauthorized to fill a vacancy created by the death or resignation of the elective official so ordered to such service."  (Italics supplied)

            RCW 73.16.030 specifically includes the case of a person called to active service in the marine corps.  The mayor is thus empowered to fill temporarily the office of city attorney by appointment.  The office is notvacant.  Absence in active military service is not listed as a cause of vacancy by RCW 42.12.010.  The serviceman is still technically the city attorney; see 3 McQuillin, Municipal Corporations (3rd ed.) 369, sec. 12.100; 147 A.L.R. 1427 (Annotation); 67 C.J.S. 150, Officers, sec. 23; attached opinion of 20 January, 1943, to the Deputy  [[Orig. Op. Page 3]] Prosecuting Attorney, Klickitat County.  The procedure for election of a person to serve the remainder of an unexpired elective term, as set out in the quoted portion of RCW 35.24.100, supra, is inapplicable.

            The temporary appointee thus has no specific term of office; he serves, as is illustrated by the present case, for an indefinite period, the end of which may not be foreseeable.  He has in fact the same status as one appointed to fill a temporary vacancy in an appointive office under RCW 35.24.100.  He is not the city attorney, but a temporary appointee.  While RCW 35.24.100 states that a temporary appointee to an appointive office is to serve until the disability of the regular appointee is removed, it is clear that he can have no firmer right to the office than the regular appointee.  RCW 35.24.020 provides:

            "The mayor shall appoint and at his pleasure may remove all appointive officers.  Every appointment or removal must be in writing signed by the mayor and filed with the city clerk."  (Emphasis supplied)

            Since an acting city attorney holds the office under the statutory grant of authority to the mayor to appoint him, he must be considered an appointive officer, although he may fill temporarily an elective office.  It follows that he holds office at the pleasure of the mayor.

            We assume that the removal of the former acting city attorney and appointment of the present acting city attorney were accomplished in accordance with RCW 35.24.020 as last quoted above.  We conclude that the lawyer last appointed is lawfully the acting city attorney.

Very truly yours,

DON EASTVOLD
Attorney General

A. J. HUTTON, JR.
Assistant Attorney General