DISTRICTS - FIRE PROTECTION - APPOINTMENT OF COMMISSIONER AS SECRETARY OF THE DISTRICT

DISTRICTS - FIRE PROTECTION - APPOINTMENT OF COMMISSIONER AS SECRETARY OF THE DISTRICT.

The offices of commissioner of a fire protection district and secretary of the district are incompatible.

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                                                               November 10, 1960

Honorable Roger L. Olson
Prosecuting Attorney
Franklin County
County Court House
Pasco, Washington                                                                                             Cite as:  AGO 59-60 No. 157

Dear Sir:

            By letter previously acknowledged, you requested an opinion of this office on whether the same person may simultaneously hold the offices of secretary and commissioner of a fire protection district.

            We answer your question in the negative.

                                                                     ANALYSIS

            The legislature has provided for the creation of fire protection districts and has directed that when a district is formed the affairs thereof "shall be managed by a board of fire commissioners composed of three resident electors of the district."  RCW 52.12.010.  This statute further provides as follows:

            ". . . The members shall receive no compensation for their services, but shall receive necessary expenses in attending meetings of the board or when otherwise engaged on district business:  Provided, That in any district which has a fire department employing personnel on a full time, fully  [[Orig. Op. Page 2]] paid basis, fire commissioners, in addition to expenses as aforesaid, may each receive not to exceed ten dollars per day or thirty dollars per month for attendance at board meetings and for performance of other services in behalf of the district to be fixed by resolution and entered in the minutes of the proceedings of the board.

            "The board shall fix the compensation to be paid to the secretary and all other agents and employees of the district.  The first commissioners shall serve until after the next general election for the selection of commissioners and until their successors have been elected or appointed and have qualified."  (Emphasis supplied.)

            Regarding the organization of the board, RCW 52.12.080 provides as follows:

            "The fire commissioners shall organize as a board and shall elect a chairman from their number and shall appoint a secretary of the district for such term as they shall by resolution determine.  The secretary of the district shall keep a record of the proceedings of the board and shall perform such other duties as shall be prescribed by the board or by law, and shall take and subscribe an official oath similar to that taken and subscribed by the fire commissioners which oath shall be filed in the same office as that of the commissioners."  (Emphasis supplied.)

            There appears to be no provision in the above or any other statute, or any constitutional provision, expressly prohibiting an individual from simultaneously holding the offices of fire district commissioner and secretary.  An examination of the above statutes and others indicates to us that the legislature did not intend the same person to hold both offices.  However, in the present instance, we do not feel that it would be necessary or proper to base our opinion solely on our interpretation of legislative "intent."  In 42 Am.Jur. Public Officers, § 61, we find the following pertinent statement:

             [[Orig. Op. Page 3]]

            ". . . the right to hold office is a valuable one and its exercise should not be declared prohibited or curtailed except by plain provisions of the law.  And the rule that provisions imposing disqualifications should be strictly construed is applicable to those which prohibit dual office holding.  They should not be extended by implication beyond the office or offices expressed, or to persons not clearly within their meaning.  In other words, they should be construed in favor of eligibility."

            Our conclusion rests upon other grounds.  It is the rule that the same person may hold different offices which are not incompatible, unless forbidden by law.  3 McQuillin, Municipal Corporations, § 12.67.  Conversely, however, it has been long and universally recognized that no one should hold incompatible public offices.Kennett v. Levine, 50 Wn. (2d) 212, 216, 310 P. (2d) 244 (1957); 42 Am.Jur. Public Officers, § 59.

            Whether particular offices are incompatible is a judicial question.  3 McQuillin, Municipal Corporations, § 12.67, supra, p. 264.  In a previous opinion of this office, AGO 57-58 No. 90 to the prosecuting attorney of Benton County, July 2, 1957, we pointed out that there is no one universal criterion of incompatibility, the determination resting upon the circumstances of each case.  However, in that opinion we set out some general considerations stated by various authorities, as follows:

            "In 3 McQuillin, Municipal Corporations (3rd Ed.) 261, 265, § 12.67, it is said:

            "'Incompatibility is not simply a physical impossibility to discharge the duties of both offices at the same time, it is an inconsistency in the functions of the two offices, as where one is subordinate to the other, or where a contrariety and antagonism would result in the attempt by one person to discharge faithfully and impartially the duties of both.  Two offices are said to be incompatible when the holder cannot in every instance discharge the duties of each.  Incompatibility arises, therefore, from the nature of the  [[Orig. Op. Page 4]] duties of the offices, when there is an inconsistency in the functions of the two, where the functions of the two are inherently inconsistent or repugnant, as where antagonism would result in the attempt by one person to discharge the duties of both offices, or where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both.  The true test is whether the two offices are incompatible to their natures, in the rights, duties or obligations connected with or flowing from them.'

            "In an opinion of this office dated January 21, 1925, to the supervisor of the division of municipal corporations [[1925-26 OAG 4)]], a copy of which is attached, we said:

            "'Offices are incompatible when one has power of supervision over the other, or when the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both.'

            "In Kennett v. Levine, supra, our supreme court stated the rule as follows:

            "'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 . . .'"

            In the present situation, if both offices were held by one person, the secretary of the district would also be a member of the board which makes his appointment, sets his term of office, and fixes his compensation.  In addition, some of his duties as secretary are left to the determination and supervision of the board.  See RCW 52.12.080,supra, and RCW 52.12.100.  Furthermore, as a commissioner, he would be in a position of passing approval upon his own claims for compensation and expenses as secretary, and as secretary his approval is required on all expenditures of the district authorized by the commissioners.  RCW 52.16.050 provides as follows:

             [[Orig. Op. Page 5]]

            "The county treasurer shall pay out money received for the account of the district upon warrants issued by the county auditor against the proper funds of the district.  Said warrants shall be issued on vouchers approved and signed by a majority of the district board and by the secretary thereof.  The county treasurer shall also be authorized to pay coupon warrants and the accrued interest thereon in accordance with their terms out of the coupon warrant fund upon presentation of such warrants or interest coupons thereof.  The county treasurer shall report in writing monthly to the secretary of the district the amount of money held by him in each fund and the amounts of receipts and disbursements for each fund during the preceding month."  (Emphasis supplied.)

            It seems rather clear that the legislature, by establishing a separate and independent auditing power in both the board of commissioners and secretary, has created a certain check and balance system which would be ineffective if one person held both offices.

            As early as August 23, 1892, in an opinion to the superintendent of public instruction, (1891-92 No. 235) [[1891-92 OAG 235)]], copy of which is enclosed, this office pointed out that:

            "It is manifestly against public policy that a person should be permitted to occupy one office whereby he would become the auditor of bills presented by himself against the public, acting in the capacity of incumbent of another office."

            We conclude therefore, that the offices of commissioner and secretary of a fire protection district are incompatible.  In other previous opinions we have reached the same conclusion which we reach here, regarding other classes of districts.  See AGO 1915-16 No. 184 to the Bureau of Inspection, November 19, 1915 (director and secretary of a drainage district) [[1915-16 OAG 184)]]; AGO 1927-28 No. 856, to the prosecuting attorney of Whatcom County, July 26, 1928 (commissioner and auditor of a port district) [[1915-16 OAG 856)]]; AGO 1933-34 No. 89, to Mr. G. E. Buck, May 11, 1933 (director and secretary of an irrigation district) [[1933-34 OAG 89]].  Copies of these opinions are also enclosed.

             [[Orig. Op. Page 6]]

            Our conclusion involves a determination that the secretary of the district, like a commissioner, is a public officer within the rule prohibiting the holding of incompatible offices.  That conclusion appears to be inescapable, from a reading of the opinions previously cited, and the various statutes relating to the powers and duties of the secretary.  It is the essential character of a public position, rather than its designation by the legislature, which determines its nature as a public office or otherwise.  See State ex rel. Brown v. Blew, 20 Wn. (2d) 47, 145 P. (2d) 554 (1944); 3 McQuillin, Municipal Corporations, § 12.33.  State ex rel. Brown v. Blew, supra, sets out the elements necessary to constitute a public office.  For other authorities in point, see Attorney General v. Tillinghast, 203 Mass. 539, 89 N.E. 1058; People v. Beu, 403 Ill. 232, 85 N.E. (2d) 829; 3 McQuillin, Municipal Corporations, §§ 12.29 and 12.30; 42 Am.Jur., Public Officers, §§ 5 and 13.

            In passing, it should be pointed out that if it were determined that the secretary of a fire protection district is an employee, holding his office under contract, rather than an officer, we would be confronted with the provisions of RCW 42.20.010, which prohibits a public officer (including a fire district commissioner) from being ". . . beneficially interested, directly or indirectly, in any contract, sale, lease or purchase 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, . . ."

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General