DISTRICTS ‑- SCHOOLS ‑- BOARD OF DIRECTORS ‑- FEDERAL MIGRANT DAY CARE AND EDUCATION PROGRAM ‑- CONSULTANT ‑- EMPLOYMENT OF SCHOOL DIRECTORS

DISTRICTS ‑- SCHOOLS ‑- BOARD OF DIRECTORS ‑- FEDERAL MIGRANT DAY CARE AND EDUCATION PROGRAM ‑- CONSULTANT ‑- EMPLOYMENT OF SCHOOL DIRECTORS.

A member of the board of directors of a school district may be employed as a consultant in a federal migrant day care and education program conducted in his district where the position of "consultant" is under the exclusive control of an independent advisory committee over which the local school board exercises no control either as to employment, removal, or compensation.

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                                                               November 23, 1965

Honorable C. E. Hormel
Prosecuting Attorney
Adams County
Ritzville, Washington 99169

                                                                                                                Cite as:  AGO 65-66 No. 53

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office upon a question which we paraphrase as follows:

            May a school director whose district conducts a federal migrant day care and education program be employed as a consultant for said program?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            The operative facts as you have reported them to us may be stated as follows: A school district director may be employed in a program which is controlled to some extent by an independent advisory board, but which is administered by his own school district.  The district administers the program under the federal economic opportunity act of 1964, and specifically under 42 U.S.C.A. § 2861.  It is our understanding that said program is a one‑hundred percent federally funded program.  The funds are granted directly for use in the program and the payment for services is made by a district warrant drawn upon said funds.  The consultant is hired or may be removed at the will of the independent advisory  [[Orig. Op. Page 2]] board.  The consultant services are not subject to a contract, or if subject to a contract, said contract is at most only of a month's duration.  The consultant's compensation has been set at not to exceed $150.00 per month.

            At the outset, it would be beneficial to note the applicable statutes regarding the conduct of municipal officers.  RCW 42.20.010 provides in part:

            "Every public officer who shall‑-

            ". . .

            "(2) Be 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, or accept, directly or indirectly, any compensation, gratuity or reward from any other person beneficially interested therein; . . .

            "Shall be guilty of a gross misdemeanor, and any contract, sale, lease or purchase mentioned in subdivision (2) hereof shall be void."

            RCW 42.23.030, which deals with municipal officers directly, 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.  This section shall not apply in the following cases:

            ". . .

            "(5) The employment of any person by a municipality, other than . . . a first class school district, for unskilled day labor at wages not exceeding one hundred dollars in any calendar month; and any other contract  [[Orig. Op. Page 3]] in such a municipality except a sale or lease by the municipality as seller or lessor:  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 two hundred dollars in any calendar month: . . ."

            These two statutes prohibit flatly any direct or indirect interest by public officers in public contracts where the officer occupies a certain relationship to the contract.  However, RCW 42.23.030,supra, contains a proviso validating such contracts under specific and restricted circumstances.  The purpose and policy of such statutes would seem to be self-evident, but for emphasis we refer toNorthport v. Northport Townsite Co., 27 Wash. 543, 549, 68 Pac. 204 (1902).  The court, after stating the principle that municipal officers cannot enter into contracts with the municipal corporation or derive any benefit from such contracts, said:

            "Long experience has taught lawmakers and courts the innumerable and insidious evasions of this salutary principle that can be made, and therefore the statute denounces such a contract if a city officer shall be interested not only directly, but indirectly.  However devious and winding the chain may be which connects the officer with the forbidden contract, if it can be followed and the connection made, the contract is void. . . ."

            The court further said at page 548:

            ". . . The general public policy upon which the statute . . . is founded is of ancient origin, and has been inexorably enforced by the courts throughout the history of the common law.  It is that principle which requires the trustee to always occupy a position that shall be free from the dictates of any interest that may conflict with the obligations of his trust. . . ."

             [[Orig. Op. Page 4]]

            Applying the foregoing principles to your particular problem, we find a school district director being employed in a program which is administered by his own district and which is compensated for by the issuance of a school district warrant.  There are however two operative facts which we feel take the district director's activities out of any area of prohibited conduct.  First, as you have related to us, the consultant for this program is hired and may be removed by the advisory board which is either elected or appointed by the members of the community who are interested in the program.  This is to say that the district director is in no way hiring himself; it is not because of, or through, his office that he would be gaining any benefit.  His position as a consultant is not subject to the control of any individual or board over which he has any influence or control, so that it could be said that he would be directly or indirectly benefiting himself.  Secondly, the director's position as consultant is not the subject of a contract which creates a liability exceeding two hundred dollars per month, as interpreted by AGO 61-62 No. 174 [[to Prosecuting Attorney, Franklin County on October 23, 1962)]], a copy of which is enclosed.  This opinion interprets RCW 42.23.030, supra, which allows under certain restricted circumstances for district directors and other officers to be beneficially interested in contracts (i.e., where the total contract liability at any time does not exceed two hundred dollars).

            In summary, it is our conclusion, based upon the facts that you have related to us, that since the position of consultant is to be under the exclusive control of an independent advisory committee over which the local school district officers or board can exercise no control and its composition is to be determined by the community, that the consultant is not beneficially interested in a contract made by, through or under his supervision.  Further, that even if it could be said that the director is beneficially interested in said contract within the meaning of RCW 42.23.030, his interest is within the exception provided for in said statute, hence the district director may serve without a conflict of interest or a violation of the code of ethics.

             [[Orig. Op. Page 5]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

THOMAS D. FREY
Assistant Attorney General