DISTRICTS ‑- SCHOOLS ‑- BOARD OF DIRECTORS ‑- FIRST CLASS DISTRICT ‑- SUPERINTENDENT MAY SERVE AS SECRETARY OF BOARD

DISTRICTS ‑- SCHOOLS ‑- BOARD OF DIRECTORS ‑- FIRST CLASS DISTRICT ‑- SUPERINTENDENT MAY SERVE AS SECRETARY OF BOARD.

The board of directors of a first class school district may elect as its secretary under RCW 28.62.030 the same individual employed under RCW 28.62.180 (1) as superintendent of schools.

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                                                                 January 25, 1965

Honorable C. J. Rabideau
Prosecuting Attorney
Franklin County
P.O. Box 951
Pasco, Washington

                                                                                                                  Cite as:  AGO 65-66 No. 6

Dear Sir:

            You have requested an opinion of this office on the following question:

            May the board of directors of a first class school district elect as secretary under RCW 28.62.030 the same individual employed under RCW 28.62.180 (1) as superintendent of schools?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            Generally speaking, an individual may not simultaneously hold incompatible public offices.  See,Kennett v. Levine, 50 Wn. (2d) 212, 310 P. (2d) 244 (1957).  The determination of whether or not a particular position is a "public office" within the meaning of that statement is made by reference to a number of factors, which are outlined inState ex rel. Brown v. Blew, 20 Wn. (2d) 47, 145 P. (2d) 554 (1944).  The criteria may be found summarized in 42 Am.Jur., Public Officers, § 2, as follows:

            ". . . Ordinarily and generally, a public office is defined to be the right, authority, and duty created and conferred by law, the  [[Orig. Op. Page 2]] tenure of which is not transient, occasional, or incidental, by which for a given period an individual is invested with power to perform a public function for the benefit of the public. . . ."

            After making a determination that two positions are in fact public officers, the next step would be to determine whether they are compatible or incompatible.  The general test is found summarized in Kennett v. Levine, supra, as follows:  (50 Wn. (2d) 216)

            "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. . . ."

            See, also, AGO 63-64 No. 66 [[to Prosecuting Attorney, Douglas County on October 18, 1963]], a copy of which is enclosed.  See, also, AGO 63-64 No. 66, a copy of which is enclosed.

            Both issues are usually determined by reference to the statutes creating and defining the positions in question.  With regard to the secretary, RCW 28.62.030 provides:

            "At the first meeting of the members of the board they shall elect a president and vice president from among their number who shall serve for a term of one year or until their successors are elected and qualified. . . .

            "They shall also at the first meeting in each year elect a secretary at such salary as they may deem just; the secretary shall not be a member of the board of directors, and may be removed by the board at any time."

            His duties are set forth in RCW 28.62.070 as follows:

            "It shall be the duty of the secretary to be present at all meetings of the board, to keep an accurate journal of the proceedings, to take charge of its books and documents, to countersign all warrants for school money drawn upon the county treasurer by order of the board; he may be authorized by the board to act as business manager, purchasing agent, superintendent of buildings and janitors, and charged with the special care of school buildings and other property of the district;  [[Orig. Op. Page 3]] he shall also perform such other duties as the board may direct."

            Additionally, RCW 28.62.080 provides that:

            ". . . He shall, from time to time, as he may be required by the board, make a complete and detailed record of his transactions as secretary, which shall be combined with his annual report, to be published in the manner determined by the board."

            The secretary is required to qualify for his position under RCW 28.62.080, as follows:

            "Before entering upon the discharge of his duties, the secretary of the board shall give bonds in such sum as the board of directors may fix from time to time, but for not less than five thousand dollars, with good and sufficient sureties, and shall take and subscribe an oath or affirmation, before a proper officer that he will support the Constitution of Washington and faithfully perform the duties of his office. . . ."

            The position of secretary arguably conforms to the definition of "public office" as set out above.  The elements of tenure, right, authority and duties, conferred by law, are all present in the statutes listed.  The secretary is elected for a year; his duties are prescribed by law; he is given authority by statute.  The court may also take into consideration the presence or absence of a bond or oath in determining along with the other elements whether a public office exists.  42 Am. Jur., Public Officers, § 7; see, also, State ex rel Brown v. Blew, supra.

            The position of city superintendent is created under RCW 28.62.180 (1), which provides:

            "Every board of directors of a school district of the first class shall, in addition to the general powers enumerated in chapter XVII (XV) of this title have the power:

             [[Orig. Op. Page 4]]

            "(1) To employ for a term of not exceeding three years a city superintendent of schools of the district, and for cause to dismiss him; and tofix his duties and compensation;" (Emphasis supplied.)

            The superintendent, in our opinion, holds a position of "employment" rather than "public office."  He is employed by the board of directors, if it chooses to employ a superintendent at all; his compensation and duties are fixed by the board, and he is subject to the direction of the board in all his activities.  In addition he may be dismissed for cause.  Therefore, the required elements of a "public office" do not appear to exist in this case, particularly the requirements that the office have continuity and that the incumbent should have some measure of independent governmental discretion.  See,State ex rel. Brown v. Blew, supra, also,In re Black, 47 Wn. (2d) 42, 287 P. (2d) 96 (1955).

            Having concluded that one of the two positions in question is not a "public office," the doctrine of incompatible public offices cannot have any direct application to this situation.  The further question of whether or not the holding of both positions would present a "conflict of interest" under our statutes expressly prohibiting such conflicts must also be answered in the negative.  The statutory prohibition in point is found in chapter 42.23 RCW, specifically RCW 42.23.030, which provides in pertinent part as follows:

            "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. . . ."

            As may be readily noted from the foregoing discussion and analysis of the nature and duties of the position in question, the prohibited conflict which is the subject of chapter 42.23 RCW, supra, does not appear to be present.  Even  [[Orig. Op. Page 5]] assuming that the secretary to the board of directors is in fact a "municipal officer" the employment of the superintendent is not his function nor is it a contract which is "made by through or under the supervision of such officer, in whole or in part . . ."

            In light of the above analysis, we see no legal reason why the directors of a first class school district may not elect as secretary to the board (RCW 28.62.030) the same person employed as superintendent of schools of the district (RCW 28.62.180 (1)).

            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