INCOMPATIBLE OFFICES ‑- STATE REPRESENTATIVE AND PUBLIC UTILITY DISTRICT COMMISSIONER

INCOMPATIBLE OFFICES ‑- STATE REPRESENTATIVE AND PUBLIC UTILITY DISTRICT COMMISSIONER.

 The offices of state representative and public utility district commissioner are not incompatible.

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                                                               November 21, 1962

Honorable Herbert H. Davis
Prosecuting Attorney
Benton County
Fisk Building
Prosser, Washington

                                                                                                              Cite as:  AGO 61-62 No. 177

Dear Sir:

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

            Are the offices of state representative and public utility district commissioner incompatible?

            We answer this question in the negative.

                                                                     ANALYSIS

            The common-law rule prohibiting the retention of incompatible offices was recently commented upon inKennett v. Levine, 50 Wn. (2d) 212, 310 P. (2d) 244 (1957), using the following language:

            ". . . it has been long and universally recognized that no one should hold incompatible public offices.  Throop on Public Officers (1892), 37, § 33;People ex rel. Ryan v. Green (1873), 5 Daly (N.Y.) 254, 46 How. Pr. 169.

            "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.  State ex rel. Klick v. Wittmer (1914), 50 Mont. 22, 144 Pac. 648; State ex rel. Nebraska Republican State Central Committee v. Wait (1912), 92 Neb. 313,  [[Orig. Op. Page 2]] 138 N.W. 159;State v. Anderson (1912), 155 Iowa 271, 136 N.W. 128; Mechem on Public Officers (1890), 268 § 422.  Or, as was said inBarkley v. Stockdell (1933), 252 Ky. 1, 66 S. W. (2d) 43:

            "'The question [of incompatibility] is . . . whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest.'

            "The question of what is compatible and what is incompatible is often difficult of solution, and the principles upon which its solution depends cannot always be stated with exactness.  Throop on Public Officers (1892), 37, § 33.  This must of necessity be so, inasmuch as what public policy should be, and what is, detrimental to the public interest may, in many instances, be subject to a legitimate difference of opinion."  (pp. 216, 217.)

            Indeed, the common-law rule is so firmly imbedded in Anglo-American jurisprudence that it may be traced back to Dyer's Case, 2 Dyer 159 a, 73 Eng. Rep. 344 (K.B. 1557).  See, also,Milwood v. Thatcher, 2 T.R. 81, 100 Eng. Rep. 45 (K.B. 1787).

            Possibly the most comprehensive statement of the rule is that which appears in McQuillin's oft-cited treatise, as follows:

            "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 duties of the offices, 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  [[Orig. Op. Page 3]] 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 in their natures, in the rights, duties or obligations connected with or flowing from them."  3 McQuillin, Municipal Corporations, § 12.67, p. 265 (3rd ed. 1949).

            Other editorial comment may be found in Mechem on Public Officers (1890), §§ 419-431; Throop on Public Officers (1892) §§ 30-40; 3 Antieau, Mun. Corp. Law (1958), pp. 207-209; Rhyne, Municipal Law (1957), §§ 8-6; 42 Am. Jur. Public Officers, § 70; 67 C.J.S., Officers, § 23(a); Annots., L.R.A. 1917 Atl. 216, Ann. Cas. 1915 Atl. 530, 2 Ann. Cas. 380.

            There is a great wealth of case material concerning this subject.  However, there are relatively few cases which deal with legislators, primarily because of the constitutional limitations which surround that office (including those states, unlike Washington, which absolutely prevent the holding of any other office under any set of circumstances).  Among those cases which are pertinent is this country's landmark case concerning the doctrine. People ex rel. Ryan v. Green, 5 Daly (N.Y.) 254, 46 How. Pr. (N.Y.) 169 (1874), reversed on other grounds, 58 N.Y. 295 (1874).

            In that case the New York court held that the offices of state legislator (assemblyman) and deputy clerk of the court of special sessions were not incompatible.  The office of deputy clerk was previously created by the legislature and the court discussed the "subordination" of that office to the power of the legislature by saying:

            "The power of the legislature, of which the relator was a member, to pass laws affecting his local office, did not create any incompatibility of office.  All citizens, in office, or otherwise, are equally subject to the action of that body; and whatever may be the personal interest of the legislator in the subject of legislation, he is not (aside from matters of delicacy or personal honor) precluded from taking part in its deliberations or acting upon the subject."  5 Daly (N.Y.) 254, 273.

            A recent case of particular interest is Reilly v. Ozzard, 33 N.J. 529, 166 A. (2d) 360 (1960), in which the offices of state senator and municipal attorney were held to be compatible.  After pointing out that the common-law rule is not superseded by particular constitutional  [[Orig. Op. Page 4]] and statutory limitations on eligibility to hold office, the court went on to discuss the powers and duties of the two offices and found them compatible.  The court expressly recognized that a situation may arise in which the interests of the individual in his two capacities may conflict but distinguished this circumstance from incompatibility by saying:

            "There is a difference between the subject of incompatible offices and the subject of conflict in interests.  In the former, a clash of duties inheres in the very relationship of one office to the other and is contemplated by the scheme of governmental activities, albeit the occasions may be rare.  The consequence will be the nonperformance (or the questionable performance) of one or the other of the prescribed duties.  On the other hand, a conflict in interests by virtue of a dual officeholding by a legislator will not inevitably arise as an incident of the relationship of the two offices.  It may arise depending upon what bills are introduced.  If it should, the incumbent is not put to a choice of duties.  Rather the conflict relates to the duty of one office, the legislative seat.  It is true that, if a conflict of interests should arise, it may cast a cloud upon the objectivity of the exercise of legislative discretion.  Yet the possibility of a conflict of interests is not peculiar to the case of duality of officeholding by a legislator.  Rather it is part of a larger problem which inheres in the nature of the legislative authority and confronts all members of that department of government.  This is so because the police power and the taxing power range so widely that every legislator, whether he be in a private calling or in another public post or in neither, must inevitably have some interest which may conceivably be affected by some legislative proposal at some time."  (p. 370)

            Both of the above cited cases recognize that the legislature's power to prescribe the compensation, duties and powers relating to an office, does not constitute an incompatibility between that office and that of state legislator.  This is not the "subordination" of one office to another referred to in McQuillin's treatise and a myriad of cases.  Examples of such subordination,inter alia, are the power of an incumbent officer to make appointments or effect removals  [[Orig. Op. Page 5]] relating to another office, or instances when the fiscal needs of one office are within the control of the other by reason of supervisory control over budgeting or auditing.  At the same time the cited cases recognize that a conflict may exist but that conflict is in the interests of the officer, incidental to his duties, and is not an inherent conflict in the nature of the offices.  Consequently, the fact that the legislature has a comprehensive power concerning the creation and characteristics of an official position at a lower level of government does not, nothing else appearing, create incompatibility between the two offices.

            The conflict of interests which may arise is governed, at least in part, by Article II, § 30, Washington Constitution, which states:

            ". . . A member who has a private interest in any bill or measure proposed or pending before the legislature, shall disclose the fact to that house of which he is a member, and shall not vote thereon."

            With respect to compensation attaching to official positions, Article II, § 25, Amendment 35, Washington Constitution, prevents the granting of extra compensation or the taking effect of increases in compensation during a term of office.  This provision is applicable to public utility district commissioners.  State ex rel. Jaspers v. West, 13 Wn. (2d) 514, 125 P. (2d) 694 (1942); AGO 51-53-130 [[to Cliff Yelle, State Auditor on September 18, 1951]].  Furthermore, members of the legislature who increased the emoluments of an office are ineligible, during their legislative term, for election or appointment to that office.  Article II, § 13, Washington Constitution; AGO 61-62 No. 95 [[to Thomas L. Copeland, State Representative on February 8, 1962]].

            We conclude that the offices of state legislator and public utility district commissioner are not incompatible because of the power which the legislature has over the existence and characteristics of the latter office.

            Authority contrary to this position does not seem persuasive.  See,Weza v. Auditor General, 297 Mich. 686, 298 N.W. 368 (1941).  However the hazards of predicting what a Washington court might hold with regard to public policy, are illustrated by the conflicting positions of two successive attorneys general in theWeza case, supra.

            Consistent with our conclusion, in order to resolve the present question, it is necessary to consider the various powers granted and duties imposed upon state legislators and public utility district commissioners to determine if some of the duties and functions of  [[Orig. Op. Page 6]] either office are repugnant to those of the other office.  The qualifications of a public utility district commissioner are set forth in RCW 54.12.010, stating:

            ". . . No person shall be eligible to hold the office of public utility district commissioner unless he is a qualified voter and a free holder within such public utility district, except as hereinafter provided, of the public utility district and of the commissioner district or at large district from which he is elected."

            Such a provision must be construed in light of the familiar rule that eligibility to an office in this state is to be presumed rather than denied and any doubt as to the eligibility of a person to hold an office must be resolved against that doubt.  State ex rel. Weston v. Schragg, 158 Wash. 74, 291 Pac. 321 (1930).

            A public utility district commissioner is an officer of an independent municipal corporation.  AGO 55-57 No. 59 [[to Cliff Yelle, State Auditor on April 14, 1955]].  While a public utility district, through its commissioners, may have occasion to enter into contracts and agreements with the state department of highways, RCW 47.01.210; cities and towns, RCW 54.04.040; county planning commissions, RCW 54.04.120; the United States government and its instrumentalities, RCW 54.16.040; and other public utility districts, RCW 54.16.200; and is subject to regulation in rate structure by the public service commission, RCW 54.04.100; it bears no direct relationship to the state legislature other than that inherent in its legislatively authorized creation and existence.  See, RCW 54.16.090 for general grant of contractual power to public utility districts.

            As a result of relationships to other agencies and municipal corporations, it may well be that some offices in those entities and that of public utility district commissioner are incompatible; e.g., county commissioner and public utility district commissioner are incompatible offices (letter of December 23, 1940, to the prosecuting attorney of Lewis county); contra as to county assessor and public utility district commissioner (letter of March 18, 1946, to the prosecuting attorney of Mason County [[1945-46 OAG 660]]).  However, no similar relationship exists with respect to the state legislature.

            In conclusion, we believe that there is no inconsistency in the nature, functions, and duties of the offices of state legislator and public utility district commissioner and that these offices are compatible.

             [[Orig. Op. Page 7]]

            We trust that the foregoing will be of assistance to you.

 Very truly yours,

 JOHN J. O'CONNELL
Attorney General