Letter Opinion 1970 No. 098

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                                                                    July 14, 1970
 
 
 
Honorable Arlie U. DeJarnatt
State Representative, 18th District
1215 23rd Avenue
Longview, Washington 98632
                                                                                                               Cite as:  AGLO 1970 No. 98
 
 
Dear Sir:
 
            By letter dated June 25, 1970, we provided you with our opinion on a question pertaining to property ownership as a qualification for election as a county freeholder under the provisions of Article XI, § 4 (Amendment 21) of the Washington Constitution, for the purpose of formulating and proposing a county charter.  Following your receipt of this opinion, you requested our advice on two further questions relating to certain other qualifications to be met by persons who desire to be elected as county freeholders under this constitutional provision.  Your two additional questions are as follows:
 
            "(1) Does the five year residency requirement mean five successive years immediately prior to the election or any five years preceding the election?
 
            "(2) May a candidate for freeholder also file for any other elective office during the same election?"
 
                                                                     ANALYSIS
 
            Although the pertinent language of Article XI, § 4 (Amendment 21) was set forth in our earlier letter to you, we will repeat it here for ease of reference.  This constitutional provision reads, in material part, as follows:
 
            "Any county may frame a 'Home Rule' charter for its own government subject to the Constitution and laws of this state, and for such purpose the legislative authority of such county may cause an election to be had, at which election there shall be chosen by the qualified voters of said county not less than fifteen (15) nor more than twenty-five (25) freeholders thereof, as determined by the legislative authority, who shall have been residents of said county for a period of at least five (5) years preceding their election and who are themselves qualified electors, whose duty it shall be to convene  [[Orig. Op. Page 2]] within thirty (30) days after their election and prepare and propose a charter for such county.  . . ."  (Emphasis supplied.)
 
            In response to the first of your two additional questions, we can see no basis for concluding that the underscored requirement that freeholders "shall have been residents of said county for a period of at least five (5) years preceding their election" means that these five years of residency have been either consecutive, or that they must have occurred immediately prior to the election of freeholders.  Instead, we are of the opinion that this residency qualification only requires that the prospective freeholders must have resided within the county which they are seeking to serve for a total of five years, consecutive or otherwise, at sometime prior to the election of freeholders.1/
 
             Our analysis and reasoning in support of this answer to your first additional question is substantially the same as that which we applied in AGO 1969 No. 13 [[to Bureau of Governmental Research and Services on August 25, 1969]], copy enclosed, in answering a question pertaining to the retirement eligibility of certain police officers under the provisions of § 36, chapter 209, Laws of 1969, Ex. Sess.  There, as here, the subject individuals' eligibility was expressed in terms of their occupation of a particular status for a specified number of years prior to their application for the new status sought.  As is the case with respect to the constitutional provision which is the subject of your present inquiry, the statute which was involved in that opinion contained no expression of intent that the required number of years in the qualiifying status must have been either "consecutive" or have occurred "immediately" prior to the individuals' application for the desired new status.  Accordingly, consistent with the rule of construction that legislative intent not expressed in some appropriate manner has no legal existence,2/ we concluded that:
 
            ". . . in the absence of any indication in the  [[Orig. Op. Page 3]] amendment to the contrary, it is not necessary that the retiree have served in a position higher than the rank of captain for three consecutive years immediately prior to the date of his retirement in order to qualify for retirement in such a position."
 
            In addition, the view which we have expressed with respect to your first question is further dictated by the rule, most recently enunciated in State ex rel. O'Connell v. Dubuque, 68 Wn.2d 553, 566, 413 P.2d 972 (1966), that:
 
            "A strong public policy exists in favor of eligibility for public office, and the constitution, where the language and context allows, should be construed so as to preserve this eligibility.  State ex rel. Weston v. Schragg, 158 Wash. 74, 291 Pac. 321 (1930).  . . ."
 
            Unquestionably, the members of a board of county freeholders are "public officers" for the purposes of this rule, for the Washington court has held that the persons holding these positions posess all of the elements of the judicially enunciated definition of the term "public officer" which has evolved from many court decisions over the years.  See, Fitts v. Gibbs, 40 Wn.2d 444, 244 P.2d 241 (1952).  Thus, to the extent that Article XI, § 4 (Amendment 21), supra, may be said to be open to construction on the issue raised by your first question, it must be construed in a manner so as to favor eligibility rather than to disfavor it.
 
            Lastly, it is interesting, and perhaps somewhat significant, to note that the framers of our Constitution knew perfectly well how to state that a condition of residency as a qualification for a status must have occurred "immediately" prior to an election when this was their intended result.  See, Article VI, § 1 of the Constitution, relating to the qualifications of electors, which sets forth a number of durational residency requirements and then provides that each of these periods of residency shall have occurred "immediately preceding the election at which [the prospective voters] offer to vote; . . ."  Obviously, had the framers of Article XI, § 4 (Amendment 21), supra, intended to impose a similar requirement, the appropriate  [[Orig. Op. Page 4]] constitutional language, as set forth in this provision relating to the qualifications of electors, was available to them.  However, as has been seen, they did not choose to use it.
 
            In so far as your other question is concerned; i.e.,
 
            ". . .  May a candidate for freeholder also file for any other elective office during the same election?"
 
            we note that you have not identified in your request the "other elective office" which a particular candidate for freeholder might also be seeking at the same election. Unfortunately, without this information we cannot provide you with a full and complete answer to your question.  Instead, we can at this time only point out two problem areas which could arise, depending upon the nature and identity of the other elective office sought.
 
            First, we should direct your attention to the provisions of RCW 29.30.080 (6), which prohibit a candidate's name from appearing more than once upon the same election ballot.  Thus, if it is contemplated that the same ballot will be used for the election of freeholders as is to be used for the other elective office which is being sought by the individual in question, this statute would obviously preclude this individual from seeking simultaneous election to both offices.
 
            And secondly, although not expressly stated, the question which you have posed would appear to us also to at least suggest an issue of "incompatibility" of public offices.  In other words, even assuming that the balloting procedure utilized will involve the use of a different ballot for the office of freeholder than is to be used for the other elective office being sought by the individual in question, the question would still arise as to whether the same individual, upon attaining election to both offices, could simultaneously serve in both positions without violating the common-law rule against the holding of incompatible public offices.  Again, however, since the whole concept of incompatibility of public offices is based upon inconsistencies in the duties and functions of the two offices sought to be simultaneously held ‑ examined from the standpoint of the precise duties and functions which each of the offices involves ‑ a definite identification of the "other office" to be sought by the individual in question would be necessary before we could come up with any sort of definitive  [[Orig. Op. Page 5]] answer to this question.

 
            Hopefully, the forgoing will sufficiently resolve the problem which precipitated your present questions ‑ at least for the time being.  However, should you care to have us pursue the matter further, please feel free to so indicate and, at the same time, advise us as to the identity of the "other" elective office in question.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/Of course, it is clear that these prospective freeholders must reside in the county at the time of their election, in order to meet the further requirement that they be "qualified electors."  See, Washington Constitution, Article VI, § 1.
 
2/Accord, Labor and Industries v. Cook, 44 Wn.2d 671, 677, 269 P.2d 962 (1954), and cases cited therein.