OFFICES AND OFFICERS ‑- COUNTIES ‑- INCOMPATIBILITY OF OFFICES ‑- CHAIRMAN OF COUNTY BOARD OF COMMISSIONERS AND COUNTY CIVIL DEFENSE DIRECTOR

OFFICES AND OFFICERS ‑- COUNTIES ‑- INCOMPATIBILITY OF OFFICES ‑- CHAIRMAN OF COUNTY BOARD OF COMMISSIONERS AND COUNTY CIVIL DEFENSE DIRECTOR.

Where a local civil defense organization as established by county ordinance under RCW 38.52.070 (1) is governed by a civil defense council consisting of the board of county commissioners and the mayor of each incorporated municipality in the county with the chairman of the board of county commissioners additionally serving as the chairman of the civil defense council, the chairman may not also serve as the civil defense director since the offices are incompatible.

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                                                                  March 18, 1964

Honorable L. Edward Brown
Prosecuting Attorney
Grays Harbor County
417 Finch Building
Aberdeen, Washington

                                                                                                                Cite as:  AGO 63-64 No. 92

Dear Sir:

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

            Where a local civil defense organization as established by county ordinance under RCW 38.52.070 (1) is governed by a civil defense council consisting of the board of county commissioners and the mayor of each incorporated municipality in the county with the chairman of the board of county commissioners also serving as chairman of the civil defense council, may said chairman serve in the additional capacity of civil defense director without pay for his services as director?

            We answer your question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            While research has failed to disclose either a constitutional or statutory prohibition against the chairman of a board of county commissioners also serving as a local director of civil defense (with or without compensation) as above described, this fact is not dispositive of the question posed.

            It is a well-established common-law principle that a public officer may not simultaneously hold two incompatible offices.  This principle has been recognized and applied by this office on innumerable occasions in the past, and by the Washington supreme court as recently  [[Orig. Op. Page 2]] as 1957.  See, Kennett v. Levine, 50 Wn.2d 212, 310 P.2d 244 (1957), in which the court observed as follows at page 216:

            ". . . 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, 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 in Barkley 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 rationale of the incompatibility rule is succinctly set forth in McQuillin on Municipal Corporations as follows:

            ". . . Public policy demands that an office holder discharge his duties with undivided loyalty.  The doctrine of incompatibility is intended to assure performance of that quality.  Its applicability does not turn upon the integrity of the person concerned or his individual capacity to achieve impartiality, for inquiries of that kind would be too subtle to be rewarding.  The doctrine applies inexorably, if the offices come within it, no matter how worthy the officer's purpose or extraordinary his talent. . . ."  (3 McQuillin, Municipal Corporations (3rd ed.), § 12.67, pp. 294-295.)

             [[Orig. Op. Page 3]]

            There is no one universal criterion of incompatibility; the determination rests upon the circumstances of each case.  However, certain general considerations are stated by the various authorities.  Again referring to McQuillin, Municipal Corporations, we find the following statement:

            ". . . 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, 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 in their natures, in the rights, duties or obligations connected with or flowing from them."  (Emphasis supplied.)  (3 McQuillin, Municipal Corporations (3rd ed.), § 12.67, pp. 298-299.)

            Thus, one significant consideration is the question of whether one of the two offices is subordinate to the other.  This concept was also expressed by the supreme court of Montana in State ex rel. Klick v. Wittmer, 50 Mont. 22, 144 Pac. 648 (1914), as follows:

            "Public offices are 'incompatible' when the incumbent of one has power of removal over the other, or when one has power of supervision over the other, . . ."  (p. 648, Headnote 1.)

            Illustrative of the application of this principle to a question of dual-office holding previously considered by this office is AGO 59-60 No. 157 [[to Prosecuting Attorney, Franklin County on November 10, 1960]], a copy of which is enclosed.  The two offices there 59-60 No. 157, a copy of which is enclosed.  The two offices there  [[Orig. Op. Page 4]] in question were (1) member of the board of commissioners of the fire protection district, and (2) secretary of the fire protection district.  We noted that under RCW 52.12.080 the board of fire commissioners ". . . shall appoint a secretary of the district for such term as they shall by resolution determine. . . ."  We further noted that the duties of the secretary of the district were provided for in the same statute as follows:

            ". . . The secretary of the district shall keep a record of the proceedings of the board andshall perform such other duties as shall be prescribed by the board or by law, . . ."  (Emphasis supplied.)

            On the basis of these statutory provisions, we observed that:

            "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. . . ."  (AGO 59-60 No. 157, p. 4.)

            For this reason, as well as certain others, we then concluded that the two offices (fire district commissioner and secretary) are incompatible.

            In the instant case, examination of the state statute and supplementary county ordinance establishing the local civil defense organization in your county (in the context of which your question was asked) reveals a similar subordination of the office of civil defense director to the office of chairman of the board of county commissioners and/or chairman of the civil defense council.  We have reference first to that portion of RCW 38.52.070, relating to local civil defense organizations which provides:

            ". . . Each local organization for civil defense shall have a directorwho shall be appointed by the executive head of the political subdivision, and who shall have direct responsibility for the organization, administration, and operation of such local organization for civil defense, subject to the direction and control of such executive officer or officers.   [[Orig. Op. Page 5]] In the case of a jointly established and operated organization for civil defense,the director shall be appointed by the joint action of the executive heads of the constituent political subdivisions.  As used in this chapter, the term 'executive head' and 'executive heads' mean, in the case of counties,the board of county commissioners and, in the case of cities and towns, the mayor. . . ."  (Emphasis supplied.)

            In other words, a county director of civil defense is appointed by the board of county commissioners and is subject to the direction and control of this board in performing his functions.  For this reason, under the authorities cited above, we would conclude that the offices of chairman of a board of county commissioners and county civil defense director are incompatible, and, therefore, they may not simultaneously be held by the same person.

            This result is not changed if we view the local organization in question as a jointly established and operated organization pursuant to the supplementary county ordinance previously noted.  This is because, as indicated above in our paraphrasing of your question, the local civil defense organization is governed by a civil defense council consisting of the board of county commissioners and the mayor of each incorporated municipality in the county with the chairman of the board of county commissioners also serving as chairman of the civil defense council.  The director of civil defense is, in turn, appointed by this civil defense council‑-i.e., "by the joint action of the executive heads of the constituent political subdivisions" ‑-and serves under the council's direction.

            Accordingly, the same pattern of subordination and control of the one office in relation to the other is present regardless of whether we view the local organization as strictly a county civil defense organization functioning under the direction of the board of county commissioners or‑-on the other hand‑-as a jointly established civil defense organization functioning under the direction of a council consisting of the "executive heads of the constituent political subdivisions."

            We might add that we view it to be of no consequence that no payment of additional compensation for the commissioner's services as civil  [[Orig. Op. Page 6]] defense director is contemplated.  The doctrine of incompatibility of public offices is not dependent upon whether or not both offices are compensated positions.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General