OFFICES AND OFFICERS ‑- COUNTY ‑- AUDITOR ‑- VACANCY IN OFFICE ‑- APPOINTMENT BY COUNTY COMMISSIONERS ‑- COMMISSIONER NOT ELIGIBLE FOR APPOINTMENT ‑- RESIGNATION ‑- EFFECT

OFFICES AND OFFICERS ‑- COUNTY ‑- AUDITOR ‑- VACANCY IN OFFICE ‑- APPOINTMENT BY COUNTY COMMISSIONERS ‑- COMMISSIONER NOT ELIGIBLE FOR APPOINTMENT ‑- RESIGNATION ‑- EFFECT.

(1) A board of county commissioners may not appoint one of its members to fill a vacancy in the office of county auditor.

(2) Same: If a county commissioner were to resign his office for the sole purpose of accepting an appointment as the county auditor under a prior agreement to that effect with the board of which he was a member, the member would still be ineligible for the appointment notwithstanding his resignation.

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                                                                   May 26, 1965

Honorable George A. Kain
Prosecuting Attorney
Spokane County Courthouse
Spokane, Washington 99201

                                                                                                                Cite as:  AGO 65-66 No. 20

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office upon the following questions:

            (1) "May a board of county commissioners appoint one of its members to fill a vacancy existing in the office of county auditor?"

            (2) "If a board member may be appointed to fill such a vacancy, may he vote for himself if necessary to provide a majority vote for himself to fill the vacancy?"

            (3) "If the answers to (1) and (2) are in the negative, would the situation be changed if a county commissioner resigned as such prior to being appointed as county auditor, where such resignation was made for the sole purpose of accepting an appointment from the board from which he resigned, by prior agreement with the other board members that such would be the result of his resignation?"

            We answer your first question in the negative for the reasons set forth in our analysis.  Consideration of your second question is thereby rendered unnecessary.  We answer your third  [[Orig. Op. Page 2]] question in the negative subject to the qualifications set forth in our analysis.

                                                                     ANALYSIS

            The function of a board of county commissioners in regard to filling vacancies occurring in any county office is set forth in Article XI, § 6, of the Washington Constitution as follows:

            "The board of county commissioners in each county shall fill all vacancies occurring in any county, township, precinct or road district office of such county by appointment, and officers thus appointed shall hold office till the next general election, and until their successors are elected and qualified."

            This constitutional provision has been procedurally implemented by legislation.  RCW 36.16.110 provides:

            "The board of county commissioners in each county shall, at its next regular or special meeting after being appraised of any vacancy in any county, township, precinct, or road district office of the county, fill the vacancy by the appointment of some person qualified to hold such office, and the officers thus appointed shall hold office until the next general election, and until their successors are elected and qualified."

            Thus, clearly, any vacancy existing in the office of county auditor must be filled by an appointment made by the board of county commissioners of the particular county.  Furthermore, the person appointed must be a person who is qualified to hold the office to which he is appointed‑-in this case, the office of county auditor.

            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 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 offices.  Throop on Public Officers  [[Orig. Op. Page 3]] (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.'"

            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.  One significant consideration is the question of whether one of the two offices is subordinate to the other.  This concept was 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, . . ."

            A perusal of the statutes relating to the duties of a county auditor make it perfectly obvious that the office of county auditor is incompatible, on the basis of the above stated test, with the office of member of the board of county commissioners.  Particularly to be noted is RCW 36.32.110, which provides:

            "The county auditor shall be the clerk of the board of county commissioners, and shall attend its meetings and keep a record of its proceedings."

             [[Orig. Op. Page 4]]

            The specific duties of the county auditor, as clerk of the board of county commissioners are set forth in RCW 36.22.010 (9) as follows:

            "(9) As clerk of the board of county commissioners he shall:

            "Record all of the proceedings of the board;

            "Make full entries of all of their resolutions and decisions on all questions concerning the raising of money for and the allowance of accounts against the county;

            "Record the vote of each member on any question upon which there is a division or at the request of any member present;

            "Sign all orders made and warrants issued by order of the board for the payment of money;

            "Record the reports of the county treasurer of the receipts and disbursements of the county;

            "Preserve and file all accounts acted upon by the board;

            "Preserve and file all petitions and applications for franchises and record the action of the board thereon;

            "Perform all other duties required by any rule or order of the board."  (Emphasis supplied.)

            That the offices of county auditor and member of the board of county commissioners cannot simultaneously be held by the same person is further demonstrated by RCW 36.22.110, providing in material part:

            ". . . The county auditor, during his term of office, and any deputy appointed by him is disqualified from performing the duties of any other county officer or acting as deputy for any other county officer.  Nor shall any other county officer or his deputy act as auditor or deputy, or perform any of the duties of said office."

             [[Orig. Op. Page 5]]

            Consequently, for this reason alone it is apparent that a board of county commissioners may not appoint one of its members to fill a vacancy existing in the office of county auditor.  In regard to this point, see, also, 42 Am.Jur., Public Officers, § 97 (page 955), where it is said:

            "A public office is a public trust, and should persons to be appointed thereto should be selected solely with a view to the public welfare.  It goes without saying that the power of appointment to public office is to some degree limited by public policy and by statutory provisions which invalidate the appointment of relatives, or which make certain persons ineligible to office.  An appointment of an ineligible person is a nullity."  (Emphasis supplied.)

            A further ramification of this principle is described in the very next paragraph of this same text authority as follows:

            "An officer intrusted with the power of appointment should exercise it with disinterested skill and in a manner primarily for the benefit of the public, for it is the policy of the law to secure the utmost freedom from personal interest in such appointments.  So, it is contrary to public policy to permit an officer having an appointing power to use such power as a means of conferring an office upon himself, or to permit an appointing body to appoint one of its own members."  (Emphasis supplied.)

            Though no decisions of the Washington supreme court are cited in support of this proposition (for the reason that the precise question has apparently never been considered by the Washington court), the rule is supported by a number of well-reasoned decisions from other jurisdictions.  In particular see,State ex rel. Bove v. McDaniel, 52 Del. 304, 157 A.2d 463 (1960), andHetrich v. Co. Commissioners, 222 Md. 304, 159 A.2d 642 (1960).  In the latter case the Maryland supreme court was concerned with the particular application to be given to the doctrine of incompatibility of public offices in a case where incompatibility was present by reason of the fact that one of the two offices in question held the power of appointment as to the other office.  The court observed as  [[Orig. Op. Page 6]] follows:

            "The general rule at common law is that if an officer accepts a second office, which is incompatible with the first, he vacates the first . . . Many courts have adopted a qualification to the general rule if the one who accepted the second office was ineligible for that office.  It is held in such instances that the attempted appointment was void, a nullity, and that the second acceptance was illusory, some courts deciding that the incumbent was not even ade facto officer, others that he was.

            ". . .

            "The ineligibility which makes the appointment to a second office a nullity has not been limited to that created by constitution or statute.  Even in the absence of these formalized prohibitions, at common law, on the ground of public policy a member of an appointing body is ineligible for appointment to a conflicting office by that body, even though his own vote is not essential to the appointment.  McQuillin,Municipal Corporations, Sec. 12.75; 67 C.J.S., Officers, Sec. 20; 42 Am.Jur., Public Officers, Sec. 97, p. 955; Annotation:  31 L.R.A. (N.S.) 575. . . .

            "The cases ground the public policy prohibition on the need for impartial official action, without suspicion of bias which may be against public interest.  They say the appointing board cannot absolve itself of ulterior motives if it appoints one of its own, whether or not his vote was necessary to the appointment, since the opportunity improperly to influence the other members of the board is there.  The necessity that public bodies be free from personal influence in making appointments to office cannot be secured when the appointee has the real opportunity his associations and relations afford to place his colleagues under obligations they may feel require repayment."

             [[Orig. Op. Page 7]]

            On the basis of this line of authority we answer your first question in the negative.  A board of county commissioners may not appoint one of its members to fill a vacancy existing in the office of county auditor.  To the extent that this conclusion conflicts with the views stated in an attorney general's opinion dated August 17, 1927, to the prosecuting attorney of Stevens county [[1927-28 OAG 155]], sanctioning the appointment by a board of county commissioners of one of its members to a vacancy in the office of county sheriff, the prior opinion is hereby overruled.

            Since a member of the board of county commissioners cannot be appointed to fill a vacancy existing in the office of county auditor, it is unnecessary for us to consider your second question relative to whether the board member who is interested in being appointed to fill this vacancy can, as a county commissioner, vote upon the question of his appointment as county auditor.

            Finally, you have asked whether the situation would be changed if the county commissioner in question resigned as such prior to being appointed as county auditor.  Notably, however, the question stipulates that:

            ". . . such resignation was made for the sole purpose of accepting an appointment from the board from which he resigned, by prior agreement with the other board members that such would be the result of his resignation?"

            Given this particular stipulated factual situation, we believe that the situation would in no manner be changed.  In thus concluding we are guided by the approach taken by the supreme court of Delaware inState ex rel. Bove v. McDaniel, 52 Del. 304, 157 A.2d 463 (1960),supra.  In that case the vacancy had been created in the office of mayor of the city of New Castle, Delaware, by reason of death of the incumbent.  Thereupon a special meeting of the city council was held for the purpose of making an appointment to fill this vacancy.  Faced with a charter provision expressly prohibiting the city council from appointing one of the members thereof to this office, McDaniel, the council member desiring to be appointed mayor, resigned.  However, his resignation was made with the express understanding and agreement of the other members of the council that he was resigning for the sole purpose of accepting an appointment as  [[Orig. Op. Page 8]] mayor.

            Upon thereafter being appointed to the office of mayor, McDaniel's right to hold office was challenged in court.  The Delaware supreme court held as follows:

            ". . . Both the common law and the statute demand that the power of appointment be exercised fairly and impartially.  In order to attain this purpose it is important that the deliberations of the appointing body not only be free from wrongdoing but free from suspicion of wrong as well.  [Citing cases] For this reason the general law has been laid down ‑ reinforced in many instances by appropriate statutes ‑ that it is contrary to public policy to permit a Board to exercise its power of appointment by designating some one from its own body.  [Citing cases and 42 Am.Jur. 97, p. 955] Such purpose cannot be attained when the appointee as a member of the appointing body has the opportunity for a closer association and influence upon the members much greater than would be the case where the persons considered for appointment were not members of the appointing body.

            "In the present case the minutes of the Council demonstrate conclusively, we think, the fictitious nature of Council's action.  The successive resignations and the successive filling of the vacancies thus created compel the conclusion that the whole thing was agreed upon in advance.  It was one complete transaction, and was merely a subterfuge resorted to in order to nullify the charter provisions.  The resignation of McDaniel as President of City Council and the resignation of Tobin as a member of the Council followed immediately by the election of Tobin as President of City Council, so that he in turn might vote for McDaniel as Mayor, were the same as if McDaniel and Tobin  [[Orig. Op. Page 9]] had each voted for himself.  In such case the law will look beneath the form used to comply technically with the requirements of the statute and determine the purpose to be accomplished.  If that purpose should be contrary to public policy, the appointing body will not be permitted by the juggling of positions to do indirectly what it could not do directly.  [Citing cases]

            ". . . The gyrations of the members of the Council at the meeting in producing the resignations of certain of its members and their almost immediate election to other offices for the very obvious purpose of appointing the resigning members of the appointing body to other offices placed the defendants in the same position as if they had been technically members of the Council at the time of their election.  As far as they relate to the right of defendants to hold the respective offices to which they were allegedly appointed, the resignations and elections must be considered a nullity.  [Citing cases]

            "We are of the opinion that under both Section 8 of the Charter of the City of New Castle and under the common law, the filling of the vacancy in the office of Mayor by defendant McDaniel and the vacancy in the office of City Council by the defendant Tobin were illegal and void."

            This is not to say, of course, that the same result would necessarily follow in the absence of the specific factual pattern involved, wherein the resignation was made by pre‑arrangement [[prearrangement]]solely to qualify for appointment to the new office‑-which appointment was pre‑arranged [[prearranged]]prior to the time of resignation.

             [[Orig. Op. Page 10]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General