OFFICES AND OFFICERS - STATE - HIGHWAY COMMISSION MEMBER INCOMPATIBLE WITH COUNTY COMMISSIONER

OFFICES AND OFFICERS - STATE - HIGHWAY COMMISSION MEMBER INCOMPATIBLE WITH COUNTY COMMISSIONER.

The offices of county commissioner and member of the Washington state highway commission are incompatible.

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                                                                 August 31, 1960

Honorable H. B. Hanna
State Senator, Twelfth District
1130 Springwater Avenue
Wenatchee, Washington                                                                                              Cite as:  AGO 59-60 No. 139

Dear Sir:

            By letter, previously acknowledged, you requested an opinion of this office on whether a county commissioner could be appointed as a member of the Washington state highway commission.

            We answer your question in the negative.

                                                                     ANALYSIS

            While exhaustive research has failed to discover either a statutory or constitutional prohibition against a County Commissioner also being a member of the Washington State Highway Commission, the Washington court has, as recent as 1957, recognized the common-law rule of incompatibility of offices.  See Kennett v. Levine et al., 50 Wn. (2d) 212, 310 P. (2d) 244 (1957).

            It is stated in 42 Am.Jur., Public Officers, § 59:

            "Even in the absence of express prohibitions against the holding by one person of more than one office at the same time, there is a well-established limitation on the right so to do.  This limitation operates upon offices that are in their nature incompatible, for it is a settled rule of the common law that a public officer cannot hold two incompatible offices at the same time.  The rule is founded upon the plainest principles of public policy.  It is imbedded in the common law and has obtained from very early times.  Its correctness and propriety are so well established as to have been assumed without discussion in  [[Orig. Op. Page 2]] many cases in which the matter of common-law incompatibility has arisen.  However, at common law it extends no farther than incompatible officers.  There are no inhibitions, except constitutional or statutory ones, against the holding by the same person of more than one compatible office. . . ."

           The issue then becomes, are the offices of county commissioner and member of the highway commission incompatible?

            In Kennett v. Levine, supra, our court stated that:

            "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. . . ." (p. 216)

            By RCW 43.27.105 the department of highways acting through the Washington state highway commission is authorized to contract with any political subdivision of the state for the performance of any work or the furnishing of any service of a type ordinarily performed or furnished by such political subdivision.  Should a county commissioner be also a member of the highway commission he would find himself in the position of negotiating such contracts with himself.  In our opinion such offices are incompatible.  A man may not deal at arm's length with himself.  See 42 Am.Jur., Public Officers, § 70; State ex rel. Hilton, Atty. Gen. v. Sword, 157 Minn. 263, 196 N.W. 467 (1923);People ex rel. Bagshaw v. Bagshaw, 55 Cal. (2nd) 940, 130 P. (2nd) 242 (1942); and People ex rel. Bagshaw v. Thompson, 55 Cal. (2nd) 147, 130 P. (2nd) 237 (1942).

            It is not the probability of a conflict of interests that makes the offices incompatible.  A possibility is sufficient.  Kennett v. Levine, supra.

            This has been the consistent opinion of this office.  In a letter directed to the Honorable R. L. Ponder, Prosecuting Attorney of Lewis County, dated December 23, 1940, a copy of which is hereto attached, we held that a county commissioner could not also serve as a commissioner of a Public Utility District because of the conflict in interest required by the two offices.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

R. TED BOTTIGER
Assistant Attorney General