Same Person Holding The Offices Of School Director And Planning Commissioner

OFFICES AND OFFICERS—SCHOOLS—PLANNING AND COMMUNITY AFFAIRS AGENCY—INCOMPATIBLE OFFICES—CONFLICT OF INTEREST—APPEARANCE OF FAIRNESS DOCTRINE—Same Person Holding The Offices Of School Director And Planning Commissioner

1.         Although it is an extremely close question and could depend on the facts of a particular situation, the offices of school director and planning commissioner are likely incompatible, and so the same person may not hold both offices at the same time.

2.         The same person is not precluded from holding both the offices of school director and planning commissioner by any rule against a conflict of interest.

3.         The appearance of fairness doctrine does not per se prohibit the same person from holding the offices of school director and planning commissioner at the same time, but might disqualify such a person from participating as a planning commissioner in hearing a quasi-judicial matter involving the school district that the same person serves as a school director.

June 7, 2016

Dear Representative Hunt:

            By letter previously acknowledged, you have requested our opinion on a total of five questions. We respond to the first three of your questions in this opinion, and will respond separately to the fourth and fifth questions. In this opinion we address the following paraphrased questions:

1.         Are the positions of school director and planning commissioner incompatible offices under Washington law? How is that determination made, and if the positions are incompatible, what remedies are available to address the incompatibility?

2.         Is there a conflict of interest between such dual positions under Washington law? How is that determination made, and if a conflict or potential conflict exists, what remedies are available to address it?

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3.         Does holding such dual positions violate the appearance of fairness provisions of RCW 42.36? How is that determination made, and what remedies are available to address it?

BRIEF ANSWER

            1. Probably, although we caution that a court could reasonably reach the opposite conclusion. While it is an extremely close question and could depend on the facts of a particular situation, we conclude that the positions of school director and planning commissioner are likely incompatible under Washington law. In general, we conclude that the offices are statutorily interrelated such that a person holding both offices could face inconsistent loyalties to the public in different capacities. As a school director, the person would be responsible for making decisions regarding the use of school district property that a planning commissioner could be called upon to review or evaluate. There is thus a serious risk that the same person attempting to perform both jobs would have dueling loyalties to the constituents of each office, rendering the positions incompatible. We can imagine exceptions to this general rule in some circumstances (e.g., if the school district owned no property within the city), but those would likely be rare. Several remedies to address the incompatibility could be available, potentially including an action in quo warranto to judicially remove the person from one or the other office.

            2. No. The concept of a conflict of interest does not, by itself, preclude the same person from holding two public offices. Conflicts of interest may arise under Washington law when a particular legal rule addresses an incompatibility between a public officer’s official duties and his or her private interests. Washington law does not regulate incompatible public duties through a conflict of interest rule but, as discussed in response to your first question, does so through the incompatible offices doctrine.

            3. It is possible, in specific situations, for the appearance of fairness doctrine of RCW 42.36 to preclude a person from deciding a quasi-judicial matter as a planning commissioner if the same person participated in the same matter as a school director. The appearance of fairness doctrine arises only if a body acts in a quasi-judicial capacity to decide a particular dispute. It does not address broader policy-making or administrative decisions. Some planning commissions act in a quasi-judicial capacity, and some do not. If they do, then under some circumstances a planning commissioner who is also a school director may be required to recuse from deciding a quasi-judicial matter when the school district is a party.

FACTUAL BACKGROUND

            You provided a hypothetical scenario as background to illustrate the context for your questions. In this scenario, a person serves as an elected member of a school district board of directors. The same person also serves as a member of the local city planning commission. In addition to statutory provisions, the city defines the duties of its planning commission also to include making recommendations to the city council on a broad range of issues relating to land

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use, zoning, property redevelopment, and infrastructure. The school board and the city are discussing the use and potential redevelopment of school district property.

ANALYSIS

1.         Are the positions of school director and planning commissioner incompatible offices under Washington law? How is that determination made, and if the positions are incompatible, what remedies are available to address the incompatibility?

            Your first question concerns the common law doctrine of incompatible offices. This common law rule prohibits the same person from simultaneously holding two offices that are incompatible with each other. Kennett v. Levine, 50 Wn.2d 212, 216, 310 P.2d 244 (1957). We conclude that this common law rule likely prohibits the same person from serving simultaneously as both a school director and as a planning commissioner because those offices are incompatible under Washington law, although we acknowledge that it is an extremely close question on which reasonable minds could disagree.

            “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.” Id. The question is whether the functions of the two offices are “inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest.” Id. at 216-17 (internal quotation marks omitted). This rule originates in the common law, and its analysis is not based upon any Washington statute or constitutional provision. AGO 1978 No. 12; see also AGO 1961-62 No. 177, at 2 (reciting the common law pedigree of the doctrine).[1] Our Supreme Court has recognized that applying this doctrine is exceedingly difficult in many cases:

            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.

Kennett, 50 Wn.2d at 217.

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            Our prior formal opinions have recognized two types of situations in which offices are incompatible. “The first type of incompatibility arises when one office is subordinate to another.” AGO 1983 No. 3, at 2 (citing several examples of opinions concluding that various combinations of offices, not at issue here, were incompatible for this reason). “The second type of incompatibility arises where offices, although separate and distinct, are statutorily interrelated.” AGO 1983 No. 3, at 3. This type of incompatibility addresses the concern that a dual officeholder’s official duties could give rise to inconsistent loyalties to the public in different capacities. See, e.g., AGO 1978 No. 12, at 5 (reasoning that the offices of mayor and port commissioner are incompatible because of the conflicting duties each office owes its constituents); AGO 1969 No. 7, at 6 (similar with regard to prosecutor and juvenile probation officer).

            The offices of school director and planning commissioner are not subordinate, one to the other, and so the first type of incompatibility doesn’t arise. The question of whether the two offices are interrelated requires an examination of the statutory structure and authority of each office.

            School directors are generally responsible “for the proper operation of their district[.]” RCW 28A.150.230(1). This includes exercising “exclusive control of all school property[.]” RCW 28A.335.090(1). The school board may generally buy and sell property for school purposes, as well as renting or leasing such property. RCW 28A.335.090(1). They may exercise eminent domain to condemn property for school purposes when needed, within limits. RCW 28A.335.220.

            The city planning enabling act provides authority for municipal planning. RCW 35.63. Other statutory chapters largely parallel the city planning enabling act for code cities and counties. RCW 35A.63 (planning and zoning in code cities); RCW 36.70 (county planning enabling act). Your question arises in the context of a city planning commission, and so while the provisions are largely consistent we rely upon the city planning enabling act to illustrate the role of local planning commissions.

            The commission acts as “the research and fact-finding agency of the municipality” with regard to land use matters. RCW 35.63.060. Members of city planning commissions are appointed by the mayor, and confirmed by the city council, to make recommendations to the city council concerning planning and land use. RCW 35.63.020 (appointment authority); RCW 35.63.100 (recommendations of planning commission). This includes preparing plans “for the physical development of the municipality.” RCW 35.63.080. Topics addressed in such recommended plans may include “the location and the use of buildings, structures and land for residence, trade, industrial and other purposes[.]” RCW 35.63.080. They may also address the height, size, construction, and design of buildings, as well as the size of yards and other open spaces, population density, set-back requirements, and the subdivision of land. RCW 35.63.080. Local land use regulations “shall be worked out as parts of a comprehensive plan which each commission shall prepare for the physical and other generally advantageous development of the municipality[.]” RCW 35.63.090. This includes planning for appropriate land areas for

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community developments and public uses, presumably including schools. RCW 35.63.090.[2] Local development regulations must be consistent with the comprehensive plan developed through the planning commission. RCW 35.63.125. The commission may also recommend zoning plans for the local community. RCW 35.63.110. The elected board or council may adopt the planning commission’s recommendation, with or without amendment. RCW 35.63.100.

            As stated above, two offices are incompatible if “offices, although separate and distinct, are statutorily interrelated.” AGO 1983 No. 3, at 3. School directors are responsible for the real property of the school district, and the planning commission is responsible for developing plans for consideration by the city council for local land uses, which could include educational facilities. RCW 28A.335.090; RCW 35.63.080, .090. It is thus quite possible, if not inevitable, that city planning commissioners will be called upon to make recommendations to their city council concerning land use and planning questions that will govern the use of school district property for which the school board is responsible. A person serving both roles could thus face inconsistent loyalties to the public in the two different capacities; what is best for the school district may not be best for the city, and vice versa.

            In similar situations of overlapping and potentially conflicting duties of loyalty, we have previously concluded that offices are incompatible. For example, in AGO 1978 No. 12, we concluded that the offices of mayor and port commissioner were incompatible because the port would be subject to city building and land use rules, rules that the mayor could influence in his capacity as mayor. In a more recent, informal opinion, an attorney in our office concluded that the offices of city council member and fire protection district commissioner are incompatible. Letter from Jeffrey T. Even, Deputy Solicitor General, State of Washington, to Darlene Fairley, State Senator, State of Washington (June 27, 2001), at 2-3 (copy attached). That opinion reasoned that council members “may be called upon to render a number of decisions that are interrelated with the duties and interests of a fire protection district.” Id. at 3. “In such a situation, an individual serving in both capacities would have mixed loyalties, to both the interests of the district and its residents and the city and its residents.” [3] We see the same risk here, given that the planning commission acts as “the research and fact-finding agency of the municipality” with regard to land use matters (RCW 35.63.060) and makes recommendations to the city council concerning planning and land use (RCW 35.63.100).

            Of course, the duties of school directors and planning commissioners do not always conflict. Individuals holding each office will naturally make many decisions that have no effect on the other. But we have previously explained that it is not necessary, in order to find two offices incompatible, that their duties conflict at all times and in every respect. See AGO 1961-62 No. 177, at 2-3 (quoting 3 McQuillin, Municipal Corporations § 12.67, p. 265 (3d ed. 1949)); but see AGO 1978 No. 12, at 4 (the mere potential for a possible future

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contractual relationship between two governmental entities may not alone be enough to render two offices incompatible).

            We also considered that planning commissioners act in an advisory role, with final decisions regarding land use matters entrusted to the city council. RCW 35.63.100. The advisory nature of the body does not change our analysis because, as noted, the commission “may act as the research and fact-finding agency of the municipality.” RCW 35.63.060. Its role includes making inquiries, investigations, and surveys concerning land use resources in the county, assembling and analyzing data, and working with other agencies on land use planning. RCW 35.63.060. In some jurisdictions they also perform a quasi-judicial function. RCW 35.63.130. These substantial functions cannot be dismissed as merely advisory.

            We therefore conclude that the better view is that the offices are incompatible, so the same person cannot simultaneously hold both offices. See Kennett, 50 Wn.2d at 216-17; AGO 1961-62 No. 177, at 1. But we offer three cautionary notes about this conclusion.

                First, because there are so few cases in Washington addressing the incompatible offices doctrine, it is extremely difficult to predict how a court would rule on this issue. See Kennett, 50 Wn.2d at 217 (“The question of what is compatible and what is incompatible is often difficult of solution.”) (citing Throop on Public Officers (1892), 37, § 33). We believe the issue is particularly close as to these two offices, as evidenced by the fact that Attorneys General in two other states have reached conclusions different from ours as to similar offices.[4] While we disagree with the reasoning in those opinions, as detailed in the footnote, they highlight how reasonable minds can disagree about these issues.

            A second cautionary note is that we can imagine limited scenarios in which these offices might be compatible where the risk of conflicting duties is eliminated by the facts on the ground. For example, if the school district included only a small part of a city and owned no property in the city, the risks we have discussed here would be largely absent (though they could arise if the

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district considered purchasing property in the city or if the city sought to have a school building located within its boundaries). Thus, we can imagine arguments that these offices would be compatible in specific situations.

            Our third cautionary note is that a conclusion that two offices are incompatible does not mean or imply that a person holding them has necessarily done anything improper. See Kennett, 50 Wn.2d at 217-18. The question in evaluating incompatibility is not whether a particular person has done anything wrong, but rather whether inherent in two offices are potentially conflicting duties of loyalty to different constituents, a judgment that can be very difficult to make. Id. at 216-17.

            The final part of your first question asks about the remedy available if two offices are incompatible. One option, of course, is that the official in question could resolve the matter by choosing which of the two offices he or she prefers and then resigning from the other office. If this does not happen, there are other options. Where a person is legally ineligible to serve in two offices, state law provides a remedy through the courts, in the form of a quo warranto action. RCW 7.56.010. The county prosecuting attorney may bring a public quo warranto action to test the entitlement of any person to hold office. RCW 7.56.020; State ex rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 896, 969 P.2d 64 (1998). It is also possible for a private party to bring a private quo warranto action, although this seems unlikely in this context because a private action is available only to a person who claims an interest in the office. Id. at 896. Additionally, the only Washington case on incompatible offices arose on facts involving an appointed office from which a city mayor could remove an appointee with city council approval. Kennett, 50 Wn.2d at 213. In situations like that, in which the law vests some authority with the power to remove an officeholder, the use of that procedure could be an appropriate remedy for a violation of the doctrine of incompatible offices. Id. at 217. State law provides that planning commissioners “may be removed, after public hearing, by the appointing official, with the approval of his or her council or board, for inefficiency, neglect of duty, or malfeasance in office.” RCW 35.63.030. Whether holding incompatible offices constitutes any of those things is another matter, but the point is at least arguable. On proper facts, a violation of the incompatible offices doctrine could be addressed in these ways.[5]

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2.         Is there a conflict of interest between such dual positions under Washington law? How is that determination made, and if a conflict or potential conflict exists, what remedies are available to address it?

            You next ask whether a person holding both the offices of school director and planning commissioner has a “conflict of interest” such that the same person cannot hold both positions. We conclude that the concept of a “conflict of interest” does not apply to the holding of two offices at the same time, but rather arises only when specific statutes address conflicts between official duties and private interests.

            The term “conflict of interest” is widely used in ordinary discussion, but as a legal term arises only in the context of discrete statutes or other legal rules. It is generally defined as: “A real or seeming incompatibility between one’s private interests and one’s public or fiduciary duties.” Black’s Law Dictionary 363 (10th ed. 2014). A common example is that a judge is disqualified if the judge’s impartiality could be reasonably questioned, such as because of a personal interest or a relationship with parties or counsel. CJC Rule 2.11. Another example, applicable to municipal officers, is that state law prohibits a municipal officer from personally benefiting from a municipal contract he or she awards or approves. RCW 42.23.030; see, e.g., City of Raymond v. Runyon, 93 Wn. App. 127, 137-38, 967 P.2d 19 (1998) (city public works commissioner illegally benefited from contract to sell gravel to the city).

            You do not ask about a conflict between a person’s official duties and his or her personal interests, but about a conflict between public duties that a person may owe by serving in two public offices. We have not identified any statutory or common law rule, other than the doctrine of incompatible offices, that applies a principle like a conflict of interest to preclude the same person from holding two offices at the same time.

3.         Does holding such dual positions violate the appearance of fairness provisions of RCW 42.36? How is that determination made, and what remedies are available to address it?

            You next ask whether serving as both a school director and a planning commissioner could violate the appearance of fairness doctrine under RCW 42.36. This doctrine, like the concept of conflicts of interest, does not address the question of whether the same person may hold two offices at the same time. We discuss it in some detail, however, because under some circumstances it could preclude a person from participating in a quasi-judicial decision. This could occur when the person would be called upon to participate in a quasi-judicial matter as the holder of one office, when he or she has participated as a party as the holder of the other office.

            The appearance of fairness doctrine applies only to “the quasi-judicial actions of local decision-making bodies” regarding land use decisions. RCW 42.36.010; State v. Finch, 137 Wn.2d 792, 808, 975 P.2d 967 (1999). There could be instances in which the doctrine applies to actions of the planning commission in those jurisdictions in which the planning commission

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engages in quasi-judicial conduct, but aside from such instances we see no application for the doctrine.

            The appearance of fairness doctrine applies to the procedures and the impartiality of administrative bodies that act quasi-judicially to decide cases. Faghih v. Dep’t of Health, 148 Wn. App. 836, 842-43, 202 P.3d 962 (2009). “Quasi-judicial actions of local decision-making bodies are those actions of the legislative body, planning commission, hearing examiner, zoning adjuster, board of adjustment, or boards which determine the legal rights, duties, or privileges of specific parties in a hearing or other contested case proceeding.” RCW 42.36.010 (emphasis added). For example, a local board “hearing an appeal of a rezone application . . . acts in a quasi‑judicial capacity.” Snohomish County Improvement All. v. Snohomish County, 61 Wn. App. 64, 73, 808 P.2d 781 (1991).

            The mere fact of simultaneous service in two public offices does not create a question under the appearance of fairness doctrine. The doctrine does not relate to the question of whether a person can hold a specific office but only whether he or she can decide a specific matter. Faghih, 148 Wn. App. at 843 (explaining that the doctrine applies only to determine whether a person can act as a quasi-judicial decision maker in a specific case, based upon specific facts). Basically, the doctrine only applies when the official is acting in a capacity similar to that of a judge, to decide a particular case, rather than in a broader policy-making or administrative role. Under the city planning enabling act, planning commissions do not necessarily have quasi‑judicial powers. RCW 35.63.060. A planning commission considering local land use rules acts in a legislative or administrative capacity, not in a quasi-judicial one. State ex rel. Myhre v. City of Spokane, 70 Wn.2d 207, 213, 422 P.2d 790 (1967). Cities may provide for quasi-judicial review of specific cases involving local land use issues in a number of different ways. In some jurisdictions, the planning commission may hear such matters. RCW 35.63.130. But a city may also choose to adopt a system of hearing examiners, in which the planning commission would play no quasi-judicial role. RCW 35.63.130.

            The appearance of fairness doctrine therefore would apply if the planning commission was called upon to resolve a case about the school district’s use of its land in a quasi-judicial capacity. RCW 42.36.010. A problem could arise if the same person serves as both a planning commissioner deciding a case and as a school director making land use decisions for the school district. This is so because the official would likely be aware of facts and hold a particular perspective as to the dispute in his or her capacity as a school director that might influence his or her decision as a planning commissioner. See., e.g., RCW 42.36.060 (prohibiting quasi-judicial decision-makers from having ex parte contacts with parties). “The test is ‘[w]ould a disinterested person, having been apprised of the totality of a [commissioner’s] personal interest in a matter being acted upon, be reasonably justified in thinking that partiality may exist[.]’” Bunko v. Puyallup Civil Serv. Comm’n, 95 Wn. App. 495, 503, 975 P.2d 1055 (1999) (all alterations in original) (quoting Swift v. Island County, 87 Wn.2d 348, 361, 552 P.2d 175 (1976)). Showing a violation requires sufficient evidence of bias, and mere speculation is not enough. Bunko, 95 Wn. App. at 503. Here, of course, the appearance that a planning commissioner cannot impartially decide a case would result not from a personal interest but from a competing public duty, but the

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principle in this concept is similar. Circumstances could arise in particular cases, depending on the facts, in which a planning commissioner’s participation in deciding a quasi-judicial matter could appear not to be impartial.

            This would not necessarily result in requiring the commissioner to recuse or of invalidating a decision of the planning commission, but it could lead to that result in many cases. There are at least two circumstances in which a planning commissioner could participate despite a basis for questioning his or her impartiality. One is that a party relying on the appearance of fairness doctrine to disqualify a commissioner must raise the challenge as soon as the basis for a challenge is known. RCW 42.36.080. That is, a party cannot wait to see whether they like the outcome and then challenge the validity of a decision. RCW 42.36.080. In addition, if disqualifying a commissioner would deprive the commission of a quorum or result in an inability to reach a majority vote, then the appearance of fairness doctrine does not bar the commissioner from fully participating. RCW 42.36.090.

            We therefore conclude that the appearance of fairness doctrine does not generally preclude the same person from simultaneously serving as both a school director and a planning commissioner. In some instances in which a planning commission must decide a quasi-judicial matter involving a school district, however, the appearance of fairness doctrine could require that the joint office holder recuse from participating as a member of the planning commission if the issue to be decided pertains to school district property.

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON

   Attorney General

JEFFREY T. EVEN

   Deputy Solicitor General

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