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Incompatible Offices

This page contains a basic overview of Washington State’s Doctrine of Incompatible Offices, which prohibits one person from simultaneously holding multiple public offices that are incompatible with one another.

For more detailed information on how this doctrine has been interpreted, see Incompatible Offices Court Decisions and AG Opinions.


Overview

The Doctrine of Incompatible Offices is a common law doctrine, which means that it is not based on a statute passed by the state legislature. Instead, it originates from Kennett v. Levine, a 1957 decision of the Washington Supreme Court, which held that “it has been long and universally recognized that no one should hold incompatible public offices.” Under Kennett, there is a two-part test to determine whether the Doctrine of Incompatible Offices applies:

  1. Does an individual simultaneously hold more than one “public office”?
  2. If so, are the public offices “incompatible” with one another?

The key to successfully applying this test is to know what positions are “public offices” and when public offices are “incompatible” with one another.


What is a “Public Office”?

The first part of the test is to determine whether or not one individual is simultaneously holding more than one “public office.” It is important to note that not all positions within local government are “public offices” for the purpose of the Doctrine of Incompatible Offices. In State ex rel. Brown v. Blew (1944), the Washington Supreme Court laid out a five-part test for determining whether or not a position is a “public office”:

  1. The position must be created by the state constitution, state legislature, or by a local government body;
  2. The position must possess as a part of its duties a portion of the power of the governmental body which created it, to be used for public benefit;
  3. The powers and duties of the position must be outlined and defined by the governmental body which created it;
  4. The position’s duties must be performed independent of a superior power other than the law, except in the case of subordinate offices (i.e., Deputy Prosecuting Attorney) which may be placed under the direction of the superior officer; and
  5. The position must not be a temporary one.

Examples of Public Offices

Below are a few examples of positions that courts or the Attorney General’s Office have weighed in on. For a more complete list, as well as the rationale behind each opinion, see our page on Incompatible Office Court Decisions and AG Opinions.

Position Public Office? Authority
Mayor Yes AGO 1978 No. 12
City councilmember Yes AGO 1983 No. 3
Port commissioner Yes AGO 1978 No. 12
State legislator Yes AGO 1962 No. 177
Political party committeeman No AGLO 1970 No. 153
County budget director No Smith v. Board of Walla Walla County Commissioners (1987)
Court reporter No State ex rel. Brown v. Blew (1944)

When are Public Offices “Incompatible”?

If an individual is simultaneously holding two or more “public offices,” then the second part of the test is to determine whether the public offices are incompatible with one another. In AGO 2016 No. 7, the Attorney General’s Office recognized that incompatibility can arise in two situations.

  • First, incompatibility can arise where one office is subordinate to another. For an example of this type of incompatibility, see AGO 1960 No. 157 (fire district commissioner and fire district secretary, although the AGO was later superseded by RCW 52.14.080).
  • Second, incompatibility can also arise where offices, although separate and distinct, are statutorily interrelated such that one individual trying to simultaneously perform the duties of the multiple offices would give rise to inconsistent loyalties to the public. For an example of this type of incompatibility, see AGO 1978 No. 12 (mayor and port commissioner).

Examples of Compatible and Incompatible Offices

Below are some of the public offices that the Attorney General’s Office has previously found to be compatible or incompatible with one another. For a more complete list, as well as the rationale behind each opinion, see our page on Incompatible Office Court Decisions and AG Opinions.

In addition, there are a number of state statutes that deal with incompatibility for specific offices (see "Additional Statutory Provisions" below), while some local jurisdictions have addressed incompatibility within their own codes or charters (see "Local Charter or Code Provisions" below).

Public Office #1 Public Office #2 Compatible? Authority
Mayor Port commissioner No AGO 1978 No. 12
Mayor County commissioner No AGO 1957 No. 90
County commissioner School board member No AGO 1965 No. 7
County commissioner County civil defense director No AGO 1964 No. 92
County commissioner State Highway Commission member No AGO 1960 No. 139
Planning commissioner School board member No AGO 2016 No. 7
Fire district commissioner Fire district firefighter No* AGO 1962 No. 162
City councilmember County prosecuting attorney Yes AGO 1971 No. 28
City councilmember Fire district firefighter Yes AGO 1983 No. 3
PUD commissioner State representative Yes AGO 1962 No. 177
Sheriff County civil defense director Yes AGO 1963 No. 66

*Note that RCW 52.14.010 now allows the board of a fire protection district to authorize, by resolution adopted by unanimous vote, any of its members to serve as volunteer firefighters without compensation.


What Happens if Public Offices are Incompatible?

The Doctrine of Incompatible Offices is not self-enforcing, which means that there are no penalties unless or until a court makes a determination that an individual is simultaneously holding two or more public offices that are incompatible with one another. If a court makes such a determination, the court may order the individual to vacate one or more of the incompatible public offices at issue.

If it is determined that a person simultaneously holds two or more incompatible public offices, then that incompatibility cannot be cured by recusal on a case-by-case basis. Remember, one form of incompatibility arises when the performance of the duties of two or more offices would give rise to inconsistent loyalties to the public. One of the most obvious examples of inconsistent loyalties would be if an individual was forced to recuse themselves with respect to one public office in order to perform the duties of another public office. As such, the only cure possible is to not simultaneously hold incompatible public offices.


Additional Statutory Provisions

There are also a number of state statutes that directly address dual office holding. Some prohibit certain government officials from holding multiple offices, while others specifically allow multiple offices to be held at the same time. The list below, while not comprehensive, provides some examples.

Statutes Allowing Dual Offices

  • RCW 35.18.070, RCW 35A.13.060 - City manager may serve two or more cities or towns with permission of the council.
  • RCW 35.23.142, RCW 35.27.180, RCW 35A.12.020 - Offices of treasurer and clerk may be combined by ordinance in second-class cities, towns, and code cities.
  • RCW 36.24.010 - Coroner shall perform duties of the sheriff when sheriff has a conflict of interest or is incapacitated.
  • RCW 52.14.080 - Fire district commissioner may be the fire district secretary.
  • RCW 70.46.031 - Elected officials of cities and towns may be appointed as members of a health district board.
  • RCW 85.08.300 – A dike and drainage district’s superintendent of construction and maintenance may be one of the elected supervisors of the district.
  • RCW 85.08.300 - County engineer shall act as supervisor of a dike and drainage district containing not more than 500 acres, or upon petition.

Statutes Prohibiting Dual Offices

  • RCW 35A.12.030 - Mayor or councilmember of a code city shall not hold any other public office or employment within the city government, except as permitted under chapter 42.23 RCW.
  • RCW 35.18.040; RCW 35A.13.050 - No person elected to membership on a city council shall be eligible for appointment as city manager until one year after their term expires.
  • RCW 35.57.010(3) - Members of the city or town council that created a public facilities district may not be members of the board of that district.
  • RCW 36.62.140 - No person shall be eligible for appointment as a trustee of a hospital who holds, or has held during the past 2 years, any salaried office or position in any office, department, or branch of the government which established or maintained the hospital.
  • RCW 36.83.100 - Members of the county commission or council that created a road and bridge service district generally may not be members of the board of that district.
  • RCW 70.44.040(3) - A commissioner of a public hospital district cannot simultaneously serve as an employee of the same district.

Local Charter or Code Provisions

Some cities and counties have also adopted charter or code provisions prohibiting certain government officials from holding multiple offices. The list below, while not comprehensive, provides some examples.

City Provisions Prohibiting Dual Offices

County Provisions Prohibiting Dual Offices

  • Clallam County Charter Art. 6, Sec. 6.10 - County commissioners not eligible to be administrator.
  • King County Code Sec. 3.04.030(B)(9) - No county employee may engage in or accept compensation, employment, or render services for any person or other governmental entity when such employment or service is incompatible with the proper discharge of official duties or would impair independence of judgment or action in the performance of official duties.
  • Snohomish County Charter Art. 4, Sec. 4.40 - No elected officer of the county shall hold any other office or employment within the county government.
  • Whatcom County Charter Art. 4, Sec. 4.30 - County council, executive, assessor, auditor, treasurer, sheriff, and prosecuting attorney shall hold no other office or employment within the county government.
  • Pierce County Charter Art 9, Sec. 9.45 - Prohibits elected officials from holding any other elected office except political party precinct committee officer. (Amendment was overwhelmingly approved by voters in November 2016 but, as of June 2017, has not yet been codified in the online version of the charter.)

Special Purpose District Provisions Prohibiting Dual Offices


Other Considerations

No candidate’s name may appear twice on a single ballot, with the exception of a precinct committee officer or a temporary elected position such as a charter review board member or freeholder (RCW 29A.36.201). So the same person cannot be elected to two public offices if those offices are up for election at the same election, even if the offices are compatible.


Last Modified: August 08, 2017