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Holding Two Public Offices – The Doctrine of Incompatible Offices

April 1, 2015 by Paul Sullivan
Category: Incompatible Offices

Holding Two Public Offices – The Doctrine of Incompatible Offices

We get a lot of questions like this. Is it permissible for a city councilmember to also serve as a police officer for the same city? Can the county clerk be a member of the county’s planning commission? May a hospital district commissioner run for a position on the fire district board? In some instances, the answer is “yes”; other times, though, due to the doctrine of incompatible offices, the answer is “no.” And sometimes statutory election rules step in and prevent an elected official from running for another elected position.

What is the “doctrine of incompatible offices”? It is a legal doctrine, a set of rules developed over time through case law and attorney general opinions, that prohibits an individual from simultaneously holding two offices that are considered “incompatible” with one another.  Offices are incompatible when, by their nature and duties, it is deemed improper, from a public policy standpoint, for one person to simultaneously serve in both. Determining whether the doctrine applies requires a two-part analysis: are both positions “offices” (as opposed to an employee position) and, if they are, are they incompatible with one another?

Is the position an “office”?

Making a determination whether a position is an office is sometimes easy.  For example, by statute, the mayor and councilmembers of a code city are officers, as are the appointive positions of city clerk and chief law enforcement officer.  See RCW 35A.12.010-.020.  A city manager is an officer.  See, e.g., RCW 35A.13.010. In county government, state law provides that the county offices include the county assessor, auditor, clerk, coroner, county commissioners (or councilmembers), prosecuting attorney, sheriff, and treasurer. RCW 36.16.030. For special districts, the commissioners or trustees are officers. Elected positions are offices, but other positions may be as well and, for them, one must apply a test to make a determination.

The Washington State Supreme Court in State ex rel. Brown v. Blew, 20 Wn.2d 47, 51 (1944), set out a five-part test to determine whether a position is an “office” instead of an “employment.” To be an office, a position must:  

  1. Be created by the constitution, legislature, municipality or other body through authority given to it by the legislature; 
  2. Possess a delegation of a portion of the sovereign power of government to be exercised for the benefit of the public; 
  3. Have its powers conferred and duties to be carried out defined, directly or impliedly, by the legislature or through legislative authority; 
  4. Have duties to be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office created or authorized by the legislature and by it placed under the general control of a superior officer or body; and 
  5. Have some permanency and uninterrupted duration without essential change, not be only temporary or occasional.

Applying this test (not an easy task), the positions of city administrator, public works director, director of community development, district manager, and planning commissioner, for example, are all offices.

If it is determined that one of the positions under review is not an office, the doctrine of incompatible offices does not apply and a person may hold both positions simultaneously.

What does “incompatible” mean?

In Kennett v. Levine, 50 Wn.2d 212, 216-17 (1957), the State Supreme Court described incompatibility as being  

when the nature and duties of the offices are such as to render it improper, from considerations of public policy, for one person to retain both. The question 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. (Citations omitted.)

The court goes on to indicate that what is “incompatible” “is often difficult of solution, and the principles upon which its solution depends cannot always be stated with exactness,” and indicates further that “in many instances, be subject to a legitimate difference of opinion.”  In other words, a little squishy.

Other authorities point out that incompatibility is not simply whether there is a physical impossibility of discharging the duties of both offices at the same time, but whether or not the functions of the two offices are inconsistent, as where one is subordinate to the other, or where a contrariety and antagonism would result in the attempt by one person to faithfully and impartially discharge the duties of both. Incompatibility may arise where the holder cannot in every instance discharge the duties of both offices. McQuillin, Municipal Corporations, § 12.112.

Examples of incompatibility

The Washington State courts have actually never had the occasion to apply the doctrine in a situation actually involving two “offices.” However, the Washington State Attorney General’s Office has offered opinions in a number of instances, concluding, for example, the following offices to be incompatible: mayor and county commissioner (AGO 57-58 No. 90); mayor and port commissioner (AGO 1978 No. 12); and commissioner of a fire protection district and the district’s civil service commission (AGO 1968 No. 16).

Over the years, MRSC legal staff has been asked and has opined, for example, that the following offices are incompatible: mayor and planning commissioner; city firefighter and fire civil service commissioner; fire district commissioner and city councilmember; and city councilmember and port commissioner. MRSC has suggested that the following offices are not incompatible: town councilmember and civil service commissioner; city councilmember and state representative; police officer and county coroner; county auditor and city councilmember; and county treasurer and city councilmember.

For some offices, though, statutes allow holding two offices

In a few instances, where two offices might be considered to be incompatible, the Legislature allows a person to serve simultaneously in both. State law expressly permits city councilmembers to hold the position of volunteer fire fighter (but not chief), volunteer ambulance personnel, or reserve law enforcement officer, or two or more of such positions, but only if authorized by a resolution adopted by a two-thirds vote of the full city council. RCW 35.21.770 and RCW 35A.11.110; see also RCW 35.21.772, which allows volunteer members of a fire department, except a fire chief, to be candidates for elective office and be elected or appointed to office while remaining a fire department volunteer. (It may seem odd that volunteer fire and ambulance positions are considered “offices,” but they are.)

What happens if an officer holds two incompatible offices?

In all likelihood, there probably are some officers across the state that hold another office that may be considered incompatible. The problem doesn’t arise, however, unless someone raises a legal challenge. If the officer in question concludes there is an issue, he or she may cure the problem by resigning from one of the positions. If the matter goes to court and incompatibility is found, the court may decide which office must be vacated. AGO 1978 No. 12.

Another reason why an officer may not be able to hold another office

RCW 29A.36.201 provides that, except for the office of precinct committee officer or a temporary-elected position (e.g., charter review board member or freeholder), a candidate’s name may not appear more than once on the same election ballot. So, even if the offices are compatible, the same person cannot be elected to two public offices if those offices are up for election at the same election. 

If this issue arises . . .

Whether an officer can hold another office is complicated and can “in many instances, be subject to a legitimate difference of opinion.” It is an important question, both to the community and to the person trying to offer service. If you face this problem, we suggest you discuss it with your agency’s legal counsel or with the legal staff at MRSC, (206) 625-1300, or online at Ask MRSC.

Photo courtesy of WSHR.

About Paul Sullivan

Paul has worked with local governments since 1974 and has authored MRSC publications on local elections, ordinances, and general local government operation. He also provides training on the Open Public Meetings Act.



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