Incompatible Offices

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 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.

When the state Attorney General’s Office has been asked to weigh in on incompatible offices, it has concluded that elected positions are “public offices.” In addition, some appointed or staff positions have also been determined to be “public offices,” including:

• Boundary review board member (AGLO 1971 No. 2)
• County deputy sheriff (AGO 1952 No. 331)
• Fire district civil service commissioner (AGO 1968 No. 16)
• Fire district firefighter (AGO 1983 No. 3, AGO 1962 No. 162)
• Fire district secretary (AGO 1960 No. 157)
• Planning commissioner (AGO 2016 No. 7)
• State highway commissioner (AGO 1960 No. 139)

In contrast, the following positions have been determined not to be “public offices”:

• County budget director (Smith v. Board of Walla Walla County Commissioners (1987))
• Court reporter (State ex rel. Brown v. Blew (1944))
• Political party precinct committee member (AGLO 1970 No. 153)

What Public Offices are "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).

Below is a summary of offices that have been determined to be compatible or incompatible with each other. All of the positions listed here were determined to be “public offices” as described earlier.

In addition, there are some narrow statutory provisions that allow or prohibit an individual from holding two specific positions, while some local jurisdictions have created additional restrictions on dual office-holding within their own codes or charters. Examples of these statutes and code provisions are provided later on this page.

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 36.16.030 – Prosecuting attorney shall serve ex officio as county coroner in noncharter counties under 40,000 population (with changes coming in January 2025).
• RCW 52.14.080 – Fire district commissioner may be the fire district secretary, if the commissioner receives no additional compensation for serving as secretary.
• RCW 35.21.772/52.30.070 – Volunteer members of city fire departments or fire protection districts (except the fire chief) may be appointed or elected to any public office unless otherwise prohibited by law.
• 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 mayor-council code city shall not hold any other public office or employment within the city government, except as permitted under chapter 42.23 RCW; also applies to councilmembers in council-manager code cities via RCW 35A.13.020.
• 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 two 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.
• RCW 36.93.051/36.93.061 – No boundary review board appointee may be an official, employee, or contracted/retained consultant or advisor for the county, any governmental unit in the county, or any agency or association thereof.

Local Charter or Code Provisions

Some local governments 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

• Bellingham:
  • Charter Art. 2, Sec. 2.05 – No elected officer shall hold any other office within the city’s government.
  • Charter Art. 7, Sec. 7.05 – Civil service commissioner shall not hold any other city office or employment and shall not be an officer or employee of any labor organization that represents city employees.
• Bremerton Charter Art. 2, Sec. 6 – No person shall be eligible for the position of councilmember while holding any other elective public office.
• Everett:
  • Charter Art. 2, Sec. 2.2 – Mayor or councilmember shall not hold any other public office or employment within the city government.
  • Charter Art. 5, Sec. 5.2 – No elected official or appointed officer shall be eligible for appointment to serve on advisory boards or commissions.
• SeaTac Municipal Code Sec. 2.90.030(A)(5) – Prohibits elected officials from simultaneously holding any other elected public office, regardless of whether the Doctrine of Incompatible Offices would apply. Also prohibits elected officials from engaging in employment or providing services for any interest that would be incompatible with the proper discharge of their official duties.
• Yakima Charter Art. 6, Sec. 4 – Councilmembers shall not hold any other public office except notary public or member of a State or Federal military branch.

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, or accepting any employment or compensation from any county contractor during the term of office.

Special Purpose District Provisions Prohibiting Dual Offices

• East County Fire & Rescue Governing Rules and Ethics Policy 13.4.12 – Prohibits sitting fire commissioners from accepting appointment or seeking election to a public office that is incompatible with the office of fire commissioner. 

Appearing Multiple Times on the Same Ballot

No candidate’s name may appear more than once 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.