Holding Two Public Offices: The Doctrine of Incompatible Offices

Here is a sample of the types of questions MRSC gets regarding public offices:

• Can a city councilmember 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, the answer is “No” due to the doctrine of incompatible offices. This blog will look at the doctrine and how to determine if two public offices are incompatible.

The Doctrine of Incompatible Offices

The doctrine of incompatible offices 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. There are also times when statutory election rules step in and prevent an elected official from running for another elected position.

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 these offices incompatible with one another?

Is It an Office?

Deciding 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). Per RCW 35A.13.010, a city manager is also an officer.

In county government, state law (RCW 36.16.030) provides that the county offices include the county assessor, auditor, clerk, coroner, county commissioners (or councilmembers), prosecuting attorney, sheriff, and treasurer. For special purpose districts, the commissioners or trustees are officers, as are elected positions.

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.” 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.

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

Are the 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 Kennett v. Levine (1957), the Washington 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 to determine, and the principles upon which its solution depends cannot always be stated with exactness.” The court indicates further that it may “be subject to a legitimate difference of opinion.” 

In AGO 2016 No. 7, the Attorney General’s Office recognized that incompatibility could arise in two situations: 

• 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).
• 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.

Examples of Incompatibility

The Washington State courts have 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 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 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 legal staff has also 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.

When Statutes Allow Holding Two Offices

In a few instances, where two offices might be incompatible, the law allows a person to serve simultaneously in both.

State law (RCW 35.21.770 and RCW 35A.11.110) permits city councilmembers to hold the position of volunteer firefighter (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 35.21.772 allows volunteer members of a fire department (except the 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.)

Conclusion

Humans are an adaptable and resourceful species, and it is not too difficult to imagine one person being able to successfully hold two positions simultaneously — for example, a county auditor and a city councilmember — especially in a small jurisdiction.

The problem of incompatible offices usually does not arise until someone raises a legal challenge against an officer. If the officer in question concludes there is an issue, they may decide to fix 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 (see AGO 1978 No. 12).

For more information on the subject, see our Incompatible Offices webpage.