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 also serve on the fire district board?
• May a public utility district commissioner also serve as a representative in the state legislature?
• May a mayor also be a county commissioner?

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 court-created legal doctrine 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. Note that while the doctrine prohibits the holding of incompatible offices, it does not prohibit someone from running for an incompatible position. They must, however, resign one office before taking up the duties of the other.

Additionally, the state legislature can override this court-created doctrine and adopt a statute that explicitly authorizes one person to hold two offices that might otherwise be considered incompatible.

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?

Question 1: Is It an Office?

Deciding whether a position is an office is sometimes easy because it is addressed by statute. For example, the mayor and councilmembers of a code city are officers (RCW 35A.12.010), as are the appointive positions of city clerk and chief law enforcement officer (RCW 35A.12.020), and the city manager (RCW 35A.13.010),

In county government, state law (RCW 36.16.030) defines county offices as the following: assessor, auditor, clerk, coroner, commissioner (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 a public office, a position must meet the following characteristics: 

1. Be created by the state constitution, the state legislature, or a local government body; 
2. Be delegated sovereign power of the government; 
3. Have its powers conferred and duties to be carried out defined, directly or impliedly, by the state legislature or through legislative authority; 
4. Have the authority to act independently and without control of a superior power, unless they are a legislatively created inferior or subordinate office; and 
5. Be a permanent position and not a temporary one.

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

It should also be noted that the doctrine of incompatible offices applies whether an official was elected or appointed: Once a person is sworn into office, how they came into office is immaterial. The same analysis of whether offices are incompatible needs to be applied.

Question 2: 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.” Incompatibility could arise if the function of the two offices are “inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest.” The court also noted:

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. [Citations omitted] 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.

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

1. 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).
2. 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 (or Otherwise)

The AGO has offered opinions in a number of instances where compatibility was questioned, 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).

In a few instances, the statutes allow a person to serve in two public offices simultaneously. For example, RCW 35.21.770 and RCW 35A.11.110 permit 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. 

For a sample list of public offices deemed incompatible or compatible based on guidance from the courts and the AGO, see our webpage on Incompatible Offices.

Remedying a Situation Involving Incompatible Offices

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).

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, especially in a small jurisdiction. For answers to the questions raised at the beginning of this blog, see below:

1. A city councilmember may serve as a reserve law enforcement officer, but only if approved by resolution adopted by two-thirds of city council (RCW 35.21.770/35A.11.110)
2. A county clerk and a board member of the county planning commission are both public offices, and thus incompatible.
3. A hospital district commissioner and a fire district commissioner, while both public offices, may or may not be incompatible depending on the relationships between the districts.
4. A public utility district commissioner and a representative in the state legislature are compatible offices (see AGO 1962 No. 177)
5. A mayor and a county commissioner have been determined to be incompatible offices by the AGO (see AGO 1957 No. 90).