The De Facto Officer Doctrine: Protecting Local Governments and the Public

Local government officials sometimes discover they have made procedural errors in assuming office—perhaps because of a missed or unfiled oath, an improperly timed appointment, or a residency issue that was not immediately apparent. When this happens, are the previous actions of the officials invalidated? Fortunately, they are not because Washington law provides an important safeguard—the de facto officer doctrine

What Is the De Facto Officer Doctrine?

The de facto officer doctrine is a well-established common law principle that validates official acts of a person who appears to be a legitimate officer but is later found to have a technical defect in their claim to the public office.

Washington courts have consistently recognized this doctrine over the years. See, for example, Cotton v. City of Elma (2000 – A former judge brought a quo warranto action against city and current judge); Dorsten v. Port of Skagit County (1982 – One port commissioner was not a resident); Snohomish County Builders Assoc. v. Snohomish Health District (1973 – A challenge to the composition of the district board); and State v. Franks (1972 – A district court judge was not a registered voter at time of appointment).

Under the de facto officer doctrine, an official who has the reputation and appearance of being an officer, but who, in fact, under the law has no right or title to the office they assume to hold (for example, has not validly taken the oath of office or was not properly appointed within the required time frame) serves as a “de facto officer.”

Under this doctrine, the acts of a de facto officer are still valid actions. Once the defect on the part of a de facto officer in holding office becomes known, it should be promptly corrected, if possible.

An Attorney General’s Opinion (AGO) from 1978, AGO1978 No. 12, considered a situation where the same officer was holding incompatible public offices. The opinion includes this summary of the de facto officer doctrine:

…another well-established common law doctrine which has been recognized by the courts of our state and is known as the de facto officer doctrine. See, e.g., State v. Franks, 7 Wn.App. 594, 501 P.2d 622 (1972) and cases cited therein. In essence, this doctrine serves to validate the acts of de facto offices as to the public and third persons on the ground that, although not officers, de jure [i.e., “by legal right”], they are, by virtue of the particular circumstances, officers in fact whose acts of public policy required should be considered valid.

When Does This Doctrine Apply?

The de facto officer protects actions when an official has the appearance of authority but is later determined to lack some technical requirement for holding office. Below are some common scenarios that may lead to an officer not meeting all requirements.

• An oath of office has not been taken: An elected official begins serving before taking the required oath, or the oath is administered incorrectly
• An official bond has not been secured: Many elected officials are required to have a bond in place to cover their handling of their office. This may sometimes be done through the agency's insurance provider.
• Appointment timing is outside required time frame: Someone is appointed outside the legally required time frame, such as within 90 days of a vacancy.
• Residency questions arise: An official unknowingly loses residency status during their term, perhaps by moving or due to a change in the boundaries of their agency/district.
• Oversights arise after reelection: Officials forget to take a new oath when reelected to another term in the same office.
• Eligibility defects are detected: An official who appeared qualified is later found to have a disqualifying conflict, or they did not meet a certain requirement.

Protecting the Public Interest

The doctrine's primary benefit is protecting third parties and the public from the chaos that would result if official actions taken in the past were routinely invalidated due to later discovered technical defects.

Consider what could happen without protection provided by the de facto officer doctrine:

• Contracts signed by an elected official with a defective oath could be challenged.
• Permits issued by a planning commission with an improperly composed membership might be invalidated.
• Ordinances passed with votes from officials who had not properly assumed office could be thrown out.
• Budget decisions affecting entire communities might be unwound or otherwise challenged.

This doctrine ensures that when someone is functioning as an officer with the appearance of legitimacy, their official actions bind their government agency. This provides certainty for community members, businesses, and other parties that rely on government decisions.

How to Handle De Facto Officer Situations

Should your local government find itself in the difficult position of discovering that an official lacks a technical requirement for holding office, below are a few steps to take to remedy the issue and move forward.

• Consult legal counsel: If you discover a potential defect in how an official assumed office or is holding office, consult with your agency attorney about the specific circumstances and appropriate remedial steps.
• Take prompt action: While the de facto officer doctrine validates past actions, it does not protect or excuse ongoing violations. Thus, it is critical to take action to correct the error as it is discovered. For example, if an oath of office was not taken or was taken but not administered by an authorized person, work with your agency’s attorney to properly retake the oath.
• Understand the limits: The doctrine typically applies when the defect is unintentional. Willful refusal to meet legal requirements may not be protected, and a court action to resolve a dispute about this doctrine may be expensive and time-consuming, regardless of who prevails.
• Review your onboarding procedures: Use any error discovered as an opportunity to strengthen your onboarding procedures for new officials, ensuring bonds (if applicable) and oaths are properly administered and documented.

Conclusion

The de facto officer doctrine reflects a pragmatic approach to governance. It recognizes that technical errors happen, especially in the complex landscape of local government. Technical errors should be corrected promptly, though this isn’t always possible when there are differences in opinion about whether an error has occurred or a requirement has been violated. Try to keep an open mind, be transparent, and work collaboratively to better understand the facts and consequences when this kind of situation happens.

By validating the actions of officials who appear legitimate and are functioning in good faith, the doctrine protects the public interest and provides stability in government operations. It is good for local governments to understand this doctrine and that its protection exists while remaining diligent about compliance with legal requirements for officials holding elected and appointed offices.

Here are additional resources from MRSC:

• Residency Requirements for Local Government Officials and Appointees
• Official Bonds and Oaths of Office
• Vacancies in Local Elected Offices