- Are the positions of councilmember and PUD commissioner incompatible?
If a Public Utility District is providing service to all or portions of the city, then the positions would appear to be incompatible. When analyzing similar factual patters, MRSC has generally opined that the positions of councilmember and elected commissioner of a special purpose district that is either located or providing services within the city results in an incompatibility problem. There do not appear to be any court decisions or Attorney General opinions that deal specifically with the incompatibility of councilmember and PUD commissioner positions. However, see AGO 1978 No. 12 wherein the Attorney General's Office concluded that the same individual may not simultaneously serve as a port district commissioner and as mayor of a town that is situated entirely within the boundaries of the port district.
- What process should be used to hire an attorney to assist a county if special expertise is required or if there is a conflict?
Unless the prosecutor's office is quite large, there may be times when the office has neither time nor necessary expertise to provide advice and guidance on all legal issues. (Bond counsel is an example of when outside legal assistance is needed.) RCW 36.27.040 authorizes the prosecuting attorney to appoint special deputies, which may be done by contract, "whose authority shall be limited to the purposes stated in writing signed by the prosecuting attorney." RCW 36.32.200 provides a second appointment mechanism, one perhaps more likely used when there is a conflict between county offices or departments. Under this statute, the county may employ or contract with any attorney to perform any duty which any prosecuting attorney is authorized or required by law to perform. This contract must be reduced to writing and approved by the presiding superior court judge.
- What is the doctrine of incompatible offices?
The doctrine of incompatible office, as established by the courts, provides that the same person may not hold two or more public offices that are incompatible. Incompatibility may arise in different ways, such as where the functions of the offices are inconsistent (e.g., where one is subordinate to the other) or, more generally, where holding the offices is considered detrimental to the public interest. Incompatibility will be found to exist if the holder of both offices cannot in every instance faithfully and impartially discharge the duties of both offices.
- What is a public office?
A threshold question in applying the doctrine of incompatibility is whether the position at issue is a public "office." The state supreme court has adopted a five element test for determining whether an employment position is an "office." This test can be applied in situations where it may not be clear whether a position is an office. Often, however, the position at issue is created by statute as a public office (e.g., city clerk, city manager, county auditor).
- May a city councilmember also serve as a volunteer fire fighter or a reserve police officer?
Yes. Under 1993 legislation, a councilmember may serve as a volunteer fire fighter or a reserve police officer if authorized by a two-thirds vote of the council. see RCW 35.21.770 and RCW 35A.11.110. In non-code cities, a councilmember can also be authorized to be volunteer ambulance personnel.
- May a councilmember's spouse be a city employee?
Because of the community property interest that a person has in the earnings of a spouse in this state, the analysis of this question is the same as that for the question of whether a councilmember may also be a city employee. However, the conflict of interest in this situation can be avoided if the spouses enter into a separate property agreement, under which the earnings of each spouse would be considered separate property and would not be used in any way for the benefit of the marital community.
- May a husband and wife serve together on the city council?
Yes. Nothing prohibits a husband and wife from serving on the council at the same time. However, in some situations, such as in the consideration of a quasi-judicial matter, there may be an appearance of fairness problem with having both spouses participate.
- May a county or city personnel policy prohibit spouses from being employed by the county or city?
In most instances, this would be prohibited by state anti-discrimination law because this would constitute discrimination on the basis of marital status. RCW 49.60.180 declares that it is an unfair practice for any employer to discriminate against a person because of age, sex, or marital status, among other things. A provision in a coutny or city personnel policy which prohibits the spouse of an employee from also working for the county or city may be in violation of this statutory provision.
The state Human Rights Commission has adopted regulations which implement this anti-discrimination law. These regulations indicate that there are certain circumstances where business necessity may justify what otherwise would be considered discrimination on the basis of marital status. Situations where it is not unlawful for a county or city to prohibit the spouse of an employee from working for the county or city include where one spouse would have the authority or power to supervise, appoint, remove, or discipline the other spouse. A business necessity justification might also occur where one spouse would be responsible for auditing the work of the other spouse. Other examples are specified in the state regulation. Thus, a county or city should not have a general policy prohibiting employment of spouses except in certain such business necessity situations.
- May a councilmember vote for himself or herself to fill a mayoral vacancy?
This situation comes up frequently, and, unfortunately, there is no specific rule in this state, other than general conflict of interest principles. If the position of mayor is unpaid or is paid the same amount as a councilmember, there would be no financial conflict of interest. Nevertheless, case law from other states indicates a general rule that, regardless of any financial interest, a public officer may not vote for himself or herself for appointment to a position except where that position must be filled from the membership of the body on which that officer serves. Thus, under this exception, a councilmember may vote for himself or herself for mayor pro tem, because that position must be filled by a councilmember.
If the position of mayor involves an increase in compensation, general conflict of interest principles would seem to preclude voting for oneself for this position. Despite the fact that it may often happen that councilmembers do vote for themselves, without adverse legal consequence, the safest course is not to vote for oneself to fill a mayoral vacancy.
- May a county commissioner or employee purchase property from the county?
A county commissioner may not purchase or lease property (real or personal) from the county, regardless of the value of the property. There is an absolute statutory prohibition that applies here. RCW 42.23.030(6). It does not matter how the property is purchased; an impartial bidding or auction sale would not eliminate the conflict.
Note, however, that if a commissioner is a lessee of county property when he or she enters office, the lease would not be invalidated. Nevertheless, it could not be renewed if its term expired during the commissioner's term of office.
Because the statutory prohibition applies only to county officers, a county employee may purchase property from the county.
The same prohibition applies to city councilmembers and mayors.
- May a city or county elective official hold another public office?
In code cities this is specifically prohibited if that office is within the city. RCW 35A.12.030. A similar statutory prohibition exists with respect to the office of county auditor. RCW 36.22.110. With respect to other public offices and to other classes of cities, and to counties, the answer is governed in each particular case by the "doctrine of incompatible offices."
In general, offices are incompatible when the nature and duties of the two are such as to render it improper, from considerations of public policy, for one person to retain both. Some of the issues to consider in determining incompatibility are whether or not the functions of the two positions are inconsistent, such as where one is subordinate to the other, or where there is an antagonism or conflict which would result in the attempt by one person to discharge faithfully and impartially the duties of both positions. Two offices are said to be incompatible when the office holder cannot in every instance discharge the duties of both.
Where the second office is outside the city or county, incompatibility may exist based on the interaction between the jurisdictions involved; incompatibility arises where that interaction may result in conflicting interests or loyalties in a given situation. Thus, the attorney general's office has concluded, for example, that the offices of mayor and county commissioner and of mayor and port commissioner of a district that encompasses the city are incompatible offices.
A threshold question in applying the doctrine of incompatibility is whether the position at issue is a public "office." The state supreme court has adopted a five element test for determining whether an employment position is an "office." This test can be applied in situations where it may not be clear whether a position is an office:
- [It] must be created by the Constitution or by the legislature or by a municipality or other body through authority conferred by the legislature;
- It must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public;
- The powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority;
- The duties must 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;
- It must have some permanency and continuity and not be only temporary or occasional. In addition, in this state, an officer must take and file an official oath, . . . and give an official bond if the latter be required by proper authority.
State ex rel. Brown v. Blew, 20 Wn.2d 47, 145 P.2d 554 (1944).
Under this doctrine, it is unlikely, for example, that the mayor would be able to hold any other office in a city, because all non-elective offices are subordinate to the mayor. Also, a city council position, or county commissioner or county council position will usually be considered incompatible with holding another public office in the city or county based on the council's or commission's general authority over the budget and over contracts. That general authority will often be inconsistent with the interests of an officer whose department or whose duties are tied to budgetary and/or contractual issues.
- Is it a conflict of interest for lessee of city property to be elected to city council?
There would be no conflict of interest, since the lease was entered into prior to the lessee becoming a city official. However, the lessee/councilmember could not renew the existing lease, renegotiate the lease, execute a new lease upon expiration of the existing lease, or exercise the option to purchase the property, without first resigning from the council. RCW 42.23.030(6) prohibits a city from leasing or selling property to a municipal officer. Renewal of the lease or exercise of an option to purchase, even if both lease renewal and the option to purchase are provided for in the existing lease, would be a conflict of interest.
- May a councilmember also serve on the planning commission?
In a code city a councilmember may not in our opinion serve on a planning commission (or similar body) because of the statutory prohibition against a councilmember holding any other public office within city government. RCW 35A.12.030. The nature and duties of the planning commissioner position are such that the position would be considered a public office, thus triggering the prohibition. (Note, however, that a code city is not required to establish a planning commission to carry out its planning functions.)
In towns and in other classes of municipalities a councilmember is not specifically prohibited from holding other offices. Indeed, in those municipalities that plan under ch. 35.63 RCW, there is specific statutory authorization for "ex officio members [on the planning commission] by virtue of office held in . . . [the] municipality." However, because of the seeming incompatibility of the offices of councilmember and planning commissioner and because of the inherent appearance of fairness problems that would result if one person held both offices, MRSC legal staff would strongly recommend against such dual office holding.
- What is the limit for contract interests between a city and a councilmember?
RCW 42.23.030 basically prohibits a councilmember in cities over 10,000 population from having a contract interest with the city. However, in cities with a population of less than 10,000, there is an exception for contract interests of less than $18,000. RCW 42.23.030 was actually amended in 1999 by Ch. 261, Laws of 1999 to increase this limit from the previous limit of $9,000. This change became effective on July 25, 1999.
The word "contract" includes employment, sales, purchases, leases, and other financial transactions of a contractual nature. As a general rule councilmembers are more broadly impacted than other city officials because city contracts are made or directly approved under the supervision of the council. In addition to the prohibition against both direct and indirect financial interests, a city officer is also prohibited from receiving financial benefits from anyone else having a contract with the city if the benefits are in any way connected with the contract.
This exception only applies to cities that are under 10,000 population. Councilmembers in cities over 10,000 population are prohibited from having any contract interest with the city.
- May a councilmember 1) be married to a city employee or 2) live with a city employee?
Absent a separate property agreement, a person may not serve as a city councilmember and be married to a city employee, unless the employee is also an officer of the city or earns less than $18,000 in a calendar year and the city has a population of less than 10,000. See RCW 42.23.030(6). Since employment is considered a contractual matter and because of community property laws, the councilmember would have a prohibited interest in a contract with the city, unless the noted exception applies.
A councilmember may live with a city employee, except perhaps in certain circumstances. A court might find that a "meretricious relationship" exists, which gives each person in such a relationship an interest in the other's earnings and/or assets. See Koher v. Morgan, 93 Wn. App. 398 (1998) and In re Marriage of Lindsey, 101 Wn.2d 299 (1984)). In Connell v. Francisco, 74 Wn. App. 306 (1994), the court of appeals concluded that, although a meretricious relationship does not create a marital community, the property a couple has earned through their efforts may be subject to a just and equitable distribution to prevent one party from being unjustly enriched at the end of the relationship. With respect to this issue in this inquiry, it is probable that, until a court finds such a relationship exists, there is no prohibited conflict (and a court likely will not make such a finding until the relationship is over). Once again, any conflict would be subject to the exception involving cities of less than 10,000 population and contracts of less than $18,000.
- May a city councilmember also be a city employee?
The answer depends on the size and class of the city and on how much this person would earn as a city employee. Since an employment relationship is contractual, this situation is governed by the statutory conflict of interest law dealing with contractual interests by municipal officials. Ch. 42.23 RCW. That law provides that no officer may be beneficially (i.e., financially) interested, directly or indirectly, in any contract made by, through, or under the supervision of the officer. RCW 42.23.030. Because the city council has ultimate authority over contracts (although the mayor appoints employees), this conflict of interest prohibition is implicated in this situation. However, the prohibition is subject to certain specific exceptions, including one that applies to contracts the total volume of which does not exceed $18,000 in a calendar year. RCW 42.23.030(6) . However, this exception is not available to cities or towns over 10,000 or to first class cities.
Thus, a councilmember, in all but cities of over 10,000 population and first class cities, may be employed by the city as long as he or she is not paid more than $18,000 in a calendar year. However, the councilmember should not be involved in any consideration of the salary for that particular position. In first class cities, the charter may provide for a specific exemption from this prohibition.
- Do the provisions in Chapter 42.23 RCW relating to prohibited contract interests apply to contracts entered into before a councilmember was on the council?
No. This conclusion is supported by language in AGLO 1970 No. 89 which provides:
The key phrase in RCW 42.23.030, pertinent to your inquiry, describes as prohibited those contracts which "...may be made by, through or under the supervision of such officer, in whole or in part,..." This statute does not in express terms declare illegal or void any contract which preexisted the appointment or election of the officer to his position of conflict...
So the prohibition does not appear to apply if the contract was entered into prior to the person assuming the office of councilmember.
- May the fire chief of the town volunteer fire department serve on the town council?
No. RCW 35.21.772, enacted in 2006, provides that a volunteer member of a fire department “who does not serve as fire chief for the department“ may serve in an elective public office. Prior to this legislation, it had been MRSC’s position that the office of volunteer fire chief and town councilmember are incompatible offices and should not be held by one person at the same time, the position now embodied in that legislation.
- Does a mayor have the authority on his own to cancel a council meeting because he or she is unable to attend?
No. A mayor does not have the authority on his or her own to cancel a council meeting, whether regular or special, for the reason that he or she cannot attend, or, for that matter, for any reason. Meetings may only be canceled at the direction of the city council. This is despite the fact that a mayor may on his own call a special meeting of the council. RCW 42.30.080. That authority does not, however, include any authority to cancel meetings. If the mayor is unable to attend a meeting, the statutory scheme contemplates that a mayor pro tem, appointed from among the councilmembers, is to preside over the meeting.
- Does the mayor in a town have veto power over ordinances?
No. The mayor's duties and powers are specified in RCW 35.27.160 and this statute does not provide for a mayoral veto power.
In the absence of specific statutory authorization the mayor cannot exercise this power. Therefore, the mayor in a town does not have a veto power over council ordinances, resolutions or motions. It is necessary for the mayor to sign municipal ordinances, but this is simply a ministerial action and there is no discretion in his or her exercise of this power.
The roles of the mayor and council members in different classes of cities and towns and under different forms of government are frequent subjects of inquiry. A good discussion of the issues can be found in "Knowing Your Roles: Resolving and Preventing Conflicts Between Mayors and Councils," by Robert Meinig, MRSC Legal Consultant.
- Must council selection of chairman (mayor) in a council-manager city be by majority vote?
The statutes do not specify that the choosing of the chairman/mayor must be by majority vote. The rele-vant statutes require the new council at the first meeting to choose a chairman from among their number, unless the chairman/mayor is elected. Thus, if the council is voting among three candidates, one candidate may get more votes but still not receive a majority. This lack of a majority would not prevent the top vote getter from becoming chairman, if the council decides not to require a majority.
- Does the mayor in a code city have a veto power?
Under RCW 35A.12.100, the mayor has the power to veto ordinances passed by the city council, although a mayor's veto may be overridden by a majority of the council plus one. This is not a "line item veto," but rather a veto power over an entire ordinance only.
- Does the mayor in a mayor-council, noncharter code city have a veto power just over ordinances or does the power extend to resolutions and motions also?
The veto power of the mayor in a mayor-council, noncharter code city is limited only to ordinances. The mayor may not veto a resolution or a motion. RCW 35A.12.100.
- Is there a procedure required for selection of mayor in a council-manager code city?
No. There is no specific procedure required for the election of a mayor in a council-manager code city. RCW 35A.13.030 states that "biennially at the first meeting of the new council the members thereof shall choose a chairman from among their number. . ." The city could adopt its own specific procedures for this selection or could simply choose a chairman/mayor by majority vote.
- Which council-manager cities directly elect their mayor?
Four of the 45 council-manager cities provide for the direct election of the mayor: Olympia, Vancouver, Tacoma, and Spokane. It is possible that there are a few others, but direct election of the mayor is the exception rather than the rule.
- Does the mayor in a mayor-council city have the authority to control which items are placed on the agenda for a council meeting?
The agenda for a council meeting ultimately should be controlled by the council, not the mayor. Although the mayor is usually the presiding officer at the meeting, he or she does not have the authority to refuse to place on the agenda items the council wishes to discuss.
For more information on the role of mayors and councilmembers see:
- What is the mayor's tie-breaking authority in a mayor-council code city?
RCW 35A.12.100 indicates that the mayor shall have a vote only in the case of a tie in the votes of the councilmembers. However, there are important limitations on the tie-breaking authority of the mayor. The mayor may not break a tie in regard to the passage of any ordinance, or in regard to the grant or revocation of a franchise or license, or with regard to any resolution for the payment of money. This is because of the limitation imposed in RCW 35A.12.100 and also because of RCW 35A.12.120, which indicates that those types of actions require the affirmative vote of at least the whole membership of the council.
- May another councilmember in a code city be appointed as an alternate mayor pro tem if both the mayor and mayor pro tem are absent?
Yes. This is specifically authorized by RCW 35A.12.065. This statute provides that, in the absence of the mayor and mayor pro tem, the council can appoint any qualified person to serve as mayor pro tem in the absence or temporary disability of the mayor.
- When is the mayor in a mayor-council code city "absent or temporarily disabled" and what are the powers of the mayor pro tem?
There are two main issues which keep coming up: (1) what constitutes "absence or temporary disability" as that phrase is used in the mayor pro tem statute which applies to code cities [RCW 35A.12.065]; and (2) are there limits on what the mayor pro tem can do when filling in for the mayor?
The basic mayor pro tem statute for mayor-council code cities is as follows:
RCW 35A.12.065 Biennially at the first meeting of a new council, or periodically, the members thereof, by majority vote, may designate one of their number as mayor pro tempore or deputy mayor for such period as the council may specify, to serve in the absence or temporary disability of the mayor; or, in lieu thereof, the council may, as the need may arise, appoint any qualified person to serve as mayor pro tempore in the absence or temporary disability of the mayor. In the event of the extended excused absence or disability of a councilman, the remaining members by majority vote may appoint a councilman pro tempore to serve during the absence or disability.
- What happens if the mayor is ill and unable to perform some of the duties of the position?
The fact that the mayor may be ill and unable to attend some council meetings on some evenings does not mean that the mayor is unable to perform other duties of his office on an ongoing basis. So long as the mayor is able to perform the duties of the office, then the mayor pro tem has no authority to exercise the powers of the mayor, but merely remains in his or her role as a councilmember.
If the mayor is absent from a council meeting because of illness or disability, then the mayor pro tem would preside at that council meeting and serve as the mayor for that meeting. If the mayor feels that he is unable to perform the duties of office for an extended period of time, then the mayor may so inform the council and indicate the time periods when he will be disabled. The authority of the mayor pro tem would continue during those time periods. When the mayor is again able to perform the duties of his office, then the authority of the mayor pro tem would cease again.
- What to do if the mayor is ill and the mayor pro tem thinks mayor is disabled such that the mayor pro tem should take over mayor's duties, but mayor does not agree? The mayor is currently hospitalized, but maintains that he continues to be able to perform his mayoral duties except for attending council meetings. The mayor pro tem thinks otherwise. A majority of the council, however, agrees with the mayor. The caller asked how this can be resolved. How is it to be determined when the mayor is temporarily disabled such that the mayor pro tem would take over the mayor's duties?
Ultimately, an issue like this can be resolved probably only by the courts. However, in this instance, since a majority of the council does not feel the mayor pro tem needs to take over, I suggested that the council pass a motion declaring that it does not consider the mayor to be disabled to such a degree that he cannot adequately perform his duties. The mayor pro tem should, of course, preside at council meetings the mayor cannot attend. Other than that, if the mayor is, in the opinion of the majority of the council, able to otherwise perform enough of his duties, the issue should be laid at rest, unless the mayor pro tem wants to take it to court. If the council, on the other hand, agreed with the mayor pro tem, it would probably be necessary to go to court to resolve the issue.
- When is the mayor of a code city considered absent such that the mayor pro tem may act as the mayor?
Unfortunately, neither the courts nor the attorney general's office has construed what constitutes, under RCW 35A.12.065, an "absence" by the mayor such that the mayor pro tem may perform the duties of the mayor. MRSC legal staff have, however, addressed this issue in the past on at least two occasions. In one inquiry, it was concluded that a part-time mayor, who works full-time outside of town, should not be considered absent for purposes of RCW 35A.12.065 during the period of time he is pursuing his full-time job and when his presence is not needed for operation of the city. In another inquiry, we noted that it could not have been the intent of the legislature to require a mayor to be seated at his or her desk at all times in order to retain his or her power as mayor.
Clearly, common sense should rule on an issue such as this. A part-time mayor will most likely be away from city hall far more than at city hall. The bulk of the day-to-day administrative work of acity or town is generally performed by its full and/or part-time paid staff, including the clerk-treasurer. It would be an untenable and absurd result if a mayor pro tem could act as the mayor at any time the mayor is not physically present at city hall.
my opinion, the mayor pro tem should have the authority to act as the mayor in the mayor's absence only when the mayor is away and cannot perform duties that cannot await his or her return or that cannot be performed by telephone or other type of communications link. Customarily, city offices are closed on weekends and there are no duties for the mayor to perform. Consequently, the mayor's spending the weekend out of town does not create a situation where the mayor pro tem could act on the mayor's behalf during that weekend. The weekend could extend to a three- or four-day weekend, and the mayor pro tem would still not have the authority to act as the mayor unless there was some duty that needed performing or some action that had to be taken that could not await the mayor's return or that the mayor, if he or she would be reachable, could not perform by telephone or other mode of communication such as e-mail. It would need to be more in the nature of an emergency situation that requires the mayor's presence before the mayor pro tem could perform mayoral duties on a weekend in which the mayor is away.
- Are there any statutory limitations on the power of a mayor pro tem?
There are no statutory limitations on the powers of a mayor pro tem in a code city, but obviously there are some practical concerns. For instance, if the mayor goes off on a two week sailing vacation in the ocean and cannot be contacted, the mayor pro tem clearly has authority to handle routine matters which arise while the mayor is gone. However, the mayor pro tem should not take that absence as an opportunity to fire city staff, reorganize the administrative procedures, paint the police cars orange, and revamp city administration. Clearly the mayor, when he returns, could reverse all of those actions, and the only result will be the unnecessary chaos.
In view of this fact, a number of cities have provided in their local ordinance some limitation on the authority of the mayor pro tem (see e.g., Lynnwood Ordinance No. 945 and Tukwila Municipal Code, Sec. 2.04.010). Basically, these provisions specify that the deputy mayor does not have the power of appointment or removal over officers or the power to veto ordinances enacted by the council. [Note that RCW 35.23.191, which concerns the powers of a mayor pro tem in a second class city, provides that the mayor pro tem does not have the power to appoint or remove officers, or to veto ordinances.
- Can the mayor pro tem receive the salary of the mayor while the mayor is on an extended vacation?
Yes, but only if the city council has previously passed an ordinance providing for that increase during the mayor's absence. The ordinance would need to have been passed prior to the mayor pro tem's election, due to the constitutional prohibition concerning raising the salary of elected officials while they are in office (see Article XI, Section 8 and Article XXX, Section 1 of the Washington State Constitution). In addition, the mayor would still be entitled to his regular salary while he is on his extended vacation, except if the council has previously passed an ordinance providing for a decrease in salary during an extended vacation - the ordinance would have to be passed prior to the election of the mayor to which the ordinance is applied, because the salary of the mayor cannot be reduced while he is in office.
- If the mayor is on an extended vacation or is unavailable for any other reason, can the mayor's facsimile signature be used to sign a city document which has to be recorded with county real estate records?
No. RCW 39.62.020 restricts the use of facsimile signatures of city officials to certain financial instruments. I advised that the county auditor was correct in refusing to file the document. If the mayor is out of town for an extended period, then the mayor pro tem can sign real estate documents on behalf of the city.
- Does the deputy mayor become mayor if the mayor resigns in a mayor-council code city?
No. The council selects a new mayor by majority vote if there is a vacancy. The new mayor would serve until the next regular municipal election at which time an individual would be elected to serve for the remainder of the unexpired term. The deputy mayor serves during the absence or temporary disability of the mayor.
- May the mayor pro tem vote on matters coming before the council when he or she is presiding at the meeting?
Yes. The appointment of a councilmember to serve as mayor pro tem and preside at a council meeting does not in any way restrict his or her right to vote on matters coming before the council while they are presiding. This is true in all classes of mayor-council cities and towns.
Since the scheduled day of assuming office is January 1, a councilmember may be sworn in up to ten days before January 1 or at the last council meeting in December. Of course, councilmembers may be sworn into office at the first regular council meeting after the first of January also.
A councilmember may not act as a councilmember unless he or she has taken the oath of office, described as the last step of qualification in RCW 29.04.170. A councilmember who takes the oath of office prior to January 1 may then assume his or her full duties immediately on January 1 without any further action being required.
- Is a convicted felon eligible to be appointed to fill a vacancy in elective office?
RCW 42.04.020 states that a person cannot qualify for or hold any elective public office unless he or she is a citizen and an elector. A convicted felon loses his or her eligibility to vote, unless their civil rights have been restored, and so does not meet the qualifications to hold (or be appointed to) elective office.
Art. 6, Sec. 3 of the Washington Constitution states:
All persons convicted of infamous crime unless restored to their civil rights and all persons while they are judicially declared mentally incompetent are excluded from the elective franchise.
Our courts have concluded that conviction of a felony is "conviction of an infamous crime," thus rendering the person convicted ineligible to vote in this state. See In re Walgren, 104 Wn.2d 557, 569 (1985). Thus, a person convicted of a felony is ineligible to be a registered voter and, consequently, ineligible to hold municipal elective office unless their civil rights have been restored. As Art. 6, Sec. 3 of the constitution implies, a disqualified person may have his or her eligibility to vote (and thus ability to assume elective office) restored by act of the governor.
- How long must a person be a resident of a code city to be eligible to be appointed to fill a city council vacancy?
One year. The relevant statute, RCW 35A.12.030, provides in part: No person shall be eligible to hold elective office under the mayor-council plan unless the person is a registered voter of the city at the time of filing his declaration of candidacy and has been a resident of the city for a period of at least one year next preceding his election. Although this statute (which also applies to council-manager code cities) specifically addresses election to office, MRSC legal staff has consistently taken the position that this statute also applies to appointment to elective office. It would not make sense for the legislature to require a one-year residency for election but not for appointment to a vacant elective office.
- Are the actions of a council or board valid if one of its members is later found to have been improperly holding office?
The actions of such a councilmember or commissioner would be valid under the "de facto officer doctrine." A de facto officer is an officer who has the appearance or reputation of being the officer he or she assumes to be but who, in fact, has no right or title to the office. The person does hold office under some color of right or title, but for some reason is actually ineligible or improperly holding the office. The acts of a de facto officer, although that officer&s title may be improper, are valid so far as they concern the public or third persons who have an interest in the thing done. So the actions and votes taken by the city council or board of county commissioners while this individual was holding office, even if he or she was holding office improperly, are valid and cannot be challenged or invalidated later.
- May a councilmember run for the office of mayor in the middle of the councilmanic term?
Yes. The councilmember does not have to resign from his or her position to run. If elected mayor, then the person would have to resign from the council upon assuming the office of mayor. If the person loses, he or she serves out his or her councilmanic term.
- Must a person who is appointed to fill a vacancy on the council in a code city be a resident of the city for at least one year preceding his or her appointment?
Yes. There is a statute which applies to all code cities, RCW 35A.12.033, which indicates that no person is eligible to hold an elective office of the city unless the person has been a resident of the city for one year preceding his or her election. The statute does not specifically mention appoint-ees to elective office but the same requirement should apply. Therefore, no person may be appointed to fill a councilmanic vacancy in a code city unless that person has been a resident of the city for one year prior to their appointment.
- Does an animal control officer have to be commissioned and take an oath of office?
There are no specific statutory or regulatory requirements that govern such officers. An animal control officer is not a "law enforcement" officer as defined in RCW 43.101.010, which requires basic law enforcement training for law enforcement personnel under RCW 43.101.200(1). Thus, the only requirements for an animal control officer are those established by the city for the position.
- Is a person who has been convicted of a felony, permanently barred from holding elective office?
No. See Chapter 9.96 RCW, Restoration of Civil Rights.
- What is the minimum age for holding office of councilmember?
Eighteen. RCW 42.04.020 states that no person shall be competent to qualify for or hold any elective public office in a municipality: " . . . unless he be a citizen of the United States and state of Washington and an elector of such . . . municipality or other district or political subdivision."
Our state constitution, Article VI 1 defines the qualifications of an elector to be "All persons of the age of eighteen years or over who are citizens of the United States and who have lived in the state, county, and precinct thirty days immediately preceding the election at which they offer to vote. . . ."
- Does a county commission seat become vacant when a commissioner moves from district (but remains in county)?
No, so long as the commissioner remains a resident of the county, he or she retains the county commissioner seat. An Attorney General Opinion, an opinion dated July 10, 1940, addressed to the Spokane County Prosecutor (referenced in AGO 1969 No. 10), concluded:
[A] county commissioner does not vacate his office by moving his place of residence from the commissioner district in which he resided at the time of his election to another commissioner district in the same county. The conclusion was reached on the following analysis:
- The general powers and duties of the county commissioners indicates that a county commissioner is a county and not a district officer, as his jurisdiction is in the entire county.
- The office becomes vacant if the office holder ceases to be an inhabitant of the district or county for which he shall have been elected or appointed, or within which the duties of his office are to be discharged
The only question then arising is whether the county commissioner is a county officer or whether he is simply an officer of his district. The attorney general concludes:
It is our opinion, after a careful reading of the provisions above quoted, that he must be held to be a county officer and that his office is not vacant so long as he continues to reside within the county and is performing the duties of his office. In other words, it is our opinion that a county commissioner does not vacate his office by removing from the district in which he was appointed as long as he continues to reside in his county.
A much earlier opinion dated March 1, 1911, to the prosecuting attorney of Snohomish county, reached the same result for the same reasons.
- Are there any residency requirements for county commissioners?
The only residency requirements are that a commissioner must live in the district from which he or she is elected (RCW 36.32.040, .050) and must be an elector (RCW 36.32.010). To be an elector, one must satisfy the requirements of article 6, section 1 of the state constitution (be at least 18 years of age, a United States citizen, and a resident of the county, city, precinct, etc. for at least 30 days prior to the election). An additional residency requirement is found under general election laws, which require a candidate for elective office to be a registered voter at the time of filing for candidacy. RCW 29.15.025(2). To register to vote, one must be a resident for 30 days prior to the election. In effect, then, a county commissioner candidate must be a resident of his or her district at the time of filing for candidacy.
- Who is eligible to be appointed to fill an elective office in the county?
To be eligible for appointment to fill a vacancy in a county elective office, the person must be eligible to run for elective office in the county. In order to run for elective office, the person must be a qualified voter of the county. To be eligible to be a registered voter, the person must be eighteen years of age or older, a U.S. citizen, and have resided within the county for thirty days.
- Is there a definition of "resident" for election purposes in state law?
RCW 29A.04.151, which defines "residence" for purposes of the election laws, provides that residence for purposes of registering and voting means a person's permanent address where he or she physically resides and maintains his or her abode. This definition also applies to eligibility to run for office. So a person who maintains his or her permanent residence outside a city or county is not eligible to run for elective office in the city or county respectively.
Sometimes the facts make it difficult to determine if a person actually lives in one place or another. For example, a person may temporarily live in a house outside the city limits while they attends school, works on a job, or while their house is being remodeled. In these circumstances, the person is deemed to actually live where their permanent residence is as long as it is their intent to return to that residence to live once the temporary situation has ended.
- May a salary commission established in accordance with RCW 35.21.015 or RCW 36.17.024 pass a salary increase for elected officials that has a CPI inflation factor?
Yes, in our opinion, a citizen's salary commission could do this. The Office of the State Auditor has, in the past, questioned the ability of local governments to tie salary increases to a factor such as the CPI, based on the constitutional prohibition on elected officials raising their salaries during their term of office.
However, this constitutional prohibition does not apply to a salary increase that is instituted by a citizen's salary commission. A salary increase adopted by a salary commission is received immediately by elected officials.
- Request for information on the new salary commission legislation and appointing authority for selecting the members of the commission?
Ch. 73, laws of 2001 (HB 1084) authorizes cities and counties to establish salary commissions to set the salaries of elected city officials and county commissioners and councilmembers.
Cities and Towns
According to section 4 of the new legislation, salary commissions for elected officials of cities may be established, by ordinance, with the members to be appointed by the mayor. The commission members may serve only two terms and may not include any city official or employee or any member of their immediate families. The legislation does not dictate the number of commissioners.
Salary changes set by a salary commission are filed with the city clerk; increases can go into effect immediately, without regard to the terms of the elected officials, while decreases may not go into effect until the subsequent terms of office. No action of the city council is required for a change in salaries. Salary commission actions to increase or decrease salaries are subject to referendum in cities, and the filing of an adequate petition places the issue before the voters.
Counties
Section 5 authorizes salaries for county commissioners and councilmembers to be set by a ten-member county commissioner and councilmember salary commission established by ordinance or resolution of the county legislative authority.
The commission is appointed by a majority vote of the county legislative authority or by the county executive with the approval of the county legislative authority. The members of the commission may not include any county officer, official, or employee or any of their immediate family members.
Any change in salaries is filed by the commission with the county auditor and becomes effective without further action of the county legislative authority or salary commission. As with city salary changes, increases apply to the current terms of office, while decreases apply to subsequent terms. Salary changes are also subject to referendum.
- If a fire district commissioner participates in a commission meeting by telephone, is he/she entitled to daily compensation per RCW 52.14.010?
It's our opinion that, if the board of fire district commissioners adopts a policy authorizing telephonic participation at board meetings, then any commissioner participating in a board meeting by telephone is entitled to the $90 compensation for that day, as authorized by RCW 52.14.010, as amended by HB 1368 (Ch. 469, Laws of 2007). The relevant part of that statute provides as follows:
Each member [of a board of fire district commissioners] shall each receive ninety dollars per day or portion thereof, not to exceed eight thousand six hundred forty dollars per year, for time spent in actual attendance at official meetings of the board or in performance of other services or duties on behalf of the district.
The policy authorizing telephonic participation at board meetings would have to mean that telephonic participation is equivalent to physical attendance at the meeting - i.e., the board member participating telephonically has all the rights of one participating in person. We believe that would be considered "actual" attendance at a board meeting. A commissioner attending telephonically would not, of course, be entitled per the second paragraph of RCW 52.14.010 to any expense reimbursement for such participation.
The telephonic participation should be by speakerphone, such that the member participating telephonically can be heard by all those present at the meeting, including members of the public in attendance, and so that the member participating telephonically can hear all that is said by those present at the meeting.
As an example of a policy authorizing telephonic participation at meetings, see City of Bothell City Council Protocol Manual, §7.14 (scroll down). Note, however, that this policy is quite restrictive and does not authorize full participation in a meeting - it is limited to one agenda item only. As such, if the fire district board adopted a policy like this, a board member would not be entitled to the $90 compensation for this limited "attendance" at a board meeting.
See also the following rules allowing telephonic participation in meetings: