Can a Minnesota assistant county attorney also serve as the city attorney for a statutory city in the same county?

Plain-English summary

The City of Plainview was hiring a new city attorney on monthly retainer. One of the candidates was a local Plainview attorney who also served as the sole Assistant County Attorney to the Wabasha County Attorney. Wabasha County had a 1995 population of 20,428; Plainview had a population of 2,883.

Peter Ekstrand, attorney for the candidate (or for one of the parties involved), asked AG Humphrey whether an assistant county attorney could serve as city attorney for a statutory city within the same county.

Assistant AG Kenneth Raschke, signing for AG Humphrey, said yes, with qualifications.

The reasoning worked through three layers.

The common-law rule. AG opinions going back to 1939 (Op. Atty. Gen. 358a-1, July 27, 1939) had held that the offices of city attorney and county attorney are incompatible — they cannot be held by the same person. The common-law doctrine of office incompatibility (State ex rel. Hilton v. Sword, Minn. 1923) treats offices as incompatible "when their functions are inconsistent, their performance resulting in antagonism and a conflict of duty so that the incumbent of one cannot discharge with fidelity and propriety the duties of both." The earlier opinions reasoned that "there is often a conflict of interest between [city] and county, particularly on matters of taxation, relief and division of liability for government expenses." The same disqualification was extended to assistant county attorneys (Op. Atty. Gen. 358a-1, January 26, 1941) because the assistant has "the same duties and ... liabilities as the county attorney" under what is now Minn. Stat. § 388.10.

The 1982 selective-services exception. Other AG opinions had concluded that the common-law incompatibility analysis does not apply to selective legal-services arrangements where one attorney provides specific services to a city or county without holding the formal "office" of attending to all the unit's legal needs (Ops. Atty. Gen. 358e-3, August 18, 1982; 358-0, September 30, 1954). When duties are open to definition by the appointing authority, compatibility depends on how the duties are defined in the appointment.

The § 481.17 statutory framework. Minn. Stat. § 481.17 controls. The statute has two sentences. The first says that in counties with population not more than 12,000, the offices of county attorney, city attorney, and school district attorney are not deemed incompatible and may be held by the same person. The second says: "For the purposes of prosecution of violations of state laws, municipal ordinances, charter provisions, or municipal regulations, the offices of county attorney and city attorney shall not be deemed incompatible and may be held by the same person, regardless of the population of the county."

The second sentence is the key for Wabasha County (population 20,428, exceeding 12,000). It removes the per se incompatibility for the prosecutorial function in any county, regardless of size.

The civil services question. Section 481.17 is silent on whether a person holding both offices under the second sentence may perform civil (non-prosecutorial) services for the city or county. The AG read the statute together with the 1982 selective-services line of opinions to conclude that civil services can be provided so long as they do not present actual conflict with the duties owed the county. If the city attorney role is defined narrowly enough that no conflict arises, dual service is permissible.

The county attorney's veto. The opinion ends with a practical limit: the candidate would not necessarily be entitled to accept the city position over the county attorney's objection, because assistant county attorneys serve at the pleasure of the county attorney (Minn. Stat. § 388.10). The county attorney's consent matters in practice.

Rules of Professional Conduct. The opinion noted in a footnote that the attorney should also consider the Rules of Professional Conduct (the AG does not opine on those) and may want to direct questions to the Lawyers Professional Responsibility Board. Conflict-of-interest analysis under Rule 1.7 (concurrent representation) and Rule 1.11 (former government lawyer) is distinct from the statutory and common-law incompatibility analysis.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Section 481.17 has been amended since 1997; the population threshold for the first sentence and the scope of the second sentence may have changed. The common-law incompatibility doctrine and the Rules of Professional Conduct continue to apply alongside the statute.

Historical context: what the AG concluded

The opinion is a careful navigation of three overlapping authorities: common-law incompatibility, statutory carve-outs in § 481.17, and the practical reality that compatibility depends on how the dual-office duties are defined.

The common-law starting point. State ex rel. Hilton v. Sword (Minn. 1923) is the seminal Minnesota incompatibility case. Two offices are incompatible if their functions are inconsistent such that the incumbent cannot discharge both with fidelity and propriety. The test is functional, not formal: whether the duties of the offices conflict in practice.

The earlier AG opinions (1939, 1941) treated city attorney and county attorney as incompatible on the assumption that each office requires the holder to attend to "all" the legal needs of the respective unit and that the cities and counties frequently have conflicting interests on taxation, public assistance, and liability matters. The conclusion was per se: any dual holding was incompatible regardless of the specific facts.

The selective-services qualification (1982, 1954). Op. Atty. Gen. 358e-3 (August 18, 1982) and Op. Atty. Gen. 358-0 (September 30, 1954) had carved out the case where one attorney provides selective legal services to a city or county without holding the office that requires attendance to all legal needs. In those cases, the duties are open to definition by the appointing authority. The compatibility analysis becomes fact-specific: it depends on how the dual-role duties are defined.

The § 481.17 statutory overlay. The legislature added § 481.17 to address the most common dual-office situations. The first sentence's small-county carve-out (12,000 population or less) reflects the practical reality that many small counties cannot recruit separate full-time attorneys. The second sentence's any-population prosecutorial carve-out reflects the long-standing practice in many counties of letting the county attorney prosecute city ordinance violations or letting a city attorney handle state-law petty misdemeanors.

The 1997 AG read § 481.17 as a substantive legislative judgment that the per se incompatibility theory does not apply in the situations the statute covers. The 1939/1941 opinions are not so much overruled as overtaken: their reasoning depends on a common-law theory that the legislature has now displaced.

The application to Wabasha County. Wabasha County's 20,428 population exceeds the 12,000 small-county threshold, so the first sentence of § 481.17 does not apply. But the second sentence (any population, prosecutorial functions) does apply. The assistant county attorney could hold the city attorney position for prosecutorial work, and could additionally provide civil services so long as no actual conflict arose.

Practical structure. The city would want to define the city attorney's duties narrowly, in writing, in the retainer agreement. The county attorney would want to confirm in writing that he or she had no objection. Specific tasks that might present conflict (city versus county tax disputes, jurisdictional fights over road maintenance, liability claims involving both units) should be carved out and assigned to outside counsel.

The county attorney's pleasure. Because the assistant county attorney serves at the pleasure of the county attorney, the assistant cannot effectively defy the county attorney by accepting an outside engagement the county attorney opposes. Practical compatibility requires the county attorney's consent. The AG flagged this explicitly.

Common questions

Q: I'm a small-county county attorney and want to also be city attorney for a town in the county. Is that allowed?
A: Under § 481.17's first sentence (as applied in 1997), if the county population is 12,000 or less, the offices are not incompatible and the same person may hold both. Confirm the current population threshold and statutory language before relying.

Q: My county has 50,000 people. Can the county attorney still prosecute city ordinance violations for a city in the county?
A: Yes, under § 481.17's second sentence as it stood in 1997. Prosecution of state-law violations, municipal ordinances, charter provisions, or municipal regulations may be done by one person holding both offices regardless of county population.

Q: Can the assistant county attorney also do civil legal work for the city (drafting ordinances, advising the council, defending civil suits)?
A: The 1997 opinion said yes, qualified: civil services are permissible if the city attorney duties are defined to avoid actual conflicts with the assistant's county-attorney duties, and the county attorney does not object. Particular high-conflict areas (taxation, jurisdictional disputes, liability) should be carved out.

Q: What if a conflict actually arises mid-engagement?
A: The assistant should withdraw from the conflicting matter, refer it to outside counsel or to a non-conflicted attorney in the city or county, and disclose the conflict to both clients (Rules of Professional Conduct, especially Rule 1.7 on concurrent representation). The statute provides a framework for permissible dual service; the Rules of Professional Conduct apply in addition.

Q: Does the county attorney's objection actually prevent the appointment?
A: The opinion's language was that the assistant "would [not] necessarily be entitled to accept the city position over the objection ... of the county attorney at whose pleasure the assistant county attorney serves." That is a practical limit: the county attorney can dismiss the assistant. As a formal matter, the city council can appoint whomever it likes; the question is whether the assistant can keep the county role while doing it.

Q: How is this different from a regular conflict-of-interest analysis?
A: Office incompatibility is about whether one person can hold both offices simultaneously. Conflict of interest (whether under Rule 1.7 or under § 471.87) is about whether the lawyer can take a particular position in a specific matter. The two analyses interact but are distinct.

Background and statutory framework

Minnesota's office-incompatibility doctrine is largely a common-law inheritance with statutory overlays. The leading case, State ex rel. Hilton v. Sword (1923), articulates a functional test: offices are incompatible when their duties are inconsistent such that one person cannot discharge both with fidelity. The doctrine prevents conflicts of duty (separate from conflicts of interest) by treating dual occupancy as a structural impossibility for affected offices.

The statutory overlays are scattered through the code. Minn. Stat. § 481.17 specifically addresses the city/county/school attorney triangle. Minn. Stat. § 388.051 sets the county attorney's full-range duties. Minn. Stat. § 388.10 establishes the assistant county attorney role with the same duties and liabilities as the county attorney, serving at the pleasure of the county attorney.

The historical context for § 481.17 is the practical reality that small Minnesota counties often cannot support a full-time county attorney plus separate full-time city attorneys for each municipality. The legislature provided flexibility to combine roles in small counties (population 12,000 or less) and, separately, to combine prosecutorial functions across the city/county line in any county. The legislative judgment is that the prosecutorial function is unitary enough across the city/county boundary that no conflict arises.

The Rules of Professional Conduct add a separate, professional-discipline layer. Rule 1.7 governs concurrent representation; Rule 1.11 governs former government lawyer transitions; and Rule 1.13 deals with organizational representation. These rules can prohibit specific representations even where § 481.17 permits the office to be held.

Hubert H. Humphrey III was Minnesota AG from 1983 through January 1999. Kenneth E. Raschke, Jr. signed as Assistant AG. The opinion is internally dated "July 25, 1997" in the salutation header but is filed as the July 29, 1997 opinion in the AG's index.

Citations and references

Statutes:
- Minn. Stat. § 388.051 (1996) (county attorney duties)
- Minn. Stat. § 388.10 (1996) (assistant county attorney; same duties and liabilities)
- Minn. Stat. § 481.17 (1996) (county/city/school attorney compatibility)

Cases:
- State ex rel. Hilton v. Sword, 157 Minn. 263, 196 N.W. 467 (1923) (office incompatibility doctrine)

Related AG opinions:
- Op. Atty. Gen. 358a-1, July 27, 1939 (city/county attorney incompatible) — limited by § 481.17 and 1982 opinions
- Op. Atty. Gen. 358a-1, January 26, 1941 (same rule for assistant county attorney) — same qualification
- Op. Atty. Gen. 358-0, September 30, 1954 (selective legal services arrangement)
- Op. Atty. Gen. 358e-3, August 18, 1982 (selective services qualification)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/358e3-19970729.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Incompatible Office: City Attorney: Office of Assistant County Attorney is not incompatible per se with office of city attorney. Minn. Stat. § 481.17 (1996)

358e-3
(Cr. Ref. 358a-1)
July 25, 1997

Mr. Peter D. Ekstrand
Attorney at Law
100 Main Street
P.O. Box 190
Wabasha, MN 55981

Dear Mr. Ekstrand:

In your letter to Attorney General Hubert H. Humphrey III you set forth substantially the following:

FACTS

Presently, the city of Plainview is in the process of hiring a new city attorney on a monthly retainer basis, and one of the candidates, who is a local attorney in Plainview, is the sole Assistant County Attorney to the Wabasha County Attorney. Minn. Stat. §§ 481.17 and 388.10 appear to be the applicable statutes but do not really deal with the issue directly. Wabasha County (as of 1995) had a population of 20,428, and the city of Plainview's population was 2,883.

You then ask substantially the following:

QUESTION

May an assistant county attorney also serve as attorney for a statutory city within the same county?

OPINION

While the matter is not free from doubt, we answer your question in the affirmative subject to the qualifications discussed below.

Our office has long held that the "offices" of city and county attorney are incompatible and thus may not be held by the same person. See Op. Atty. Gen. 358e-3, August 18, 1982. These opinions have been based upon the common-law doctrine of incompatibility of offices as articulated in State ex rel. Hilton v. Sword, 157 Minn. 263, 196 N.W. 467 (1923), where the court stated that public offices will be considered incompatible when their functions are inconsistent, their performance resulting in antagonism and a conflict of duty so that the incumbent of one cannot discharge with fidelity and propriety the duties of both. Thus, determination of whether two public offices are incompatible requires analysis of the duties imposed upon holders of each office in question.

Findings of incompatibility of the offices of city and county attorney have resulted from the proposition that "there is often a conflict of interest between [city] and county, particularly on matters of taxation, relief and division of liability for government expenses." Op. Atty. Gen. 358a-1, July 27, 1939. Inasmuch as a person holding the office of county attorney and one holding office as city attorney are both presumed to have a continuous and ongoing duty to advise and represent their respective governments as the best interest of those units require, plainly one person cannot in all respects fulfill the duties of both positions. The same disqualification has been assumed to exist with respect to persons serving in the office of assistant county attorney. See Op. Atty. Gen. 358a-1, January 26, 1941.

On the other hand, a number of opinions have held that this incompatibility analysis does not apply to situations in which legal services performed for the county, the city or both are of a selective nature and do not constitute holding an "office" which requires the attorney to attend to all the legal needs of the local governmental unit. See Ops. Atty. Gen. 358e-3, August 18, 1982; 358-0, September 30, 1954. To the extent that the duties of one or both of the positions are not fixed in statute or charter, but are open to definition by the appointing authority, the positions are not considered incompatible, e.g. Rather, compatibility will be dependent upon how those duties are defined.

The legislature has also addressed the county/city attorney issue in at least two respects. Minn. Stat. § 481.17 (1996) provides:

In all counties in this state having a population of not more than 12,000, the offices of county attorney, city attorney, and school district attorney shall not be deemed incompatible and may be held by the same person. For the purposes of prosecution of violations of state laws, municipal ordinances, charter provisions, or municipal regulations, the offices of county attorney and city attorney shall not be deemed incompatible and may be held by the same person, regardless of the population of the county.

Thus, it does not appear that the offices of city and county attorney are necessarily or inherently incompatible, rather the issue turns largely upon legislative determinations concerning the area's population and the nature and duties of the "offices" in question. In smaller counties one person may hold the offices of county and city attorney by express statutory authority. That authority does not apply in Wabasha County, however, in view of its population.

The second sentence, however, clearly provides that in any county, as respects the prosecutorial function, the "offices" of city and county attorney are not incompatible. This sentence permits one person not only to perform certain functions for both the city and county but also to hold the "offices" of city and county, at least insofar as criminal matters are concerned.

That approach is a departure from the analysis which has generally been employed in identifying incompatible offices. As noted above the earlier analysis has assumed that one holding the "office" of city or county attorney must be responsible to serve all the legal needs of the city or county and, thus, has focused upon the potential for conflicting interests to arise in the course of the officeholder's tenure. If such potential existed, the offices were held incompatible notwithstanding that instances of actual conflict may arise only infrequently, if at all. Under the present version of section 481.17, however, a county attorney is not precluded per se from holding the office of city attorney, but may hold that office and perform particular functions which are not seen to be in conflict with the duties of a county attorney. I.e., criminal and petty misdemeanor prosecutions.

The statute is silent, however, upon the issue of whether a person holding such offices may perform other services for the city, county or both in circumstances where the interests of the two are not in conflict. It could be argued that express mention of the prosecution function in section 481.17 implicitly precludes performance of other legal services for either or both entities.

It is clear, however, that a person serving as county attorney is obligated by statute to perform the full range of duties for the county. See Minn. Stat. § 388.051 (1996). Inasmuch as assistant county attorney has "the same duties and ... liabilities as the county attorney," Minn. Stat. § 388.10 (1996), the same arguably would hold true for the assistant.

Therefore, the answer to your question turns on whether a person holding both offices under section 481.17 may perform any nonprosecutorial services for the city. As noted above we have previously opined that a county attorney or assistant may perform legal services for cities so long as the person did not hold a position obligating him or her to attend all the city's legal needs, and such services were limited to matters presenting no actual conflict with the duties owed the county. Likewise here we can identify no reason why an assistant county attorney who, as city attorney, may perform prosecution duties, could not, as well, perform for the city, services of a civil nature so long as they do not present any actual conflict with the interest of the county. To the extent that the person's duties as city attorney are so defined, we do not perceive any statutory or common law prohibition to the person holding both positions. This is not to say, however, that the assistant county attorney would necessarily be entitled to accept the city position over the objection of the county attorney at whose pleasure the assistant county attorney serves. [Footnote 1: As is the case with all professional activities, the attorney should also consider the potential application of the Rules of Professional Conduct to the proposed assumption of the city position and to any circumstances which may present a potential for conflicting interests. Our office does not undertake to render opinions on applications of those rules. The attorney may wish to direct such questions to the Lawyers Professional Responsibility Board.]

Very truly yours,

HUBERT H. HUMPHREY III
Attorney General

KENNETH E. RASCHKE, JR.
Assistant Attorney General