Could a former Washington county commissioner be appointed to a vacant Senate seat after resigning?

Plain-English summary

In 1985, Kitsap County's prosecutor asked whether a county commissioner could resign before the process to fill a vacant Senate seat in a joint legislative district and then be appointed. The Attorney General said the former commissioner was eligible if the resignation was unconditional and unqualified, occurred before the appointment process, and was not tied to any prearranged promise of appointment.

The AG distinguished earlier opinions that barred a sitting board member from being appointed by that same board, or involved a resignation conditioned on an agreed appointment. Once a commissioner genuinely left office before the process, the opinion treated that person like another private citizen for this eligibility question.

“A former member of a board of county commissioners is eligible for appointment to a vacant Senate seat if the former commissioner has resigned prior to the appointment, the resignation is made without qualification and there is no pre‑arranged agreement that the former member will be appointed.” (Official opinion)

Currency note

This opinion was issued in 1985. 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.

Common questions

Q: Was a former commissioner automatically barred from a joint-district Senate vacancy?
A: No. The AG said a genuinely former commissioner could be appointed under the conditions described in the opinion.

Q: Did resignation immediately before appointment suffice if the appointment had been promised?
A: No. The AG's answer required no prearranged agreement that the former commissioner would receive the seat.

Q: Did the opinion allow sitting commissioners to appoint themselves?
A: No. It distinguished earlier rulings about sitting members of an appointing board and required an unconditional resignation before the appointment process.

Background and statutory framework

The AG compared the proposed Senate appointment with earlier Washington AG opinions about self-appointment and conditional resignation. Its answer turned on the former commissioner's status at the time of the process and the absence of an appointment agreement.

Citations and references

The opinion discussed AGO 65-66 No. 20, AGLO 1973 No. 101, AGO 1985 No. 1, and State ex rel. Bove v. McDaniel, 52 Del. 304, 157 A.2d 463 (1960).

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/appointment-former-county-commissioner-vacancy-multi-county-legislative-position

Original opinion text

Attorney General Ken Eikenberry

OFFICES AND OFFICERS ‑- STATE ‑- LEGISLATOR ‑- APPOINTMENT OF FORMER COUNTY COMMISSIONER TO VACANCY IN MULTI-COUNTY LEGISLATIVE POSITION

A former member of a board of county commissioners is eligible for appointment to a vacant Senate seat if the former commissioner has resigned prior to the appointment, the resignation is made without qualification and there is no pre‑arranged agreement that the former member will be appointed.

September 13, 1985

Honorable C. Danny Clem
Kitsap County Prosecuting Attorney
Kitsap County Courthouse
614 Division Street
Port Orchard, Washington 98366

Cite as: AGO 1985 No. 15

Dear Mr. Clem:

By a letter dated September 9, 1985, you have requested an opinion of this office upon the following question:

"Is a member of a board of county commissioners (which county is within a joint legislative district) nominated by the state central committee, eligible to fill a vacancy in the office of senate if that commissioner resigns prior to the appointment process?"

We answer your question in the affirmative.

ANALYSIS

As noted in your letter this office has previously considered somewhat similar questions albeit in different fact situations. In AGO 65-66 No. 20, copy enclosed, we held that a county commissioner could not resign and then accept a board appointment to a subordinate county position where the resignation was made for the sole purpose of, and conditioned upon, such appointment.1/

[[Orig. Op. Page 2]]

Similarly, in AGLO 1973 No. 101, copy enclosed, relying on AGO 65-66 No. 20, we held that a board of county commissioners could not appoint one of its own members to a vacancy in a legislative district located entirely within a single county. Most recently, in AGO 1985 No. 1, copy enclosed, we held that where a vacancy occurs in a joint legislative district, the county commissioners of the counties involved could not appoint one of their own members to fill the vacancy.

Your question, on the other hand, is addressed not to the filling of a vacancy in a subordinate county position, but rather a vacancy in a Senate seat. Further, and most significantly, your question involves an unqualified and unconditional resignation by the commissioner prior to the appointment process.

In AGO 65-66 No. 20, we noted that our answer to the question therein addressed was limited to ". . . this particular stipulated factual situation . . ." (page 7) and further that ". . . the same result would [not] necessarily follow in the absence of the specific factual pattern involved . . ." (page 9). Our analysis relied heavily on a decision of the Supreme Court of Delaware2/ which involved a conditional resignation from a city council made solely for the purpose of qualifying for appointment to a vacant office, which appointment had previously been agreed upon among the remaining city council members who would fill the vacancy.

The other two prior opinions of this office mentioned above, although devoid of the peculiar facts in AGO 65-66 No. 20, addressed the eligibility of sitting county commissioners. Our analysis of the questions thus posed turned on public policy considerations which would arise if a public body exercised its power of appointment in favor of one of its own members.

In the question you pose, however, we see none of the factual elements which led us to the conclusion we reached in AGO 65-66 No. 20. Likewise, none of the public policy considerations which compelled our answers in AGLO 1973 No. 101 and AGO 1985 No. 1 are present here. This is so because a person who has unconditionally and without qualification resigned from the county commission is in [[Orig. Op. Page 3]] a situation (with respect to this question) which is indistinguishable from that of any other private citizen.

Thus, we conclude that there is no bar to the appointment by a board of county commissioners of a former member of that board to fill a vacancy in a Senate seat, where the former member resigns prior to the appointment process, such resignation is made without qualification, and there is no pre‑arranged agreement that the former member will be appointed.

We trust the foregoing will be of some assistance to you.

Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

WILLIAM L. WILLIAMS
Assistant Attorney General

*** FOOTNOTES ***

1/In that same opinion, we also held that the office of county commissioner was incompatible with the office of county auditor, and that a member of the board of county commissioners, which was charged by law with the responsibility of filling a vacancy in the office of county auditor, could not be appointed to fill that vacancy so long as the commissioner remained on the board.

2/State ex rel. Bove v. McDaniel, 52 Del. 304, 157 A.2d 463 (1960).