Can a sitting Washington county commissioner or councilmember be appointed by their own county legislative body to fill a vacant state legislative seat?

Plain-English summary

When a Washington state legislator's seat becomes vacant mid-term, Article II, Section 15 of the state constitution sets up a two-stage appointment process: the relevant party central committee nominates three candidates, and the county legislative authority (or joint authority spanning the district's counties) picks one within 60 days, after which the governor picks if no majority forms. Whatcom County Prosecutor Eric Richey and San Juan County Prosecutor Randall Gaylord asked the AG whether a sitting county commissioner or councilmember can be one of the picks, given that they would be participating (subject to ethics restrictions) in the very body making the choice.

The AG's answer reverses a line of opinions from 1965 to 1987 that had said no. Three reasons:

1. The constitution sets only two qualifications. Article II, Section 7 says state legislators must be (1) U.S. citizens and (2) qualified voters in the district. The Washington Supreme Court in Gerberding v. Munro, 134 Wn.2d 188 (1998) held that those constitutional qualifications are exclusive: the legislature cannot add term limits or other qualifications by statute, and "any doubt as to the eligibility of any person to hold an office must be resolved against the doubt" (quoting State v. Schragg, 158 Wash. 74, 78 (1930)).

2. No statute disqualifies sitting commissioners. Various ethics rules (RCW 42.23.070) prevent a sitting commissioner from voting on their own appointment, and the Open Public Meetings Act (RCW 42.30) and Public Records Act (RCW 42.56) impose procedural transparency. But there is no statute that bars consideration of a sitting commissioner.

3. Washington common law never adopted the prior rule. The 1965 opinion (AGO 1965-66 No. 20) drew on a Delaware case (State ex rel. Bove v. McDaniel) and a Maryland case (Hetrich v. Cty. Comm'rs of Anne Arundel Cty.) to find a "common law public policy prohibition" on a body appointing one of its own. But the Delaware case turned on an express statutory bar, and the Maryland case turned on the incompatible-offices doctrine. Neither articulated a freestanding common-law rule, and Washington courts never adopted one. More recent state high courts (State ex rel. Clayton v. Bd. of Regents, 635 So. 2d 937 (Fla. 1994)) have expressly declined to. The current edition of the American Jurisprudence treatise softens the assertion to "it is sometimes considered to be contrary to public policy," compared to the categorical version the 1965 opinion quoted.

The AG also flagged what is not changed by this opinion: ethical restrictions still bar a commissioner-nominee from deliberating or voting on their own appointment; the legislature or a county legislative body could potentially impose restrictions of their own going forward (the AG declined to opine on whether such a restriction would be constitutional); and a separate provision (Const. art. II, § 13) still limits a sitting state legislator's appointment to civil offices created during their term or whose pay was increased during their term.

The opinions reversed are: AGO 1965-66 No. 20; AGLO 1973 No. 101; AGO 1985 No. 1; AGO 1985 No. 15; AGO 1987 No. 21.

Currency note

This opinion was issued in 2019. 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: What does Article II, Section 15 actually say about filling vacancies?
A: The party central committee of the legislator's party nominates three people (county committee for districts wholly within one county; state committee for multi-county districts). The county legislative authority (or joint county authority) then selects one by majority vote. If no majority within 60 days, the governor picks from the same three. The selectee must be from the same district and same political party as the prior incumbent.

Q: If a commissioner is nominated, can they vote on their own appointment?
A: No. Ethical restrictions, including RCW 42.23.070, would prevent that. The opinion expressly notes this, but says that ethical restrictions on participation are different from a categorical eligibility bar.

Q: What was the common-law theory the AG rejected?
A: That a public body cannot appoint one of its own members because doing so risks impartial decision-making and gives the appointee improper influence over their colleagues. The AG concluded that this was never adopted by Washington courts and is not the law in Washington. Florida's Supreme Court reached the same conclusion in State ex rel. Clayton v. Bd. of Regents.

Q: What about Article II, Section 13 (limiting state legislators' appointments to civil offices)?
A: That section still applies. It bars a sitting state legislator from being appointed or elected to any civil office in the state created during their legislative term, and adjusts compensation if the office's pay was increased during their term. Oceanographic Comm'n v. O'Brien, 74 Wn.2d 904 (1968), construes it. This opinion concerns county commissioners being appointed to fill state legislative vacancies, the reverse direction, so § 13 doesn't directly apply.

Q: Does this affect appointments to fill county vacancies?
A: Not directly. The original 1965 question was about a board of county commissioners appointing one of its members to fill a vacant county auditor seat, which raised the incompatible-offices doctrine separately. This 2019 opinion focuses on appointments to vacant state legislative positions and addresses only the common-law "no self-appointment" theory. The incompatible-offices doctrine still applies in its own context.

Q: Could the legislature pass a statute barring commissioners from filling legislative vacancies?
A: The AG expressly declined to opine on whether such a statute would be constitutional. The opinion signals only that no such statutory bar currently exists, and that the common law does not impose one in Washington.

Q: What is the "strong presumption in favor of eligibility"?
A: A canon of constitutional construction in Washington that traces to State v. Schragg (1930) and was reaffirmed in Gerberding and Parker v. Wyman, 176 Wn.2d 212 (2012). When the constitution sets exclusive qualifications, doubt about a person's eligibility is resolved in favor of eligibility. This is what makes the AG read the absence of any constitutional or statutory bar as decisive.

Background and statutory framework

The Washington Constitution sets only two qualifications for state legislators (Article II, Section 7): U.S. citizenship and being a qualified voter in the district. The Supreme Court has repeatedly emphasized that these are exclusive: the legislature cannot add to them by statute (Gerberding v. Munro, 134 Wn.2d 188 (1998); In re Bartz, 47 Wn.2d 161 (1955)). The court has stated a "strong presumption in favor of eligibility for office" and resolves doubt in favor of eligibility (State v. Schragg, 158 Wash. 74 (1930)).

Article II, Section 15 establishes the appointment process for filling mid-term vacancies. Article II, Section 13 separately limits a sitting state legislator's appointment to civil offices created during their term or whose pay was increased during their term, and Oceanographic Comm'n v. O'Brien, 74 Wn.2d 904 (1968), construes that limitation.

The AG opinions from 1965 (AGO 1965-66 No. 20), 1973 (AGLO 1973 No. 101), 1985 (AGO 1985 No. 1; AGO 1985 No. 15), and 1987 (AGO 1987 No. 21) had concluded that a sitting county commissioner or councilmember could not be appointed by the body on which they served. The reasoning was a common-law "no self-appointment" public policy rule drawn from the American Jurisprudence treatise and two out-of-state cases (State ex rel. Bove v. McDaniel, 52 Del. 304 (1960); Hetrich v. Cty. Comm'rs of Anne Arundel Cty., 222 Md. 304 (1960)). The 2019 opinion examines those sources and finds them weaker than initially treated:

• Bove turned on an express statutory bar, with the public-policy analysis as secondary discussion.
• Hetrich turned on the incompatible-offices doctrine, with the public-policy analysis as secondary discussion.
• The American Jurisprudence citation has since been updated to softer language ("it is sometimes considered to be contrary to public policy").
• State ex rel. Clayton v. Bd. of Regents, 635 So. 2d 937 (Fla. 1994), expressly rejected the rule, observing that Florida's constitution already addresses dual office-holding, financial benefits, abuse of public trust, and similar concerns through other provisions.

Washington's analogues to those Florida provisions include Const. art. II, § 13 (limiting legislator appointments), § 14 (member of Congress not member of legislature), § 30 (corrupt solicitation/bribery), RCW 42.30 (Open Public Meetings Act), RCW 42.23 (Code of Ethics for Municipal Officers), and RCW 42.56 (Public Records Act). With those tools available, the AG saw no need to infer an additional common-law bar that Washington courts have never adopted.

The conclusion: county commissioners and councilmembers are eligible to fill vacant state legislative positions when nominated by the relevant party central committee, subject to the ethical restrictions on participating in the appointment vote and to other applicable constitutional and statutory limits.

Citations and references

Constitutional:
- Const. art. II, §§ 7, 13, 14, 15, 30 (qualifications, vacancies, ethics)

Statutes:
- RCW 42.23 (Code of Ethics for Municipal Officers); RCW 42.23.070
- RCW 42.30 (Open Public Meetings Act)
- RCW 42.56 (Public Records Act)

Cases:
- Gerberding v. Munro, 134 Wn.2d 188 (1998)
- In re Bartz, 47 Wn.2d 161 (1955)
- State v. Schragg, 158 Wash. 74 (1930)
- Parker v. Wyman, 176 Wn.2d 212 (2012)
- Oceanographic Comm'n v. O'Brien, 74 Wn.2d 904 (1968)
- State ex rel. Bove v. McDaniel, 52 Del. 304, 157 A.2d 463 (1960)
- Hetrich v. Cty. Comm'rs of Anne Arundel Cty., 222 Md. 304, 159 A.2d 642 (1960)
- State ex rel. Clayton v. Bd. of Regents, 635 So. 2d 937 (Fla. 1994)

Prior AG opinions overruled:
- AGO 1965-66 No. 20; AGLO 1973 No. 101; AGO 1985 No. 1; AGO 1985 No. 15; AGO 1987 No. 21

Prior AG opinion still applicable:
- AGO 2016 No. 7 (incompatible offices doctrine remedies)

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/eligibility-member-county-legislative-authority-receive-appointment-fill-legislative

Original opinion text

Attorney General Bob Ferguson

OFFICES AND OFFICERS—STATE—LEGISLATORS—VACANCY—COUNTIES—POLITICAL PARTIES—Eligibility Of Member Of County Legislative Authority To Receive Appointment To Fill Legislative Vacancy

Nothing in Washington law precludes sitting county commissioners or councilmembers from being eligible for appointment to vacant state legislative positions.

December 20, 2019

The Honorable Eric J. Richey

Whatcom County Prosecuting Attorney

311 Grand Avenue Suite 201

Bellingham, WA 98225-4079

The Honorable Randall K. Gaylord

San Juan County Prosecuting Attorney

350 Court Street PO Box 760

Friday Harbor, WA 98250

Cite As:

AGO 2019 No. 6

Dear Prosecutors Richey and Gaylord:

By letters previously acknowledged, you have each requested our opinion on the following paraphrased question:

Where county legislative bodies make appointments to fill vacant state legislative positions, are members of those legislative bodies ineligible for appointment by reason of their membership?

BRIEF ANSWER

No. Nothing in the Washington Constitution, statutes, or case law precludes sitting county commissioners or councilmembers from being eligible for appointment to vacant state legislative positions (though ethical restrictions would prohibit councilmembers from deliberating or voting in an appointment process in which they were a nominee). To the extent our prior opinions inferred such a restriction based on out-of-state authority, we no longer adhere to those opinions because our own courts have never adopted such a restriction and in more recent opinions have strongly favored eligibility for office.

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LEGAL BACKGROUND

Qualifications for state legislators are set forth in article II, section 7 of the Washington Constitution. Such officers must be (1) citizens of the United States, and (2) qualified voters in the district for which they are chosen. The Supreme Court has held that there is a “strong presumption in favor of eligibility for office.” Gerberding v. Munro, 134 Wn.2d 188, 202, 949 P.2d 1366 (1998). Thus, these constitutionally-dictated qualifications for office are exclusive, and the legislature may not add to such qualifications by statute, such as by imposing term limits. Id. at 210.

Article II, section 15 of the Washington Constitution sets forth the process for filling mid-term vacancies in the state legislature by appointment: The appointment process has two stages. First, the central committee of the political party of the legislator whose office has been vacated nominates three individuals. Where the vacated office represents a district wholly contained within a single county, the county central committee makes the nominations. If the vacated office represents a district spanning more than one county, the state central committee makes the nominations. Second, by majority vote, the members of the county legislative authority (or joint county legislative authority, in the case of vacant offices that represent districts covering two or more counties) select the individual who will be appointed to the vacancy from the list of nominees. If a majority of the members do not agree upon the appointment within sixty days after the vacancy occurs, the governor appoints the person to fill the vacancy from the list of nominees. In all cases, the person selected through appointment must be from the same legislative district and the same political party as the legislator whose office has been vacated.

ANALYSIS

You each ask whether individuals serving on the county legislative authorities that make appointments under article II, section 15 are ineligible for such appointments. In so asking, you indicate your awareness of a series of opinions we issued relating to this issue between 1965 and 1987.[1] We ultimately concluded in those opinions that county commissioners or councilmembers still in office at the time of nomination are not eligible for appointment by the county or joint county legislative bodies on which they sit. We based those opinions on a common law public policy prohibition that has never been expressly adopted or applied by the courts in this state.

For the reasons explained below, we now reach a different conclusion.

Our starting point in this analysis is the Washington Constitution. As described earlier, the constitution sets forth the exclusive qualifications for state legislative offices: “No person shall be eligible to the legislature who shall not be a citizen of the United States and a qualified voter in the district for which he is chosen.” Const. art. II, sec. 7; Gerberding, 134 Wn.2d at 202, 205-10

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(discussing In re Bartz, 47 Wn.2d 161, 287 P.2d 119 (1955)). This provision says nothing about disqualifying persons from office based on their membership in county legislative bodies. Nor does article II, section 15 indicate that a county legislative body may not consider one of its own members for appointment to a vacant state legislative position. Although the constitution does contain restrictions applicable to legislators who are appointed or elected to certain other positions, we are not aware of any constitutional restriction that limits county legislative bodies from considering their own members in making appointments to vacant state legislative positions. See Const. art. II, § 13 (“No member of the legislature, during the term for which he is elected, shall be appointed or elected to any civil office in the state, which shall have been created during the term for which he was elected. Any member of the legislature who is appointed or elected to any civil office in the state, the emoluments of which have been increased during his legislative term of office, shall be compensated for the initial term of the civil office at the level designated prior to the increase in emoluments.”).

Next, we consider whether any statutes render sitting county commissioners or councilmembers ineligible for appointment based on their status as members of the appointing body. Certainly, ethical restrictions would preclude such commissioners or councilmembers from participating in the decision. See, e.g., RCW 42.23.070 (precluding municipal officers from using their positions to secure special privileges). Additionally, other statutes may prescribe certain procedural limitations on a county legislative authority’s decision-making. See, e.g., RCW 42.30 (Open Public Meetings Act). But there is no statutory requirement that precludes consideration of a sitting commissioner or councilmember for appointment by the rest of the governing body.

Finally, we look to common law. Our prior opinions found ineligibility based on a common law rule applied in other states that has never been adopted by Washington courts. As we acknowledged in our original opinion on this topic in 1965, there is no Washington case law that precludes a sitting county commissioner or councilmember from being appointed by their county legislative body to a vacant state legislative position. See AGO 1965-66 No. 20. Instead, our State’s case law has strongly trended in favor of eligibility for office, not restriction. See Gerberding, 134 Wn.2d at 191; Parker v. Wyman, 176 Wn.2d 212, 223, 289 P.3d 628 (2012) (holding statute could not add residency requirement for superior court judges). For example, in assessing whether a statute could impose term limits on state legislators, the Supreme Court said that “eligibility to an office in the state is to be presumed rather than to be denied, and . . . any doubt as to the eligibility of any person to hold an office must be resolved against the doubt.” Gerberding, 134 Wn.2d at 202 (quoting State v. Schragg, 158 Wash. 74, 78, 291 P. 321 (1930)). Given that it is undeniably at least doubtful whether the restriction we adopted in 1965 is compelled by Washington common law, we now find that the conclusion more in line with our State’s precedent is that county commissioners are eligible for selection to fill a legislative vacancy.[2]

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Our prior opinions were originally informed by a different factual scenario in which the doctrine of incompatible offices was the primary basis for invalidating the appointment. In our first opinion on the topic in 1965, we opined that a board of county commissioners could not appoint one of its own commissioners to fill a vacant county auditor position. AGO 1965-66 No. 20. The primary rationale for the 1965 opinion was that the positions of county commissioner and county auditor were incompatible with one another, which rendered the appointment to the second office a nullity. Id. at 2-5.[3] For that “reason alone,” we opined that it was “apparent that a board of county commissioners may not appoint one of its members to fill a vacancy existing in the office of county auditor.” Id. at 5. The opinion went on to conclude that it was also “contrary to public policy” to “permit an appointing body to appoint one of its own members.” Id. at 5 (emphasis in original) (quoting 42 Am. Jur. Public Officers § 97 (page 955)).

Acknowledging that the Washington Supreme Court has never decided the issue, the 1965 opinion found persuasive decisions from two other states referenced in a legal encyclopedia on the topic. AGO 1965-66 No. 20, at 5 (citing State ex rel. Bove v. McDaniel, 52 Del. 304, 157 A.2d 463 (1960); Hetrich v. Cty. Comm’rs of Anne Arundel Cty., 222 Md. 304, 159 A.2d 642 (1960)). In the first case, however, there was a statutory prohibition on the city council’s ability to appoint one of its own members to fill a vacant mayoral position. State ex rel. Bove, 52 Del. at 308-11. The Delaware Supreme Court secondarily concluded that it was also “contrary to public policy” for a board to “exercise its power of appointment by designating some one from its own body.” Id. at 310-11 (citing Parrish v. Town of Adel, 144 Ga. 242, 86 S.E. 1095 (1915); 42 Am. Jur. Officers § 97 (page 955)). In the second case, the Court of Appeals of Maryland found two offices incompatible, and the primary question was whether the appropriate remedy was to require the individual to vacate his first position as county commissioner, where he was no longer serving in the second position. Hetrich, 222 Md. at 306-08. In both cases primarily relied upon in our 1965 opinion, the common law public policy prohibition on boards appointing from within was a secondary discussion to either an express statutory prohibition or the separate incompatible office doctrine.

We described the rationale for the common law rule in our 1965 opinion as follows:

“The cases ground the public policy prohibition on the need for impartial official action, without suspicion of bias which may be against public interest. They say the appointing board cannot absolve itself of ulterior motives if it appoints one of its own, whether or not his vote was necessary to the appointment, since

[original page 5]

the opportunity improperly to influence the other members of the board is there. The necessity that public bodies be free from personal influence in making appointments to office cannot be secured when the appointee has the real opportunity his associations and relations afford to place his colleagues under obligations they may feel require repayment.”

AGO 1965-66 No. 20, at 6 (quoting Hetrich, 222 Md. at 309-10).

In those opinions that followed our 1965 opinion, we did not engage in further analysis of the relevant issue and whether it might be analyzed differently in the context of appointments to vacant state legislative positions (rather than county positions). Instead, we concluded that there was no basis to employ a different analysis when evaluating a legislative vacancy rather than a county vacancy, or a vacancy in a joint legislative district rather than a single legislative district. See AGLO 1973 No. 101 (applying common law rule recognized in 1965 opinion to state legislative vacancies); AGO 1985 No. 1 (applying rule recognized in two preceding opinions to vacancies occurring in joint county legislative districts); AGO 1985 No. 15 (finding rule inapplicable to former commissioner who resigned prior to appointment without qualification or prearrangement); AGO 1987 No. 21 (finding commissioner not eligible to be nominated where commissioner proposes to resign after nomination but before appointment).

Although not dispositive of the issue, it is also notable that the source cited in our original 1965 opinion has been updated with much less conclusive language on the topic. Compare 42 Am. Jur. Public Officers § 97 (page 955) (quoted in AGO 1965-66 No. 20, at 5) (“[I]t is contrary to public policy . . . to permit an appointing body to appoint one of its own members.” (Emphasis in original.)) with 63C Am. Jur. 2d Public Officers and Employees § 93, Westlaw (database updated Nov. 2019) (“It is sometimes considered to be contrary to public policy to . . . permit an appointing body to appoint one of its own members.”). Indeed, at least one other state’s supreme court has expressly declined to adopt a common law rule precluding government entities from appointing their own members to positions. See State ex rel. Clayton v. Bd. of Regents, 635 So. 2d 937 (Fla. 1994). In that case, the Supreme Court of Florida recognized that its constitution already addressed dual office-holding, financial benefits from office-holding, abuse of public trust, open business, and public records, yet did not preclude the appointment at issue in that case. Id. at 938. Washington law also addresses many of these same concerns. See, e.g., Const. art. II, § 13 (limiting certain appointments or elections of legislators to civil offices); Const. art. II, § 14 (precluding member of congress from being member of legislature); Const. art. II, § 30 (prohibiting corrupt solicitation or bribery of public officers); RCW 42.30 (Open Public Meetings Act); RCW 42.23 (Code of Ethics for Municipal Officers); RCW 42.56 (Public Records Act). In any event, we do not believe that we can infer such a common law rule in Washington.

With respect to the limitation against state legislators holding civil offices in article II, section 13, the Supreme Court has noted that this provision was “intended to avoid any improper bias, or the temptation thereof, on the part of legislators, which might arise from opportunities to create offices offering aggrandizement, personal, pecuniary or otherwise, to which they might be

[original page 6]

elected or appointed during the term for which they were elected.” Oceanographic Comm’n v. O’Brien, 74 Wn.2d 904, 915, 447 P.2d 707 (1968). Even there, the Court emphasized the presumptive “strong public policy . . . in favor of eligibility for public office[.]” Id at 914. The Court found, however, that it was “constrained” by the clear language in section 13 precluding the appointments at issue. Id. at 915.

Given the “strong presumption in favor of eligibility for office” in Washington, Gerberding, 134 Wn.2d at 202, and the lack of any controlling case law suggesting otherwise, we now conclude that our prior opinions no longer represent how a court would likely address this question. We conclude that there is no common law rule in Washington prohibiting county commissioners or councilmembers from being eligible for appointment by their county legislative body to vacant state legislative positions. We caution, however, that we express no opinion on whether legislative bodies might be allowed to impose such restrictions in the future.

We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON

Attorney General

ALICIA O. YOUNG

Deputy Attorney General

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[1] Those opinions are: AGO 1965-66 No. 20; AGLO 1973 No. 101; AGO 1985 No. 1; AGO 1985 No. 15; AGO 1987 No. 21.

[2] Your request appends a memorandum arguing that it would be unconstitutional to prohibit county commissioners or councilmembers or from being eligible for nomination to fill a legislative vacancy. We need not and do not reach that question, because we simply conclude that the common law imposes no such restriction in Washington. We express no opinion about whether the legislature or a county legislative body could constitutionally impose restrictions on the eligibility of county commissioners or councilmembers to fill legislative vacancies.

[3] In a later opinion, our office identified a number of remedies that might address a situation where a person holds two incompatible offices, including resignation from one office, public and private quo warranto actions, and other legal processes for removal. AGO 2016 No. 7, at 7. We stressed in that opinion, however, that a conclusion that two offices are incompatible does not “mean or imply that a person holding them has necessarily done anything improper.” Id. We also cautioned that “because there are so few cases in Washington addressing the incompatible offices doctrine, it is extremely difficult to predict how a court would rule on this issue.” Id. at 6.