Nothing in Washington law precludes sitting county commissioners or councilmembers from being eligible for appointment to vacant state legislative positions.
As far back as 1965, the Attorney General’s Office issued an opinion that a board of county commissioners could not appoint one of its own commissioners to fill a vacant county auditor position. Subsequent opinions relied on that opinion and stated that a sitting county commissioner was not eligible to be appointed to the state legislature. Believing the assessment to be incorrect, WSAC has long desired the State Attorney General to revisit that opinion. Several months ago, Whatcom County Prosecuting Attorney Eric Richey and San Juan County Prosecuting Attorney Randy Gaylord made the following formal AGO request:
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?
On December 20, AGO 2019 No. 6 was issued. The brief answer is summarized below:
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.
The 6-page opinion goes on to explain that their prior opinions found ineligibility based on a common-law rule applied in other states but that was never adopted by Washington courts and that the 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.
The new AGO concludes by stating:
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Wn.2d at 202, and the lack of any controlling case law suggesting otherwise, we now conclude that our prior opinions no longer represent how a court would likely address this question.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.
WSAC thanks our outside legal counsel, Paul Lawrence with Pacifica Law Group, and Prosecutors Richey, Gaylord and Weyrich (Skagit County) for their support and work on this AGO request.