Legal Comment

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]ames F. Clark, Legal Counsel,

Isaksen, Lathrop, Esch, Hart & Clark

Incompatibility of offices and positions

One of the values which lies at the very core of our society is articulated by the maxim "no man can"serve two masters." In the realms of politics and employment this maxim is translated into the doctrines of conflict of interest and incompatibility of offices and positions. The conflict of interest doctrine developed at common law is based on the premise that a public officer- a school board member, for instance - owes an undivided duty to the public he or she serves and is not permitted to place himself or herself in a position which will subject him or her to conflicting duties or expose him or her to th~ temptation of acting in any manner other than in the best interest of the public. An offshoot of this doctrine is that of incompatibility of offices and positions. The incompatibility doctrine pro~ hibits one person from holding two offices or an office and a position which are incompatible in the sense that the two will impose conflicting duties on the individual, thereby making it impossible to discharge the duties of each office or the office and position with the undivided loyalty that public policy demands. Simply put, the doctrine of incompatibility exists as an attempt to lay down ground rules for which offices and positions may be properly occupied by the same individual and, correspondingly, which ones may not. This doctrine, in the context of school district employment and/or school board membership, is the subject of this Legal Comment. invo!ved~ The restriction against holding dual incompatible oh'ices was though[ not applicable to position in the public service because they were not accorded the dignity of a public office. In the recent past, however, there is a trend to apply the incompatibility rule to positions or to an office and a position if there are many potential conflicts of interest betw~er~ the two~ suchas salary negotiations, supervision and con~to! of duties, and obligations to the public to exercise independent judgment. In addition, conflict would exist ~ one office O~ positic~n has the power of appointment to the other Or the power to remove the other. Although the doctrine of incompatibility has been expanded in scope, it is uncertain whether the Martin v. Smith holding that the first Of two offices most be automatically vacated will apply to an incompatible position and office. The Wisconsin courts have not, to date, commented on this issue. However, the North Dakota Supreme Court, in Tarpo v. Bowman Public School Dist. No. 1,3 held that a teacher serving in a school district could not at the same time serve as a school board member. The court went on to state that the teacher need not automatically vacate his teacher's position, rather he could choose which post he desired to serve in. To require automatic vacation where a paid position must be vacated due to the incompatibility of a subsequently assumed unpaid office would be too drastic because of the loss of an employment position. Interestingly, the Wisconsin Attorney General, in a 1978 opinion,' cited this North Dakota decision and agreed with both the reasoning and conclusions of the North Dakota court.

Development of the doctrine in Wisconsin

In the case of Martin v. Smith, 1the Wisconsin Supreme Court stated that the doctrine of incompatibility of offices was part of the common law that was in force in the Territory of Wisconsin when the Wisconsin Constitution was adopted. Therefore, by reason of article XIV, sec. 13 of the Wisconsin Constitution, ~ the common law doctrine of incompatibility continues in force. Applying the doctrine, the Court held that it is improper for an individual to hold two offices at the same time when the nature and duties of the offices are in conflict. More significant, however, was the Court's proclamation that if a person accepts an office which is incompatible with the one he or she already holds, the individual must vacate the first office. The first office is automatically vacated irrespective of the integrity of the person concerned or his or her individual capacity to achieve impartiality. Recent developments From its origin, the common law doctrine of incompatibility was applied only where two public offices were

General tests for incompatibility

General rules or tests have been fashioned to aid in determining whether public offices or positions are incompatible. It should be noted, however, that application of the doctrine depends on the functions and duties of the offices and/or positions involved. Each case must be judged on its specific facts. The general tests include: 1. If one of the offices or a position is subordinate to the duties of the other in one or more significant ways, such as being subject to the revisory, disciplinary, appointment or removal power of the superior office or position, or regulates the compensation of the other, then the two may be said to be incompatible. 2. The mere physical inability of a person to perform the duties of both offices or the position and the office May 1983 27

does not, of itself, have any bearing on incompatibility. It is the character of the offices rather than the physical condition or ability of the individual holding the position and the office or the two offices which is determinative. 3. Where the existence of the second office precludes the continued existence of the first office or position, no incompatibility exists. For example, if several school districts were dissolved and consolidated into a newly created district, a board member of any of the dissolved districts could ordinarily become a board member of the newly formed school district. 4. A situation that involves two different persons in two different positions does not raise questions of incompatibility of offices and positions. An example would be where one spouse occupies an office or position and the other spouse assumes an apparently incompatible office or position. Although the incompatibility doctrine is not implicated, there may be serious potential conflicts of interest, s 5. The amount or absence of compensation paid to the holder of each office or position being considered is not ordinarily a factor in determining compatibility. However, Tarpo held that absence of compensation is a factor in determining what remedy is appropriate once incompatibility of an office and a position is found.

Application of general rules to specific offices and positions

There have been numerous opinions of the Attorney General discussing the relevance of the doctrine of incompatibility to specific offices and positions, a few of which appear below. ~ Keep in mind that opinions of the Attorney General are not controlling and their only effect upon a court is through the power of persuasion. There is no definitive Wisconsin Supreme Court decision discussing the doctrine. Nonetheless, examination of Attorney General opinions is helpful in an attempt to determine how Wisconsin courts will decide particular issues. 1. School Teacher and School Board Member - A school board has the statutory duty to hire employees, bargain collectively with the representative of such employees, maintain and control the affairs of the school district, and supervise employees. Clearly, to simultaneously occupy the position of teacher and the office of board member would be incompatible: the position of teacher is subordinate to the control of the office; the office would have the power of appointment, removal or discipline over the position; and the public would have little faith in an individual's ability to discharge with fidelity and propriety the duties of both. 7 2. School Board Member and Town Supervisor - If a school board member serving as a town supervisor might be influenced in his or her discretionary actions by his or her interest in the affairs of the school district, the offices are incompatible. Such a conflict may arise undersec. 60.29(33), Wis. Stats., which permits a town board to loan money to the board of any common or union high school district where the district is located wholly or partly within 28 Wisconsin School News

the town. Even if the school board member were to abstain from voting on such issues, it is questionable whether the best interests of the public are being served when a school board member is a town supervisor. 3. School Board Members and Register of Deeds - In a 1976 opinion, 8 the Attorney General concluded that there are no constitutional or statutory provisions which expressly or impliedly prohibit an individual from holding the office of Register of Deeds and school board member of a common school district. 4. School Teacher and City Alderperson - Because teachers are under the supervision and control of the school board (the body which makes the rules and sets the policies for the district), a court would probably not find the position of teacher to be incompatible with the office of alderperson. Teachers are subordinate to the school board, not the common council. Hence, a major test of incompatibility would not be met. 5. School Board Member and Federal Officer- Article XlII, sec. 3 of the Wisconsin Constitution provides, in part, that no person, except postmasters, holding an office of profit or trust under the United States is eligible to hold any office of trust, profit or honor in Wisconsin. As a result, all such persons are excluded from membership on school boards. This constitutional prohibition against federal officers holding state offices would not be applicable to any federal employee whose position is not accorded the dignity of a federal office. For instance, a United States mail carrier, although a federal employee, is not considered a federal officer. Therefore, mail carriers and postmasters can properly serve as school board members.

Conclusion
The determination of whether a particular position or office is compatible with another depends upon the application of general principles to specific facts and the exact duties and responsibilities of each post. Therefore, if such an issue arises in your district, it is advisable to seek the advice of competent legal counsel.
-- FOOTNOTES 1. Martin v. Smith, 239 Wis. 314 (1941). 2. Article XlV, sec. 13, Wis. Const., provides that the common law, as it was in force in the territory of Wisconsin and not inconsistent with the Wisconsin Constitution, shall be and continue part of Wisconsin law until altered or suspended by the Legislature. 3. Tarpo v. Bowman Public School Dist. No. 1,232 N.W. 2d 67 (N.D.

197s).

4. 67 Op. Atty. Gen. 177 (1978). 5. See sec. 946.13, Wis. Stats. For a discussion of conflict of interest, see "Recurring Questions Concerning Criminal Conflicts of Interest," Wisconsin School News (Oct., 1981), and "Private Interests in Public Contracts Prohibited," Wisconsin School News, (Aug., 1976). 6. For a helpful compilation of the citations of all Attorney General Opinions (through 1969) dealing with the compatibility of particular offices see Index to Opinions, 58 Op. Atty. Gen. 248 (1969). 7. The courts of both North Dakota in Tarpo v. Bowman Public School Dist. No. 1, and Wyoming in Haskins v. State Ex rel. Harrington, $16 P.2d 1171 (Wyo. 1973), have held that a teacher serving a school district could not at the same time serve as a school board member. 8. Op. Atty. Gen. 79-76, (October 20, 1976).