It is common for public officials to take on additional public responsibilities, including an additional public office or employment in a government job. Likewise, public employees sometimes aspire to public office. Public officials and public employees who contemplate holding multiple public offices, or both a public office and public employment, should carefully consider the possibility that the two offices are incompatible. Attempting to serve in two offices, or in both public office and public employment, will unavoidably involve them in conflicts of interest which may prevent them from taking action as a public official.
The Principle of Incompatible Offices
In Iowa, as in many other states, it is a firmly established principle of law that a public officer, who holds office either by election or appointment, may not assume another public office, either by election or appointment, if those offices are deemed to be incompatible.
The Iowa Supreme Court most recently reiterated the principle in LeBuhn v. White, 133 NW 2d 903, decided in 1965. That case involved J. Brown White, a member of Board of Directors of the Davenport Community School District, who, while serving in that office, was elected to and assumed office as a member of the Scott County Board of Education. The Supreme Court found a conflict of duties between those offices, since the Scott County Board of Education had statutory oversight duties over the Board of Directors of the Davenport Community School District, rendering the two offices incompatible. Since the Scott County Board of Education could review and approve the actions of the school board, it would be inappropriate for White, as a member of the school board, to sit on the Scott County Board of Education where he would have been in a position to judge his own actions.
The effect of assuming a second and incompatible public office is rather severe. In that case, the Supreme Court concluded: “[I]f a person, while occupying one office, accepts another incompatible with the first, he ipso facto vacates the first office, ‘and his title thereto is thereby terminated without any other act or proceeding.”
In other words, assuming a second incompatible office is instantaneous and irreversible; the first office is forfeited immediately upon assuming the second, incompatible office.
The Iowa Attorney General’s Office often answers questions from local government officials concerning the potential incompatibility of offices and conflicts of interest which arise when a public official holds another public office or public employment. The threshold question that is often posed by a public official contemplating assuming another public position is whether that position is a “public office” or merely “public employment.” If the second position is a public office, then the incompatibility of offices principle applies, and if the public official assumes that second office, she or he risks forfeiting the first office if those offices are subsequently deemed to be incompatible.
In October 1996, Linn County Attorney Denver Dillard requested an Attorney General’s opinion regarding the permissibility of a city council member serving as a “reserve police officer,” as that position is defined and regulated by Chapter 800 of the Code of Iowa. In that opinion (Opinion No. 96-10-2(L)), the Attorney General’s office applied the test for determining what constitutes a “public office,” as laid out in a Supreme Court case, State v. Spaulding, 72 NW 288, (1897). Applying that test, the Attorney General determined the reserve police officer position was not a public office for a number of reasons, including:
- Section 80D.11 states reserve police “shall be considered an employee of the governing body”.
- The position of reserve police officer is not permanent or continuous, requiring them to post a bond.
- Reserve police officers are not delegated by statute or by ordinance any of the incidents of sovereign power or duties pertaining thereto that they would otherwise be expected to perform independently, but rather they have only those duties they are directed to perform by a supervising police officer.
The opinion goes on to highlight other opinions in which the Attorney General has ruled volunteer firefighters and city attorneys are not public officers. Therefore, a city council member also serving as a volunteer firefighter does not have to be concerned whether their performance of the duties of that position are in conflict with the duty owed to the city, nor does that council member have to be concerned about having revisory power with respect to his or her performance of such delegated duties. Additionally, Code of Iowa Section 372.13(10) specifically allows a council member to serve as chief of a volunteer fire department or as a volunteer firefighter.
It is not beyond the state legislature to declare certain offices incompatible. An example of this would be Section 388.3 of the Code, which provides that “(A) public officer or a salaried employee of the city may not serve on a utility board.”
Conflicts of Interest Requiring Abstinence from Voting
In its October 1996 opinion to Linn County Attorney Dillard, the Attorney General’s office reviewed the application of general conflict of interest principles to persons holding multiple public offices, or holding a position of public office and a position of public employment. Citing Wilson v. Iowa City, 165 NW 2d 813 (1969), the Attorney General reminded public officials that:
“Statutes and common-law rules on conflicts of interest are based on moral principles and public policy. They demand complete loyalty to the public and seek to avoid subjecting a public servant to the difficult, and often insoluble, task of deciding between a public duty and a private advantage. It is not necessary that this advantage be a financial one. Neither is it required that there be a showing the official sought or gained such a result. It is the potential for conflict of interest which the law desires to avoid. …Conflicts of interest may …arise indirectly when a city councilman has vested interests in social and community organizations. It appears that an interest in the general welfare of the community is not a disqualifying interest, but an interest in the improvement of a civic organization of which the councilman is a member may be disqualifying. [For example, in a New Jersey case] the court held that a councilman who was a member of the volunteer fire department could not vote on the purchase by the city of property from the fire department.”
In a July 31, 1981 opinion to State Senator Clarence Carney, the Attorney General’s office determined the positions of city council member and chief of a volunteer fire department (apparently not established by city ordinance) are not incompatible, allowing a person to occupy both positions. However, the Attorney General therein observed that “public policy may require abstinence from voting because of a conflict.”