A Letter of Opinion from the Office of the Attorney General of Iowa
regarding the compatibility of a person concurrently holding both the
office of city council member and director of a school district
   

The Honorable Bill Hutchins
State Senator
The Senate
State Capitol
LOCAL

Dear Senator Hutchins:

We are writing again in response to your request for an opinion of the Attorney General concerning whether the offices of city councilman and school board director are incompatible. On November 3, 1980, we advised that the previous administration had addressed this question most recently on December 29, 1978, concluding that the positions were incompatible and that, therefore, in accordance with our regular policy, we would not reexamine an opinion which did not appear to be "clearly erroneous." Subsequently, we have been advised of new facts which have caused us to create an exception to our policy.

The December 29, 1978, opinion is only one of several on the question you raised. Indeed, it reversed a November 28, 1977, opinion holding the positions were compatible. When two conflicting opinions are extant, it is possible for citizens to be misled to their detriment and we have been advised of an instance in which this occurred. Moreover, attorneys could be misled as well, because only the 1977 opinion appears in the most recent Iowa Code Annotated. We have concluded that where two recent opinions are in conflict in a context where the public may be misled to their detriment, we should not apply our "clearly erroneous" standard for reexamining prior opinions. After a thorough reexamination here, we have concluded that the offices of city councilman and school board member are compatible.

Analysis of compatibility issues in Iowa usually begins with the decisions in > State ex rel. Crawford v. Anderson, 155 Iowa 271, 136 N.W. 128 (1912) and > State ex rel. LeBuhn v. White, 257 Iowa 606, 133 N.W.2d at 905:

The principal difficulty that has confronted the courts in cases of this kind has been to determine what constitutes incompatibility of offices, and the consensus of judicial opinion seems to be that the question must be determined largely from a consideration of the duties of each, having, in so doing, a due regard for the public interest. It is generally said that incompatibility does not depend upon the incidents of the office, as upon physical inability to be engaged in the duties of both at the same time. Bryan v. Cattell, supra. But that the test of incompatibility is whether there is an inconsistency in the functions of the two, as where one is subordinate to the other 'and subject in some degree to its revisory power,' or where the duties of the two offices 'are inherently inconsistent and repugnant.' (Cases omitted)

An examination of the statutes setting forth the powers and duties of city councils and school boards suggests no subject concerning which either body is subordinate to the other. While the bodies clearly will interact on many occasions, no decisions of the one can be appealed to the other for revision. The December 29, 1978, opinion cited only > §§ 298.1, > 298.8, > 384.16 and > 384.17, providing that cities and schools must each prepare budgets and certify them to the board of supervisors, the body which actually levies taxes.1 While one might make a rather strained argument that this creates a conflict of interest, even if it is so regarded, the possibility of an occasional recusal required by a conflict of interest does not create incompatibility of positions. > Reilly v. Ozzard, 166 A.2d 360, 368-72 (N.J. 1960).

We should also note that our review of this problem has persuaded us that the common law doctrine of incompatibility should be construed narrowly and applied cautiously, which has not always been the practice in the past. We are so persuaded for at least two types of reasons.

First, the legislature has indicated it is willing to suspend applications of the doctrine which are perceived to create hardship. See 1979 Session, 68th G.A., ch. 83, § 3. See also § 278.8(2), The Code 1979, overruling 1976 Op.Att'yGen. 89.

Second, certain applications of the incompatibility doctrine, including the present one, approach infringing upon interests of institutional dimension: the interest of a person in seeking public office, see, e.g., > Lubin v. Danish, 415 U.S. 709 (1974); > Turner v. Fouche, 396 U.S. 346, 362-63 (1970), and the interest of constituents in having their choice of representation respected,see, e.g., > Powell v. McCormack, 395 F.2d 577, 597-98 (D.C. Cir. 1968) rev'd on other grounds, > 395 U.S. 486 (1969).

For the most part, a person would be likely to serve in both offices only in our smaller communities. In smaller communities, the voters would ordinarily be aware that a candidate was serving in another office and, in any case, an opposing candidate would be free to make an issue of the potential dual office holding so that the voters would be making an informed choice.

For all of these reasons, we now conclude that the positions of city councilman and school board member are not incompatible. The opinion to the contrary issued December 29, 1978, is hereby overruled.

Sincerely,

Mark E. Schantz
Solicitor General

1. This opinion should not be understood as suggesting that the office of county supervisor is compatible with service on a school board or a city council.