Montana Attorney General Opinion 15-61

Opinion No. 61 County Commissionel's-Schools-TI"Us- tees-Incompatible Offices, HELD: The offices of Qount~' COIll- missioner and member of the Boa rd of '1'rustees of a County High S'ehool are ineOml)atible and cannot be held by the sa me person. February 4, 1!)3:1. You submitted to this office the ques- tion of whether a member of the Boar(\ of Count~' Commissioners Cal} be ap- l}ointed and qualified and act as fI member of the Board of Trustees of the County High School, in \iew of the fact that he sits as one of the trustees in the ma.king of the budget for the County High School und later sits as OPIXIOXS OF THE A'eJ'OUXEY GENERAL 49 a County Commissioner and a mem- her of the hudget supervisors. 'I'he question of whether a person can hold two offices at the same time depends UpOll whether the offices are incompatible. Offices arc held incom- patible when one has the power of re- mo,-al m'er the other and when one is in any way subordinate to the other. when one has powers of supen'ision m-er the other. or when the nature and (]uties of 1he two offices are such as to render it impropel' from considern1ions of public policy for one person to re- tain hoth. State ex reI. Klick v. \Vitt- mel', 50 l\[ont. 22, at 25. A g-Iance at the statutes will show thM the two offices of County Com- missioner and memher of Hie Boa rd of Trustees of a County Hi;:-h School an' clearly incompatible under the a hoye rule. Section R of Chapter 148. Laws of IflRl, proyides that six of the mem- hers of the County High School Board ;,:hall he appointed hy the Boan] of. County Commissioners. The Connt~· Superintendent is the other member of the Board. Section 5 provides thM wheneyer a yacancy oecnrs in any Board of County High School TnlsteeS from an~' ('fluse ",hate,'er the Secretan' of the Board shall immediately certify snch "aeancy to the Board of County Commissioners which "'ill fill such vacallc,' hv ap- pointment for the remailHle'r of the term. Under section 8 a mpmht'r of the hoard of trnstees is entitled to mile- age for necessary tra "el from his place of re:;;dence to the place where the high school is ~ocated and return. Under sectioll 2l of the sanw chap- ter, prm'iding- for the a holishment of county high schools, the hoa I'(] of coun- t~' eDlnmissioners are. upon the filing of the petition, required to direct the :mhmission of the question to the reg- b,tere(1 voters of the county at a called l'lection for that purpose. They a I'e also required to cannu,s the vote under section 24 and pass a resolution ahol- ishing- the high school where the elec- tion carries. Under section Sfl it is made the duty of the county superintendent to submit to the board of county commissioner~ a budget which shall be equal to $flO.OO for each student whose attendance out- side of his county has been authol;zed by her. This money is required to be put in a separate fund and accounts allowed and paid by the board of coun- ty commissioners as in other claims against the county. Under section 90 the Board of Coun- ty Commissioners are requil'ed to ap- proye 01' reject budgets, presented h~' the various high schools of the county, including the county high school budg-- et. It is therefore my opinion that the office of County Commissioner a nd the office of member of the Board of Trus- -tees of a County High School arc in- compatible and cannot be held by the sa me person.