Mr. Peter D. Ekstrand
AGO 358e-3
No. 358e-3
Minnesota Attorney General Opinions
July 25, 1997
Incompatible
Office: City Attorney: Office of Assistant County Attorney is
not incompatible per se with office of city attorney. Minn.
Stat. § 481.17 (1996)
(Cr.
Ref. 358A-1)
Mr.
Peter D. Ekstrand
Attorney
at Law
100
Main Street
P.O.
Box 190
Wabasha,
MN 55981
Dear
Mr. Ekstrand:
In your
letter to Attorney General Hubert H. Humphrey III you set
forth substantially the following:
FACTS
Presently,
the city of Plainview is in the process of hiring a new city
attorney on a monthly retainer basis, and one of the
candidates, who is a local attorney in Plainview, is the sole
Assistant County Attorney to the Wabasha County Attorney.
Minn. Stat §§ 481.17 and 388.10 appear to be the
applicable statutes but do not really deal with the issue
directly. Wabasha County (as of 1995) had a population of 20,
428, and the city of Plainview's population was 2, 883.
You
then ask substantially the following:
QUESTION
May an
assistant county attorney also serve as attorney for a
statutory city within the same county?
OPINION
While
the matter is not free from doubt, we answer your question in
the affirmative subject to the qualifications discussed
below.
Our
office has long held that the "offices" of city and
county attorney are incompatible and thus may not be held by
the same person. See. e.g., Op. Atty. Gen. 358e-3,
August 18, 1982. These opinions have been based upon the
common-law doctrine of incompatibility of offices as
articulated in State ex rel. Hilton v. Sword. 157
Minn. 263, 196 N.W. 467 (1923), where the court stated that
public offices will be considered incompatible when their
functions are inconsistent, their performance resulting in
antagonism and a conflict of duty so that the incumbent of
one cannot discharge with fidelity and...
