Simmons, 121416 WVAGO, AGO 121416

• Case Date: December 14, 2016
• Court: West Virginia

Eugene M. Simmons AGO 121416 No. 121416 West Virginia Attorney General Opinions State of West Virginia Office of the Attorney General December 14, 2016           Patrick Morrisey, Attorney General.           Elbert Lin, Solicitor General.           Julie Marie Blake, Assistant Attorney General.          Eugene M. Simmons          Pocahontas County Prosecuting Attorney          900 Tenth Avenue          Marlinton, WV 24954          Dear Prosecuting Attorney Simmons:          You have asked for an Opinion of the Attorney General about whether a person may simultaneously serve in the same county as a fiduciary commissioner and as an attorney to the county commission. This Opinion is being issued pursuant to West Virginia Code § 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." To the extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your correspondence wifh the Office of the Attorney General.          Your letter raises the following legal question:

Whether one person may serve in the same county simultaneously as a fiduciary commissioner and as an attorney to the county commission.

         Under the common law doctrine of incompatibility, no person may hold two government offices that have competing interests. 69 W.Va. Op. Att'y Gen. No. 1 (Sept. 26, 2002). A conflict of interest exists between two positions "if the responsibilities of one office can in any manner influence the actions of the public officer in the discharge of the duties of the second office." Id. (citing 55 W.Va. Op. Att'y Gen. 78 (March 28, 1973)). This rule "rests not upon physical inability to perform the duties of both offices, but arises from the inconsistent nature of the offices and their relation to each other, rendering it improper, from considerations of public policy for one person to perform the duties of both," State ex rel. Thomas v. Wysong, 125 W.Va. 369, 373, 24 S.E.2d 463, 466 (1943).          We turn first to the office of fiduciary commissioner. Under West Virginia Code...