Stevensville Mayor Brandon Dewey will not be returning to his duties as a firefighter in the Stevensville Volunteer Fire Department anytime soon, at least not as long as he remains Mayor. Soon after being elected as Mayor, the Stevensville Town Council asked Dewey to resign from his position as a volunteer firefighter for the town due to the “doctrine of incompatible offices.”
According to the doctrine, offices are incompatible when one has power of removal over the other, when one is in any way subordinate to the other, when one has power of supervision over the other, or when the nature of the duties of the two offices are such as to render it improper, from the considerations of public policy, for one person to retain both.
Mayor Dewey, who has served on the Stevensville Fire Department as a volunteer for years, argued that there was no conflict of interest in holding the two positions and that as mayor he did not directly supervise himself, but was supervised by the Fire Chief. Facing the request from the Council, however, he agreed to resign his position as firefighter but also noted that he was going to seek an Attorney General Opinion on the issue.
Town Attorney Brian West made the request for an AG Opinion on the matter and received instead, a letter of advice from the AG’s office. The letter, signed by Patrick Risken in the AG office, stated that no official Opinion was being given because the case history and previous AG Opinions already provide satisfactory answers.
Risken points out that, according to Montana Code, the mayor exercises appointment authority for the fire chief, assistant chief, and firefighters. He notes that the mayor may also suspend the chief, assistant chief, or any firefighter for neglect of duty.
“The request points out that the mayor has no statutory authority to remove a firefighter, but the mayor may certainly suspend a firefighter and initiate a removal process. Under Klick and the statutes, the mayor arguably has the ‘power of removal’ over firefighters by initiating the process with a suspension. As such, firefighters are subordinate to the mayor,” wrote Risken.
He quotes a previous AG Opinion that, under the doctrine of incompatible offices, “acceptance of a second public office incompatible with a current public position operates as an implied resignation from the latter position.”
“Under these authorities, because the mayor has appointment and suspension control over firefighters, the doctrine of incompatible offices as explained in Klick applies, preventing the recently elected mayor from maintaining his position as a firefighter in Stevensville’s volunteer fire department,” concludes the letter.
Mayor Dewey said it doesn’t really give us any more information, it was simply a letter of advice.
“It doesn’t sound like the Attorney General wants to make a clear determination,” he said. “It’s more like for the sake of caution let’s say no.” But Dewey said it was an issue that he thinks other communities around the state are watching. He said there are other municipalities where the mayor is a volunteer firefighter.
“It will be interesting to see how other communities handle that because we are certainly not an anomaly,” said Dewey.