Olympia Democrats complain that their so-called colleague, state senate Democrat Tim Sheldon (D-35, Mason County, with parts of Thurston, Kitsap, and Grays Harbor Counties), isn't a real Democrat. In addition to griping about his string of right-wing votes (nay on stronger car-emission standards, nay on stem-cell research, nay on strengthening unemployment-insurance benefits), disgusted Dems lament that Sheldon ran (and was elected) as an Independent to the Mason County Commission last year. The Dem's point: Sheldon, even by his own admission, isn't a Democrat.

It's a frustrating situation for Democrats, who are supposed to have a 26-23 senate majority this year, but in reality only enjoy a one-vote edge over the Republicans thanks to Sheldon. Sheldon's most egregious sin--which brought the rural legislator to our attention--was his vote last week to kill the gay rights bill. The bill lost by one vote: Sheldon's. In his speech to the senate minutes before the vote on Thursday, April 21, Sheldon cited the 1997 gay rights initiative: "It lost in my district two to one. That's why I'm voting against it."

But Sheldon, it turns out, may not actually represent his district.

Sheldon was elected to the state house in 1990 and to the state senate in 1996. In 2004 he was elected a Mason County commissioner. That means Sheldon holds two public offices at once, and guess what? That could be illegal. State supreme court decisions, like 1957's Kennett v. Levine, have long established that Washington follows the common-law principle of "incompatible offices." Indeed, a 1965 Washington State Attorney General opinion states in no uncertain terms: "The doctrine of incompatible offices is the common-law limitation upon the right of a person to hold more than one public office at the same time… A county commissioner is a public officer." So too, obviously, is a state senator.

The test to determine whether someone has violated the "incompatible offices" doctrine is pretty simple: Does the official in question hold two public offices simultaneously and is there a potential conflict or overlap in the functions or responsibilities of the two offices? In what appears to be a literal violation: Sheldon's Mason County Commission seat overlaps with the district he represents in Olympia.

Moreover, Sheldon's Olympia district includes parts of Thurston and Kitsap Counties. This creates a huge potential for conflicts of interest. When Sheldon considers issues on the state house floor that may pit Thurston County against Mason County (like transportation fund allocations), how can he be impartial? This sort of conflict was the key factor in the aforementioned 1965 Washington State Attorney General opinion where the AG's office decided that a county commissioner and a school board director were incompatible positions. "One significant consideration is the question of whether one of the two offices is subordinate to the other… as for example if the… fiscal needs of one office are within the control of the other."

The state AG is so serious about the "incompatible offices" doctrine that--in a 1973 opinion (thanks Slade Gorton!)--the AG said that even serving simultaneously on the city council and the fire department violated "the common-law doctrine of incompatible offices…"

It's worth quoting this opinion at length: "That [state law]… incorporates the common-law doctrine of incompatible public offices has been recognized by the state supreme court [and] by this office in numerous opinions… An incompatibility under this doctrine is said to arise where… the nature and duties of the two offices are such to render it improper from considerations of public policy for one person to retain both…" And in a line that could have been aimed directly at Sheldon, the opinion concludes the point, thus: "It is plainly implicit that members of a city commission are 'public officers.'"

The common-law concept of "incompatible offices" also states that once you take the oath for the second office, you de facto vacate the original office. This means, potentially, that the state senator Democrats have been complaining about for months isn't a senator at all. Sheldon is not only impersonating a Democrat in Olympia, as the Democrats gripe, but he may be impersonating a state senator. And here's the kicker: State law makes it a misdemeanor for someone to impersonate a state senator. It is illegal to cast votes as a senator (like, say, voting to kill the gay rights bill) when you're not a senator. RCW 42.20.030 reads: "Every person who shall falsely personate or represent any public officer… or who shall willfully exercise any of the functions or perform any of the duties of such officer, without having duly qualified… or wrongfully refuse to surrender… shall be guilty of a gross misdemeanor."

Mason County Prosecutor Gary Burleson was asked to look into these issues after the Shelton-Mason County Journal raised questions in late 2004. Burleson gave his report to the Mason County commissioners on January 4, but the questions he was directed to answer by the commission never explicitly asked if it was kosher for Sheldon to be a Mason County commissioner and a state senator at the same time. The questions, instead, related to pay, benefits, and hours when a "commissioner simultaneously holds an elected position in the state legislature…"

The Stranger, however, asked Burleson point-blank if Sheldon was violating state rules. He responded coyly: "It would be improper for me to give advice on that. That would be up to a court to decide."

Or at least the Senate Ethics Board.

On Tuesday, April 19, Seattle Democratic nudge David Coffman, 38, a tax attorney and a recent 36th-district precinct committee officer, sent a nine-point complaint to Olympia's Legislative Ethics Board about Sheldon.

"He vacated his senate seat when he took the oath for county commissioner for Mason County, and has been illegally voting in the state senate all session," Coffman says. "My final straw was when this guy basically killed HB 1515 [the gay rights bill]. This one person directly harmed the gay community--harmed me and my partner. He shouldn't even have been voting in there."

In part the legalese of Coffman's complaint reads: "Tim Sheldon violates RCW 42.52.020 in so far that as a state officer in two separate capacities, he does have an interest, financial or otherwise, direct or indirect, and incurs obligations that are in conflict with the discharge of duties as they relate to both positions, jointly and severally."

Mike O'Connell, legal counsel to the Legislative Ethics Board, says the ethics panel isn't typically swayed by appearances of conflicts and would most likely need to hear a specific example where Sheldon's dual elected duties created a conflict of interest. This year, O'Connell points out, the ethics board ruled that State Senator Luke Esser (R-48) could simultaneously work in Rob McKenna's AG office.

O'Connell says he agrees that state legal precedent makes it clear that people are not allowed to hold incompatible offices, but he asks: "What are those offices? It's one of those things where there are a lot of words that mean a lot of different things to a lot of different people."

However, he acknowledged that a reasonable person could ask the question about Sheldon.

For his part, Sheldon, who makes $65,000 a year as a Mason County commissioner, says he doesn't "foresee" any conflicts between his two jobs. He also points out that there are AG opinions, like one in 1961 that said it was okay to be a public utilities district commissioner and a state representative at the same time. "I don't think this is an issue at all," says Sheldon. Of Coffman, Sheldon would only say, "…This guy has an ax to grind."

It's true that Coffman, who is gay, has an ax to grind. It's also true that the state Democratic Party, pissed at Sheldon's conservative voting record, has an ax to grind as well. Look for state Democratic Party Chair Paul Berendt to pick up on Coffman's complaint. If Washington State's real Dems are sick of Sheldon's fake Democratic stance they should bring a complaint and get him tossed out of the state senate.

josh@thestranger.com