What happens if someone takes an incompatible office or position of employment?

It is not entirely clear what the result of holding two incompatible offices or an incompatible office and position of employment is. Although case law states that a person taking a second, incompatible office is deemed to have vacated the first office (Martin v. Smith, 239 Wis. 314, 1 N.W.2d 163 (1941)), it is not listed as something that automatically creates a vacancy under Wis. Stat. § 17.03(13). Most likely, a quo warranto action would need to be brought and then the court would presumably declare a vacancy. The result of holding an incompatible office and position of employment is similarly unclear. In Otradovec v. City of Green Bay, 118 Wis. 2d 393, 347 N.W.2d 614 (Ct. App. 1984), the court of appeals went along with the circuit court’s decision to allow the person to choose between the office and position and declined to decide whether a person taking an incompatible office would be deemed to have vacated the position or would be able to choose which to keep.

(rev. 08/21)