Untitled California Attorney General Opinion ( 2019 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
XAVIER BECERRA
Attorney General
_________________________
:
OPINION : No. 17-1101
:
of : April 26, 2019
:
XAVIER BECERRA :
Attorney General :
:
DIANE EISENBERG :
Deputy Attorney General :
:
________________________________________________________________________
THE HONORABLE HEATH FLORA, MEMBER OF THE STATE ASSEMBLY,
has requested an opinion on the following question:
May the Mayor of the City of Riverbank simultaneously serve as a member of the
Board of Directors of the Stanislaus Consolidated Fire Protection District?
CONCLUSION
The Mayor of the City of Riverbank may simultaneously serve as a member of the
Board of Directors of the Stanislaus Consolidated Fire Protection District if the mayor has
been selected by the City of Riverbank to be its designated appointee to the board, but may
not simultaneously serve in both positions if the mayor is selected to the board in some
other capacity, such as that of a public member.
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ANALYSIS
Introduction
The City of Riverbank (City, or Riverbank) is a general law city located in
Stanislaus County. Riverbank is governed by an elected city council comprising five
members, including a mayor who is elected at-large.1
The Stanislaus Consolidated Fire Protection District (Fire District) is a special
district2 in the eastern portion of Stanislaus County. The Fire District’s territory includes
the cities of Riverbank and Waterford, and several other communities and unincorporated
areas.3 The Fire District provides a variety of fire protection and emergency response
services, including firefighting, fire prevention, fire safety education, and emergency
rescue and medical services.4 The Fire District was created in 1995 when four smaller fire
protection agencies combined with each other,5 and was formed and operates under the
authority of the Fire Protection District Law of 1987 (Fire District Law).6
1
City of Riverbank, “City Council,” (as
of Apr. 19, 2019). The Riverbank City Council also serves as the Local Redevelopment
Authority Board and the Public Financing Authority Board. (Ibid.; see also Riverbank
Mun. Code, § 30.03, subd. (A).)
2
The terms “district” and “special district” are synonymous, and mean a local public
agency authorized by law to perform specified governmental or proprietary functions
within a defined area. (Gov. Code, § 56036, subd. (a); see also 87 Ops.Cal.Atty.Gen. 1, 2
(2004).)
3
Stanislaus Consolidated Fire Protection District, “About Our District,” (as of Apr. 19, 2019). The Fire District has also entered into agreements to
provide fire protection services to the City of Oakdale and the Oakdale Fire Protection
District (ibid.), both of which are located in Stanislaus County but outside
the Fire District’s boundaries (see [as of Apr. 19, 2019]).
4
Stanislaus Consolidated Fire Protection District, “Services Provided,” (as of Apr. 19, 2019).
5
Stanislaus Consolidated Fire Protection District, “History,” (as of Apr. 19, 2019).
6
Health & Saf. Code, §§ 13800-13970. The Fire Protection District Law of 1987, which
replaced earlier laws relating to fire protection districts, is also known as the Bergeson Fire
District Law. (Health & Saf. Code, § 13800.)
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Under the Fire District Law, every fire protection district is governed by a board of
directors,7 but boards may have different numbers of members,8 and may be constituted in
a variety of ways. For example, fire district boards may be elected or appointed, and in
some cases, depending on the type of territory encompassed by a district, a county board
of supervisors or a city council may appoint itself as the district board.9 Here, the Fire
District is governed by a board of directors comprising five appointed members, each of
whom must be a resident of the district,10 and each of whom serves a four-year term.11 The
cities of Riverbank and Waterford each appoint one board member.12 The Stanislaus
County Board of Supervisors appoints the other three board members as follows: one
resident of the area formerly covered by the old Empire Fire Protection District (which was
one of the districts that was absorbed into the consolidated district in 1995), and two public
members-at-large.13 One at-large position is appointed from the Stanislaus County Board
of Supervisors District 1, and another from its District 2.14
We are asked to determine whether a person who is serving as Mayor of Riverbank
may simultaneously serve as a board member of the Fire District. This inquiry requires us
to explore the doctrine of incompatible offices, which prohibits a person from concurrently
holding two public offices if the performance of the duties of either office could have a
significant adverse effect on the other.15 Importantly, however, the doctrine also permits
7
Health & Saf. Code, § 13840. We use the terms “director” and “board member”
interchangeably herein.
8
Health & Saf. Code, § 13842 (fire protection district board may have three, five, seven,
nine, or eleven members).
9
See, e.g., Health & Saf. Code, §§ 13835 (district of unincorporated territory in one
county); 13838 (district of incorporated territory within a single city).
10
See Health & Saf. Code, § 13841.
11
Stanislaus Consolidated Fire Protection District, “About Us and Our History,”
(as of Apr. 19, 2019); see also Health & Saf. Code,
§§ 13841, 13843; Elec. Code, § 10507.
12
Stanislaus County, “Committee Fact Sheet,” (as of Apr. 19, 2019).
13
Ibid.
14
Stanislaus Consolidated Fire Protection District, “About Us and Our History,”
(as of Apr. 19, 2019).
15
68 Ops.Cal.Atty.Gen. 337, 339 (1985); accord, 93 Ops.Cal.Atty.Gen. 104, 108
(2010); 87 Ops.Cal.Atty.Gen. 153, 154 (2004); see also Mott v. Horstmann (1950) 36
Cal.2d 388, 391 (doctrine applies where the functions of the offices concerned are
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the Legislature to abrogate this general rule by explicitly authorizing a concurrent holding
of offices that would otherwise be prohibited.16 In the circumstances presented here, we
find that the Legislature has abrogated the general prohibition so as to permit a member of
the Riverbank City Council, including the mayor, to serve also as a director of the Fire
District as the City’s appointee. We believe that this conclusion is dictated by Health and
Safety Code section 13837, subdivision (a), which provides, in part, that in the case of a
fire district containing unincorporated territory and the territory of one or more cities, “[t]he
board of supervisors or city council may appoint one or more of its own members to the
district board.”17
However, we further conclude that the Mayor of Riverbank may not be appointed
to the board by any agency other than the City of Riverbank. That is, we believe that the
abrogation of the incompatible offices prohibition in this case allows each of the appointing
agencies to appoint one of its own officers to a board seat that it is authorized to fill, but
that the prohibition remains in force in other circumstances. Thus, if Riverbank appoints
its mayor to the Fire District board, the mayor may serve in both positions despite conflicts
that may arise from such simultaneous service, but those same conflicts would render the
two positions incompatible if the mayor were to assume a seat on the Fire District board in
some other way.
We explain our reasoning and conclusion in greater detail below.
The Doctrine of Incompatible Offices and Government Code Section 1099
The doctrine of incompatible offices “springs from considerations of public policy
which demand that a public officer discharge his or her duties with undivided loyalty.”18
For many years, the doctrine was developed and expressed only in common law. In 2005,
the Legislature codified the common law rule by enacting Government Code section
inherently inconsistent); Eldridge v. Sierra View Local Hospital Dist. (1990) 224
Cal.App.3d 311, 319 (1990) (Eldridge).
16
American Canyon Fire Protection Dist. v. County of Napa (1983) 141 Cal.App.3d
100, 104 (American Canyon Fire Protection Dist.); Gov. Code, § 1099, subd. (a); 95
Ops.Cal.Atty.Gen. 67, 73 (2012); 85 Ops.Cal.Atty.Gen. 239, 241 (2002).
17
Health & Saf. Code, § 13837, subd. (a).
18
68 Ops.Cal.Atty.Gen., supra, at p. 339; see also 63 Ops.Cal.Atty.Gen. 623, 625
(1980); 17 Ops.Cal.Atty.Gen. 129, 130 (1951).
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1099.19 Subdivision (a) of that section provides:
(a) A public officer, including, but not limited to, an appointed or
elected member of a governmental board, commission, committee, or other
body, shall not simultaneously hold two public offices that are incompatible.
Offices are incompatible when any of the following circumstances are
present, unless simultaneous holding of the particular offices is compelled or
expressly authorized by law:
(1) Either of the offices may audit, overrule, remove members of,
dismiss employees of, or exercise supervisory powers over the other office
or body.
(2) Based on the powers and jurisdiction of the offices, there is a
possibility of a significant clash of duties or loyalties between the offices.
(3) Public policy considerations make it improper for one person to
hold both offices.20
In analyzing the relation of the incompatible offices doctrine to the question before
us, we look both to Government Code section 1099 and to precedent established under the
19
Added by Stats. 2005, ch. 254, § 1, eff. Jan. 1, 2006.
20
Gov. Code, § 1099, subd. (a). The rest of Government Code section 1099 provides:
(b) When two public offices are incompatible, a public officer shall be deemed
to have forfeited the first office upon acceding to the second. This provision is
enforceable pursuant to Section 803 of the Code of Civil Procedure.
(c) This section does not apply to a position of employment, including a civil
service position.
(d) This section shall not apply to a governmental body that has only advisory
powers.
(e) For purposes of paragraph (1) of subdivision (a), a member of a multimember
body holds an office that may audit, overrule, remove members of, dismiss
employees of, or exercise supervisory powers over another office when the body
has any of these powers over the other office or over a multimember body that
includes that other office.
(f) This section codifies the common law rule prohibiting an individual from
holding incompatible public offices.
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common law.21
Are the Positions Public Offices?
We observe initially that the doctrine of incompatible offices applies only to public
offices, and not to positions of employment.22 We have previously characterized a public
office, for purposes of the doctrine, as “a position in government (1) which is created or
authorized by the Constitution or some law; (2) the tenure of which is continuing and
permanent, not occasional or temporary; (3) in which the incumbent performs a public
function for the public benefit and exercises some of the sovereign powers of the state.”23
Under Government Code section 1099, subdivision (a), “public office” expressly includes
membership on a governmental board or body so long as the body is not merely advisory.24
We have stated in prior opinions that a mayor of a general law city holds a public
office for purposes of the incompatible offices doctrine.25 A mayor is a member of the city
21
In an uncodified section of the bill that enacted Government Code section 1099, the
Legislature declared that the act was not intended to expand or contract the common law
prohibition against holding incompatible public offices, and that interpretation of the act
“shall be guided by judicial and administrative precedent concerning incompatible public
offices developed under the common law.” (Stats. 2005, ch. 254, § 2.)
22
Gov. Code, § 1099, subds. (a), (c); People ex rel. Chapman v. Rapsey (1940) 16
Cal.2d 636, 639-640 (Rapsey); Eldridge, supra, 224 Cal.App.3d at p. 319 (doctrine does
not apply where one position is a public office and the other an employment).
23
68 Ops.Cal.Atty.Gen., supra, at p. 342; accord, 95 Ops.Cal.Atty.Gen. 77, 78 (2012);
93 Ops.Cal.Atty.Gen. 144, 148 (2010); 93 Ops.Cal.Atty.Gen., supra, at p. 105; 82
Ops.Cal.Atty.Gen. 83, 84 (1999); 74 Ops.Cal.Atty.Gen. 116, 118 (1991); see also Moore
v. Panish (1982) 32 Cal.3d 535, 545.
The state’s sovereign powers include police powers, acquiring and disposing of public
property, incurring financial obligations on behalf of the public agency, and acting on
behalf of the public agency in business or political matters. (Schaefer v. Super. Ct. (1952)
113 Cal.App.2d 428, 432-433.)
24
See also 68 Ops.Cal.Atty.Gen., supra, at p. 344 (citing cases decided under the
common law doctrine declaring that members of governing boards of public districts or
entities are public officers).
25
98 Ops.Cal.Atty.Gen. 94, 96-97 (2015); 84 Ops.Cal.Atty.Gen. 34, 38 (2001).
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council,26 and a city council member holds a public office for purposes of the doctrine.27
The position of city council member is established by law28 and is continuing,29 and a city
council is vested with numerous sovereign powers, including the authority to enact
ordinances, levy taxes, contract for services and property, acquire property by eminent
domain, regulate construction, and provide for public utilities and public works.30 A mayor
of Riverbank has all of the powers and duties of every other member of the council.31 The
mayor is president of the council,32 and has additional powers and responsibilities in
representing the council and conducting its business.33 Accordingly, the Mayor of
Riverbank is a public officer.
We have also previously declared that a member of the board of directors of a fire
protection district holds a public office for purposes of the incompatible offices doctrine,34
and we affirm that determination here. The position of district board director is established
by law, and is continuing.35 The board of directors of a fire protection district is the
26
Gov. Code, § 34903 (elected mayor); see also Gov. Code, §§ 36801, 36803; 89
Ops.Cal.Atty.Gen. 159, 164 (2006); 57 Ops.Cal.Atty.Gen. 626, 628 (1974).
27
74 Ops.Cal.Atty.Gen. 82, 83-84 (1991); see also Gov. Code, § 1099, subd. (a); 91
Ops.Cal.Atty.Gen. 25, 26 (2008).
28
Gov. Code, § 36501, subd. (a) (government of general law city is vested in city council
of at least five members).
29
Gov. Code, § 36503; Denio v. City of Huntington Beach (1943) 22 Cal.2d 580, 590,
overruled on other grounds by Fracasse v. Brent (1972) 6 Cal.3d 784, 790-791.
30
Gov. Code, §§ 37100, 37100.5, 37101, 37103, 37350, 37350.5, 38660, 38730, 38742,
subds. (a), (b), 39792, 40401; see also Gov. Code, §§ 34000 (city council is legislative
body of the city), 50002 (same).
31
Gov. Code, § 34903; 98 Ops.Cal.Atty.Gen., supra, at p. 101; 79 Ops.Cal.Atty.Gen.
21, 23 (1996).
32
Gov. Code, § 34002.
33
For example, the mayor presides at council meetings (Gov. Code, § 36802), signs
warrants and contracts (Gov. Code, § 40602), administers oaths (Gov. Code, § 40603), and
makes appointments (Gov. Code, § 40605); see also Riverbank Mun. Code, § 32.03, subd.
(A) (Mayor of Riverbank makes appointments to boards, commissions, and committees);
81 Ops.Cal.Atty.Gen. 75, 76-80 (1998) (discussing elected mayor’s appointment power).
34
See, e.g., 97 Ops.Cal.Atty.Gen. 50, 52-53 (2014); 84 Ops.Cal.Atty.Gen. 94, 95
(2001); 76 Ops.Cal.Atty.Gen. 38, 40 (1993).
35
Health & Saf. Code, §§ 13842-13843, 13860; see also Elec. Code, §§ 10500-10501,
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legislative body of the district;36 as governed by its board, a district may sue and be sued,
acquire property, appoint employees, enter into and perform contracts, establish rules and
regulations for the administration and operation of services provided by the district, adopt
a fire prevention code, and exercise other powers necessary to carry out the purposes of the
Fire District Law.37 Thus, a director of the Fire District is also a public officer.
Are the Offices Incompatible, Absent Abrogation of the Prohibition?
Pursuant to Government Code section 1099 and established precedent, a person may
not simultaneously hold two public offices if either office exercises a supervisory, auditing,
or removal power over the other, if there is any significant clash of duties or loyalties
between the offices, or if the dual office holding would be improper for reasons of public
policy.38 It is well established that a past or present conflict in the performance of the
duties of either office is not required for a finding of incompatibility; rather, it is sufficient
that a conflict may occur ‘“in the regular operation of the statutory plan.”’39 Nor is it
necessary that the clash of duty exist in all or in the greater part of the official functions; it
is enough when the holder of the two offices cannot in every instance discharge the duties
of each.40 Thus, only “one potential significant clash of duties or loyalties is necessary to
make offices incompatible.”41 Abstention when a conflict arises does not cure the
incompatibility or obviate the effects of the doctrine.42 When two public offices are
incompatible, the would-be dual officeholder is deemed to have forfeited the first office
10507.
36
Health & Saf. Code, § 13840.
37
Health & Saf. Code, §§ 13861, subds. (a)-(d), (f), (h)-(j); 13863, 13869.
38
Gov. Code, § 1099, subd. (a); Rapsey, supra, 16 Cal.2d at p. 642; 90
Ops.Cal.Atty.Gen. 24, 26 (2007).
39
66 Ops.Cal.Atty.Gen. 176, 177 (1983), quoting 3 McQuillin, Municipal Corporations
(3d ed. 1973) § 12.67, p. 297; see also 93 Ops.Cal.Atty.Gen. 110, 111 (2010) (incompatible
offices prohibition “does not await the occurrence of an actual clash before taking effect,
but intercedes to prevent it”); 63 Ops.Cal.Atty.Gen., supra, at p. 624 (potential interaction
sufficient to render offices incompatible).
40
Rapsey, supra, 16 Cal.2d at pp. 641-642.
41
85 Ops.Cal.Atty.Gen. 60, 61 (2002); see also 37 Ops.Cal.Atty.Gen. 21, 22 (1961).
42
85 Ops.Cal.Atty.Gen., supra, at p. 240; 66 Ops.Cal.Atty.Gen., supra, at pp. 177-178;
see also 63 Ops.Cal.Atty.Gen. 710, 715-716 (1980).
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upon acceding to the second.43
We perceive a number of different situations in which the duties of the Mayor of
Riverbank (or other city council member) and a director of the Fire District might conflict.
Since Riverbank is wholly situated within the Fire District, Riverbank and the district cover
common territory. Decisions and actions by the city council could affect the district, and
vice versa. For example, Fire District directors have the authority to adopt fire safety
building standards that would apply in Riverbank, but the Riverbank City Council has the
power to modify or reject those standards.44 The ability of the council to overrule the
district board in such a matter, as well as the potential clash of loyalties in determining
what is best for Riverbank as opposed to what is best for the Fire District as a whole,
indicate that the offices of city council member and fire district director would be
incompatible, absent legislative action exempting these offices from application of the
doctrine.45 In addition, both Riverbank and the Fire District have the power of eminent
domain,46 and each might attempt to condemn the same property, or even the property of
the other.47 As we have previously determined, the common ability to use eminent domain
within a given territory results in a potential conflict for the officials authorized to exercise
the power.48
Contractual relationships between Riverbank and the Fire District may also give rise
to potential conflicts. A city and a fire protection district are authorized to enter into
agreements with each other under the Joint Exercise of Powers Act, in order to jointly
43
Gov. Code, § 1099, subd. (b); see also Rapsey, supra, 16 Cal.2d at p. 644; 98
Ops.Cal.Atty.Gen., supra, at p. 96; 95 Ops.Cal.Atty.Gen., supra, at p. 73, fn. 29; 66
Ops.Cal.Atty.Gen., supra, at p. 178.
44
See Health & Saf. Code, § 13869.7, subds. (a), (c); see also Health & Saf. Code,
§ 13870; 97 Ops.Cal.Atty.Gen., supra, at pp. 54-55 (fire district’s statutory power to issue
written orders to eliminate fire hazards may engender clash of duties and loyalties between
fire district director and officer of public agency that owns property for which such orders
have been issued).
45
See Gov. Code, § 1099, subds. (a)(1)-(a)(2).
46
Gov. Code, § 37350.5 (city); Health & Saf. Code, § 13861, subd. (c) (fire district).
47
See Code Civ. Proc., § 1240.610 (a public body may condemn property of another
public body where a superior use can be shown).
48
97 Ops.Cal.Atty.Gen., supra, at p. 54 (potential conflict for director of water and fire
districts from districts’ common power of eminent domain); 85 Ops.Cal.Atty.Gen. 199,
201 (2002); 80 Ops.Cal.Atty.Gen. 242, 244 (1997); 65 Ops.Cal.Atty.Gen. 606, 607 (1982);
37 Ops.Cal.Atty.Gen., supra, at p. 22.
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exercise a power they have in common.49 Negotiating any such agreement, even for the
purpose of collaboration, would entail a division of loyalties for a dual office holder.50 We
have previously concluded that the chief of a county fire protection district who was elected
to the county board of supervisors would face a conflict of loyalties in making contracts
authorized by the Joint Exercise of Powers Act.51 A city council member and the director
of a fire protection district would likewise face a conflict of loyalties. Other types of
agreements, such as one to jointly acquire equipment, could similarly engender conflicts.52
Even contracts between Riverbank or the Fire District with another entity could
involve a conflict of duties or loyalties on the part of a person who is both the mayor of the
city and a director of the district.53 A fire protection district may contract with any person
or public agency to provide services to territory outside the district.54 Riverbank and the
Fire District might have divergent views regarding the pursuit of any new such contracts.
A dual office holder might also be subject to conflicting duties and loyalties with
respect to city and district finances. Pursuant to the Fire District Law, a fire protection
district may levy certain special taxes and assessments.55 A city and a district could
disagree about an assessment affecting property in or overseen by the city, and we are
informed that a dispute of that nature has, in fact, occurred between Riverbank and the Fire
49
See Gov. Code, § 6500 et seq. The definition of “public agency” for the purposes of
entering into agreements to exercise joint powers expressly includes, inter alia, a city and
a public district. (Gov. Code, § 6500; see also Health & Saf. Code, § 13861, subd. (j)
[expressly authorizing a fire district to enter into joint powers agreements].)
50
68 Ops.Cal.Atty.Gen. 171, 173 (1985), quoting Cal.Atty.Gen., Indexed Letter, No. IL
75-22 (Feb. 18, 1975) (conflict results from fact that same person sits on both sides of an
agreement); 66 Ops.Cal.Atty.Gen., supra, at p. 179.
66 Ops.Cal.Atty.Gen., supra, at p. 179 (analysis based on the Fire Protection District
51
Law of 1961, the predecessor to the current Fire District Law).
52
See 76 Ops.Cal.Atty.Gen. 81, 85 (1993); 66 Ops.Cal.Atty.Gen., supra, at p. 179.
53
76 Ops.Cal.Atty.Gen., supra, at p. 85 (conflict could arise where entities may each
enter into contracts involving matters of mutual concern with third parties).
54
Health & Saf. Code, § 13878.
55
Health & Saf. Code, §§ 13910-13914. A fire protection district also receives a share
of property taxes collected by the county in which the district is located. (Health & Saf.
Code, § 13896.) The major sources of funding for the Fire District are property taxes and
a special benefit assessment approved in 2004. (Stanislaus Consolidated Fire Protection
District, “District Budget,” [as of Apr. 19, 2019].)
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District.56 A fire district may also accept revenues from various public agencies, including
cities,57 and is authorized to charge fees to the users, including cities, of district services.58
Thus, the Riverbank City Council might be called upon to decide whether to contribute
funds to the Fire District, or might oppose a district-approved fee or fee increase. The
interests of the City and the Fire District might clash in cases where such matters arise.
In addition, the Riverbank City Council and the Fire District board could have
conflicting views and interests regarding any potential change in the organization of
Riverbank or the District.59 For example, the Riverbank City Council may in the future
favor the detachment of Riverbank from the Fire District,60 or the Fire District may
consider further consolidation with one or more other districts.61 Separate from a change
of organization, the Fire District could seek to alter the types of services or level of service
it provides to an area within the district.62 A person who is both Mayor of Riverbank and
a director of the Fire District might be conflicted as to whether to use a city perspective or
56
See Erin Tracy, Riverbank, Fire District Clash Over Who Should Pay Assessment on
Former Ammunition Plant Property, Modesto Bee (Jan. 15, 2017) (as of Apr.
19, 2019). The newspaper article relates that, for some period of time, Riverbank and the
Fire District disagreed about whether Riverbank was responsible for paying a special
assessment levied by the Fire District on property owned by the United States but leased
to Riverbank and overseen by the Riverbank Local Redevelopment Authority. As noted
above, the Riverbank City Council sits as the board of the Riverbank Local Redevelopment
Authority. We have not been informed as to whether the dispute between Riverbank and
the Fire District has been resolved.
57
Health & Saf. Code, § 13898.
58
Health & Saf. Code, §§ 13916, 13918.
59
See Health & Saf. Code, § 13812 (providing that changes of organization of a fire
protection district are governed by the Cortese-Knox-Hertzberg Local Government
Reorganization Act of 2000, contained in Gov. Code, § 56000 et seq.); Gov. Code, § 56100,
subd. (a) (Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000
governs changes of organization for cities and districts). “Changes of organization”
include city incorporations, district formations, annexations to or detachments from a city
or district, disincorporations of cities, dissolutions of districts, and certain mergers and
consolidations. (Gov. Code, § 56021.)
60
See Gov. Code, § 56033.
61
See Gov. Code, § 56030.
62
Health & Saf. Code, § 13950, subd. (a).
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a district-wide perspective in making decisions regarding any of the situations described
above.
The examples above do not exhaust the possibilities for conflict, but they
demonstrate that the concurrent holding of the offices of Mayor of Riverbank and director
of the Fire District carries with it the potential for the kinds of conflicts delineated in
Government Code section 1099, subdivision (a). Given this understanding, we must still
consider whether, notwithstanding these potentials for conflict, the Legislature has
sanctioned the concurrent holding of the offices at issue here.
Has the Incompatible Offices Prohibition Been Abrogated in this Instance?
As noted above, the Legislature may override the rule against holding incompatible
offices whenever it chooses.63 This discretion was acknowledged under the common law
and has been preserved in Government Code section 1099, subdivision (a), which provides
that conflicting duties or loyalties render offices incompatible “unless simultaneous
holding of the particular offices is compelled or expressly authorized by law.” We have
previously observed that the Legislature most often abrogates the doctrine with respect to
regional commissions and district boards;64 thus, for example, the Legislature permits a
city council member to serve on a sanitary district board,65 and requires some combination
of county, city and special district officers to serve on local agency formation commissions
63
American Canyon Fire Protection Dist., supra, 141 Cal.App.3d at p. 104; McClain v.
County of Alameda (1962) 209 Cal.App.2d 73, 79 (“There is nothing to prevent the
Legislature . . . from allowing, and even demanding, that an officer act in a dual capacity”);
95 Ops.Cal.Atty.Gen. 130, 134 (2012); 87 Ops.Cal.Atty.Gen. 54, 60 (2004); 63
Ops.Cal.Atty.Gen. 748, 750 (1980) (“The Legislature may . . . and often does abrogate the
common law doctrine when it considers it necessary or convenient to permit officers to
hold incompatible offices”).
64
74 Ops.Cal.Atty.Gen., supra, at p. 117, fn. 1.
65
Health & Saf. Code, § 6480, subd. (b).
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(also known as LAFCOs),66 despite the possibility of significant conflicts of loyalties.67
The Legislature also allows the governing boards of certain agencies created pursuant to a
joint powers agreement to be composed of officers of the governing boards of agencies that
are parties to the agreement.68 Abrogation of the incompatible offices prohibition may be
complete or partial; that is, depending on the circumstances, the Legislature may suspend,
or merely modify, the prohibition.69
With respect to fire protection districts, we have previously determined that the
incompatible offices prohibition has been abrogated in cases where the district is a
subsidiary district of a city, and the city council is authorized to serve, ex officio, as the
board of the district.70 The case at hand is distinguishable in that the Fire District has
territory in common with a number of different local jurisdictions, and is not a subsidiary
district.71 But the City of Riverbank asserts that the incompatible offices prohibition is also
abrogated with respect to the offices of Riverbank mayor and Fire District director because
Health and Safety Code section 13837 expressly authorizes the simultaneous holding of
66
Gov. Code, §§ 56325, subds. (a)-(c), 56326-56329. In general, a local agency
formation commission consists of two members appointed by and from the county board
of supervisors; two members appointed by the cities in the county, each of whom shall be
a mayor or council member; two presiding officers or members of legislative bodies of
independent special districts who are appointed by a district selection committee; and one
member representing the general public who is appointed by the other members of the
commission. (Gov. Code, § 56325; see also 84 Ops.Cal.Atty.Gen., supra, at p. 97.)
67
63 Ops.Cal.Atty.Gen., supra, at p. 750.
68
Gov. Code, § 6508; see also 78 Ops.Cal.Atty.Gen. 60, 60-62, 65 (1995) (concluding
that members of the Burbank City Council could simultaneously serve as members of a
local airport authority commission created pursuant to the Joint Exercise of Powers Act).
69
See 95 Ops.Cal.Atty.Gen., supra, at pp. 134-135; 81 Ops.Cal.Atty.Gen. 51, 53
(1998); 76 Ops.Cal.Atty.Gen., supra, at p. 85; 61 Ops.Cal.Atty.Gen. 396, 398 (1978).
81 Ops.Cal.Atty.Gen. 344, 344-346 (1998); see also Gov. Code, §§ 56032.5 (defining
70
dependent special district), 56078 (defining subsidiary district).
71
We note that despite the fact that the Fire District board is appointed by local
governmental entities, it is deemed to be an independent special district by the State
Controller. (See, e.g., Betty T. Yee, California State Controller, “Special Districts Listing,”
[as of Apr. 19, 2019]; see also Gov. Code, § 56044 [defining “independent
special district”].)
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the two positions. We agree, to an extent.
Health and Safety Code Section 13837, subdivision (a) provides that in the case of
a fire protection district that contains unincorporated territory and the territory of one or
more cities:
(a) The district board may be elected or appointed by the county board
of supervisors and the city councils in which the district is located. If the
district board is to be appointed, the board of supervisors and the city council
or councils shall appoint directors according to the proportionate share of
population [of] that portion of the county and each city within the district,
provided that the board of superviors [sic] and each city council shall appoint
at least one director. The board of supervisors or city council may appoint
one or more of its own members to the district board. In no case shall the
number of directors exceed 11 members.72
The Fire District contains both unincorporated areas and cities, and, when it was
formed, its formation documents called for a five-member board appointed in accordance
with Health and Safety Code section 13837.73 Consistent with section 13837, subdivision
(a), Riverbank appoints one director to the Fire District board. This statutory subdivision
does not require Riverbank to select one of its own council members as its appointee, but
it permits the City to do so. The history of the Fire District Law suggests that the
Legislature believed that the dual office holding authorized by section 13837 could be
beneficial.74 In a somewhat similar context, the Legislature has provided that a public
72
Health & Saf. Code, §13837, subd. (a), italics added. Health and Safety Code section
13837, subdivision (b) provides that, “[n]otwithstanding subdivision (a), the county board
of supervisors may appoint itself as the district board, if the city council of each of the
cities consents by resolution.”
73
See Stanislaus County Local Agency Formation Com. Res. No. 94-17 (adopted Nov.
30, 1994), p. 3; Stanislaus County Bd. of Supervisors Res. No. 95-116 (adopted Jan. 31,
1995), p. 3.
74
An Assembly Committee Report that led to the enactment of the Fire Protection
District Law of 1961, the predecessor to the current Fire District Law, noted that, for
appointed boards, the service of county supervisors on a fire protection district board could
enhance efficiency and planning, and that it could be desirable to have direct representation
on a fire protection district board of a city included within the district. (Assem. Interim
Com. on Municipal and County Government, “Special Districts in the State of California,
Problems in General and the Consolidation of Sewer and Fire District Acts,” Final Report,
Vol. 6, No. 1957-1959, Assem. J. (1959 Reg. Sess.) pp. 14-15, appen.)
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agency that is part of a county water authority governed by the County Water Authority
Act may appoint a member of the agency’s governing body to be the agency’s
representative on the board of the water authority.75 We wrote of that provision: “The
Legislature has weighed the advantages and disadvantages of having Authority directors
with . . . conflicting loyalties and has determined that the public would be best served by
allowing the interests of the appointing agencies to be represented on the Authority’s board
of directors.”76 In enacting Health and Safety Code section 13837, the Legislature has
permitted the interests of the local jurisdictions served by a fire district to be represented
on the district board by members of the jurisdictions’ legislative bodies.77
A complicating factor in reaching our conclusion that Health and Safety Code
section 13837 applies here is that it is located in a part of the Fire District Law that
expressly applies to the formation of fire protection districts and the selection of a newly
formed district’s initial board of directors,78 while the question presented concerns
membership on an existing board of an established district. A separate chapter of the Fire
District Law deals with existing boards of directors,79 and no statute within that chapter
75
Stats. 1945, ch. 545, § 6, subd. (b), West’s Ann. Wat. Code—App. ch. 45-6.
76
90 Ops.Cal.Atty.Gen., supra, at p. 29.
77
While the Fire Protection District Law of 1961 law required county supervisors and
city council members to serve on an appointed board of a fire protection district that
encompassed unincorporated territory and the territory of one or more cities (see former
Health & Saf. Code, § 13831, added by Stats. 1961, ch. 565), current Health and Safety
Code section 13837, as mentioned above, is permissive rather than mandatory. We note
that, as of the date of this opinion, none of the Fire District directors is a Stanislaus County
supervisor or a Riverbank or Waterford city council member.
78
Health and Safety Code section 13837 is contained in Chapter 3, Article 3 of the Fire
District Law. Chapter 3 is titled “Formation,” and Article 3 is titled “Selection of the Initial
Board of Directors.” Health and Safety Code section 13834, the first statute in Article 3,
states: “The initial board of directors of a district formed on or after January 1, 1988, shall
be determined pursuant to this article.” The other statutes in Article 3 provide for different
possible compositions of the initial boards of fire districts depending on whether the district
encompasses only unincorporated territory, only incorporated territory, or a combination
of both unincorporated and incorporated territory.
79
Chapter 4 of the Fire District Law, comprising Health and Safety Code sections 13840
through 13857, is titled “Existing Board of Directors and Officers.” This chapter addresses
such matters as residency requirements for board members, changes in the number of board
members, changing whether a particular board is appointed or elected, the selection of
board officers, and the conduct of board meetings. (See, e.g., Health & Saf. Code,
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expressly authorizes a city council member or mayor to sit on the board of a fire district
that, like the Fire District, consists of unincorporated territory and the territory of one or
more cities. That could suggest that the Legislature had intended that a city council
member could serve only on the first board of a fire district so constituted, and not on
subsequent boards, which would include the current and future boards of the Fire District.
However, in examining the chapter on existing boards, we find nothing that compels a
change in the district board organization that was adopted when the district was formed.
Indeed, the chapter on existing boards incorporates references to certain ways that initial
boards may be constituted in the context of actions that may be taken by, or may affect,
existing boards, indicating that the Legislature contemplated that subsequent boards of the
same district could retain the form of the initial board.80 For example, Health and Safety
Code section 13844, located in the chapter on existing boards, authorizes the delegation of
an existing board’s duties to a fire commission in cases where “a county board of
supervisors or a city council has appointed itself as the district board.”81 Such boards are
among the types of boards that are authorized in the chapter on the constitution of initial
boards.82 Although the chapter on existing boards does not specifically incorporate
references to initial boards constituted as authorized by Health and Safety Code section
13837, subdivision (a), we believe that the Legislature intended to allow such a board
organization to continue, just as it did for other possible initial board organizations.
Accordingly, we conclude that Health and Safety Code section 13837 applies to the current
board of the Fire District, and that, in the absence of other factors that might preclude such
appointment, Riverbank may appoint its mayor to the Fire District board as Riverbank’s
designated representative.83
§§ 13841, 13845, 13848, 13853, 13855.)
80
See, e.g., Health & Saf. Code, §§ 13841 (referring to type of board authorized by
Health & Saf. Code, §§ 13835, 13837, subd. (b)); 13842 (referring to types of boards
authorized by Health & Saf. Code, §§ 13835, 13837, subd. (b), 13838); 13845, subd. (a)
(including a reference to types of boards authorized by Health & Saf. Code, §§ 13835,
13837, subd. (b), 13838).
81
Health & Saf. Code, § 13844.
82
See Health & Saf. Code, §§ 13835, 13837, subd. (b), 13838.
83
The question of whether any other law, regulations, or agreements could affect the
application of Health and Safety Code section 13837 to the Fire District is beyond the scope
of this opinion.
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Is the Abrogation Limited?
This does not end our inquiry, however. Could the Mayor of Riverbank be
appointed to one of the Fire District board seats other than the one reserved for appointment
by the City of Riverbank, such as one of the county-appointed public at-large positions,
assuming that the mayor meets the residency requirement for one of those positions?84 We
conclude that the answer to this question is no.
In our view, the prohibition against holding incompatible offices is abrogated by
Health and Safety Code section 13837, subdivision (a) only for a member of the legislative
body that appoints him or her. The penultimate sentence of section 13837, subdivision (a)
states: “The board of supervisors or city council may appoint one or more of its own
members to the district board.” In ascertaining the Legislature’s intent and purpose in
including this sentence, we look first to the provision’s plain language.85 The use of the
disjunctive word “or” indicates that the board of supervisors and the city council are
separate, rather than collective actors,86 and the singular possessive pronoun “its,” which
can only refer to a singular noun or noun phrase, here refers to the singular antecedent
“board of supervisors,” and, separately, to the singular antecedent “city council.” Thus,
we understand the sentence to mean that a county board of supervisors may appoint one or
more of that county’s supervisors to the fire district board, and that a city council may
appoint a member or members of that city council to the district board. The provision does
not permit a city council to appoint a county supervisor to a fire district board, nor does it
permit a board of supervisors to appoint a city council member to a fire district board, as
would be required for the Mayor of Riverbank to be appointed to a public member-at-large
seat on the Fire District Board.
Our conclusion is bolstered by the fact that, with respect to membership on
appointed boards of public agencies, statutory law consistently differentiates “public
84
We are informed that when the request for this opinion was submitted, the
representative sitting as the appointee of Riverbank was neither the mayor, nor another
Riverbank City Council member, but that the board of the Fire District had one open public
at-large position. The City of Riverbank lies within Stanislaus County Board of
Supervisors District 1; as mentioned above, one of the public at-large board members of
the Fire District is to be appointed from District 1.
85
See Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379,
1386-1387 (Dyna-Med).
86
See 69 Ops.Cal.Atty.Gen. 20, 23 (1986) (“and” is usually connective, connoting
togetherness, while “or” is usually disjunctive, citing Dickerson, “The Difficult Choice
Between ‘And’ and ‘Or’” (Mar. 1960) 46 ABA J. 310).
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members” from members who are already officers of other public agencies.87 We thus
generally deem membership on a district board as a public member, and membership on
the same board obtained by virtue of holding another public office, to be mutually exclusive
roles.
In a prior opinion, we encountered this issue in connection with a regional coastal
commission, which consisted of representatives of certain governmental agencies, as well
as representatives of the public. We concluded that a public member of the commission
could not continue to serve as a commissioner after that person had been elected to the
county board of supervisors, which was authorized to appoint, and had appointed, one of
its own members to be its representative on the commission.88 We enumerated conflicts
that could arise between the roles of county supervisor and regional coastal commissioner,
but determined that the law creating the commission precluded the application of the
incompatible offices doctrine with respect to certain public officials, including the county
supervisor appointed to the commission.89 However, we then added:
It must be noted however, that the Act does not give blanket
authorization to any public officer to serve on a coastal commission. Rather
it creates a limited exception to the incompatible offices doctrine by
specifying certain numbers of governmental representatives to be selected by
particular appointing agencies. [¶] . . . [¶] It is concluded that the exception
to the incompatible offices doctrine is limited to the specific local elected
official whose membership on a regional commission derives from that
87
See, e.g., Gov. Code, §§ 8241 (public members of Commission on the Status of
Women and Girls are appointed by the other members, who are state executive and
legislative officers); 14985.1 (public members of California Commission on Disability
Access are appointed by the other members, who are state executive and legislative
officers); 53398.51.1 (an enhanced infrastructure financing district is governed by a board
composed of officers of governmental taxing agencies and public members); 62001, subd.
(c) (a community revitalization and investment authority is governed by an appointed board
that includes both officials from the legislative bodies of the public agencies that created
the authority, and “two public members”). We note that the appointed public member on
a county local agency formation commission is expressly prohibited from being an officer
of the county or of any city or district within the county. (Gov. Code, § 56331; see also 84
Ops.Cal.Atty.Gen., supra, at p. 97 [noting that a local agency formation commissioner,
except for the member of the general public, holds another public office (italics added)].)
88
58 Ops.Cal.Atty.Gen. 808, 808, 811-812 (1975).
89
58 Ops.Cal.Atty.Gen., supra, at pp. 810-811.
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capacity.90
We further concluded that upon taking office as a county supervisor, the person
involved would forfeit his or her position as public member on the commission, but would
thereafter be eligible to be appointed to the commission as the designated representative of
the county board of supervisors.91
The above opinion demonstrates that the same individual may be exempt from the
prohibition against holding incompatible offices if serving in one capacity, but subject to
the prohibition if serving in another. Here, the very same conflicts between the roles of
city council member and fire protection district director, as delineated above, would not
prevent the Mayor of Riverbank from simultaneously serving on both the Riverbank City
Council and the Fire District board if he or she is Riverbank’s appointee to the district
board, but would otherwise disqualify the mayor from simultaneously serving on both
bodies. As the Court of Appeal reminds us, the statutory authorization of dual office-
holding in certain circumstances does not necessarily extend to other, different
circumstances.92 We are not at liberty to enlarge the scope of statutory authorization
beyond what Health and Safety Code section 13837 permits.
We believe that the limited or partial abrogation of the incompatible offices
prohibition that we find at work here comports with the policy of proportionate and
balanced representation that the Legislature has crafted for fire protection district boards.93
To allow the Mayor of Riverbank to serve on the five-member Fire District board in an at-
large position would effectively give Riverbank the opportunity to have two officer-
90
58 Ops.Cal.Atty.Gen., supra, at pp. 811-812.
91
58 Ops.Cal.Atty.Gen., supra, at p. 812.
92
American Canyon Fire Protection Dist., supra, 141 Cal.App.3d at p. 106; see also 95
Ops.Cal.Atty.Gen., supra, at p. 74 (concluding that abrogation for city council members
does not extend to city planning commissioners appointed by city council).
93
Health and Safety Code section 13837, subdivision (a) calls for the appointment of
directors according to the proportionate share of population of the county and cities within
the district. The Legislature also requires proportionate representation by share of
population on appointed fire protection district boards for districts consisting of
unincorporated territory in two or more counties (Health & Saf. Code, § 13836) and for
districts consisting of districts of incorporated territory within two or more cities (Health
& Saf. Code, § 13839). When we interpret Health and Safety Code section 13837, we must
keep in mind its purpose, and harmonize it, to the extent possible, with other statutes
relating to the same subject. (Dyna-Med, supra, 43 Cal.3d at p. 1387.)
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representatives on the board, contrary to the Legislature’s purposes and the particular
organizational structure adopted by and for the Fire District.94 It would not be sufficient,
we believe, for the mayor to attempt to put aside allegiance to the City and adopt the wider
perspective of a public at-large member of the Fire District board. The incompatible offices
doctrine does not turn upon the integrity of the person concerned or his or her individual
capacity to achieve impartiality, but rather “‘applies inexorably if the offices come within
it, no matter how worthy the officer’s purpose . . . .’” 95
Another prior opinion is instructive on this point. We considered whether the same
person could simultaneously hold the offices of city fire chief, director of a fire protection
district with no territory overlapping that of the city, and local agency formation
commissioner. We determined that a city fire chief could serve as director of a fire
protection district where the two jurisdictions do not have territory in common, and that a
fire district director could serve as a local agency formation commissioner for the county
because the Legislature required a local agency formation commission to include
representatives of independent special districts.96 We nevertheless concluded that the same
person could not simultaneously hold all three positions because even though the city fire
chief would serve on the local agency formation commission as a district representative,
his or her seat on the local agency formation commission would also, in effect, give the
cities of the county “three city officers on the LAFCO representing their interests rather
than the two specified by the Legislature,” thus upsetting the balance of representation
contemplated by the Legislature.97
In light of the foregoing, we conclude that the Mayor of Riverbank may
simultaneously serve as a member of the Fire District board, as the board is currently
structured, if Riverbank selects the mayor to be its designated appointee to the board, but
may not otherwise simultaneously hold both positions.
*****
94
See Dyna-Med, supra, 43 Cal.3d at p. 1387 (in construing a statute, we should also
consider the consequences that would flow from a particular interpretation).
95
68 Ops.Cal.Atty.Gen. 240, 243 (1985), quoting 3 McQuillin, Municipal Corporations
(rev. ed. 1973) § 12.67, p. 295.
96
84 Ops.Cal.Atty.Gen., supra, at pp. 95-97.
97
84 Ops.Cal.Atty.Gen., supra, at pp. 97-99; see also 95 Ops.Cal.Atty.Gen., supra, at
p. 135 (noting that while the Legislature had abrogated the incompatible offices prohibition
with respect to membership on board of county water authority, the Legislature had also
structured the authority so as to check any one director or member agency’s ability to
dominate the board).
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