Untitled California Attorney General Opinion ( 1991 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 91-203
of :
:
DANIEL E. LUNGREN :
Attorney General : JUNE 4, 1991
:
ANTHONY S. DaVIGO :
Deputy Attorney General :
:
______________________________________________________________________________
This office has been requested to grant leave to sue in quo warranto upon the
following
ISSUES OF FACT OR LAW
Does the doctrine of incompatible public offices preclude a person from holding
simultaneously the appointed position of deputy district attorney of San Bernardino County, and the
elected position of member of the city council of the City of Ontario in the County of San
Bernardino?
DISPOSITION
The law is settled that service on a governmental board by an attorney employed in
a local nonelected position does not violate the doctrine of incompatible public offices. Since that
issue does not present a substantial question of law for judicial resolution, leave to sue in quo
warranto is DENIED.
THE PARTIES
JAMES A. JORGENSEN ("relator") contends that GUS J. SCROPUS ("defendant")
is unlawfully serving as a deputy district attorney of San Bernardino County.
MATERIAL FACTS
Prior to November 1990, defendant was appointed to and assumed and now continues
to occupy the position of deputy district attorney of San Bernardino County. At the general election
of November 6, 1990, defendant was elected to, and has qualified and entered upon, and now
continues to occupy and to exercise the privileges of the office of member of the city council of the
City of Ontario in the County of San Bernardino.
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ANALYSIS
In deciding whether to grant leave to sue in the name of the People of this state, we
consider the following fundamental precepts which provide the basis for this analysis: leave will be
granted where there is a substantial question of law or fact which requires judicial resolution, and
where the action in quo warranto would serve the overall public interest of the People of this state.
(74 Ops.Cal.Atty.Gen. 26 (1990).)
This application for leave to sue concerns the common law doctrine of incompatible
public offices as applied to the positions of deputy district attorney and city council member. The
doctrine prevents a person from holding simultaneously two public offices if the performance of the
duties of either office could have an adverse effect on the other. (68 Ops.Cal.Atty.Gen. 337, 338-
339 (1985).) In 73 Ops.Cal.Atty.Gen. 183, 183-184 (1990), we summarized in part:
"Offices are incompatible, in the absence of statutes suggesting a contrary
result, if there is any significant clash of duties or loyalties between the offices, if the
dual office holding would be improper for reasons of public policy, or if either
officer exercises a supervisory, auditory, or removal power over the other. (38
Ops.Cal.Atty.Gen. 113 (1961); see generally, People ex rel Chapman v. Rapsey
(1940) 16 Cal. 2d 636, 641-642.)" (Emphasis added.)
In this regard, Civil Code section 22.2 provides:
"The common law of England, so far as it is not repugnant to or inconsistent with
the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision
in all courts of this State."
See, Fowler v. Smith (1852) 2 Cal. 568; American Canyon Fire Prot. Dist. v. County of Napa (1983)
141 Cal. App. 3d 100, 104-106; 67 Ops.Cal.Atty.Gen. 369, 379 (1984); 66 Ops.Cal.Atty.Gen. 293,
295 (1983). It must first be determined, therefore, whether the common law doctrine of
incompatible public offices, insofar as it may be applicable to the facts presented, has been
abrogated in material respect by the laws of this state.
We turn initially to the provisions of section 1128 of the Government Code:
"Service on an appointed or elected governmental board, commission,
committee, or other body by an attorney employed by a local agency in a nonelective
position shall not, by itself, be deemed to be inconsistent, incompatible, in conflict
with, or inimical to the duties of the attorney as an officer or employee of the local
agency and shall not result in the automatic vacation of either such office."
(Emphasis added.)
The foregoing statute obviates the effect upon the occupation of a second public office by an
attorney employed by a local agency in a nonelective position, of two distinct provisions of law
which might otherwise be applicable.
The first "shall not" clause obviates the effect upon such dual occupation, by itself,
of Government Code section 1126 which provides in part that ". . . a local agency officer or
employee shall not engage in any employment . . . which is inconsistent, incompatible, in conflict
with, or inimical to his or her duties as a local agency officer or employee . . . ." In any event, the
latter statute, whether by its own terms or in conjunction with Government Code section 1128, does
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not provide, even in the case of a perceived actual conflict of interest, for the automatic forfeiture
of either office. (Cf. 66 Ops.Cal.Atty.Gen. 382, 386-389 (1983).)
The second "shall not" clause plainly abrogates, without exception, the effect upon
such dual occupation of the common law doctrine of incompatible public offices. Specifically, the
words "by itself" are not repeated in the second clause, and the omission is significant. (See, Ford
Motor Co. v. County of Tulare (1983) 145 Cal. App. 3d 691.) In 67 Ops.Cal.Atty.Gen. 347 (1984),
it was determined that the offices of appointive city attorney and president of an airport authority,
a joint exercise of powers agency of which the city is a member, could be held simultaneously by
the same individual. In 66 Ops.Cal.Atty.Gen. 382, supra, it was determined that the offices of a
nonelective city attorney and school district trustee could be held simultaneously by the same
person. Accordingly, an automatic forfeiture of office would not occur under any circumstances.
Consequently, the common law has been abrogated to the extent that it would otherwise have
applied to the facts presented.
This analysis is expressly limited to the automatic forfeiture of public office. It is not
suggested that the conduct of an individual in a dual capacity is not otherwise constrained by law.
Government Code section 1090, for example, prohibits a public officer or employee from being
financially interested in any contract made by them in their official capacity, or by any body of
which they are a member, and would require abstention from participation in contracts in which
defendant's financial interests would be implicated. (70 Ops.Cal.Atty.Gen. 45, 47 (1987).)
Government Code section 87100 prohibits a public official from making or participating in the
making of a governmental decision in which the official knows or has reason to know he has a
financial interest. (Id., 46.)1
Nevertheless, for purposes of this application for quo warranto, neither section 1090
nor 87100 of the Government Code causes a forfeiture of office. (See, 66 Ops.Cal.Atty.Gen., supra,
389.) In addition to prescribed statutory sanctions (Gov. Code, §§ 1097, 91000), a grand jury
accusation (Gov. Code, § 3060) or recall by the electorate (Elec. Code, § 27000 et seq.) based upon
misconduct while in office are available as appropriate remedies if the officer did not voluntarily
cease one of the conflicting activities. (73 Ops.Cal.Atty.Gen. 191, 196 (1990); 70
Ops.Cal.Atty.Gen. 157, 166-167 (1987).)
It is concluded that this application for leave to sue fails to present any substantial
issue of law or fact.
*****
1
The general common law conflict of interest rule strictly requires public officers to avoid placing
themselves in a position in which personal interest may come into conflict with their duty to the
public. (Noble v. City of Palo Alto (1928) 89 Cal. App. 47, 51-52; 70 Ops.Cal.Atty.Gen. 45, 47
(1987); 46 Ops.Cal.Atty.Gen. 74, 86 (1965).) Thus, California courts have traditionally predicated
conflict of interest decisions on the dual basis of statutory restrictions and public policy constraints
evolved from common law principles. (Id. at 77.)
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