Untitled California Attorney General Opinion ( 1992 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 92-408
of :
: JULY 9, 1992
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
______________________________________________________________________________
JOHN E. DUCKWORTH has requested that this office grant leave to sue John C.
Davis in quo warranto pursuant to section 803 of the Code of Civil Procedure to test the right of Mr.
Davis to hold the office of trustee of the Rim of the World Unified School District.
CONCLUSION
Leave to sue is granted to test whether the offices of trustee of the Rim of the World
Unified School District and director of the Lake Arrowhead Community Services District are
incompatible.
MATERIAL FACTS
At an election held in San Bernardino County on November 5, 1991, John C. Davis
was a candidate for and was elected to two offices: (1) trustee of Rim of the World Unified School
District ("School District") and (2) director of the Lake Arrowhead Community Services District
("Community Services District"). On December 3, 1991, he took and filed his oath of office as
School District trustee. Two days later, on December 5, 1991, he took and filed his oath of office
as Community Services District director. He is presently exercising the duties of both offices. The
Community Services District lies entirely within the geographical boundaries of the School District.
The Community Services District provides both a water supply and sanitation services to businesses
and residents within its boundaries, including the School District. Two schools and a substantial
portion of the School District's administrative offices are located within the boundaries of the
Community Services District.
CRITERIA FOR QUO WARRANTO
Code of Civil Procedure section 803 authorizes the Attorney General to bring an
action "in the name of the people . . . upon a complaint of a private person, against any person who
usurps, intrudes into, or unlawfully holds or exercises any public office . . . ." The action authorized
is "in the nature of quo warranto." (International Assn. of Fire Fighters v. City of Oakland (1985)
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174 Cal.App.3d 687, 693.) The Attorney General considers the following factors in determining
whether to grant leave to sue: (1) whether the application has raised a substantial issue of law or fact
and (2) whether it would be in the public interest to grant leave to sue. (75 Ops.Cal.Atty.Gen. 8, 9-
10 (1982).)
LEGAL ISSUE
The legal issue presented is whether the offices of School District trustee and
Community Services District director are incompatible offices so that, upon his assumption of the
office of Community Services District director, Mr. Davis resigned by operation of law the office
of School District trustee.
APPLICABLE LAW
In 66 Ops.Cal.Atty.Gen. 176, 177-178 (1983) we summarized the common law rule
prohibiting the simultaneous holding of incompatible offices. We stated:
"``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).
"........
"The policy set forth in People ex rel Chapman v. Rapsey, supra 16 Cal.2d
636 comprehends prospective as well as present clashes of duties and loyalties. (See
63 Ops.Cal.Atty.Gen. 623, supra.)
"``. . . Neither is it pertinent to say that the conflict in duties may never arise,
it is enough that it may, in the regular operation of the statutory plan . . . .' (3
McQuillin, Municipal Corporations (3d Ed. 1973, § 12.67, p. 297.)
"``[O]nly one significant clash of duties and loyalties is required to make . .
. offices incompatible . . . .' (37 Ops.Cal.Atty.Gen. 21, 22 (1961).) Furthermore,
``[t]he existence of devices to avoid . . . [conflicts] neither changes the nature of the
potential conflicts nor provides assurance that they would be employed.' (38
Ops.Cal.Atty.Gen. 121, 125 (1961).) Accordingly, the ability to abstain when a
conflict arises will not excuse the incompatibility or obviate the effects of the
doctrine. A public officer who enters upon the duties of a second office
automatically vacates the first office if the two are incompatible. (People ex rel.
Chapman v. Rapsey, supra, 16 Cal.2d 636, 644.)"
We have examined the application of the common law rule in numerous situations. (See, e.g., 75
Ops.Cal.Atty.Gen. 10, 12-13 (1992); 73 Ops.Cal.Atty.Gen. 357, 362-363 (1990); 73
Ops.Cal.Atty.Gen. 268, 269-270 (1990); 73 Ops.Cal.Atty.Gen. 183, 183-184 (1990); 71
Ops.Cal.Atty.Gen. 39, 39-40 (1988).)
ANALYSIS
Whether the two offices at issue are incompatible need not be extensively discussed.
The precise question was analyzed recently in 73 Ops.Cal.Atty. Gen. 183 (1990). In our prior
2. 92-408
opinion, a community services district supplied water to a school district. We analyzed the duties
of the community services district director with respect to (1) determining water rates for various
users, (2) taking action to collect unpaid charges, (3) assessing penalties, (4) entering into contracts
with other public entities for the installation of requisite water facilities, and (5) imposing capital
facilities fees on water users and contracts with respect thereto. We also pointed out that the same
person, as a school district trustee, would be involved in matters such as (1) whether to pay for or
contest charges for water services, which if unpaid could become a lien upon school district
property, and (2) any contract negotiations with the community services district over matters of
mutual interest. Based solely upon the fact that the community services district was supplying water
to the school district, we concluded that leave to sue should be granted. We stated:
"The function specified in the CSD formation petition is to supply the
inhabitants of the district with water for domestic use, irrigation, sanitation, industrial
use, fire protection, and recreation. (Gov. Code, § 61600, subd. (a).) We predicate
upon this function alone, without regard to the numerous others which may be
assumed in the future, our determination that principal or important duties, functions,
and responsibilities of the respective offices either are or might come into conflict."
(Id. at p. 185.)
We also noted that other functions might be added by the community services district:
"A community services district is established under the provisions of the
Community Services District Law (Gov. Code, § 6100 et seq.) and may consist of
designated unincorporated territory of one or more counties. (Gov. Code, §§ 61100-
61102.) A district is governed by a board of three or five directors. (Gov. Code, §§
61200, 61300.) We have observed that such districts may possess many of the rights,
and perform many of the functions, normally regarded as municipal in nature. (67
Ops.Cal.Atty.Gen. 145, 148 (1984); 27 Ops.Cal.Atty.Gen. 261, 262 (1956).) These
functions, which may be designated in the petition for formation (Gov. Code, §
61600), or thereafter by resolution and special election (Gov. Code, § 61601),
include (a) water supply, (b) sewage disposal, (c) refuse disposal, (d) fire protection,
(e) parks and recreation, (f) street lighting, (g) mosquito abatement, (h) police
protection, (i) library service, (j) street maintenance, (k) construction of bridges,
curbs, and other works incidental to streets, (l) conversion of utilities to underground
locations, (m) ambulance service, (n) airports, and (o) transportation services. (Gov.
Code, § 61600.)" (Ibid.)
It is apparent that the question whether to add one or more community services district functions
could place an individual who is both a community services district director and a school district
trustee in a role of divided duties and loyalties.
Here, the Community Services District supplies both water and sanitation services
to the School District. Accordingly, the potential for a clash of duties and loyalties would appear
greater than in our prior opinion.
The proposed defendant, however, seeks to avoid the filing of a quo warranto action
on the basis that (1) the potential conflict is territorily insubstantial, (2) in 14 years there has never
been any dispute as to water or service rates or any contracts executed to construct facilities, and (3)
this application for leave to sue is brought against him by a former School District trustee for
personal reasons.
3. 92-408
We do not view the potential conflict as being territorily insubstantial. The
Community Services District provides services to two schools as well as many of the School
District's administrative offices. We are informed that one of the two schools is the largest
elementary school in the School District and that the intermediate school receiving services has a
student population second only to that of the high school.
Insofar as there have been no disputes or contracts to date between the two public
entities, we consider such lack of past conflicts or negotiations to be immaterial. "``". . . Neither is
it pertinent to say that the conflict in duties may never arise, it is enough that it may, in the regular
operation of the statutory plan . . . ."'" (71 Ops.Cal.Atty.Gen. 39, 40 (1988).)
As to the allegation that the relator may have a personal interest in this application,
we note that such a factor might be a consideration taken with others in determining whether the
public interest would be served in granting leave to sue. (See, e.g., City of Campbell v. Mosk (1961)
197 Cal.App.2d 640, 648-649; 36 Ops.Cal.Atty.Gen. 317, 320 (1960).) However, our quo warranto
regulations presuppose and state that "any person" may file a quo warranto application. (Cal. Code
Regs., tit. 11, § 1.) We normally do not attempt to assess the motivation of individual relators. In
deciding whether to grant or deny leave to sue, we focus upon the public interest as our paramount
concern. (See City of Campbell v. Mosk, supra, 197 Cal.App.2d at pp. 648-650.)
Here, in our view an individual is occupying two incompatible offices. This situation
will continue for three more years unless leave to sue is granted to test the propriety of this dual
office holding. To deny the application would be contrary to the public interest. Accordingly, leave
to sue should be and is hereby granted.
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4. 92-408