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. 91-906
of :
: February 4, 1992
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. Da VIGO :
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 position of
director of the Elsinore Water District and the position of city
council member of the City of Lake Elsinore?
DISPOSITION
Whether the doctrine of incompatible public offices
precludes a person from holding simultaneously the position of
director of the Elsinore Water District and the position of city
council member of the City of Lake Elsinore presents a
substantial question of law. It is determined, however, that an
action in quo warranto would not serve the public interest and,
therefore, leave to sue is DENIED.
PARTIES
KEVIN D. JEFFRIES ("relator") contends that WILLIAM S.
BUCK ("defendant") is unlawfully serving as a city council member
of the City of Lake Elsinore ("City") by becoming a director of
the Elsinore Water District ("District").
1.
MATERIAL FACTS
In April 1988, defendant was elected to, assumed, and
now continues to occupy the position of city council member of
the City. In November 1991, defendant was elected to, assumed,
and now continues to occupy the position of director of the
District. The City and the District share some common
territorial jurisdiction in that approximately one-half of the
District is located within the City.
ANALYSIS
In deciding whether to grant leave to sue in the name
of the People of the State of California, 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. (74 Ops.Cal.Atty.Gen. 26 (1990).)
This application for leave to sue concerns the common
law doctrine of incompatible public offices. 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).) As explained by the Supreme Court in the landmark case
of People ex rel. Chapman v. Rapsey (1940) 16 Cal. 2d 636:
"Two offices are said to be incompatible when the
holder cannot in every instance discharge the duties of
each. Incompatibility arises, therefore, from the
nature of the duties of the offices, when there is an
inconsistency in the functions of the two, where the
functions of the two are inherently inconsistent or
repugnant, as where antagonism would result in the
attempt by one person to discharge the duties of both
offices, or where the nature and duties of the two
offices are such as to render it improper from
considerations of public policy for one person to
retain both. The true test is whether the two offices
are incompatible in their natures, in the rights,
duties or obligations connected with or flowing from
them." (Id. at pp. 641-642.)
In 73 Ops.Cal.Atty.Gen., supra, 270, we summarized as
follows:
"The Rapsey analysis has been followed and applied
by later courts (see, e.g., Mott v. Horstmann (1950) 36
Cal. 2d 388, 391-392; People ex rel Bagshaw v. Thompson
(1942) 55 Cal. App. 2d 147-150) and in opinions of this
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office (see e.g., 67 Ops.Cal.Atty.Gen 409, 413 (1984))
in a variety of circumstances.
"We have previously stated that only one potential
and significant clash of duties need be found to render
two offices incompatible. In 63 Ops.Cal.Atty.Gen. 623
(1980), for example, the offices of city mayor and
airport district director were found to be incompatible
even though there were currently ``no significant
"interactions" between the city and the district.'
(Id. at p. 624.) We concluded that in many situations
that would arise ``"in the regular operation of the
statutory plan,"' the person holding both offices would
have ``[t]he potential for significant clashes' of
loyalties. (Id. at p. 627.)
"If the two positions are ``offices' and if they
are ``incompatible,' the consequence is that ``"the mere
acceptance of the second incompatible office per se
terminates the first office as effectively as a
resignation."' (People ex rel. Chapman v. Rapsey,
supra, 16 Cal. 2d 636, 644.)"
We have previously determined that a member of a city
council holds a public office for purposes of the incompatibility
of offices doctrine. (73 Ops.Cal.Atty.Gen. 354, 356 (1990).) We
entertain no doubt that a director of the board of a water
district established under the California Water District Law
(Wat. Code, § 34000 et seq.)1 holds a public office for purposes
of the doctrine. (See §§ 34017-34025; 34700-34727; see also 73
Ops.Cal.Atty.Gen. 268, 270 (1990) [county water district
director]; 73 Ops.Cal.Atty.Gen. 183, 185 (1990) [community
services district water agency director].)
In 73 Ops.Cal.Atty.Gen. 183, supra, we determined that
concurrent memberships on the board of directors of a community
services water agency and a school district presented a
substantial question of law as to the application of the
incompatible offices doctrine. We stated, in part:
"[D]efendant . . . is responsible for the fixing
of rates for all users, including school districts, for
prescribing different rates for different uses, and for
assigning users into appropriate rate categories. In
this regard, the exercise of his judgment and
discretion as to the best interest of [the water
agency] as a provider of services, and as to those of
1
Undesignated section references herein are to the Water
Code.
3. 91-906
the [school district] as a ratepayer, is necessarily
divided." (Id. at 186.)
In 73 Ops.Cal.Atty.Gen. 268, supra, we determined that
membership on the board of directors of a county water district
and a school district presented a substantial question of law
with respect to the incompatible offices doctrine. We observed,
for example, that the water district had the authority to
restrict the use of water during an emergency and to contract
with other public agencies concerning the control, distribution,
and treatment of water, the construction of public works, the
acquisition of property, and the joint operation of any property
or public works. (Id., 271.)
Citing the powers of contract and eminent domain, we
have previously determined that "Sharp clashes could arise
between the offices of councilman and [county water] district
director." (37 Ops.Cal.Atty.Gen. 21, 22 (1961); see also 41
Ops.Cal.Atty.Gen. 98, 99 (1963).) In 67 Ops.Cal.Atty.Gen. 409,
414 (1984), we concluded that the offices of county water
district general manager and member of the board of county
supervisors were incompatible.
Here, the District is authorized to fix and collect
charges for water and services (§§ 35470, 35472, 35501), to
contract with other public agencies (§§ 35403, 35500, 35850.5),
and to exercise the right of eminent domain (§ 35600). In
keeping with our prior opinions, therefore, the application for
leave to sue presents a substantial question of law.
PUBLIC INTEREST
We next consider whether maintaining an action in quo
warranto in the present circumstances would be consistent with
the public interest. It is well settled that the mere existence
of a justiciable issue does not require the Attorney General to
grant leave to sue in quo warranto. (City of Campbell v. Mosk
(1961) 197 Cal. App. 2d 640, 650; 74 Ops.Cal.Atty.Gen. 31, 32
(1991).)
Investigation of the interests of the public must be
undertaken in the context of the particular facts of each case.
It is recognized that the public and each public entity have an
interest in the undivided loyalty of their elected officers. (73
Ops.Cal.Atty.Gen. 354, 357 (1990); 73 Ops.Cal.Atty.Gen. 183, 188
(1990).) Nevertheless, here the office sought to be declared
vacant by the proposed action was acquired in April 1988 and
expires in April 1992. Thus, less than four months remain of a
four year term.
While it cannot be accurately predicted how long it
would take for the present action to be filed, heard, and
4. 91-906
resolved, even in the absence of an appeal, it is at least
reasonably probable that the issue would become moot prior to
resolution. Accordingly, we perceive no basis for the
expenditure of public funds for legal fees and court costs in
connection with such a proceeding. Accordingly, the application
for leave to sue is denied.
* * * * *
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