Untitled California Attorney General Opinion ( 1995 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 95-323
of :
: November 8, 1995
DANIEL E. LUNGREN :
Attorney General :
:
MAXINE P. CUTLER :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE DENIS A. EYMIL, COUNTY COUNSEL, KINGS COUNTY,
has requested an opinion on the following question:
May a member of a county board of supervisors simultaneously serve as a member of
the Board of Governors of the California Community Colleges?
CONCLUSION
A member of a county board of supervisors may not simultaneously serve as a member
of the Board of Governors of the California Community Colleges.
ANALYSIS
We are asked to determine whether the common law prohibition against a person
simultaneously holding "incompatible offices," applicable in California (Mott v. Horstmann (1950) 36
Cal. 2d 388, 391; People ex rel. Chapman v. Rapsey (1940) 16 Cal. 2d 636, 644), precludes a member of
a county board of supervisors from serving on the Board of Governors of the California Community
Colleges ("Board of Governors"). We conclude that these offices are incompatible, and thus a person
may not serve in both capacities at the same time.
Initially we note that no constitutional or statutory provision prohibits an individual
from simultaneously serving as a county supervisor and Board of Governors member. With respect to
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the common law prohibition, we summarized the principles governing its application in 66
Ops.Cal.Atty.Gen. 176, 177-178 (1983) as follows:
"``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.)
Both positions, however, must be offices. If one or both of the positions is a mere
employment as opposed to a public office, the doctrine does not apply. (See 58
Ops.Cal.Atty.Gen. 109, 111 (1975).)'"
As stated in the leading case of People ex rel. Chapman v. Rapsey, supra, 16 Cal.2d at 642:
"``. . . The inconsistency, which at common law makes offices incompatible,
does not consist in the physical impossibility to discharge the duties of both offices, but
lies rather in a conflict of interest, as where one is subordinate to the other and subject
in some degree to the supervisory power of its incumbent, or where the incumbent of
one of the offices has the power to remove the incumbent of the other or to audit the
accounts of the other.' In State v. Jones, 130 Wis. 572[110 N.W. 431, 118
Am.St.Rep.1042, 10 Ann.Cas.696, 8 L.R.A. (N.S.) 1107], the Court said:
"``It is not an essential element of incompatibility at common law that the clash
of duty should exist in all or in the greater part of the official functions. If one office is
superior to the other in some of its principal or important duties, so that the exercise of
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such duties might conflict, to the public detriment, with the exercise of other important
duties in the subordinate office, then the offices are incompatible . . .'"
Applying these principles, we find that a county supervisor and a Board of Governors
member holds "public office" (see Gov. Code, ' 24000, subd. (o); People v. Elliot (1953) 115
Cal. App. 2d 410, 415; People v. Darby (1952) 114 Cal. App. 2d 412, 422-423) for purposes of the
incompatible offices prohibition. Hence the issue to be resolved is whether the offices are
incompatible--whether the functions and duties of the two offices might produce a significant clash of
loyalties, if the dual office holding would be improper for reasons of public policy, or if either office
exercises a supervisory, auditory, or removal power over the other.
1. Board of Governors
The California Community Colleges are a postsecondary education system consisting
of community college districts. (Ed. Code, ' 70900.)1 The Board of Governors is comprised of 13
members appointed by the Governor with the advice and consent of the Senate. The general duties of
the Board of Governors are specified in section 70901:
"(a) The Board of Governors of the California Community Colleges shall
provide leadership and direction in the continuing development of the California
Community Colleges as an integral part and effective element in the structure of public
higher education in the state. The work of the board of governors shall at all times be
directed to maintaining and continuing, to the maximum degree permissible, local
authority and control in the administration of the California Community Colleges.
"(b) Subject to, and in furtherance of, subdivision (a), and in consultation with
community college districts and other interested parties as specified in subdivision (e),
the board of governors shall provide general supervision over community college
districts, and shall, in furtherance thereof, perform the following functions:
"(1) Establish minimum standards as required by law, including, but not limited
to, the following:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(C) Minimum standards for the formation of community colleges and districts.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(2) Evaluate and issue annual reports on the fiscal and educational
effectiveness of community college districts according to outcome measures
1
All unidentified section references are to the Education Code unless otherwise indicated.
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cooperatively developed with those districts, and provide assistance when districts
encounter severe management difficulties.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(4) Provide representation, advocacy, and accountability for the California
Community Colleges before state and national legislative and executive agencies.
"(5) Administer state support programs, both operational and capital outlay, and
those federally supported programs for which the board of governors has responsibility
pursuant to state or federal law. In so doing, the board of governors shall do the
following:
"(A) Annually prepare and adopt a proposed budget for the California
Community Colleges. . . .
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(C) Establish space and utilization standards for facility planning in order to
determine eligibility for state funds for construction purposes.
"(6) Establish minimum conditions entitling districts to receive state aid for
support of community colleges. In so doing, the board of governors shall establish and
carry out a periodic review of each community college district to determine whether it
has met the minimum conditions prescribed by the board of governors.
"(7) Coordinate and encourage interdistrict, regional, and statewide
development of community college programs, facilities, and services.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(9) Review and approve comprehensive plans for each community college
district. The plans shall be submitted to the board of governors by the governing board
of each community college district.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(11) Exercise general supervision over the formation of new community
college districts and reorganization of existing community college districts, including
the approval or disapproval of plans therefor.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(13) Establish policies regarding interdistrict attendance of students."
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2. Community College District Boards
Community colleges are established within community college districts, which are
governed by district governing boards. (See Cal. Const., art. IX, ' 14; '' 70902, 72000-74290.) The
general duties of the district boards are specified in section 70902:
"(a) Every community college district shall be under the control of a board of
trustees, which is referred to herein as the ``governing board.' The governing board of
each community college district shall establish, maintain, operate, and govern one or
more community college in accordance with law. In so doing, the governing board
may initiate and carry on any program, activity, or may otherwise act in any manner
that is not in conflict with the purpose for which community college districts are
established.
"The governing board of each community college district shall establish rules
and regulations not inconsistent with the regulations of the board of governors and the
laws of this state for the government and operation of one or more community colleges
in the district.
"(b) In furtherance of the provisions of subdivision (a), the governing board of
each community college district shall do all of the following:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(5) To the extent authorized by law, determine and control the district's
operational and capital outlay budgets. The district governing board shall determine
the need for elections for override tax levies and bond measures and request that those
elections be called.
"(6) Manage and control district property. The governing board may contract
for the procurement of goods and services as authorized by law.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(13) Hold and convey property for the use and benefit of the district. The
governing board may acquire by eminent domain any property necessary to carry out
the powers or functions of the district.
"(14) Participate in the consultation process established by the board of
governors for the development and review of policy proposals."
In addition, the district boards have specified responsibilities regarding the transfer of territory from one
district to another ('' 74100-74110), the annexation of an existing community college district (''
74130-74140), and the formation of a new community college district ('' 74150-74159).
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3. County Boards of Supervisors
A county board of supervisors exercises the general legislative authority of the county.
(See Cal. Const., art. XI, ' 7; Gov. Code, '' 25000-26400; Byers v. Board of Supervisors (1968) 262
Cal. App. 2d 148, 157; 77 Ops.Cal.Atty.Gen. 82, 83-84 (1994).) With specific regard to community
college districts, a county board of supervisors may correct and relocate district boundaries in various
situations. (' 2600.) The board of supervisors must approve district board elections under certain
conditions (' 5010.7) and determine the rate of taxation to be levied on the property situated in the
district ('' 14220, 14221, 14222).
Bonds of a community college district may be issued and offered for sale by the board
of supervisors of the county. (' 15140.) The board of supervisors may sell the bonds at a negotiated
sale or by competitive bidding (' 15146) and may cancel unsold bonds if it deems cancellation to be in
the best interests of the district (' 15203).
The county board of supervisors may make a temporary transfer of county funds to a
community college district that does not have sufficient money to meet current maintenance expenses.
(' 85220.) It must approve the sale or lease of any building of the district under specified conditions.
(' 81380.)
4. Clashes of Duties and Loyalties
We have previously found public offices to be incompatible in a variety of
circumstances involving a clash of duties and loyalties. (See, e.g., 76 Ops.Cal.Atty.Gen. 38 (1993)
[fire chief and fire protection district director]; 74 Ops.Cal.Atty.Gen. 116 (1991) [county superintendent
of schools and State Board of Education member]; 67 Ops.Cal.Atty.
Gen. 409 (1984) [general manager of county water district and county supervisor]; 64 Ops.
Cal.Atty.Gen. 137 (1981) [public utility district director and county supervisor].)
While the Board of Governors does not directly interact with county boards of
supervisors, it does have a supervisory and auditory relationship with community college districts. A
county board of supervisors also has a supervisory role with respect to all community college districts
in the county, but the duty is performed with a local perspective rather than a statewide perspective.
What may be in the best interests of the Board of Governors may not be in the best
interests of a county regarding community college district finances ('' 14220-14222, 70901, subd.
(b)(5)(A), 85220), use of district property ('' 70901, subd. (b)(5)(C), 81380), location of district
boundaries ('' 2600, 70901, subd. (b)(11)) district board elections ('' 5010.7, 70901, subd. (b)(2)),
and the issuance of district bonds ('' 15140, 15146, 15203, 70901, subd. (b)(9)). When the
Legislature is determining whether to fund community college programs or to fund county programs, a
Board of Governors member and a county supervisor will have different interests to assert. Similarly,
when the Legislature is determining whether to allow counties to impose charges upon community
college districts, such as a property tax collection fee, a county supervisor serving as a Board of
Governors member would have a conflict of loyalties. In short, both the Board of Governors and a
county board of supervisors have advocacy and supervisorial duties with respect to a community
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college district. Having the same person performing each role would inevitably lead to divided
loyalties. "``[O]nly one significant clash of duties and loyalties is required to make . . . offices
incompatible. . . .' [Citation.]" (66 Ops.Cal.Atty.Gen., supra, at 177.)
We conclude that a county supervisor may not simultaneously serve on the Board of
Governors of the California Community Colleges.
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