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. 95-514
of :
: August 25, 1995
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE JEFFREY A. THOMPSON, District Attorney, County of
Tehama, has requested an opinion on the following questions:
1. May a member, regular or alternate, of a Republican county central committee
vote for officers or be an officer of the committee without having first taken and subscribed the oath or
affirmation set forth in section 3 of article XX of the Constitution?
2. Does a letter from a member of a Republican county central committee which
appoints another person as his or her alternate on the committee, without stating more, authorize the
alternate to vote?
CONCLUSIONS
1. A member, regular or alternate, of a Republican county central committee may
not vote for officers or be an officer of the committee without having first taken and subscribed the oath
or affirmation set forth in section 3 of article XX of the Constitution.
2. A letter from a member of a Republican county central committee which
appoints another person as his or her alternate on the committee, without stating more, does not
authorize the alternate to vote.
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ANALYSIS
The two questions presented concern certain provisions of the Elections Code
pertaining specifically to county central committees of the Republican Party of California. (Elec.
Code, '' 7400-7444.)1 County central committees, along with party conventions and state central
committees, are the governing bodies of qualified political parties. (See '' 7000-7884; 59
Ops.Cal.Atty.Gen. 60 (1976).) The county central committee has charge of the party campaign within
the county under the general direction of the state central committee. (' 7440.)
While political party committees have certain public attributes, they are not public
agencies (59 Ops.Cal.Atty.Gen., supra, 61), and their members are not public officers (59
Ops.Cal.Atty.Gen. 162, 163-164 (1976); 25 Ops.Cal.Atty.Gen. 119, 120 (1954)). California courts
have declined to hold county central committee membership as constituting a public office. (Moore v.
Panish (1982) 32 Cal. 3d 535, 544; Stout v. Democratic County Central Com. (1952) 40 Cal. 2d 91, 94;
Azevedo v. Jordan (1965) 237 Cal. App. 2d 521, 528.) Instead, county central committee membership
is considered an office of the political party. (Moore v. Panish, supra, 32 Cal.3d at 545; Los Angeles
County Democratic Central Committee v. County of Los Angeles (1976) 61 Cal. App. 3d 335.)
However, political parties and their committees are subject to regulation in the public interest. (Katz v.
Fitzgerald (1907) 152 Cal. 433; 59 Ops.Cal.Atty.Gen., supra, 60.)
1. Oath of Office
Although not public officers, members of a Republican county central committee are
required to take the same oath of office as public officers and employees prior to entering upon their
duties. Section 7408 provides:
"Each member of a committee, whether elected to the committee or appointed
to fill a vacancy, before he or she enters upon the duties of his or her office, shall take
and subscribe the oath or affirmation set forth in Section 3 of Article XX of the
Constitution.
"The oath or affirmation required by this section may be taken before any
officer authorized to administer oaths and no fee shall be charged by any person before
whom the oath is taken or subscribed."
Section 3 of article XX of the Constitution states:
"Members of the Legislature, and all public officers and employees, executive,
legislative, and judicial, except such inferior officers and employees as may be by law
1
All section references are to the Elections Code unless otherwise indicated. Similar provisions govern the
committees of the Democratic Party of California ('' 7050-7254), the American Independent Party of California (''
7500-7695), and the Peace and Freedom Party of California ('' 7700-7884).
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exempted, shall, before they enter upon the duties of their respective offices, take and
subscribe the following oath or affirmation:
"``I, ________________________, do solemnly swear (or affirm) that I will
support and defend the Constitution of the United States and the Constitution of the
State of California against all enemies, foreign and domestic; that I will bear true faith
and allegiance to the Constitution of the United States and the Constitution of the State
of California; that I take this obligation freely, without any mental reservation or
purpose of evasion; and that I will well and faithfully discharge the duties upon which I
am about to enter.'
"``And I do further swear (or affirm) that I do not advocate, nor am I a member
of any party or organization, political or otherwise, that now advocates the overthrow of
the Government of the United States or the State of California by force or violence or
other unlawful means; that within the five years immediately preceding the taking of
this oath (or affirmation) I have not been a member of any party or organization,
political or otherwise, that advocated the overthrow of the Government of the United
States or of the State of California by force or violence or other unlawful means except
as follows:
__________________________________________________________________
(If no affiliations, write in the words "No Exceptions")
and that during such time as I hold the office of ______________________
(name of office)
I will not advocate nor become a member of any party or organization, political or
otherwise, that advocates the overthrow of the Government of the United States or of
the State of California by force or violence or other unlawful means.'
"And no other oath, declaration, or test, shall be required as the qualification for
any public office or employment.
"``Public officer and employee' includes every officer and employee of the State,
including the University of California, every county, city, city and county, district, and
authority, including any department, division, bureau, board, commission, agency, or
instrumentality of any of the foregoing."
As explained by the Court of Appeal: "[T]he requirement of execution of the oath ``before' entering
upon the duties to be undertaken establishes the execution of the oath as a condition precedent to a
lawful undertaking of those duties." (Smith v. County Engineer (1968) 266 Cal. App. 2d 645, 653.)
Does the act of voting for or becoming an officer of a county central committee
constitute "enter[ing] upon the duties" of the office of committee member? The functions of a county
central committee and the duties of its members are set forth in sections 7440-7444. These provisions
establish that "[a] committee shall have charge of the party campaign under general direction of the
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State Central Committee . . . ." (' 7440); that, "[a]t the first organizational meeting, a committee shall
organize by selecting a chairperson, a secretary, and any other officers and committees as it deems
necessary for carrying on the affairs of this party" (' 7441); and that "[t]he committees shall perform
any other duties and services for this political party as seem to be for the benefit of the party" (' 7443).
The committee may, at its discretion, make certain rules and regulations governing its internal affairs.
(' 7442.)
Mandated by section 7441, the act of organizing a Republican county central
committee by selecting officers must be considered one of the duties of the committee members. This
is underscored by the fact that section 7443, which is part of the same statutory scheme as section 7441,
refers to the performance of "any other duties . . . for the benefit of the party." (Emphasis added.)
We therefore conclude that a regular member of a Republican county central committee
must take the requisite oath of office before voting for committee officers or becoming an officer of the
committee.
Must alternate members also take the oath of office before participating in the
organization of a county committee? The position of alternate member is set forth in section 7406,
which states:
"A committee may authorize each elected member and each ex officio member
of that committee to appoint an alternate member. An ex officio member who is also
an incumbent officeholder of any of the offices listed in Sections 7404 and 7405 at the
time of the meeting of the committee may appoint an alternate member without
authorization from that committee, if the member desires to appoint an alternate.
"The alternate member shall have the right to vote only with the written
authorization of the member who appointed him or her. An alternate member of a
committee shall be subject to the rules and regulations of the committee.
"An alternate member must meet the same qualifications as the regular
member, and may vote only in the absence of the member who appointed him or her,
except that an alternate member appointed by an incumbent Senator, Member of the
Assembly, or Representative in Congress need not reside in the district of the
appointing power but need only reside in the county of jurisdiction of the committee."
(Emphasis added.)
The requirement that each member of the committee take the oath of office is properly construed as a
qualification for holding membership on a county central committee. This is reflected in article XX,
section 3 of the Constitution which, after setting forth the oath, provides that ". . . no other oath,
declaration, or test, shall be required as a qualification for any public office or employment." The oath
"becomes, in a sense, a matter of eligibility, for one who cannot take the oath, in effect, is rendered
ineligible" to hold office. (Smith v. County Engineer, supra, 266 Cal.App.2d at 653.)
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Since taking the oath is a qualification, or condition precedent, for becoming a regular
member of a county central committee, it is also a qualification which must be met by an alternate
member of the committee pursuant to the terms of section 7406.
Therefore, in answer to the first question, we conclude that neither a regular nor an
alternate member of a Republican county central committee may vote for officers or be an officer of the
committee without having first taken and subscribed the oath or affirmation set forth in section 3 of
article XX of the Constitution.
2. Delegation of Authority to Vote
The second question presented asks whether a letter from a member of a Republican
county central committee which appoints another person as his or her alternate on the committee,
without stating more, authorizes the alternate to vote. We conclude that it does not.
As previously quoted, section 7406 provides that "[t]he alternate member shall have the
right to vote only with the written authorization of the member who appointed him or her." It is
evident from this provision that appointment as an alternate, whether written or otherwise, does not in
and of itself confer the right to exercise the vote of the regular member. The appointment is
independent of any right by the alternate to vote on behalf of the regular member, and the reference to
"written authorization" relates to giving permission to vote, not to the appointment itself.
The language of section 7406 thus assumes that the appointment has already been
made; the provision concerns itself with the mechanism by which voting power may be conferred on
the alternate. That mechanism is limited under the statute to a written document which states that the
regular member authorizes the alternate to vote on his or her behalf.
We therefore conclude in answer to the second question that a letter from a member of
a Republican county central committee which appoints another person as his or her alternate on the
committee, without stating more, does not authorize the alternate to vote.
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