Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 96-910
of :
: December 2, 1996
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
______________________________________________________________________________
DALE S. HOLMES, RIVERSIDE COUNTY SUPERINTENDENT OF SCHOOLS,
has requested leave to sue in quo warranto to remove NAN SANDERS from the office of TRUSTEE
OF THE PERRIS ELEMENTARY SCHOOL DISTRICT on the following question of fact or law:
Does the doctrine of incompatible public offices preclude a person from simultaneously
holding the offices of trustee of a high school district and trustee of an elementary school district which
is wholly within the geographic boundaries of the high school district?
CONCLUSION
The doctrine of incompatible public offices precludes a person from simultaneously
holding the offices of trustee of a high school district and trustee of an elementary school district which
is wholly within the geographic boundaries of the high school district.
ANALYSIS
Dale S. Holmes, Superintendent of Schools for Riverside County ("relator"), contends
that Nan Sanders ("defendant") is unlawfully serving as a Trustee of the Perris Elementary School
District. In November 1993, defendant was elected to serve a four-year term as Trustee of the Perris
Elementary School District and currently holds that office. In November 1995, defendant was elected
to serve a four-year term as Trustee of the Perris Union High School District and currently holds that
office. The boundaries of the Perris Elementary School District are within the boundaries of the Perris
Union High School District.
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In 75 Ops.Cal.Atty.Gen. 10, 11-13 (1992) we noted the governing principles applicable
here:
"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 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. 641-42.)
"In 73 Ops.Cal.Atty.Gen., supra, 270, we summarized as follows:
"`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"`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.)'"
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We have previously applied the doctrine of incompatible public offices to a person
serving as a trustee of a high school district and as a trustee of an elementary school district
encompassed by the high school district. In 68 Cal.Ops.Atty.Gen. 171 (1985) we concluded that the
two offices were incompatible and could not be simultaneously held by the same person. In reaching
that conclusion, we relied upon our analysis contained in a 1975 letter opinion (Cal. Atty. Gen.,
Indexed Letter, No. IL 75-22 (Feb. 18, 1975)) as follows:
"`An examination of the powers of school district boards reveals areas wherein
the potentiality of significant clashes of members' duties or loyalties exist. For
instance, under the Community Recreation Act, [citation], school districts can enter
into agreements to jointly establish systems of recreation. [Citations.] They may also
organize and conduct recreation programs, establish systems of playgrounds and
recreation, and obtain, build, maintain and operate recreation centers within or without
their territorial limits. [Citations.] School districts can grant the use of their grounds,
buildings, and equipment to other school districts for community recreational purposes.
[Citations.] Thus, where two school boards have a common member, and each
desires to enter into an agreement for recreational purposes with the other, a conflict
arises because the common member's loyalty is necessarily divided between the two
boards.
"`The "Joint Exercise of Powers Act," [citation], allows two or more public
entities which have powers in common to exercise said powers jointly, pursuant to
written agreement. It is patently obvious that community college districts, high school
districts, and elementary school districts have numerous powers in common. Thus,
there are many areas in which there could be joint powers agreements between such
school districts. A division of loyalties, in the form of a contractual conflict, would
result from the mere fact that the same person sits on each of the boards desiring to
enter into a joint agreement.
"`Each of the types of school districts involved has the power of eminent
domain. [Citation.] When the power is exercised by one of the districts, a conflict
with the best interests of the other district could arise. For example, one district might
desire to acquire property for a new school site, the location of which could be of great
interest of the other district. Thus, the individual who serves on the two boards would
find himself or herself in a position of having to choose between the loyalty owed to
each board on which the member sits.
"`Governing boards of school districts can also sue and be sued. [Citations.]
It is conceivable that a person who holds office on two boards could be faced with
having to decide whether or not to sue the other school district on whose board that
person also sits. Similarly, substantial conflicts would arise during the litigation
process when the member common to each district board is faced with making
decisions with regard to said litigation.
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"`It should also be noted that school boards have a great amount of discretion in
the management of their property. A school district may sell or lease certain personal
property. A school district may sell or lease certain personal property to another
school district without advertising for bids. [Citations.] The governing board may sell
or lease any real property, and any personal property located thereon, when not needed
for classroom buildings. [Citations.] The governing board can sell, exchange, grant
or quitclaim to another school district owning the property. [Citations.] Significant
clashes of loyalty would result when the person holding dual offices is required to act in
the best interests of each school district in the transaction.'" (Id., at pp. 172-174.)
The doctrine of incompatible public offices precludes a person from serving in both
offices in the absence of statutory authorization to do so. It is based upon considerations of public
policy to prevent a division of loyalty, and not upon any notion of personal pecuniary conflict or
advantage to the officeholder. Thus, even where a person has served honorably in one office for many
years, and assumes a second office only out of a sense of civic obligation, the doctrine of incompatible
offices applies. The rule is applicable because of the character of the offices, not because of the
character of the particular officeholder.
Only one significant clash of loyalties is required to make public offices incompatible,
and the possibility of such a clash exists in the situation presented here. (See 68 Ops.Atty.Gen., supra,
at 174; 37 Ops.Cal.Atty.Gen. 21, 22 (1961).) The public and each of the school districts in question
have an interest in the undivided loyalty of their elected officials. (73 Ops.Cal.Atty.Gen. 354, 357
(1990); 73 Ops.Cal.Atty.Gen. 183, 188, (1990).) The public interest is served by permitting suit in this
case, where more than one year remains in the overlapping terms of the defendant's public offices. The
relator's application for leave to sue in quo warranto is granted.
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