Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
BILL LOCKYER
Attorney General
:
OPINION : No. 98-1201
:
of : March 30, 1999
:
BILL LOCKYER :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
THE UPPER SAN JOAQUIN RIVER ASSOCIATION has requested leave
to sue in quo warranto Edward M. Kashian upon the following question:
ISSUES OF FACT OR LAW
Is Edward M. Kashian unlawfully holding the office of governing board
member of the San Joaquin River Conservancy?
CONCLUSION
Whether Edward M. Kashian is unlawfully holding the office of governing
board member of the San Joaquin River Conservancy does not present a substantial question
of fact or law; accordingly, the application for leave to sue in quo warranto is denied.
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PARTIES
The Upper San Joaquin River Association (“Association”) contends that
Edward M. Kashian (“Kashian”) is not qualified to hold the office of governing board
member of the San Joaquin River Conservancy (“Conservancy”).
MATERIAL FACTS
On January 13, 1998, the Board of Supervisors of Fresno County appointed
Kashian to the office of governing board member of the Conservancy for a four-year term.
The Conservancy was established by the Legislature in 1992 as part of the State Resources
Agency with the dual purposes of acquiring and managing land in the San Joaquin River
Parkway (“Parkway”), consisting of approximately 6,000 acres on both sides of the San
Joaquin River in Madera and Fresno Counties, for recreational and educational uses and
wildlife protection.
The governing board of the Conservancy consists of nine voting members and
four non-voting ex-officio members, consisting of city, county, district, and state
representatives and local residents.
Kashian is a director of the San Joaquin River Parkway and Conservation Trust
(“Trust”), a non-profit public benefit corporation, which has as one of its purposes the
acquisition of property within the Parkway for wildlife habitat preservation and recreational
use.
ANALYSIS
In determining whether to grant leave to sue in quo warranto, we consider
whether there exists a substantial question of fact or law for determination by a court, and
if so, whether it would be in the public interest to grant leave to sue. (81 Ops.Cal.Atty.Gen.
240, 241 (1998); 81 Ops.Cal.Atty.Gen. 98, 100 (1998).)
1. Incompatible Offices
The first issue to be resolved is whether Kashian is holding two public offices
by being a Conservancy board member and a director of the Trust in violation of the rule
prohibiting the holding of incompatible public offices.
The prohibition against dual office holding is of common law origin and is
applicable in California. (See Civ. Code, § 22.2; Mott v. Horstmann (1950) 36 Cal. 2d 388,
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391-392; People ex rel. Chapman v. Rapsey (1940) 16 Cal. 2d 636, 640-644; Eldridge v.
Sierra View Local Hospital Dist. (1990) 224 Cal. App. 3d 311, 319.) Offices are incompatible
if there is any significant clash of duties or loyalties between the offices, or if one office has
a supervisory, auditory, or removal power over the other. Acceptance of the second office
constitutes an automatic resignation from the first office. However, the rule is applicable
only where two public offices are being held simultaneously. It does not apply when one of
the offices is a nongovernmental, private office. (See 81 Ops.Cal.Atty.Gen. 274, 275 (1998);
80 Ops.Cal.Atty.Gen. 74, 75-76 (1997); 78 Ops.Cal.Atty.Gen. 362, 363 (1995); 73
Ops.Cal.Atty.Gen. 183, 184 (1990); Cal.Atty.Gen., Indexed Letter, No. IL 66-94 (June 21,
1966).)
Here, Kashian’s position as a director of the Trust, a private non-profit
corporation, does not meet the standard of an “office” for purposes of the dual office
prohibition. Thus, no substantial question of fact or law is presented by the Association
concerning the prohibition against holding incompatible public offices.
2. Incompatible Employment, Activity, or Enterprise
Next we address the Association’s contention that Kashian’s service on the
governing board of the Conservancy violates the terms of Government Code section 1126.1
Section 1126 provides:
“(a) Except as provided in Sections 1128 and 1129, a local agency
officer or employee shall not engage in any employment, activity, or enterprise
for compensation which is inconsistent, incompatible, in conflict with, or
inimical to his or her duties as a local agency officer or employee or with the
duties, functions, or responsibilities of his or her appointing power or the
agency by which he or she is employed. The officer or employee shall not
perform any work, service, or counsel for compensation outside of his or her
local agency employment where any part of his or her efforts will be subject
to approval by any other officer, employee, board, or commission of his or her
employing body, unless otherwise approved in the manner prescribed by
subdivision (b).
“(b) Each appointing power may determine, subject to approval of the
local agency, and consistent with the provisions of Section 1128 where
applicable, those outside activities which, for employees under its jurisdiction,
are inconsistent with, incompatible to, or in conflict with their duties as local
1
All references to the Government Code prior to footnote 4 are by section number only.
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agency officers or employees. An employee’s outside employment, activity,
or enterprise may be prohibited if it: (1) involves the use for private gain or
advantage of his or her local agency time, facilities, equipment and supplies;
or the badge, uniform, prestige, or influence of his or her local agency office
or employment or, (2) involves receipt or acceptance by the officer or
employee of any money or other consideration from anyone other than his or
her local agency for the performance of an act which the officer or employee,
if not performing such act, would be required or expected to render in the
regular course or hours of his or her local agency employment or as a part of
his or her duties as a local agency officer or employee or, (3) involves the
performance of an act in other than his or her capacity as a local agency officer
or employee which act may later be subject directly or indirectly to the control,
inspection, review, audit, or enforcement of any other officer or employee or
the agency by which he or she is employed, or (4) involves the time demands
as would render performance of his or her duties as a local agency officer or
employee less efficient.
“(c) The local agency shall adopt rules governing the application of this
section. The rules shall include provision for notice to employees of the
determination of prohibited activities, of disciplinary action to be taken against
employees for engaging in prohibited activities, and for appeal by employees
from such a determination and from its application to an employee. Nothing
in this section is intended to abridge or otherwise restrict the rights of public
employees under Chapter 9.5 (commencing with Section 3201) of Title 1.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”
The terms of section 1126 have no application here. The Conservancy was created by the
Legislature as part of the State Resources Agency (Pub. Resources Code, § 32510), and
hence Kashian is a state officer rather than a “local agency officer or employee” for purposes
of section 1126. Although the Board of Supervisors of Fresno County was Kashian’s
“appointing power,” he is not under the board’s jurisdiction as a member of the
Conservancy’s governing board. Kashian’s powers and duties are governed by state law in
his capacity as a state officer.2
Accordingly, we conclude that the requirements of section 1126 do not present
a substantial question of fact or law with reference to Kashian’s appointment to the
2
We note that section 1126 is not self executing. (Mazolla v. City and County of San Francisco
(1980) 112 Cal. App. 3d 141; 81 Ops.Cal.Atty.Gen. 274, 277 (1998); 70 Ops.Cal.Atty.Gen. 157, 160 (1987).)
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governing board of the Conservancy.
3. Additional Criteria for Appointment
The final contention3 raised by the Association is that Kashian is not qualified
to be a governing board member of the Conservancy because he does not meet the criteria
for appointment set by the Board of Supervisors of Fresno County.
Under the San Joaquin River Conservancy Act (Pub. Resources Code,
§§ 32500-32538),4 members of the governing board of the Conservancy are appointed by
specified public agencies. Kashian was appointed as “a property owner of San Joaquin River
bottom” by the Board of Supervisors of Fresno County pursuant to the following terms of
section 32515, subdivision (b)(5):
“(A) Except as provided in subparagraph (C), one resident of Fresno
County appointed by the Board of Supervisors of Fresno County from a list
submitted by environmental organizations within that county. The board of
supervisors may establish additional criteria for that appointment.
“(B) Except as provided in subparagraph (C), one resident of Madera
County appointed by the County Board of Supervisors of Madera County who
is a property owner of San Joaquin River bottom. The board of supervisors
may establish additional criteria for that appointment.
“(C) Fresno County and Madera County shall rotate appointment
qualifications pursuant to this paragraph so that each alternative time Madera
County shall appoint a resident from a list submitted by environmental
organizations within that county and Fresno County shall appoint a property
owner of San Joaquin River bottom in that county.”
The Association contends that for purposes of section 32515, subdivision (b)(5), the Board
of Supervisors of Fresno County has adopted as “additional criteria” Administration Policy
No. 35 (“Policy”), dated January 28, 1992, as follows:
“POLICY STATEMENT
3
Originally the Association raised various other issues, such as that Kashian is not a San Joaquin
River bottom property owner as required by the statute under which he was appointed (Pub. Resources Code,
§ 32515, subd. (b)(5)), but it has now reduced its contentions to the three specified herein.
4
All references hereafter to the Public Resources Code are by section number only.
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“In addition to any Federal or State conflict of interest requirements
which may apply, no member of any board, commission or committee shall
make, participate in making or in any way attempt to use their position to
influence a decision in which he or she knows or has reason to know that he
or she or their spouse has a financial interest. In all such cases, the affected
member shall disclose their interests in the records of the board, commission
or committee and shall refrain from participating in all discussions and votes
concerning the matter in which they or their spouse has a financial interest.
“The purpose of this policy is not only to avoid actual improprieties, but
also the appearance of possible improprieties. Therefore, it is the policy of the
Board of Supervisors that any doubts as to whether a member shall refrain
from participation in a particular matter should be resolved in favor of non-
participation.
“While recognizing that state law and regulations may specify
categories of memberships on certain boards, commissions and committees,
to the extent possible, no one shall be appointed to a board, commission or
committee which recommends funding allocations to community based
organizations, who is or whose spouse is a director, or officer of an agency or
organization which competes in the funding process before that board,
commission or committee.
“MANAGEMENT RESPONSIBILITY
“The County Administration Officer shall provide all nominees to
County boards, commissions and committees with copies of the Board’s
Conflict of Interest policy. Additionally, the County’s staff to each board,
commission, and committee shall be provided with a copy of the application
of each appointee so as to be able to assist in monitoring compliance with the
conflict of interest policy. Monitoring shall include annual review of
appointee circumstances as they may change during each appointees term of
office.
“APPLICANT/NOMINEE RESPONSIBILITY
“All applicants shall state on their application for appointment what
affiliation, if any, they or their spouse has with public service agencies.
Additionally, all applicants shall certify prior to their participation as a voting
representative of the Board of Supervisors that they have read this policy and
can serve free of any conflict of interest. The certification will be made by an
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applicant/nominee by signing the application for their appointment. Further,
should any conflict of interest arise during the appointee’s term of office, the
appointee shall so declare and abstain from participation in the proceeding and
business as it relates to the area of conflict.
“For those boards, commissions and committees which recommend
funding allocations to the Board of Supervisors, no member shall participate
in any discussions or decisions related to an agency of which the member or
the member’s spouse is a director or officer. Additionally, unless state law or
regulation require otherwise, any such member shall also refrain from
participation in discussions or decisions related to proposals which are in
direct competition with a proposal submitted by the agency of which the
member or member’s spouse is a director or officer.”
The Association’s contention is that the Trust, of which Kashian is a director, has an interest
in seeking public funds from the Conservancy (see § 32537) to serve its purposes of
acquiring and preserving property within the Parkway and thus Kashian “is . . . a director
. . . of an agency or organization which competes in the funding process before” the
Conservancy in violation of the Policy.
We reject the suggestion that the Policy precludes Kashian’s appointment to
the Conservancy’s governing board. First, by its own terms, the Policy is applicable to
“County boards, commissions and committees,” and the Conservancy is not such a public
agency; it is, instead, a state agency. Moreover, the Policy’s specific funding restrictions
refer to “boards, commissions and committees which recommend funding allocations to the
Board of Supervisors,” which the Conservancy does not do but rather makes its own grants.
(§ 32537.) The Policy itself recognizes that conflicts will arise, requiring that “any . . .
member shall . . . refrain from participation in discussions or decisions related to proposals
which are in direct competition with a proposal submitted by the agency of which the
member . . . is a director . . . .” Accordingly, the Policy is not a direct prohibition against
appointments but rather is to be followed “to the extent possible.” Finally, the Policy may
be waived at any time in the discretion of the Board of Supervisors of Fresno County. (See
Rinaldi v. United States (1977) 434 U.S. 22; Peterson v. City of Long Beach (1979) 24
Cal. 3d 238, 249; Weis v. State Board of Equalization (1953) 40 Cal. 2d 772, 776-777; Goleta
Valley Community Hospital v. Department of Health Services (1983) 149 Cal. App. 3d 1124,
1128; 1 Davis & Pierce, Administrative Law Treatise (3d ed. 1994) § 6.2, p. 228.)
We conclude that the requirements of the Policy, whether as “additional
criteria” (§ 32515, subd. (b)(5)) or otherwise, do not present a substantial question of fact or
law relating to Kashian’s appointment to the governing board of the Conservancy. In so
concluding, we note that as a state officer, Kashian is subject to numerous laws regarding
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conflicts of interest. (See Gov. Code, §§ 1090-1097, 8920-8926, 87100-87104.)
PUBLIC INTEREST
Having concluded that no substantial question of fact or law has been presented
for judicial resolution, we find that it would not be in the public interest to grant the
Association’s application.
Leave to sue in quo warranto is DENIED.
*****
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