Judges: DANIEL E. LUNGREN, Attorney General
Filed Date: 2/7/1997
Status: Precedential
Modified Date: 7/5/2016
DANIEL E. LUNGREN Attorney General ANTHONY D. Da VIGO Deputy Attorney General
THE HONORABLE RICHARD K. RAINEY, MEMBER OF THE CALIFORNIA STATE SENATE, has requested an opinion on the following questions:
1. May a county counsel give legal advice to a board of retirement established under the County Employees Retirement Law of 1937 with respect to a matter in which the county could benefit from an action taken pursuant to such advice?
2. May a member of a board of retirement established under the County Employees Retirement Law of 1937 be removed from office for breach of fiduciary duty or other malfeasance?
2. A member of a board of retirement established under the County Employees Retirement Law of 1937 may be removed from office for the willful breach of fiduciary duty or other malfeasance.
A retirement system established under the Act is an entity separate from the county and independently administered by a Board. (See Traub v.Board of Retirement (1983)
1. Legal Advice by County Counsel
The first inquiry is whether a county counsel may provide legal advice to a Board concerning a matter in which the county could benefit from such advice. We conclude that both the county and the Board must give informed written consent with respect to any matter constituting a potential or actual conflict of interest between them.
In order to protect the public and to promote respect for and confidence in the legal profession, the Board of Governors of the State Bar of California, with the approval of the Supreme Court, has formulated rules of professional conduct. (Bus. Prof. Code, §
Rule 3-310, subdivision (C), of the Rules of Professional Conduct ("Rule 3-310") provides in part as follows:
"A member shall not, without the informed written consent of each client:
"(1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or
"(2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; . . ."
As explained by the Supreme Court in Santa Clara County CounselAttys. Assn. v. Woodside (1994)
"This court's statement of an attorney's duty of loyalty to the client over 60 years ago is still generally valid: `It is . . . an attorney's duty to protect his client in every possible way, and it is a violation of that duty for him to assume a position adverse or antagonistic to his client without the latter's free and intelligent consent. . . . By virtue of this rule an attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his client's interests.' (Anderson v. Eaton (1930)
211 Cal. 113 , 116.)"
Assuming, therefore, that a county counsel advises a Board with respect to a matter in which the county's interest is potentially or actually in conflict with that of the Board, the informed written consent of each client would be required under Rule 3-310.4 Of course, it may be that the county could benefit from the advice given to the Board without a potential or actual conflict of interest being present. (See McClain v.County of Alameda (1962)
Finally, we note that the Act authorizes a Board to obtain legal advice from a private attorney rather than from the county counsel when a potential or actual conflict of interest is present. While section
"Notwithstanding Section
31529 , the board may contract for the legal services of an attorney in private practice when the board determines, after consultation with the county counsel, that the county counsel cannot provide the board with legal services due to a conflict of interest or other compelling reason. . . ."This section shall not be operative in any county until such time as the board of supervisors shall, by resolution adopted by majority vote, make the provisions of this section applicable in such county."5
Section
It is concluded that a county counsel may give legal advice to a Board established under the Act with respect to a matter in which the county could benefit from an action taken pursuant to such advice, provided that in the event of a potential or actual conflict of interest between the Board and the county,6 each shall have provided its informed written consent.
2. Removal From Office
The second inquiry is whether a member of a Board may be removed from office for breach of fiduciary duty or other malfeasance. We conclude that a willful breach of fiduciary duty or other malfeasance would subject the Board member to removal from office.
A Board consists of five members: the county treasurer, two persons who are active members of and elected by the employees' association, and two persons who are chosen by the board of supervisors. (§
California Constitution, article
Section
Section
Section
"An office becomes vacant upon the happening of any of the following events before the expiration of the term:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(h) His or her conviction of a felony or of any offense involving a violation of his or her official duties. . . ."
Under subdivision (h) of section
The filing of an accusation by a grand jury is the normal method for removing a local public official for malfeasance. (See People v. Tice
(1956)
"An accusation in writing against any officer of a district, county, or city, including any member of the governing board or personnel commission of a school district or any humane officer, for willful or corrupt misconduct in office, may be presented by the grand jury of the county for or in which the officer accused is elected or appointed. An accusation may not be presented without the concurrence of at least 12 grand jurors."
"[T]he `misconduct in office' condemned in section
"Upon a conviction and at the time appointed by the court it shall pronounce judgment that the defendant be removed from office. To warrant a removal the judgment shall be entered upon the minutes, and the causes of removal shall be assigned therein."
A violation of section
"Any officer subject to removal pursuant to this article may be removed from office for willful or corrupt misconduct in office occurring at any time within the six years immediately preceding the presentation of an accusation by the grand jury."
Hence, the period of limitations for misconduct in office is six years, whether the misconduct has occurred in the current term or during a previous one. (People v. Cherry (1989)
It is concluded that a member of a Board established under the Act may be removed from office for the willful breach of fiduciary duty or other malfeasance.