Untitled California Attorney General Opinion

Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL

State of California

DANIEL E. LUNGREN

Attorney General

______________________________________

OPINION :

: No. 91-906

of :

: February 4, 1992

DANIEL E. LUNGREN :

Attorney General :

:

ANTHONY S. Da VIGO :

Deputy Attorney General :

:

_________________________________________________________________

This office has been requested to grant leave to sue in

quo warranto upon the following:

ISSUES OF FACT OR LAW

Does the doctrine of incompatible public offices

preclude a person from holding simultaneously the position of

director of the Elsinore Water District and the position of city

council member of the City of Lake Elsinore?

DISPOSITION

Whether the doctrine of incompatible public offices

precludes a person from holding simultaneously the position of

director of the Elsinore Water District and the position of city

council member of the City of Lake Elsinore presents a

substantial question of law. It is determined, however, that an

action in quo warranto would not serve the public interest and,

therefore, leave to sue is DENIED.

PARTIES

KEVIN D. JEFFRIES ("relator") contends that WILLIAM S.

BUCK ("defendant") is unlawfully serving as a city council member

of the City of Lake Elsinore ("City") by becoming a director of

the Elsinore Water District ("District").

1.

MATERIAL FACTS

In April 1988, defendant was elected to, assumed, and

now continues to occupy the position of city council member of

the City. In November 1991, defendant was elected to, assumed,

and now continues to occupy the position of director of the

District. The City and the District share some common

territorial jurisdiction in that approximately one-half of the

District is located within the City.

ANALYSIS

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 the 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. 641-642.)

In 73 Ops.Cal.Atty.Gen., supra, 270, we summarized as

follows:

"The Rapsey analysis has been followed and applied

by later courts (see, e.g., Mott v. Horstmann (1950) 36

Cal.2d 388, 391-392; People ex rel Bagshaw v. Thompson

(1942) 55 Cal.App.2d 147-150) and in opinions of this

2. 91-906

office (see e.g., 67 Ops.Cal.Atty.Gen 409, 413 (1984))

in a variety of circumstances.

"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.)"

We have previously determined that a member of a city

council holds a public office for purposes of the incompatibility

of offices doctrine. (73 Ops.Cal.Atty.Gen. 354, 356 (1990).) We

entertain no doubt that a director of the board of a water

district established under the California Water District Law

(Wat. Code, § 34000 et seq.)1 holds a public office for purposes

of the doctrine. (See §§ 34017-34025; 34700-34727; see also 73

Ops.Cal.Atty.Gen. 268, 270 (1990) [county water district

director]; 73 Ops.Cal.Atty.Gen. 183, 185 (1990) [community

services district water agency director].)

In 73 Ops.Cal.Atty.Gen. 183, supra, we determined that

concurrent memberships on the board of directors of a community

services water agency and a school district presented a

substantial question of law as to the application of the

incompatible offices doctrine. We stated, in part:

"[D]efendant . . . is responsible for the fixing

of rates for all users, including school districts, for

prescribing different rates for different uses, and for

assigning users into appropriate rate categories. In

this regard, the exercise of his judgment and

discretion as to the best interest of [the water

agency] as a provider of services, and as to those of

1 Undesignated section references herein are to the Water

Code.

3. 91-906

the [school district] as a ratepayer, is necessarily

divided." (Id. at 186.)

In 73 Ops.Cal.Atty.Gen. 268, supra, we determined that

membership on the board of directors of a county water district

and a school district presented a substantial question of law

with respect to the incompatible offices doctrine. We observed,

for example, that the water district had the authority to

restrict the use of water during an emergency and to contract

with other public agencies concerning the control, distribution,

and treatment of water, the construction of public works, the

acquisition of property, and the joint operation of any property

or public works. (Id., 271.)

Citing the powers of contract and eminent domain, we

have previously determined that "Sharp clashes could arise

between the offices of councilman and [county water] district

director." (37 Ops.Cal.Atty.Gen. 21, 22 (1961); see also 41

Ops.Cal.Atty.Gen. 98, 99 (1963).) In 67 Ops.Cal.Atty.Gen. 409,

414 (1984), we concluded that the offices of county water

district general manager and member of the board of county

supervisors were incompatible.

Here, the District is authorized to fix and collect

charges for water and services (§§ 35470, 35472, 35501), to

contract with other public agencies (§§ 35403, 35500, 35850.5),

and to exercise the right of eminent domain (§ 35600). In

keeping with our prior opinions, therefore, the application for

leave to sue presents a substantial question of law.

PUBLIC INTEREST

We next consider whether maintaining an action in quo

warranto in the present circumstances would be consistent with

the public interest. It is well settled that the mere existence

of a justiciable issue does not require the Attorney General to

grant leave to sue in quo warranto. (City of Campbell v. Mosk

(1961) 197 Cal.App.2d 640, 650; 74 Ops.Cal.Atty.Gen. 31, 32

(1991).)

Investigation of the interests of the public must be

undertaken in the context of the particular facts of each case.

It is recognized that the public and each public entity have an

interest in the undivided loyalty of their elected officers. (73

Ops.Cal.Atty.Gen. 354, 357 (1990); 73 Ops.Cal.Atty.Gen. 183, 188

(1990).) Nevertheless, here the office sought to be declared

vacant by the proposed action was acquired in April 1988 and

expires in April 1992. Thus, less than four months remain of a

four year term.

While it cannot be accurately predicted how long it

would take for the present action to be filed, heard, and

4. 91-906

resolved, even in the absence of an appeal, it is at least

reasonably probable that the issue would become moot prior to

resolution. Accordingly, we perceive no basis for the

expenditure of public funds for legal fees and court costs in

connection with such a proceeding. Accordingly, the application

for leave to sue is denied.

* * * * *

5. 91-906