The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-1102
of :
: January 16, 1998
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
______________________________________________________________________
RIVERBANK UNIFIED SCHOOL DISTRICT and SAMUEL BATES have requested this
office to grant leave to sue in quo warranto upon the following question:
When a school district is reorganized and a trustee of the reorganized district is elected to
the board of trustees of the newly formed district, does the common law doctrine of incompatible
public offices prohibit the trustee from continuing to serve on the board of the reorganized
district until it is dissolved, even though a statutory prohibition against such dual office holding
has been waived by the State Board of Education?
CONCLUSION
Granting leave to sue in quo warranto in the present circumstances would not serve the
public interest in determining whether a trustee of a newly formed school district may continue
to serve as a trustee of a reorganized district until it is dissolved where a statutory prohibition
against such dual office holding has been waived by the State Board of Education and only a
matter of months remain before the reorganized district is dissolved.
PARTIES
Riverbank Unified School District ("RUSD") seeks leave to sue in quo warranto to
determine whether Samuel Bates ("Bates") is unlawfully serving as a trustee of the Oakdale Joint
Union High School District ("OJUHSD") as a result of his election to the board of trustees of
RUSD. Bates seeks leave to sue in quo warranto to determine whether Michael Larson
("Larson"), Patricia Blount ("Blount"), and John Mitchell ("Mitchell") are unlawfully serving as
trustees of the Riverbank Elementary School District ("RESD") as a result of their elections to
the board of trustees of RUSD.
MATERIAL FACTS
On June 3, 1997, following approval by the boards of trustees of the affected school
districts, by the county committee on school district organization, and by the State Board of
Education ("Board"), the electorate approved the reorganization of the Oakdale Elementary
School District, Waterford Elementary School District, RESD, and OJUHSD. The reorganization
called for the dissolution of the four districts and the creation of several unified school districts,
one of which is RUSD. Although approved in 1997, the dissolution of the old districts and their
complete replacement by the new unified districts will not occur until July 1, 1998. During the
transition period, both the old and new districts will exist, with the new districts performing
planning functions and the old districts operating the schools.
When the Board approved the reorganization, it permitted the trustees of each reorganized
district to serve simultaneously on the board of trustees of a newly created district. At the
election approving the reorganization, the voters elected governing boards for the new districts.
Bates, Larson, Blount, and Mitchell were elected to the RUSD Board of Trustees and each
assumed office on June 20, 1997. Prior to the June election, Bates was, and continues to serve as,
a trustee of OJUHSD, and Larson, Blount, and Mitchell were, and continue to serve as, trustees
of RESD.
ANALYSIS
We have on numerous occasions considered the application of the doctrine of incompatible
public offices in various situations. The doctrine prohibits two public offices from being
simultaneously held by the same person if a clash of duties between the two would result. A
school board trustee holds a public office for purposes of the doctrine, and we have determined
that the doctrine precludes a person from simultaneously serving as a trustee of a high school
district and of an elementary school district that is within the boundaries of the high school
district. (79 Ops.Cal.Atty.Gen. 284 (1996); 68 Ops.Cal.Atty.Gen. 171 (1985).) We have pointed
out that only one potential and significant clash of duties need be found to render two offices
incompatible. (79 Ops.Cal.Atty.Gen., supra, 285; 75 Ops.Cal.Atty.Gen. 10, 12 (1992); 73
Ops.Cal.Atty.Gen. 268, 270 (1990).)
Here, the assets and liabilities of RESD will be assumed by RUSD. (See Ed. Code, §§
35560-35566.) Footnote No. 1 Since RESD will continue to operate schools until July 1, 1998, its
actions prior to that time may affect the amount and value of the assets and liabilities of the
schools. (See § 35533.) Voting on issues affecting those assets and liabilities as a trustee of
RESD may create a clash of duties for someone who is also serving as a trustee of RUSD.
Similarly, the ongoing operations of OJUHSD require its trustees to make decisions
regarding expenditures for capital improvements. Those decisions will affect RUSD and provide
the potential for a clash of duties on the part of a trustee serving on both boards. The two
districts, which overlap but are not geographically identical, each have a financial interest in
placing the financial responsibility on the other for undertaking major repairs to the school
facilities in question.
These potential and actual clashes of responsibilities would normally be sufficient to invoke
the incompatible public offices doctrine. However, that doctrine, being of common law origin, is
subject to abrogation or modification by the Legislature. (American Canyon Fire Protection Dist.
v. County of Napa (1983) 141 Cal.App.3d 100; McLain v. County of Alameda (1962) 209
Cal.App.2d 73; 63 Ops.Cal.Atty.Gen. 748, 750 (1980).) Does the Education Code allow
application of the incompatible offices doctrine in the present circumstances?
Section 35106 provides:
"When a member of the governing board of a school district which is being reorganized and
which will cease to exist takes office as a member of the initial or interim governing board of a
newly formed school district, he shall cease to be a member of the governing board of the district
being reorganized.
"The county board of education shall then appoint another person who is eligible to serve on
the governing board of the district being reorganized to the vacant position for the duration of the
existence of the district being reorganized, but in no case for longer than 12 months."
Section 35106 appears to codify the incompatible public offices doctrine. However, section
33050, with certain exceptions not applicable here, allows the Board to waive "all or any part of
any section of this code." Here, as previously mentioned, the Board approved requests by each
reorganized school district to waive, as authorized by section 33050, the prohibition of section
35106.
In examining the relationship between common law rules and statutory enactments, we find
that a common law provision is not repealed by implication if there is no repugnancy between it
and the statute and it does not appear that the Legislature intended to cover the entire subject
matter. (Gray v. Sutherland (1954) 124 Cal.App.2d 280, 290; 73 Ops.Cal.Atty.Gen. 357, 361
(1990).) This general principal has been applied to provisions of the Education Code. In holding
that sections 39390-39404 did not supersede application of a common law rule, the Supreme
Court stated: "Statutes generally do not supplant the common law unless it appears the
Legislature intended to occupy the field. [Citation.]" (City of Moorpark v. Moorpark Unified
School District (1991) 54 Cal.3d 921, 928; see also Li v. Yellow Cab Co. (1975) 13 Cal.3d 804,
815.) On the other hand, even if the Legislature has not explicitly abrogated a common law
provision, it may be implicitly evident from the statutory scheme that the Legislature intended to
do so. (American Canyon Fire Protection Dist. v. County of Napa, supra, 141 Cal.App.3d at
104.)
Normally, a statute is not to be read in isolation. "`A statute must be construed "in the
context of the entire statutory scheme of which it is a part, in order to achieve harmony among
the parts."'" (People v. Hull (1991) 1 Cal.4th 266, 272.) "[E]ach sentence must be read not in
isolation but in light of the statutory scheme [citation]." (Lungren v. Deukmejian (1988) 45
Cal.3d 727, 735.) Statutes are to be blended into each other, even when they are in different
codes. (Meninga v. Raley's, Inc. (1989) 216 Cal.App.3d 79, 90; Austin v. Board of Retirement
(1989) 209 Cal.App.3d 1528, 1532.)
Section 33050 generally allows the Board to waive "any section" of the Education Code.
While there are many sections of the Education Code that are excepted from this legislative grant
of power, section 35106 is not among them. The Board, as the administrative agency charged
with the responsibility of approving school district reorganizations (§§ 35750-35755), has
construed section 33050 as authorizing it to waive the dual office prohibition of section 35106.
Sections 35106 and 33050, read together, indicate that the Legislature codified the common law
rule of incompatible public offices with respect to reorganized and newly created school districts,
but gave the Board the power to waive the prohibition. The Legislature could have concluded
that the Board is in the best position to determine on a case by case basis the appropriateness of
having members of a reorganized school district's board also serve on the board of a new district.
(See § 33051.)
We are to apply the terms of sections 35106 and 33050 as they are written to effectuate the
Legislature's apparent intent. (See Freedom Newspapers, Inc. v. Orange County Employees
Retirement System (1993) 6 Cal.4th 821, 826 ["the words the Legislature chose are the best
indicators of its intent"]; DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) This construction
is consistent with the Board's administrative interpretation. (See Dix v. Superior Court (1991) 53
Cal.3d 442, 460 ["unless unreasonable or clearly contrary to the statutory language or purpose,
the consistent construction of a statute by an agency charged with responsibility for its
implementation is entitled to great deference"].)
Finally, we note that we have generally viewed the existence of a substantial question of
fact or law as presenting a sufficient "public purpose" to warrant the granting of leave to sue. (80
Ops.Cal.Atty.Gen. 242, 247 (1997).) Although the precise legal question involved here has not
been judicially considered, the principle that the Legislature may alter the common law
prohibition against holding incompatible public offices is well settled. (American Canyon Fire
Protection Dist. v. County of Napa, supra, 141 Cal.App.3d 100; McLain v. County of Alameda,
supra, 209 Cal.App.2d 73; 63 Ops.Cal.Atty.Gen., supra, 750.) Most importantly, even if we
were to conclude that a waiver under section 33050 could not allow the dual office holding in
question, by the time a court were to resolve this particular issue, the reorganized districts may
already be dissolved. (See 75 Ops.Cal.Atty.Gen. 287, 289-290 (1992); 75 Ops.Cal.Atty.Gen.,
supra, 14.) Additionally, the trustees in question relied in good faith upon the action of the
Board. Under these specific circumstances, we do not believe that the public interest would be
served by a lawsuit questioning the right of these trustees to serve in their former elective
capacities by virtue of their election to the new unified school district board. Accordingly, both
applications for leave to sue in quo warranto are denied.
*****
Footnote No. 1
All references hereafter to the Education Code are by section number only.