The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
BILL LOCKYER
Attorney General
:
OPINION : No. 99-207
:
of : April 13, 1999
:
BILL LOCKYER :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
WILLIAM R. McDANIEL has requested this office to grant leave to sue in
quo warranto upon the following question:
Does the doctrine of incompatible public offices preclude a person from
holding simultaneously the positions of director of the Victor Valley Water District and city
council member of the City of Victorville?
CONCLUSION
The holding simultaneously of the positions of director of the Victor Valley
Water District and city council member of the City of Victorville presents substantial
questions of fact and law concerning the application of the incompatible public offices
doctrine that warrants the granting of leave to sue in quo warranto.
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PARTIES
WILLIAM R. McDANIEL (“relator”) contends that RODOLFO CABRIALES
(“defendant”) is unlawfully holding the office of director of the Victor Valley Water District
(“District”) as a result of his appointment to the office of city council member for the City
of Victorville (“City”).
MATERIAL FACTS
The City is a general law city with jurisdictional boundaries substantially
contiguous with those of the District. The District is a public corporation organized under
the County Water District Law (Wat. Code, §§ 30000-33901).
On November 27, 1997, defendant was elected to a four-year term as a director
of the District. On November 17, 1998, defendant was appointed to fill a vacancy on the
city council of the City.
ANALYSIS
In deciding whether to grant leave to sue in the name of the People of the State
of California, we consider initially whether there exists a substantial question of fact or law
that requires judicial resolution, and if so, whether the filing of an action in the nature of quo
warranto would serve the overall public interest. (80 Ops.Cal.Atty.Gen. 242, 243 (1997).)
The relator’s application for leave to sue concerns the common law prohibition
against the holding of incompatible public offices. (See Civ. Code, § 22.2; Mott v.
Horstmann (1950) 36 Cal.2d 388, 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.) The prohibition 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).) In 81 Ops.Cal.Atty.Gen. 304, 304-305
(1998), we quoted from our previous opinions in describing the prohibition as follows:
“ ‘Offices are incompatible, in the absence of statutes suggesting a
contrary result, if there is any significant clash of duties or loyalties between
the offices, if the dual office holding would be improper for reasons of public
policy, or if either officer exercises a supervisory, auditory, or removal power
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over the other.’ [Citations.]
“ ‘ “The policy set forth in People ex rel. Chapman v. Rapsey [(1940)
16 Cal.2d 636] comprehends prospective as well as present clashes of duties
and loyalties. [Citation.]
“ ‘ “ ‘Neither is it pertinent to say that the conflict in duties may never
arise; it is enough to say that it may, in the regular operation of the statutory
plan.’ [Citation.]
“ ‘ “ ‘Only one significant clash of duties and loyalties is required to
make offices incompatible . . . .’ [Citation.] Furthermore, ‘[t]he existence of
devices to avoid . . . [conflicts] neither changes the nature of the potential
conflicts nor provides assurance that they would be employed . . . .’
[Citation.] Accordingly, the ability to abstain when a conflict arises will not
excuse the incompatibility or obviate the effects of the doctrine. A public
officer who enters upon the duties of a second office automatically vacates the
first office if the two are incompatible. [Citation.] Both positions, however,
must be offices. If one or both of the positions is a mere employment as
opposed to a public office, the doctrine does not apply. [Citation.]” ’ ”
A county water district director holds a public office for purposes of the
common law prohibition. (73 Ops.Cal.Atty.Gen. 268, 270 (1990); 64 Ops.Cal.Atty.Gen.
288 (1981); 37 Ops.Cal.Atty.Gen. 21, 22, fn. 1 (1961); 32 Ops.Cal.Atty.Gen. 250, 252
(1958); see also 80 Ops.Cal.Atty.Gen., supra, at 244 (1997); 76 Ops.Cal.Atty.Gen. 81, 83
(1993); 75 Ops.Cal.Atty.Gen. 10, 13 (1992).) A member of a city council also holds a
public office for purposes of the incompatible offices doctrine. (75 Ops.Cal.Atty.Gen.,
supra, at 13; 73 Ops.Cal.Atty.Gen. 354, 356 (1990).)
Not only are the two positions in question “offices” for purposes of the
common law prohibition, we have concluded that the offices are incompatible. In 37
Ops.Cal.Atty.Gen., supra, at 22-23, we stated with respect to these two offices:
“Sharp clashes could arise between the offices of councilman and
district director. For example, the district is authorized to construct sewer
facilities and contract with any public agency for sewer outfall facilities
[citation]. The city council is also authorized to construct sewers [citation].
In a closely analogous opinion holding the offices of rapid transit district
director and councilman of a city within the district incompatible, this office
stated that ‘obviously, the conclusions of the directorate in such respects may
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collide with the avowed interests of the component cities . . .’ [Citation.] A
County water district may take property by condemnation and eminent domain
[Citations]. The decision of the board of directors ‘may conflict with the
views and interests of . . . [a] city within the district’ [citation]. The district
may make contracts with the city [citations]. ‘In such circumstances a city
councilman . . . would have to serve two masters if he held the two offices
concurrently’ [citation]. These examples do not nearly exhaust the
possibilities of conflict. Indeed, only one significant clash of duties and
loyalties is required to make the offices incompatible [citations]. The
examples illustrate the compelling force of the district attorney’s conclusion
that on a number of occasions ‘a person who is both a director of the district
and a councilman of the city may find a conflict between the action which is
in the best interests of the district and the action which is in the best interests
of the city.’ The two offices are therefore incompatible and may not be held
by the same person.” (Fns. omitted.)
More recently, in 75 Ops.Cal.Atty.Gen. 10, supra, we granted leave to sue in
quo warranto to obtain judicial resolution of whether the offices of city council member and
director of a water district established under the California Water District Law (Wat. Code,
§ 34000 et seq.) were incompatible.
As defendant’s potential conflicting loyalties would essentially be the same
as those examined in 37 Ops.Cal.Atty.Gen. 21, supra, and in 75 Ops.Cal.Atty.Gen. 10,
supra, we conclude that substantial questions of fact and law are present here concerning
the application of the incompatible offices doctrine.
PUBLIC INTEREST
As a general rule, we have 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. Accordingly, leave will be denied only in the presence of other overriding
considerations. (81 Ops.Cal.Atty.Gen. 94, 98 (1998).) We have found no countervailing
considerations herein. Rather, the inhabitants of the City and of the District have a
paramount interest in the undivided loyalties of their public officers.
Accordingly, the application for leave to sue in quo warranto is GRANTED.
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