doctrine does 4 17-1001 office, for purposes of the doctrine, as “a position in government (1) which is created or authorized by the Constitution or some law; (2) the tenure of which is continuing and permanent, not occasional or temporary;[14] (3
How later courts described this case
- doctrine does 4 17-1001 office, for purposes of the doctrine, as “a position in government (1) which is created or authorized by the Constitution or some law; (2) the tenure of which is continuing and permanent, not occasional or temporary;[14] (3
Written by the judges who cited it.
The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
XAVIER BECERRA
Attorney General
_________________________
:
OPINION : No. 17-1001
:
of : August 23, 2018
:
XAVIER BECERRA :
Attorney General :
:
DIANE EISENBERG :
Deputy Attorney General :
:
________________________________________________________________________
THE HONORABLE TIMOTHY S. GRAYSON, MEMBER OF THE STATE
ASSEMBLY, has requested an opinion on the following question:
May a person simultaneously serve as a member of the Concord City Council and
as the Contra Costa County Superintendent of Schools?
CONCLUSION
A person may not simultaneously serve as a member of the Concord City Council
and as the Contra Costa County Superintendent of Schools.
1
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ANALYSIS
The City of Concord (“Concord”) is wholly located within Contra Costa County.
Concord is a general law city that is governed by a city council comprising five elected
members, each of whom serves a four-year term.1 The city council has appointed a city
manager who is responsible for management functions of the city.2 Concord lies entirely
within the boundaries of the Mt. Diablo Unified School District (“Mt. Diablo School
District”), which also includes certain other cities, as well as unincorporated areas, in
Contra Costa County.3
The California Constitution calls for the election or appointment of a superintendent
of schools and a board of education for each county.4 The Contra Costa County
Superintendent of Schools is elected, as is the county’s five-member Board of Education.5
Together, the superintendent and board lead the Contra Costa County Office of Education.6
In addition to the Mt. Diablo School District, there are 17 other kindergarten-through-12th
grade public school districts in Contra Costa County under the jurisdiction of the county
office of education.7
1
City of Concord, “City Government Overview,” <http://www.cityofconcord.org/
page.asp?pid=5001> (as of Apr. 23, 2018). Each year, the council selects one of its
members to serve as mayor and another as vice-mayor. (Ibid.)
2
Ibid.; see also Gov. Code, § 34851 (city manager form of government may be
established by ordinance); Concord Mun. Code, § 2.10.120, subd. (a) (providing for
appointment of city manager).
3
City of Concord, “Education and Literacy,” <http://www.cityofconcord.org/
page.asp?pid=6020> (as of Apr. 23, 2018); MapTechnica, “Mt. Diablo USD Boundary
Map,” <https://www.maptechnica.com/school-district-map/CA/Mount+Diablo+Unified+
School+District/unsd/0626370> (as of Apr. 23, 2018).
4
Cal. Const., art. IX, §§ 3, 7; see also Ed. Code, § 1000.
5
Contra Costa County Office of Education, “Contra Costa County Office of Education
Facts at a Glance,” <https://www.cccoe.k12.ca.us/UserFiles/Servers/Server_1077313/File/Abo
ut/Education%20Facts%20&%20Statistics/GeneralAgencyFactSheet.pdf> (as of Aug. 23, 2018).
6
Ibid. “The county superintendent is the head of the county office [of education]; the
county board of education is its governing board.” (Today’s Fresh Start, Inc. v. L.A.
County Off. of Ed. (2013) 57 Cal.4th 197, 207, fn. 4.)
7
Contra Costa County Office of Education, “County School Districts,”
<https://www.cccoe.k12.ca.us/district_resources/county_school_districts> (as of Apr. 23,
2018).
2
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We are asked to determine whether a member of the Concord City Council may
simultaneously serve as the Contra Costa County Superintendent of Schools. We conduct
this inquiry with reference to the doctrine of incompatible offices, which prohibits a person
from concurrently holding two public offices if the performance of the duties of either
office could have a significant adverse effect on the other.8 “The doctrine springs from
considerations of public policy which demand that a public officer discharge his or her
duties with undivided loyalty.”9
We find that simultaneously holding the positions of city council member and
county superintendent of schools of the county in which the city is located would indeed
run afoul of the incompatible offices prohibition. Accordingly, we conclude that a member
of the Concord City Council may not also serve, at the same time, as the Contra Costa
County Superintendent of Schools. We explain our reasoning and conclusion in greater
detail below.
Government Code Section 1099
For many years, the doctrine of incompatible offices was developed and expressed
only in common law. In 2005, the Legislature codified the common law rule by enacting
Government Code section 1099.10 Subdivision (a) of that section provides:
(a) A public officer, including, but not limited to, an appointed or
elected member of a governmental board, commission, committee, or other
body, shall not simultaneously hold two public offices that are incompatible.
Offices are incompatible when any of the following circumstances are
present, unless simultaneous holding of the particular offices is compelled or
expressly authorized by law:
(1) Either of the offices may audit, overrule, remove members of,
dismiss employees of, or exercise supervisory powers over the other office
or body.
8
68 Ops.Cal.Atty.Gen. 337, 339 (1985); accord, 93 Ops.Cal.Atty.Gen. 104, 108 (2010);
87 Ops.Cal.Atty.Gen. 153, 154 (2004); see also Mott v. Horstmann (1950) 36 Cal.2d 388,
391 (doctrine applies where the functions of the offices concerned are inherently
inconsistent); Eldridge v. Sierra View Local Hospital Dist. (1990) 224 Cal.App.3d 311,
319 (1990) (Eldridge) (same).)
9
68 Ops.Cal.Atty.Gen., supra, at p. 339; see also 63 Ops.Cal.Atty.Gen. 623, 625
(1980); 17 Ops.Cal.Atty.Gen. 129, 130 (1951).
10
Added by Stats. 2005, ch. 254, § 1, eff. Jan. 1, 2006.
3
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(2) Based on the powers and jurisdiction of the offices, there is a
possibility of a significant clash of duties or loyalties between the offices.
(3) Public policy considerations make it improper for one person to
hold both offices.11
In an uncodified section of the bill that enacted Government Code section 1099, the
Legislature declared that the act was not intended to expand or contract the common law
prohibition against holding incompatible public office, and that interpretation of the act
“shall be guided by judicial and administrative precedent concerning incompatible public
offices developed under the common law.”12 Thus, we look both to Government Code
section 1099 and to precedent established under the common law in conducting our
analysis.
Public Offices
We observe initially that the doctrine of incompatible offices applies only to public
offices, and not to positions of employment.13 We have previously characterized a public
11
Gov. Code, § 1099, subd. (a). The rest of Government Code section 1099 consists of
subdivisions (b) through (f), which provide:
(b) When two public offices are incompatible, a public officer shall be deemed
to have forfeited the first office upon acceding to the second. This provision is
enforceable pursuant to Section 803 of the Code of Civil Procedure.
(c) This section does not apply to a position of employment, including a civil
service position.
(d) This section shall not apply to a governmental body that has only advisory
powers.
(e) For purposes of paragraph (1) of subdivision (a), a member of a multimember
body holds an office that may audit, overrule, remove members of, dismiss
employees of, or exercise supervisory powers over another office when the body
has any of these powers over the other office or over a multimember body that
includes that other office.
(f) This section codifies the common law rule prohibiting an individual from
holding incompatible public offices.
12
Stats. 2005, ch. 254, § 2.
13
Gov. Code, § 1099, subds. (a), (c); People ex rel. Chapman v. Rapsey (1940) 16
Cal.2d 636, 639-640 (Rapsey); Eldridge, supra, 224 Cal.App.3d at p. 319 (doctrine does
4
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office, for purposes of the doctrine, as “a position in government (1) which is created or
authorized by the Constitution or some law; (2) the tenure of which is continuing and
permanent, not occasional or temporary;[14] (3) in which the incumbent performs a public
function for the public benefit and exercises some of the sovereign powers of the state.”15
The authority to make policy or to exercise independent judgment and discretion is also
the hallmark of an officer, as opposed to an employee.16 Under Government Code section
1099, subdivision (a), “public office” expressly includes membership on a governmental
board or body.17
not apply where one position is a public office and the other an employment). Whether a
particular position is an office or one of employment depends not upon its formal
designation, but rather upon its powers, duties, and functions. (See Rapsey, supra, 16
Cal.2d at pp. 639-640; 76 Ops.Cal.Atty.Gen. 244, 246, 247 (1993); 68 Ops.Cal.Atty.Gen.,
supra, at p. 340.) A position may be a public office for some purposes but not for others.
(Neigel v. Sup. Ct. (1977) 72 Cal.App.3d 373, 378; 87 Ops.Cal.Atty.Gen. 54, 57 (2004).)
14
Although an office must have some permanence and continuity, “these terms do not
refer to the tenure of the appointed officer, but apply to the permanency and continuity of
the office itself.” (Cerini v. City of Cloverdale (1987) 191 Cal.App.3d 1471, 1478.)
15
68 Ops.Cal.Atty.Gen., supra, at p. 342; accord, 95 Ops.Cal.Atty.Gen. 77, 78 (2012);
93 Ops.Cal.Atty.Gen. 144, 148 (2010); 93 Ops.Cal.Atty.Gen., supra, at p. 105; 82
Ops.Cal.Atty.Gen. 83, 84 (1999); 74 Ops.Cal.Atty.Gen. 116, 118 (1991); see also Moore
v. Panish (1982) 32 Cal.3d 535, 545 (public office is not transient, and requires delegation
to the office of some portion of the sovereign functions of government). The state’s
sovereign powers include police powers, acquiring and disposing of public property,
incurring financial obligations on behalf of the public agency, and acting on behalf of the
public agency in business or political matters. (Schaefer v. Super. Ct. (1952) 113
Cal.App.2d 428, 432-433.)
94 Ops.Cal.Atty.Gen. 1, 2-3, fn. 10 (2011); 93 Ops.Cal.Atty.Gen. 110, 114 (2010);
16
87 Ops.Cal.Atty.Gen. 142, 145 (2004).
17
See also 68 Ops.Cal.Atty.Gen., supra, at p. 344 (citing cases decided under the
common law doctrine declaring that members of governing boards of public districts or
entities are public officers).
5
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The position of city council member is established by law18 and is continuing,19 and
a city council member is a trustee of the public welfare.20 A city council is a governmental
body with sovereign powers, including the authority to enact ordinances; levy taxes; license
businesses; contract for services; purchase, control, and dispose of real and personal
property; acquire property by eminent domain; erect buildings for municipal purposes;
regulate buildings and construction; and provide for water, public utilities, and public
works.21 A council member thus holds a public office, as we have concluded on numerous
prior occasions.22 Accordingly, a Concord City Council member is a public officer.23
We have also previously concluded that the position of county superintendent of
schools is a public office,24 and we do not depart from that conclusion here. The
18
Gov. Code, § 36501, subd. (a) (government of general law city is vested in city council
of at least five members).
19
Gov. Code, § 36503; Denio v. City of Huntington Beach (1943) 22 Cal.2d 580, 590,
overruled on other grounds by Fracasse v. Brent (1972) 6 Cal.3d 784, 790-791.
20
L.A. County v. City Council of City of Lawndale (1962) 202 Cal.App.2d 20, 24.
21
Gov. Code, §§ 37100, 37100.5, 37101, 37103, 37202, 37350-37352, 38601, subd.
(b), 38660, 38730, 38742, subds. (a), (b), 39792, 40401.
See, e.g., 98 Ops.Cal.Atty.Gen. 94, 96 (2015); 91 Ops.Cal.Atty.Gen. 25, 26 (2008);
22
85 Ops.Cal.Atty.Gen. 199, 200 (2002); 82 Ops.Cal.Atty.Gen. 74, 76 (1999); 76
Ops.Cal.Atty.Gen. 38, 40 (1993); 75 Ops.Cal.Atty.Gen. 10, 13 (1992); 37
Ops.Cal.Atty.Gen. 21, 22, fn. 1 (1961).
23
The fact that Concord has an appointed city manager who acts as the administrative
head of the city’s government does not alter this conclusion. While the city manager has
substantial responsibilities (see, e.g., Concord Mun. Code, § 2.10.140, subds. (1)-(3), (6),
(8), (10), (13); see also Gov. Code, § 34856), and also occupies a public office for purposes
of the incompatibility doctrine (see 81 Ops.Cal.Atty.Gen. 304, 306-307 (1998); 80
Ops.Cal.Atty.Gen. 74, 76 (1997); 51 Ops.Cal.Atty.Gen. 183, 184 (1968)), the Concord
City Council members oversee the city manager and retain legislative and policy-making
authority.
24
See 74 Ops.Cal.Atty.Gen., supra, at p. 118; 30 Ops.Cal.Atty.Gen. 125, 126 (1957).
We note that in one prior opinion, Opinion Number 85-603 (dated August 30,1985), we
stated that a county superintendent of schools is a public employee—and thus not a public
officer—for purposes of the incompatible offices rule. (See 68 Ops.Cal.Atty.Gen. 240,
244, fn. 5 (1985).) Our cited authority for that statement was a 1979 opinion, Opinion
Number 79-715, cited as 62 Ops.Cal.Atty.Gen. 615 (1979). However, our statement in
Opinion Number 85-603 was inaccurate: Opinion Number 79-715 concerned the position
of school district superintendent, not county superintendent of schools. Moreover, the
6
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superintendent position is provided for by constitutional provision and statute,25 and is
continuing and permanent, with incumbents succeeding each other. County
superintendents of schools are designated by law both as “civil executive officers” and as
“county officers,”26 and have many statutorily prescribed duties and powers that “are for
the public benefit and clearly constitute an exercise of the sovereign power of the state.”27
For example, a county superintendent must generally oversee the schools of the county,
maintain fiscal oversight of each school district in the county, and enforce the course of
study.28 In addition, a county superintendent has the authority to audit the expenditures
and internal controls of school districts and charter schools, conduct studies related to
future school conditions and needs, enter into specified contracts, and employ certificated
and classified county school personnel.29 The county superintendent must open and
maintain a school if a school district under the superintendent’s jurisdiction has sufficient
funds to operate the school but fails to do so.30
The county superintendent of schools is also ex officio secretary and executive
officer of the county board of education.31 Although a county board of education directs
or must approve some of the county superintendent’s activities,32 we find it indisputable
that a county superintendent of schools performs important governmental functions
requiring the exercise of independent judgment and discretion. A county superintendent is
vested with broad authority to carry on, and expend funds for, activities and programs that
conclusion reached in Opinion No. 79-715—namely, that the superintendent of a school
district does not hold a public office under the incompatible offices doctrine (62
Ops.Cal.Atty.Gen., supra, at pp. 617-619)—was itself rejected by a later opinion issued in
December, 1985. (See 68 Ops.Cal.Atty.Gen., supra, at p. 350.)
25
Cal. Const., art. IX, § 3; Ed. Code, § 1200 et seq.
26
Gov. Code, §§ 1001, 24000, subd. (k).
27
74 Ops.Cal.Atty.Gen., supra, at p. 118; see generally Ed. Code, § 1240 et seq. (duties,
responsibilities, and general powers of county superintendent of schools).
28
Ed. Code, § 1240, subds. (a), (b), (h).
Ed. Code, §§ 1241.5, 1250-1251, 1258-1259, 1260, subd. (a), 1276, 1293, 1311; 72
29
Ops.Cal.Atty.Gen. 25, 25-26, 29-31 (1989).
30
Ed. Code, § 1256; 74 Ops.Cal.Atty.Gen., supra, at p. 118.
31
Ed. Code, § 1010.
32
See, e.g., Ed. Code, §§ 1260, subd. (a), (superintendent conducts studies with
approval of, or as determined by, county board of education); 1294, 1295 (leaves of
absence granted to employees require board approval).
7
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he or she determines to be necessary or desirable to meet the needs of the community, so
long as the activities or programs are not in conflict with or inconsistent with law.33
Having affirmed that the positions of city council member and county
superintendent of schools are both public offices for purposes of Government Code section
1099, we must determine whether holding the two offices simultaneously would be
prohibited under the statute.34
Incompatibility
Pursuant to section 1099 and established precedent, a person may not
simultaneously hold two public offices if either office exercises a supervisory, auditing, or
removal power over the other, if there is any significant clash of duties or loyalties between
the offices, or if the dual office holding would be improper for reasons of public policy.35
It is well established that a “past or present conflict in the performance of the duties of
either office is not required for a finding of incompatibility; rather, it is sufficient that a
conflict may occur “in the regular operation of the statutory plan.”36 Nor is it necessary
that the clash of duty exist in all or in the greater part of the official functions; it is enough
when the holder of the two offices cannot in every instance discharge the duties of each.37
33
Ed. Code, §§ 35160-35160.2. These provisions also apply to county boards of
education and school districts. (Id.; see also 93 Ops.Cal.Atty.Gen. 63, 65-68 (2010).)
34
We have previously concluded that the offices of city council member and school
district trustee are incompatible (65 Ops.Cal.Atty.Gen. 606, 609 (1982); see also 73
Ops.Cal.Atty.Gen. 354, 355, 357 (1990)), as are the offices of county superintendent of
schools and member of the State Board of Education (74 Ops.Cal.Atty.Gen., supra, at p.
121), but we have not previously considered the offices at issue here in relation to each
other.
35
Gov. Code, § 1099, subd. (a); Rapsey, supra, 16 Cal.2d at p. 642; 90
Ops.Cal.Atty.Gen. 24, 26 (2007).
36
87 Ops.Cal.Atty.Gen., supra, at p. 145, quoting 66 Ops.Cal.Atty.Gen. 176, 177
(1983); accord, 87 Ops.Cal.Atty.Gen., supra, at p. 154; 75 Ops.Cal.Atty.Gen. 112, 116
(1992) (lack of actual disputes or negotiations between two public entities immaterial to
application of doctrine); 63 Ops.Cal.Atty.Gen., supra, at p. 624 (absence of significant
interactions between city and airport district not determinative; potential interaction
sufficient to render offices incompatible). The incompatible offices prohibition “does not
await the occurrence of an actual clash before taking effect, but intercedes to prevent it.”
(93 Ops.Cal.Atty.Gen., supra, at p. 111.)
37
Rapsey, supra, 16 Cal.2d at pp. 641, 642.
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Thus, only “one potential significant clash of duties or loyalties is necessary to make offices
incompatible.”38 Abstention when a conflict arises does not cure the incompatibility or
obviate the effects of the doctrine.39
The Legislature may abrogate the rule against holding incompatible public offices
for any offices that it chooses.40 However, we have found no express or implied abrogation
of the rule with respect to the offices at issue here. Therefore, we must further examine
the functions and duties of these offices to see if dual office holding would be prohibited.41
Neither a city council nor a county superintendent of schools exercises supervisory
or removal power over the other. However, we perceive a number of areas in which one
or more significant clash of duties or loyalties between the offices of city council member
and county superintendent could arise: direct interactions between a city council and a
county superintendent of schools; a county superintendent’s supervisory and auditing
authority over a school district, or districts, that serve the city; and relationships between a
county board of education and a city council that may be attributed to the county
superintendent of schools. We will examine each of these areas in turn.
38
85 Ops.Cal.Atty.Gen. 60, 61 (2002); see also 37 Ops.Cal.Atty.Gen., supra, at p. 22.
39
85 Ops.Cal.Atty.Gen. 239, 240 (2001); 66 Ops.Cal.Atty.Gen., supra, at pp. 177-178);
see also 63 Ops.Cal.Atty.Gen. 710, 715-716 (1980).
40
Gov. Code, § 1099, subd. (a); American Canyon Fire Protection Dist. v. County of
Napa, 141 Cal.App.3d 100, 104 (1983); McClain v. County of Alameda (1962) 209
Cal.App.2d 73, 79; 95 Ops.Cal.Atty.Gen. 130, 134 (2012); 87 Ops.Cal.Atty.Gen., supra,
at p. 60; 63 Ops.Cal.Atty.Gen. 748, 750 (1980).
41
As Government Code section 1099, subdivision (b) provides, the consequence of
holding incompatible offices is that the person is deemed to have forfeited the first office
upon acceding to the second. Thus, a person’s assumption of the second incompatible
office has the effect of an automatic resignation from, or vacation of, the first office.
(Rapsey, supra, 16 Cal.2d at p. 644; 98 Ops.Cal.Atty.Gen., supra, at p. 96; 95
Ops.Cal.Atty.Gen. 67, 73, fn. 29 (2012); 85 Ops.Cal.Atty.Gen., supra, at p. 61; 66
Ops.Cal.Atty.Gen., supra, at p. 178; 38 Ops.Cal.Atty.Gen. 121, 125 (1961).) As
Government Code section 1099, subdivision (b) further provides, the forfeiture of office is
enforceable under Code of Civil Procedure section 803. An action filed under Code of
Civil Procedure section 803 is known as a quo warranto action, and is the proper legal
means for testing title to public office. (Nicolopulos v. City of Lawndale (2001) 91
Cal.App.4th 1221, 1225-1226 (2001); 93 Ops.Cal.Atty.Gen., supra, at p. 145; 81
Ops.Cal.Atty.Gen. 207, 208 (1998).)
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—Direct Interactions
First, there are various situations in which the parties may engage in direct
transactions or contracts with each other. For example, a city council may contract with
the county superintendent of schools for the performance by local health agency personnel
of duties relating to the health supervision of school buildings and pupils.42 As another
example, the county superintendent is authorized to enter into agreements to provide
audiovisual services and equipment, and to license certain non-educational software, to a
variety of entities, including a city.43 It is also possible that the city might wish to buy
certain items of personal property belonging to the county office of education that the
county superintendent is authorized to sell.44 A city council member who is also the county
superintendent of schools would be subject to conflicting loyalties regarding the terms of
such transactions.45
In addition, a county superintendent of schools and a city are authorized to enter
into agreements with each other under the Joint Exercise of Powers Act, in order to jointly
exercise a power they have in common.46 Negotiating any such agreement, even if for the
purpose of collaboration, would also entail a division of loyalties for a dual office holder.47
—County Superintendent’s Authority Over Schools Within the City
The potential for even more frequent and pervasive conflict flows from a county
superintendent’s jurisdiction over schools and school districts that serve a city’s residents.
The condition, resources, and reputation of a city’s schools and school districts are typically
42
Health & Saf. Code, § 101425.
43
Ed. Code, §§ 1251, 1277.
44
See Ed. Code, § 1279.
45
See 97 Ops.Cal.Atty.Gen. 50, 54 (2014) (power of two entities with common territory
to enter into contracts presents potential conflict for someone who is public official of both
entities); 68 Ops.Cal.Atty.Gen., supra, at p. 351.
46
See Gov. Code, § 6500 et seq. The definition of “public agency” for the purposes of
entering into agreements to exercise joint powers expressly includes, inter alia, a county
board of education, a county superintendent of schools, and a city. (Gov. Code, § 6500.)
A joint powers agency is a public entity separate from the parties to the agreement. (Gov.
Code, § 6507.)
47
68 Ops.Cal.Atty.Gen. 171, 173 (1985), quoting Cal.Atty.Gen., Indexed Letter, No. IL
75-22 (Feb. 18, 1975) (conflict results from fact that same person sits on both sides of an
agreement); 66 Ops.Cal.Atty.Gen., supra, at p. 179.
10
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of great concern to the city council, and are directly related to matters within the council’s
purview, such as economic development, infrastructure, traffic, recreation, and cultural
affairs.48 While school districts have their own governing boards,49 “county school
superintendents also have an integral role in the operation of local districts.”50
In this connection, as alluded to above, the county superintendent of schools has
significant authority “to act as watchdog for each school district’s fiscal affairs.”51 The
county superintendent must analyze, and approve or disapprove, the budget adopted by
each school district,52 and must also approve all expenditures.53 The superintendent has
auditing authority over school districts, and may audit the expenditures and internal
controls of any school district in the county if there is reason to believe that fraud,
misappropriation of funds, or other illegal fiscal practices have occurred.54 The county
superintendent also investigates evidence that a school district is in financial distress, and
may determine that a district should receive a negative interim financial certification.55
48
The Concord City Council has a standing “Youth and Education Committee,”
consisting of two council members, which makes recommendations to the full council for
actions on items the committee has considered. A staff report for one of the Youth and
Education Committee meetings indicates that the Concord City Council has invested in
capital improvements to enhance the safety of walking and bicycling routes to, and in the
vicinity of, city schools within the Mt. Diablo School District. (City of Concord, “Staff
Report, Regular Meeting of the Youth & Education Committee for Monday, Mar. 20,
2017,” p. 2, <http://www.cityofconcord.org/citygov/agendas/committees/rca/2017/
03202017.pdf> [as of Apr. 23, 2018].) This report also notes that the Concord City Council
and the governing board of the Mt. Diablo School District annually hold a joint meeting to
discuss matters of mutual interest. (Id. at p. 1.)
49
Ed. Code, §§ 35010, 35012.
50
Polster v. Sacramento County Off. of Ed. (2009) 180 Cal.App.4th 649, 659 (Polster);
see also Ed. Code, § 35160.1, subd. (b).
51
Polster, supra, 180 Cal.App.4th at p. 661.
52
Ed. Code, § 42127, subds. (c), (d); see also Contra Costa County Office of Education,
“Superintendent,” <https://www.cccoe.k12.ca.us/superintendent/county_superintendent_
of_schools> (as of Apr. 23, 2018) (stating that the county’s superintendent of schools is
responsible for monitoring and approving all school district budgets).
53
Ed. Code, § 42635.
54
Ed. Code, § 1241.5, subds. (a), (b).
55
Ed. Code, §§ 42127.6, subd. (a)(1), 42131. The county superintendent also has
specified responsibilities and powers with respect to a school district that is in financial
11
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In a similar vein, the county superintendent of schools plays an important role in
ensuring the accountability of instructional programs. Every school district must adopt,
and then annually update, a “local control and accountability plan” that includes goals and
specific measures the district will implement in order to advance an array of state
educational priorities for student achievement.56 The county superintendent of schools
must review, and either approve or disapprove, the plan for each district under his or her
jurisdiction.57
Some of the actions described above, such as investigating a school district’s
finances for fraud and mismanagement, or failing to approve a district’s accountability
plan, could adversely affect a city’s reputation and have other negative consequences for
the city if schools within the city were involved. A county superintendent who is also an
advocate for the city might not be able to remain free of bias in deciding whether or how
such actions should be undertaken. We are mindful that the incompatible offices doctrine
does not turn upon the integrity of the person concerned or his or her individual capacity
to achieve impartiality, but rather “‘applies inexorably if the offices come within it, no
matter how worthy the officer’s purpose . . . .’”58
A county superintendent’s responsibility for the allocation of certain funds may also
engender a clash of loyalties. Each county has a county school service fund,59 which the
county superintendent of schools uses to provide professional services for the coordination,
among school districts, of educational program components such as courses of study,
guidance services, health services, and school library services, and to provide those
services and other financial assistance to districts that, because of size or location, cannot
furnish satisfactory programs.60 The county superintendent of schools may also utilize the
distress. (See Ed. Code, § 42127.6, subds. (a)(1)(A)-(a)(1)(G), (c), (e), (f), (j).)
56
Ed. Code, §§ 52050.5, 52060-52065. A county superintendent of schools is
separately required to develop an accountability plan for adoption by the county board of
education. (Ed. Code, §§ 52066-52070.5.)
57
Ed. Code, §§ 52070. The county superintendent may also be required to provide
various forms of technical assistance to a school district. (Ed. Code, § 52071.) A school
district’s inadequate performance, according to specified criteria, may warrant direct
intervention by the state Superintendent of Public Instruction. (Ed. Code, § 52072.)
58
68 Ops.Cal.Atty.Gen., supra, at p. 243, quoting 3 McQuillin, Municipal Corporations
(rev. ed. 1973) § 12.67, p. 295.
59
Ed. Code, § 1600. The monies in each county school service fund come from
apportionments of the State School Fund. (Ed. Code, § 14043.)
60
Ed. Code, § 1700; see also Ed. Code, §§ 1703, 1720, 1730, 1740, 1750, 1760, 1770.
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county school service fund to provide temporary fund transfers, or additional
apportionments, to any county school district or community college district under specified
circumstances.61 Separate from the county school service fund, each county superintendent
is responsible for the allocation of property tax revenues dedicated to support special
education programs,62 and it appears that he or she has some discretion in the performance
of that duty.63 With respect to both the county school service funds and special education
funds, a county superintendent of schools is required to maintain a county-wide
perspective,64 whereas, were a city council member in charge of these funds, that person
might give greater attention to the needs of the city’s residents and schools.
—Relationships Through the County Board of Education
Significant clashes of duties and loyalties with respect to the positions in question
could also derive from actions taken by the county board of education65 in which the county
superintendent of schools, as the board’s executive officer, is substantially involved. We
have previously characterized the offices of county board of education member and county
superintendent of schools as analogous offices in relation to the office of member of the
61
Ed. Code, §§ 1602, 42621, 42622.
62
Ed. Code, §§ 2570-2572. The administration of special education programs is
governed by Education Code sections 56000 through 56885.
63
As we have previously explained, “[n]o statute requires specific property tax revenues
to fund particular special education programs, and the revenues are not tied to the special
education program needs of particular pupils. Rather, [Education Code] section 2572
specifies only that special education property tax revenues must be allocated by a county
superintendent of schools for ‘special education programs.’” (89 Ops.Cal.Atty.Gen. 182,
185 (2006).)
64
See, e.g., Ed. Code, § 56140, subd. (a) (county superintendent must develop a plan
that “ensures that all individuals with exceptional needs residing within the county … will
have access to appropriate special education programs and related services”); see also Ed.
Code, § 56022 (defining “county office” to mean “county superintendent of schools”).
65
A member of a county board of education holds a public office for purposes of the
incompatible offices prohibition. (79 Ops.Cal.Atty.Gen. 155, 157 (1996); 31
Ops.Cal.Atty.Gen. 170, 171 (1958).)
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State Board of Education.66 In other situations, too, we have ascribed the interests and
actions of a governing body to the officer or manager who carries out that body’s policies.67
A county board of education may act as the county committee on school district
organization,68 and the Contra Costa County Board of Education acts in that capacity.69 A
county committee also plays a significant role in the reorganization of school districts,
which includes the formation and dissolution of districts, and the transfer of territory
among districts.70 In addition to reorganizations initiated by the county committee itself, a
reorganization may be initiated by a petition submitted by electors, or a resolution
submitted by certain governing bodies, including a city council.71 A county committee
must hold a hearing on the petition or resolution, and adopt a final recommendation to
transmit to the State Board of Education.72 A county superintendent of schools has specific
responsibilities in connection with school district reorganizations,73 and also would be
66
74 Ops.Cal.Atty.Gen., supra, at pp. 120-121.
67
See, e.g., 80 Ops.Cal.Atty.Gen., supra, at p. 78 (areas of conflict for a city council
member just as applicable for a city manager); 67 Ops.Cal.Atty.Gen. 409, 414 (1984)
(incompatibility of offices of general manager of county water district and member of
county board of supervisors based on relationship between the water district governing
board and the county board of supervisors); 66 Ops.Cal.Atty.Gen., supra, at p. 179 (fire
protection district’s ability to enter into certain contracts deemed a source of conflict for
fire chief for purposes of incompatible offices analysis).
68
Ed. Code, §§ 4000, 4020. A county committee on school district organization
formulates plans and recommendations for the organization of the school districts in the
county. (Ed. Code, § 35720; 68 Ops.Cal.Atty.Gen., supra, at p. 243.)
69
Contra Costa County Office of Education, “County Board of Education,”
<https://www.cccoe.k12.ca.us/county_board/county_board_of_education> (as of Apr. 23,
2018) (board, as county committee, reviews changes in school district boundaries).
70
Ed. Code, §§ 35511, 35512, 35705-35710, 35780-35784; 68 Ops.Cal.Atty.Gen.,
supra, at p. 242. A school district reorganization generally requires the approval of the
county committee on school organization, the State Board of Education, and a majority of
the voters of the area. (68 Ops.Cal.Atty.Gen., supra, at p. 241.) Such a reorganization may
have a significant impact on the local community. For example, a reorganization may
result in reassignments of students and staff, altered traffic patterns, and changes to the
assets or diversity of the affected districts.
71
Ed. Code, § 35721, subds. (a)-(c).
72
Ed. Code, §§ 35721, subd. (d), 35722.
73
Ed. Code, §§ 35520-35521, 35563, 35700.1, 35704, 35710, subd. (a), 35710.51,
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expected, as the board of education’s executive officer, to advise the board sitting as the
committee on school district organization.74 Hence, a county superintendent of schools
who is also a city council member could find himself or herself in the untenable position
of having to advise the county board of education on a proposal or stance he or she had
already approved in his or her city council capacity.75 A dual office holder in this situation
cannot maintain the loyalty owed to the board on the one hand and the city on the other.
A city council and a county board of education, along with its county
superintendent, may also have different perspectives on the location of school sites. A
city’s general plan, which must be adopted by the city council, incudes the location of
educational facilities.76 The city’s general plan may be at odds with the purposes of the
county board of education and county superintendent. Conversely, the county board of
education, when establishing and locating community schools, may supersede city zoning
ordinances.77 The county superintendent of schools, who is tasked with operating
35756, 35758, 35763.
74
See 66 Ops.Cal.Atty.Gen., supra, at pp. 176, 179 (noting in a similar vein that a fire
chief would be expected to advise fire protection district board on district reorganizations,
district contracts, and other matters).
75
Indeed, it appears that there were communications between the Concord City Council
and the Contra Costa County Superintendent of Schools regarding a reorganization
proposal in 2017. A petition to split off part of the Mt. Diablo School District to form a
new district had been submitted to the county office of education. The proposed new
district was to include some Concord neighborhoods and schools. One issue that arose
with respect to the proposal was whether a vote on the proposal, which would occur if the
proposal was approved by the State Board of Education, should be held in the entirety of
the existing Mt. Diablo School District, or only in the territory that would be encompassed
by the proposed new district. In June 2017, the Concord City Council approved a letter to
the Contra Costa County Superintendent of Schools supporting the recommendation that
the vote be held in the entire Mt. Diablo School District. (See “Staff Report to Concord
City Council” (June 13, 2017) <http://www.cityofconcord.org/pdf/citygov/agendas/
council/2017/0613/9D.pdf> [as of Apr. 23, 2018]; “Minutes of Regular Meeting of the
Concord City Council” (June 13, 2017), p. 3 <http://www.cityofconcord.org/citygov/
agendas/council/minutes/2017/06132017.pdf> [as of Apr. 23, 2018].) In this instance, the
County Office of Education agreed with the position on a potential election taken by the
Concord City Council, but that does not foreclose the potential for conflict between the
role of county superintendent and that of city council member in this kind of situation.
76
Gov. Code, §§ 65302, subd. (a), 65350, 65356.
77
See 79 Ops.Cal.Atty.Gen., supra, at p. 158. Enrollment in community schools, which
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community schools,78 would have an obvious interest in the site selection of such schools.
This interest could clash with a city council member’s interest in the preservation of the
city’s zoning regulations, so as to disqualify a person from concurrently holding both
offices.79
Finally, a county board of education may, under certain circumstances, exercise
some of the same powers that a city council does. Education Code section 1080 permits a
county board of supervisors to transfer certain functions and powers to that county’s board
of education,80 including the power of eminent domain and the power to enter into
agreements.81 Where a county board of education is authorized to exercise such powers,
the board and the city could each condemn property of the other,82 or both might wish to
condemn the same property. As we have previously determined, the common ability to
use eminent domain within a given territory results in a potential conflict for the officials
invested with the power.83 A county board of education would also have the express
may be established by the county board of education, includes students who have been
expelled from a school district for serious offenses, or have been referred by a school
attendance review board, or who are wards of the juvenile court. (Ed. Code, §§ 1980, 1981,
subds. (a)-(c).) The county board of education is deemed to be a school district for purposes
of maintaining a county community school (Ed. Code, § 1984), and the governing board
of a school district “may render a city or county zoning ordinance inapplicable to a
proposed use of property by the school district.” (Gov. Code, § 53094, subd. (b); see also
San Jose Unified School Dist. v. Santa Clara County Off. of Ed. (2017) 7 Cal.App.5th 967,
970-984, 984, fn. 9 [Government Code section 53094 does not authorize county boards of
education to issue zoning exemptions for charter schools, but zoning exemptions invoked
by county boards of education for community schools were appropriate under the court’s
construction of section 53094].)
78
Ed. Code, § 1986.
79
The Contra Costa County Office of Education operates a community school program
at several sites within the county, though as of the date of this opinion, none is in Concord.
(Contra Costa Office of Education, “Court and Community Schools: Golden Gate
Community Schools,” <https://www.cccoe.k12.ca.us/cms/One.aspx?portalId=1077397&
pageId=2978892> [as of Apr. 23, 2018].)
80
Ed. Code, § 1080.
81
Ed. Code, §§ 1047, 1080, subd. (c); Gov. Code, § 23004, subd. (c).
82
See Code Civ. Proc., § 1240.610 (a public body may condemn property of another
public body where a superior use can be shown).
83
97 Ops.Cal.Atty.Gen., supra, at p. 54; 85 Ops.Cal.Atty.Gen., supra, at p. 201; 80
Ops.Cal.Atty.Gen. 242, 244 (1997); 65 Ops.Cal.Atty.Gen., supra, at p. 607; 37
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authority, as does a city, to organize, promote, and conduct programs of community
recreation.84 A board of education and a city having jurisdiction over the same territory,
as is the case here, or contiguous territories, may jointly provide recreation,85 or may
compete with each other to do so. Either way, the interests of a county superintendent of
schools and a city council member could diverge.86 What is best for the county schools
and the county as a whole may not be what is best for the city.
The examples above do not exhaust the possibilities for conflict, but they
demonstrate that the concurrent holding of the offices at issue here would give rise to a
multitude of actual and potential clashes of duties and loyalties “in the regular operation of
the statutory plan.”87 As noted at the outset, “only one significant clash of duties and
loyalties is required to render offices incompatible.”88 As a matter of public policy, too,
“when the duties of two offices are repugnant or overlap so that their exercise may require
contradictory or inconsistent action, to the detriment of the public interest, their discharge
by one person is incompatible with that interest.”89
In light of the foregoing, we conclude that a person may not simultaneously serve
as a member of the Concord City Council and as the Contra Costa County Superintendent
of Schools.
*****
Ops.Cal.Atty.Gen., supra, at p. 22.
84
Ed. Code, §§ 1080, subd. (d), 10900-10903.
85
Ed. Code, § 10905; 91 Ops.Cal.Atty.Gen. 61, 63, fn. 10 (2008).
86
See 82 Ops.Cal.Atty.Gen., supra, at p. 76 (conflict could arise where both entities
authorized to construct same type of facilities); 76 Ops.Cal.Atty.Gen. 81, 85 (1993)
(conflict could arise where both entities may enter into contracts involving matters of
mutual concern with third parties); 66 Ops.Cal.Atty.Gen., supra, at pp. 176, 179
(agreements for joint projects create conflicts).
87
See 85 Ops.Cal.Atty.Gen., supra, at p. 241.
88
80 Ops.Cal.Atty.Gen., supra, at p. 76.
89
People ex rel. Bagshaw v. Thompson (1942) 55 Cal.App.2d 147, 150; accord, 93
Ops.Cal.Atty.Gen., supra, at p. 109.
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