Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL

State of California

XAVIER BECERRA

Attorney General

_________________________

:

OPINION : No. 18-301

:

of : April 19, 2019

:

XAVIER BECERRA :

Attorney General :

:

CATHERINE BIDART :

Deputy Attorney General :

:

________________________________________________________________________

Proposed relator, MIGUEL SANCHEZ, requests leave to sue proposed defendant

LETICIA PRADO in quo warranto to remove her from the public office of member of the

Governing Board of the Vineland School District (School District trustee) on the ground

that she has assumed a second, incompatible public office as a director of the Lamont

Public Utility District (Utility District trustee), in violation of the ban on simultaneously

holding incompatible offices set forth in Government Code section 1099.

CONCLUSION

Leave to sue is GRANTED because we find that a substantial issue of fact or law

exists as to whether the offices of School District trustee and Utility District trustee are

incompatible and cannot be held at the same time under Government Code section 1099,

and therefore whether proposed defendant LETICIA PRADO has forfeited and must vacate

her office of School District trustee.

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ANALYSIS

We are asked to grant leave to sue in quo warranto1 to remove proposed defendant

Leticia Prado from the office of School District trustee on the ground that she

simultaneously holds the incompatible office of Utility District trustee.2 As we will

explain, the Utility District’s power to supply water and sewer services to the School

District creates a substantial issue of fact or law as to whether the offices are incompatible,

warranting leave to sue.

In December 2016, shortly after Ms. Prado assumed office as School District trustee,

she assumed the additional office of Utility District trustee.3 The School District has two

schools, at least one of which is within the service area of the Utility District.4 The Utility

District provides water and sewer services, but such a district may also provide a variety

of other services ranging from fire protection to cable television.5

1

Latin for “by what authority,” quo warranto was originally a writ used by English

monarchs to challenge a royal subject’s claim to an office or franchise supposedly granted

by the Crown. (California Attorney General’s Office, Quo Warranto (1990), p. 1, available

at <https://oag.ca.gov/sites/all/files/agweb/pdfs/ag_opinions/quo-warranto-guidelines

.pdf> [as of April 18, 2019].) Quo warranto has evolved into a statutory proceeding to

determine, among other things, whether a person is entitled to hold a particular public

office. (Id. at p. 3.)

2

Upon our inquiry, Ms. Prado stated her intent to oppose the present quo warranto

application, but has not in fact submitted any opposition. Our decision is therefore based

on proposed relator’s unopposed application and applicable law.

3

We are informed that Ms. Prado also held these offices, which have four-year terms,

in the immediately preceding term. She was reelected to both offices in November of 2016,

sworn into office as School District trustee on December 12, 2016, and sworn into office

as Utility District trustee on December 13, 2016.

4

See <http://vineland.k12.ca.us/history/> (Vineland School District is composed of

Vineland School and Sunset School) (as of April 18, 2019); <http://lpud.org/service-

areas/> (Utility District’s service area “includes a non-contiguous area, comprising

approximately 80 acres [that] consists of the property occupied by Sunset School and the

adjacent residential properties”) (as of April 18, 2019).

5

Pub. Util. Code, §§ 16461, 16463, 16463.5; Cequel III Communications I, LLC v.

Local Agency Formation Com. of Nevada County (2007) 149 Cal.App.4th 310, 317; see

<http://lpud.org/water/> (describing Utility District’s water services) (as of April 18,

2019); <http://lpud.org/sewer/> (describing Utility District’s sewer services) (as of April

18, 2019). Records submitted by the proposed relator to our office show that the Vineland

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Government Code section 1099 codifies the common law prohibition against

holding incompatible public offices, and the common law prohibition continues to inform

and govern application of the statutory prohibition.6 An office is incompatible with another

office if one of them has supervisory, auditory, removal, or veto power over the other.7

Incompatibility also exists where there is a potential for a significant clash of duties or

loyalties between the offices in light of their respective powers and jurisdiction.8 Public

policy considerations may also require a finding of incompatibility.9 However, holding

incompatible offices is nevertheless permitted where it is compelled or expressly

authorized by law.10

Upon assuming a public office that is incompatible with one that the officer already

holds, the officer is “deemed to have forfeited the first office upon acceding to the

second.”11 If the officer does not vacate the first office, an action to enforce the forfeiture

may exist under Code of Civil Procedure section 803.12 This section authorizes a person,

with permission from the Attorney General, to bring a quo warranto lawsuit (in the name

of the People of the State of California) “against any person who usurps, intrudes into, or

unlawfully holds or exercises any public office . . . .”13

School District has made payments for two accounts with the Utility District. That might

indicate that the School District receives water or sewer services, or both, from the Utility

District for both its schools, but we see no further evidence disclosing that. Importantly,

however, at least one of the two schools is clearly within the Utility District’s service area.

(See <http://lpud.org/service-areas/> [as of April 18, 2019].)

6

Gov. Code, § 1099, subd. (f); Stats. 2005, ch. 254, § 2 (“Nothing in this act is intended

to expand or contract the common law rule prohibiting an individual from holding

incompatible public offices. It is intended that courts interpreting this act shall be guided

by judicial and administrative precedent concerning incompatible public offices developed

under the common law”).

7

Gov. Code, § 1099, subd. (a)(1).

8

Gov. Code, § 1099, subd. (a)(2).

9

Gov. Code, § 1099, subd. (a)(3).

10

Gov. Code, § 1099, subd. (a). The simultaneous holding of the two offices at issue

here is not compelled or expressly authorized by law.

11

Gov. Code, § 1099, subd. (b).

12

Gov. Code, § 1099, subd. (b).

13

Code Civ. Proc., § 803. The statute also authorizes the Attorney General to bring

such a suit directly.

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Seeing that quo warranto is the applicable remedy, we must decide whether to

grant leave to sue.14 In doing so, we do not endeavor to make a conclusive determination

on the merits.15 Rather, we assess whether a substantial issue of fact or law exists

warranting judicial resolution,16 and, if so, whether allowing the proposed action to

proceed would serve the overall public interest.17

Substantial Issue as to Incompatibility of Offices

In light of the incompatible-offices ban, does simultaneous service as School

District trustee and Utility District trustee create a substantial issue of fact or law

warranting judicial resolution? In looking at potential grounds for incompatibility we

observe that neither of these public offices18 holds supervisory, auditory, removal, or veto

power over the other. Thus, we must look to the relevant duties and powers of the two

offices to discern whether holding them at the same time risks a significant clash of duties

or loyalties.19

A school district, acting through its trustees, is responsible for obtaining water and

sewer services for the benefit of its constituent schools, students, and employees.20 A

14

See Rando v. Harris (2014) 228 Cal.App.4th 868, 879.

15

87 Ops.Cal.Atty.Gen. 30, 31 (2004) (explaining that we make no final judgment on

the merits but “a substantial showing must be made before we will authorize a judicial

challenge to a person’s right to hold public office,” quoting 84 Ops.Cal.Atty.Gen. 154, 156

(2001)); 73 Ops.Cal.Atty.Gen. 354, 354-355 (1990) (stating that it is not within the

Attorney General’s province “to determine which party should or is likely to prevail”).

16

Rando v. Harris, supra, 228 Cal.App.4th at p. 879.

17

Ibid.

18

We have previously determined, in separate opinions, that a school district trustee and

a utility district trustee are “public offices” for purposes of the ban (see 73

Ops.Cal.Atty.Gen. 268, 270 (1990) (school district); 68 Ops.Cal.Atty.Gen. 240, 241 (1985)

(same); 64 Ops.Cal.Atty.Gen. 137, 137-138 (1981) (public utility district)), and see no

reason to revisit that analysis.

19

Because our analysis will demonstrate the potential for a significant clash of duties or

loyalties, thereby providing sufficient grounds upon which to grant leave to sue, we do not

separately address whether public policy considerations might also provide a basis for

doing so.

20

85 Ops.Cal.Atty.Gen. 60, 61 (2002) (“The board of trustees of a school district has

the responsibility of obtaining necessary water supplies and sewage disposal services for

the district,” citing Education Code sections 17556, 17569, 17577, which have not since

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utility district, acting through its trustees, is empowered to supply those services.21 Indeed,

the Utility District here supplies water and sewer services.22

We have previously determined that a person simultaneously holding offices with

similar duties would potentially face a significant clash of duties or loyalties. Though our

prior opinions did not arise in the precise context of school district trustee and utility district

trustee, they arose in a similar context where a school district trustee simultaneously held

office with an entity empowered to provide that school district with water or sewer

services.23 In deciding a similar issue in the quo warranto context, we found a substantial

issue of fact or law warranted the granting of leave to sue.24 Further, when asked to

conclude outright whether the offices were incompatible (i.e., not merely whether a

substantial issue exists as to their incompatibility), we determined that the incompatible-

offices ban prohibits simultaneously holding such offices.25

Here, we are asked for the first time to grant leave to sue where the entity

empowered to supply the school district with water or sewer services is a utility district.

We think the analysis in our prior opinions applies here and illustrates a potential for a

significant clash of duties or loyalties between the offices of School District trustee and

Utility District trustee.

been amended).

21

Pub. Util. Code, §§ 16031, 16461.

22

See <http://lpud.org/water/> (describing Utility District’s water services) (as of April

18, 2019); <http://lpud.org/sewer/> (describing Utility District’s sewer services) (as of

April 18, 2019).

23

See, e.g., 85 Ops.Cal.Atty.Gen., supra, at p. 60 (offices with school district and water

district incompatible); 75 Ops.Cal.Atty.Gen. 112, 113 (1992) (granting leave to sue to test

whether offices with school district and community services district are incompatible); 73

Ops.Cal.Atty.Gen., supra, at pp. 268, 272 (granting leave to sue to test whether offices

with school district and water district are incompatible); 73 Ops.Cal.Atty.Gen. 183, 183,

188 (1990) (granting leave to sue to test whether offices with school district and community

services district are incompatible); 65 Ops.Cal.Atty.Gen. 606, 607, 609 (1982) (offices of

school district and city council are incompatible because, among other things, city and

school are authorized to contract with each other for sewer facilities).

24

See, e.g. 75 Ops.Cal.Atty.Gen., supra, at pp. 113, 115; 73 Ops.Cal.Atty.Gen., supra

at pp. 268, 272; 73 Ops.Cal.Atty.Gen., supra, at pp. 183-188.

25

See, e.g., 85 Ops.Cal.Atty.Gen., supra, at p. 60; 65 Ops.Cal.Atty.Gen., supra, at

pp. 607, 609.

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For instance, in 2002, we concluded that two public offices within a school district

and water district were incompatible, even though there was no direct contractual

relationship between the two entities.26 The school used its own septic tanks for sewage

and mostly used its own wells for irrigation water, but obtained non-irrigation water from

agencies supplied by the water district.27 We found that the possibility of a decision by the

school district to abandon its wells and instead obtain irrigation water supplied indirectly

by the water district created a clash of loyalties.28 We found a similar clash based on the

possible decision by the school district to abandon its septic tanks and instead use the water

district’s sewer facilities.29 We recognized that these decisions would affect the school

district and water district in different ways, and that what may be in the best interests of

one might not be in the best interests of the other.30 We also identified further potential

clashes, including that the water district set the wholesale water rate that is passed on to

the school district by the retail water agencies.31

And in 1992 and 1990, we granted leave to sue in quo warranto based on the

incompatibility-offices ban in the context of a school district trustee and community

services district officer.32 Our 1992 opinion provided in relevant part:

Whether the two offices at issue are incompatible need not be

extensively discussed. The precise question was analyzed recently in 73

Ops.Cal.Atty.Gen. 183 (1990). In [that] opinion, a community services

district supplied water to a school district. We analyzed the duties of the

community services district director with respect to (1) determining water

rates for various users, (2) taking action to collect unpaid charges,

(3) assessing penalties, (4) entering into contracts with other public entities

for the installation of requisite water facilities, and (5) imposing capital

facilities fees on water users and contracts with respect thereto. We also

pointed out that the same person, as a school district trustee, would be

involved in matters such as (1) whether to pay for or contest charges for water

services, which if unpaid could become a lien upon school district property,

26

85 Ops.Cal.Atty.Gen., supra, at p. 60.

27

85 Ops.Cal.Atty.Gen., supra, at p. 60.

28

85 Ops.Cal.Atty.Gen., supra, at p. 62.

29

85 Ops.Cal.Atty.Gen., supra, at p. 62.

30

85 Ops.Cal.Atty.Gen., supra, at p. 62.

31

85 Ops.Cal.Atty.Gen., supra, at p. 62.

32

75 Ops.Cal.Atty.Gen., supra, at p. 113; 73 Ops.Cal.Atty.Gen., supra, at p. 183.

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and (2) any contract negotiations with the community services district over

matters of mutual interest. Based solely upon the fact that the community

services district was supplying water to the school district, we concluded that

leave to sue should be granted. We stated [that] “. . . upon this function

alone, without regard to the numerous others which may be assumed in the

future, our determination that principal or important duties, functions, and

responsibilities of the respective offices either are or might come into

conflict.”33

The 1992 opinion went on to conclude that the danger of a significant clash of loyalties

was even greater than in the 1990 opinion because the community services district supplied

both water and sewer services (rather than just water) to the school district.34

Here, the Utility District, similar to the entities discussed in our prior opinions, is

authorized to provide the School District with water and sewer services.35 While a utility

district’s authority to provide such services derives mostly from its own statutes36 (rather

than those specific to a community services district37 or water district38), the duties and

implications arising from such authority are sufficiently similar for purposes of the

incompatible-offices ban.39 For example, a utility district may charge and set rates; it may

institute a special tax or assessment to pay for district operations; and, if a user’s payment

is delinquent, the district may take action to collect unpaid charges, which may be added

33

75 Ops.Cal.Atty.Gen., supra, at p. 115, italics added, quoting 73 Ops.Cal.Atty.Gen.,

supra, at p. 185.

34

See 75 Ops.Cal.Atty.Gen., supra, at p. 116.

35

See Pub. Util. Code, § 16461.

36

Ibid.; Pub. Util. Code, § 15501 et seq. (“Public Utility District Act”); see also Pub.

Util. Code, § 16407 (conferring utility district with same powers “as are conferred upon

municipal water districts by Part 7 [commencing with Section 71851] and Part 8

[commencing with Section 72000] of Division 20 of the Water Code”).

See Gov. Code, § 61000 et seq. (“Community Services District Law”); see, e.g., Gov.

37

Code, § 61100.

38

See Wat. Code, § 71000 et seq. (“Municipal Water District Law of 1911”); see, e.g.,

Wat. Code, § 71610.

39

See, e.g., 64 Ops.Cal.Atty.Gen., supra, at p. 140 (examining potential interactions

between offices previously found incompatible and determining other offices likewise

incompatible).

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to an assessment and become a lien against the land.40 A dual officeholder’s awareness

that the School District is on the receiving end of such Utility District decisions may well

create a significant conflict of loyalties.

In addition, our prior opinions recognized that a community services district could

provide more than just water or sewer services (including, among others, fire protection,

parks and recreation, street lighting, refuse disposal, and police protection), and concluded

that “the question whether to add one or more community services district functions could

place an individual who is both a community services district director and a school district

trustee in a role of divided duties and loyalties.”41

The same is true here. In addition to water and sewer services, a utility district may

provide an array of services including fire protection, recreation, light, power, heat, refuse

disposal, transportation, and cable television, among other things.42 A decision by the

School District to acquire further services from the Utility District could place a person

who is a trustee of both entities in a role of divided duties and loyalties.

Furthermore, both the Utility District and School District have eminent domain

power over the other for a superior purpose.43 On numerous occasions we have determined

40

See, e.g., Pub. Util. Code, §§ 16467 (board must fix charges “for commodities or

service furnished by any revenue producing utility as will pay all of the expenses of the

government of the district, or such portion as the board determines justly apportionable to

such utility”), 16468 (“[c]harges fixed by the board for commodities or services furnished

may be made payable in advance”), 16469 (unpaid charges may be added to assessment),

16470 (charges added to assessment are lien against the land), 16485 (authorizing

electricity stand-by charge), 16641.5 (authorizing special tax), 16651 (district sets tax rate

of county assessment); see also Pub. Util. Code, §§ 16409 (authorizing higher rates for

water service in specified circumstances), 16606 (rates charged subject to review by

“qualified expert”).

41

75 Ops.Cal.Atty.Gen., supra, at pp. 115-116; see also 73 Ops.Cal.Atty.Gen., supra,

at p. 185.

42

Pub. Util. Code, §§ 16461, 16463, 16463.5; Cequel III Communications I, LLC v.

Local Agency Formation Com. of Nevada County, supra, 149 Cal.App.4th at p. 317.

43

Code Civ. Proc., § 1240.610; Ed. Code, § 35270.5 (authorizing eminent domain by

school district); Pub. Util. Code, § 16404 (authorizing eminent domain by utility district).

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that this common power of eminent domain creates a significant division of loyalties,44 so

we think this common power here must at least create the possibility of divided loyalties.

In sum, the duties and powers held by a School District trustee and Utility District

trustee demonstrate that a person who holds both offices simultaneously could have divided

loyalties in numerous situations arising from the conduct and operation of each district.

What might be best for the School District might not be best for the Utility District, and

vice versa. As only one potential significant clash of duties or loyalties needs to exist to

render offices incompatible, we find a substantial issue of fact or law exists warranting

judicial resolution.45

Public Interest in Allowing Quo Warranto Action to Proceed

We now turn to the question whether granting leave to sue would serve the public

interest. “We generally view the need for judicial resolution of a substantial question of

fact or law as a sufficient ‘public purpose’ to warrant granting leave to sue, absent

countervailing circumstances not present here (such as pending litigation or shortness of

time remaining in the term of office).”46 And here specifically, allowing the suit in quo

warranto would serve the public interest by ensuring that public officials avoid conflicting

loyalties in performing their duties.

Based on all of the foregoing, the application for leave to sue in quo warranto is

GRANTED.

*****

44

See, e.g., 98 Ops.Cal.Atty.Gen. 94, 100 (2015); 76 Ops.Cal.Atty.Gen. 81, 85 (1993)

(listing matters of mutual concern, including common right of eminent domain, that render

“offices incompatible as a matter of law”); 75 Ops.Cal.Atty.Gen. 10, 13-14 (1992); 68

Ops.Cal.Atty.Gen. 171, 173-174 (1985).

45

See Gov. Code, § 1099, subd. (a)(2); 73 Ops.Cal.Atty.Gen., supra, at p. 270 (stating

that only one potential for significant clash is sufficient to render two offices incompatible).

46

98 Ops.Cal.Atty.Gen., supra, at p. 101.

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