The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_________________________
:
OPINION : No. 21-103
:
of : October 29, 2021
:
ROB BONTA :
Attorney General :
:
MARC J. NOLAN :
Deputy Attorney General :
________________________________________________________________________
MELISSA LOUDEN has applied to this office for leave to sue TIM SHAW in quo
warranto to remove him from his public office as a member of the Orange County Board
of Education. The application asserts that Shaw, while serving his term on the County
Board of Education, assumed a second and incompatible public office as a member of the
La Habra City Council, in violation of Government Code section 1099, and by doing so
forfeited his seat on the Board of Education.
We conclude that there is a substantial legal issue as to whether Shaw is
simultaneously holding incompatible public offices as a member of both the Orange
County Board of Education and the La Habra City Council. Consequently, and because
the public interest will be served by allowing the proposed quo warranto action to proceed,
the application for leave to sue is GRANTED.
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INTRODUCTION AND BACKGROUND
The Orange County Department of Education supports and oversees the finances of
28 school districts, which collectively serve more than 600 schools and approximately
475,000 students within Orange County. 1 The Department also provides direct instruction
to thousands of students throughout the county through its special education and alternative
school programs, which include a number of “county community schools.” 2 The
Department is governed by the Orange County Board of Education, which consists of five
members who represent the five geographical trustee areas of the county. 3 The voters of
each trustee area elect their respective board members for four-year terms. 4 Trustee
District Four includes the cities of Buena Park, Fullerton, La Habra, Placentia, and parts of
Anaheim. 5
In the March 3, 2020 primary election, Tim Shaw was elected to a four-year term
on the Orange County Board of Education representing the Fourth Trustee District, and he
was sworn into that office at the Board meeting held on July 1, 2020. 6 In the November 3,
2020 general election—while already serving as a member of the Board of Education—
1
Orange County Dept. of Ed., About OCDE <https://ocde.us/AboutOCDE/Pages/defa
ult.aspx> (as of Oct. 26, 2021).
2
Ibid.; see Cal. Dept. of Ed., County Community Schools
<https://www.cde.ca.gov/sp/eo/cc/> (as of Oct. 26, 2021) (“County community schools are
public schools that are run by county offices of education. They educate students in
kindergarten through grade twelve who are expelled from school or who are referred
because of attendance or behavior problems. They also serve students who are homeless,
on probation or parole, and who are not attending any school”).
3
Orange County Dept. of Ed., About the Board <https://ocde.us/Board/Pages/About-
the-Board.aspx> (as of Oct. 26, 2021). The Board is also deemed to be in a school district
in its own right in its operation of direct instruction community schools. (Ed. Code,
§§ 1980, 1984.)
4
Orange County Dept. of Ed., About the Board <https://ocde.us/Board/Pages/About-
the-Board.aspx> (as of Oct. 26, 2021).
5
Orange County Dept. of Ed., Orange Co. Bd. of Ed., Dist. 4, Tim Shaw <https://ocde
.us/Board/Pages/Shaw.aspx> (as of Oct. 26, 2021).
6
Orange County Dept. of Ed., Orange Co. Bd. of Ed., Minutes of July 1, 2020 Regular
Meeting <https://ocde.us/Board/Documents/2020%20Minutes%20and%20Transcripts/Mi
nutes%2007.01.2020.pdf> (as of Oct. 26, 2021).
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Shaw won election to a four-year term on the La Habra City Council, and he was sworn
into that office on December 21, 2020. 7
The applicant here is Melissa Louden, who resides in the Orange County
Department of Education’s Fourth Trustee District. Louden contends that the two offices
Shaw currently holds are legally incompatible under Government Code section 1099
because of the possibility of significant clashes of duties and loyalties. Section 1099(b)
provides that an incumbent public officeholder who assumes a second, incompatible public
office thereby forfeits the first office held, and that this forfeiture is enforceable through an
action in quo warranto. Based on this alleged incompatibility of offices, Louden requests
our permission to initiate a quo warranto lawsuit in superior court that would seek to oust
Shaw from his seat on the Orange County Board of Education. For his part, Shaw
maintains that there is no incompatibility between the two offices he currently holds, and
that we should therefore deny Louden’s request.
Quo warranto is a civil action used, among other purposes, to challenge an
incumbent public official’s right or eligibility to hold a given public office. 8 This form of
action is codified in section 803 of the Code of Civil Procedure, which provides that “[a]n
action may be brought by the attorney-general, in the name of the people of this state, upon
his own information, or upon a complaint of a private party, against any person who usurps,
intrudes into, or unlawfully holds or exercises any public office . . . within this state.” 9
Where, as here, a private party seeks to pursue a quo warranto action in superior
court, that party (known in this context as a relator, or proposed relator) must first apply
for and obtain the Attorney General’s consent to do so. In determining whether to grant
that consent, we do not attempt to resolve the merits of the controversy. Rather, we
consider (1) whether quo warranto is an available and appropriate remedy; (2) whether the
proposed relator has raised a substantial issue of law or fact that warrants judicial
resolution, and (3) whether authorizing the quo warranto action will serve the public
7
City of La Habra, City Council, Minutes of Dec. 21, 2020 Regular Meeting, p. 2
<https://lahabraca.gov/AgendaCenter/ViewFile/Minutes/_12212020-1413> (as of Oct. 26,
2021).
8
Code Civ. Proc., § 803; Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221,
1225; 76 Ops.Cal.Atty.Gen. 157, 162-163 (1993).
9
Code Civ. Proc., § 803; see Rando v. Harris (2014) 228 Cal.App.4th 868, 873;
97 Ops.Cal.Atty.Gen. 12, 14 (2014).
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interest. 10 As we discuss below, the answer to all three questions in our consideration of
the present application is “yes,” and we therefore grant leave to sue.
ANALYSIS
1. Availability of Quo Warranto Remedy
Section 1099(b) directs that the forfeiture of an incompatible public office is
“enforceable pursuant to Section 803 of the Code of Civil Procedure,” which authorizes an
action in the nature of quo warranto to remove a person who unlawfully holds any public
office. Under section 1099(a), a “public office” includes membership on a governmental
board or body, such as a county board of education or a city council. 11 Thus, quo warranto
is an available and appropriate remedy here.
2. Substantial Issues Regarding Incompatibility
We next examine whether there are substantial issues of law or fact as to the
incompatibility of the two public offices in question. Section 1099 provides that “[a] public
officer, including, but not limited to, an appointed or elected member of a government
board, commission, committee, or other body, shall not simultaneously hold two public
offices that are incompatible . . . , unless simultaneous holding of the particular offices is
compelled or expressly authorized by law.” 12 The prohibition “springs from considerations
of public policy which demand that a public officer discharge his or her duties with
undivided loyalty.” 13
10
Rando v. Harris, supra, 228 Cal.App.4th at pp. 868, 879; 72 Ops.Cal.Atty.Gen. 15,
20 (1989).
11
Apart from the statutory definition cited above, we have also previously concluded
that the two types of offices at issue here are “public offices” for purposes of an
incompatible public offices analysis. (See, e.g., 79 Ops.Cal.Atty.Gen. 155, 157 (1996)
[county board of education]; 98 Ops.Cal.Atty.Gen. 94, 96 (2015) [city council member].)
Under the criteria established by applicable precedent, each one is a public office because
it is (1) a governmental position, (2) created by law, (3) having a continuing and permanent
tenure, (4) in which the incumbent performs a public function for the public benefit and
exercises some of the state’s sovereign powers. (See Moore v. Panish (1982) 32 Cal.3d
535, 545; People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636, 637-640 (Rapsey);
98 Ops.Cal.Atty.Gen., supra, at pp. 96-97.)
12
Gov. Code, § 1099(a).
13
68 Ops.Cal.Atty.Gen. 337, 339 (1985).
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Two offices are incompatible in circumstances where: (1) one of them has
supervisory, audit, removal, or veto power over the other; 14 (2) “there is a possibility of a
significant clash of duties or loyalties between the offices;” 15 or (3) “[p]ublic policy
considerations make it improper for one person to hold both offices.” 16 Upon a finding
that two offices are legally incompatible, “a public officer shall be deemed to have forfeited
the first office upon acceding to the second.” 17
We begin by dispensing with two criteria that are not at issue here. First, we observe
that Shaw is not “compelled or expressly authorized by law” to simultaneously hold the
two public offices at issue here within the meaning of section 1099(a), so that provision
presents no bar to our consideration of potential incompatibility. In addition, neither office
has supervisory, audit, removal, or veto power over the other within the meaning of section
1099(a)(1). Accordingly, we focus our attention on whether, as the application contends,
there may be a significant clash of duties or loyalties, within the meaning of section
1099(a)(2), when the same individual is a member of both the Orange County Board of
Education and the La Habra City Council. 18
To find that two offices are incompatible based on a significant clash of duties or
loyalties, a conflict need not have actually occurred; it is enough that a conflict may occur
in the regular operation of the statutory plan. 19 It is not necessary that the clash of duty
exist in all or in the greater part of the official functions; incompatibility exists when the
holder of the two offices cannot in every instance discharge the duties of each. 20 Indeed,
“[o]nly one potential significant clash of duties or loyalties is necessary to make offices
incompatible.” 21 When two offices are deemed incompatible, the conflicted officeholder
14
Gov. Code, § 1099(a)(1).
15
Gov. Code, § 1099(a)(2).
16
Gov. Code, § 1099(a)(3).
17
Gov. Code, § 1099(b).
18
Because we conclude that there is a possibility of a significant clash of duties and
loyalties between these offices, we do not find it necessary to analyze whether, as a separate
matter, there may also be public policy reasons to prohibit the dual office-holding at issue
here within the meaning of section 1099(a)(3). Nor does the application allege that the
simultaneous holding of these particular offices is improper on the separate basis of public
policy considerations.
19
98 Ops.Cal.Atty.Gen., supra, at p. 96.
20
Rapsey, supra, 16 Cal.2d at pp. 641-642.
21
85 Ops.Cal.Atty.Gen. 199, 200 (2002).
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may not escape the effects of the doctrine by choosing not “‘to perform one of the
incompatible roles. The doctrine was designed to avoid the necessity for that choice.’” 22
Instead, as mentioned above, a finding of incompatibility dictates that the dual officeholder
forfeit the first office held. 23
Turning to the particular offices at issue, one of our recent incompatible-office
opinions directly informs our present analysis. In that 2018 opinion, we determined that
the public offices of superintendent of a county office of education and member of a city
council were incompatible, due to a foreseeable clash of duties and loyalties, where (as
here) the territorial jurisdiction of the two offices overlapped. 24 After reviewing the duties
of each office, we concluded that the offices were incompatible as there were “a number
of areas in which one or more significant clash of duties or loyalties between the offices
. . . could arise.” 25 Among these were the direct interactions that might occur between a
city council and a county superintendent of schools, such as contracting to have local health
agency personnel perform health supervision duties for school buildings and students. 26
The county superintendent may also enter into agreements to provide audiovisual services
and equipment to a city, 27 or to sell certain items of personal property belonging to the
county office of education to a city. 28
22
67 Ops.Cal.Atty.Gen. 409, 414 (1984), quoting 3 McQuillin, Municipal Corporations
(rev. ed. 1973) § 12.67, pp. 295-296.
23
Gov. Code, § 1099(b).
24
101 Ops.Cal.Atty.Gen. 56 (2018). The offices at issue there were Superintendent of
the Contra Costa County Office of Education and member of the City Council for the City
of Concord, which lies within the boundaries of Contra Costa County. We issued the 2018
opinion as an advisory opinion in which we concluded as a matter of law that the offices
in question were incompatible. (101 Ops.Cal.Atty.Gen., supra, at p. 69; see Gov. Code,
§ 12519 [Attorney General shall provide written opinions in response to requests from
specified public officials and agencies on questions of law relating to their respective
offices]). Here, in contrast, we are responding to a quo warranto application, and we are
not asked to reach a conclusion of law on the merits. Instead, as stated above, we simply
determine here whether there is a substantial question of law or fact that warrants a judicial
resolution.
25
Id. at p. 60.
26
See Health & Saf. Code, § 101425.
27
Ed. Code, § 1251.
28
Ed. Code, § 1279. These latter agreements must be approved, however, by the county
board of education. (Ed Code, §§ 1251, 1279(a)(4).)
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Of particular significance here, our finding of incompatibility between the offices
of city councilmember and county superintendent relied in substantial part on the
underlying relationships between the city council and the county board of education, of
which the county superintendent is the ex officio executive officer. 29 Notably, we observed
that a city council and a county board of education may differ in their preferences for the
location of school sites in areas within their respective and joint jurisdictions. 30 That
possibility exists here, as well. The La Habra City Council must adopt a general plan that
includes the locations of educational facilities. 31 Those locations may conflict with the
preferences of the county board of education. Moreover, the Orange County Board of
Education acts in the capacity of a school district in operating its own county community
schools and, in doing so, may vote to override the City of La Habra’s general plan and
zoning restrictions with respect to the use of property held by the Orange County
Department of Education for educational or instructional purposes. 32 The county board’s
interest in locating one of its schools or programs at a particular site could clash with a
city’s interest in preserving its zoning regulations.
In addition, we recognized in our earlier opinion that “a county board of education
may, under certain circumstances, exercise some of the same powers that a city council
does,” thereby giving rise to potential conflicts for an individual serving on both bodies. 33
Similarly here, the Orange County Board of Education and the La Habra City Council may
both exercise several powers in competing or conflicting ways. For example, both have
the power of eminent domain, creating the possibility that both bodies may wish to
condemn the same property or even condemn property of the other. 34 The county board
and the city council also both have the authority to organize, promote, and conduct
programs of community recreation, and they may jointly provide recreation or may
compete with each other to do so. 35 And both public agencies are authorized to enter into
agreements with each other under the Joint Exercise of Powers Act, in order to jointly
29
Ed. Code, § 1010.
30
101 Ops.Cal.Atty.Gen., supra, at p. 68.
31
Gov. Code, §§ 65302(a), 65350, 65356.
32
See 101 Ops.Cal.Atty.Gen., supra, at p 68 & fn. 77; Ed. Code, § 1984; Gov. Code,
§ 53094.
33
101 Ops.Cal.Atty.Gen., supra, at p. 68.
34
See Gov. Code, § 37350.5; Ed. Code, § 1047; Code of Civ. Proc., § 1240.610.
35
See Ed. Code, § 10905; 91 Ops.Cal.Atty.Gen. 61, 63, fn. 10 (2008).
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exercise a power they have in common. 36 In these instances as well, the interests and
purposes of the two agencies may well diverge, creating a conflict for a dual officeholder
elected to represent the best interests of both.
Our earlier opinion also found it significant that the Contra Costa County Board of
Education had a role in school district reorganizations and noted the potential for
disagreement between the countywide agency and the affected individual cities within that
county. 37 Here, Shaw attempts to distinguish his circumstances on the ground that the
Orange County Board of Education (unlike its Contra Costa counterpart) does not itself act
as the county committee on school district organization. But it is not correct that the
Orange County Board “has no role” in school district reorganizations, as Shaw contends.
To the contrary, in order to carry out its activities, the county committee relies on the county
board for administrative and financial support. The county board provides all funding for
the county committee to perform its duties, and this funding must be included in the budget
approved by the board. 38 In addition, only the county board has the authority to request
waivers from the State Board of Education from statutory requirements pertaining to
reorganized school districts (such as election requirements or provisions setting the
effective dates of reorganization). 39 Significantly, the county board may at any time
petition the State Board of Education to transfer the duties and powers of the county
committee back to the county board to act as the county committee on school district
organization for Orange County. 40 Thus, the Orange County Board of Education retains a
substantial interest in school district reorganizations throughout the county, and that
interest may well diverge with the interests of the City of La Habra and other cities within
the county.
Shaw also contends in general terms that our 2018 opinion is not relevant to his
circumstances because he holds the office of member trustee of a county board of education
and the prior opinion concerned the superintendent of a county board of education. We
disagree. In our view, the logic of our 2018 opinion applies to Shaw’s situation. A county
36
See Gov. Code, § 6500 et seq. As we noted in our 2018 opinion, “[n]egotiating any
such agreement, even if for the purpose of collaboration, would also entail a division of
loyalties for a dual office holder.” (101 Ops.Cal.Atty.Gen., supra, at p. 63 & fn. 47.)
37
101 Ops.Cal.Atty.Gen., supra, at pp. 66-67.
38
See Ed. Code, §§ 1080, 1510, 1604, 1621-1622.
39
See, e.g., Ed. Code, §§ 33050(a), 35534, 35710.
40
Ed. Code, §§ 4020-4021. As mentioned earlier, to find two offices incompatible, a
conflict need not have actually occurred; it is enough that a conflict may occur in the regular
operation of the statutory plan. (98 Ops.Cal.Atty.Gen., supra, at p. 96.)
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superintendent’s loyalties to the county department of education are markedly similar to a
board member trustee’s loyalties to the county department of education. Those interests
could diverge from the interests of a member of a city council in many of the same ways
and for many of the same reasons. In other words, the distinction between the interests of
a superintendent and member trustee would not appear to make a material difference to the
analysis under Government Code section 1099. Either office would owe a duty of loyalty
to the county department of education that could conflict with that owed by a city council
member to a city within that same county.
And as mentioned, when it provides direct student instruction through its
community schools, the Orange County Department of Education is also considered a
school district in its own right. 41 As such, it has the same duties and responsibilities as
other local school districts with respect to its students and facilities that are located at over
76 sites throughout the county, including in the City of La Habra. In this regard, we have
previously found the public offices of a school board member and city council member
with overlapping geographic jurisdictions to be incompatible because their essential
functions and duties presented potential conflicts. 42 Indeed, we have identified numerous
instances where a school board and a city council may engage in direct relationships, or
contract with each other, including contracts between a school district and a city for
community recreation, 43 health supervision, 44 library services, 45 and the sale or lease of
real property. 46 In addition, either public body may condemn property of the other where
a superior use can be shown; 47 school districts may dedicate real property to cities for
certain public purposes; 48 a city may chart the location of future schools in its planning and
zoning; 49 and city officials are charged with the enforcement of health and safety
regulations within the schools. 50 An individual serving in both governing bodies could
41
Ed. Code, §§ 1980, 1984.
42
65 Ops.Cal.Atty.Gen. 606, 607-608 (1982); 48 Ops.Cal.Atty.Gen. 141, 143 (1966);
see 73 Ops.Cal.Atty.Gen. 354, 356-357 (1990).
43
Ed. Code, § 10905.
44
Ed. Code, § 49402.
45
Ed. Code, §§ 18134-18136.
46
65 Ops.Cal.Atty.Gen., supra, at p. 607.
47
Code Civ. Proc. § 1240.610.
48
See Ed. Code, § 17556.
49
Gov. Code, §§ 65302(a), 66478.
50
Health & Saf. Code, § 101425.
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therefore encounter any number of situational conflicts because what is best for the city
may not always be what is best for the school district (and vice-versa), thereby
compromising the dual officeholder’s ability to vigorously represent and advocate for both
constituencies. 51
In sum, we find there to be multiple possibilities of a significant clash of duties or
loyalties within the meaning of Section 1099(a)(2) for an individual who simultaneously
holds both the offices at issue here. On this basis, we conclude that there is a substantial
legal issue warranting judicial resolution as to whether the offices that Shaw now holds are
incompatible, and whether he must therefore forfeit the first held office on the Orange
County Board of Education.
3. The Public Interest Favors Authorizing the Proposed Action
Finally, we also conclude that it is in the public interest to have this matter
conclusively resolved through the prescribed legal process of quo warranto. 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
(such as pending litigation or the fact that an officeholder’s term will soon expire) that are
not present here. 52 Allowing the proposed quo warranto action to proceed would serve the
public interest in ensuring that public officials avoid conflicting loyalties in performing
their public duties. Accordingly, the application for leave to sue in quo warranto is
GRANTED.
*****
51
65 Ops.Cal.Atty.Gen., supra, at p. 608; 48 Ops.Cal.Atty.Gen., supra, at p. 143.
52
98 Ops.Cal.Atty.Gen., supra, at p. 101; 95 Ops.Cal.Atty.Gen. 77, 87 (2012).
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