The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_______________
:
OPINION :
: No. 23-602
of :
: November 30, 2023
ROB BONTA :
Attorney General :
:
CATHERINE BIDART :
Deputy Attorney General :
The San Joaquin Delta Community College District has applied to this office for
leave to sue KATHLEEN GARCIA in quo warranto to remove her from serving as a
member of the San Joaquin Delta Community College District Board of Trustees. The
application asserts that Garcia, while serving on that board, assumed a second and
incompatible office as a member of the Eastside Rural Fire Protection District Board of
Trustees in violation of Government Code section 1099, and by doing so forfeited her
seat on the College District board.
We conclude that there is a substantial legal issue as to whether Garcia is
simultaneously holding incompatible offices. 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.
BACKGROUND
Kathleen Garcia was elected in 2020 to serve a four-year term on the San Joaquin
Delta Community College District Board of Trustees, which governs, maintains, and
operates the San Joaquin Delta College. 1 While serving on that board, Garcia was
1
See Ed. Code, § 70902, subd. (a)(1); San Joaquin Delta College, “About San Joaquin
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appointed in November of 2022 to the Eastside Rural Fire Protection District Board of
Trustees, whose powers include providing fire protection, emergency medical services,
and related education and training programs. 2 The fire protection district is located in
unincorporated areas that are east of and adjacent to the City of Stockton, and it falls
within a portion of the community college district’s territory in San Joaquin County. 3
The community college district also reaches portions of the counties of Alameda,
Sacramento, Solano, and Calaveras. 4
The San Joaquin Delta Community College District (College District) contends
that Garcia’s simultaneous office-holding violates Government Code section 1099. That
statute prohibits holding incompatible public offices and provides that assumption of a
second office that is incompatible with the first results in forfeiture of the first office,
which is enforceable by a superior court action in quo warranto. Based on the alleged
incompatibility, the College District requests our permission to file a quo warranto action
seeking Garcia’s removal from its board, on the ground that she forfeited that position
when she took office on the Eastside Rural Fire Protection District Board of Trustees.
Garcia did not provide any response to the application. Having received no opposition,
we proceed based on the application papers alone.
ANALYSIS
Quo warranto is a civil action that is used, among other purposes, to challenge an
incumbent public official’s right or eligibility to hold a given public office. 5 Code of
Delta College,” https://deltacollege.edu/about (“San Joaquin Delta College is a
comprehensive public community college operated by the San Joaquin Delta Community
College District”) (as of Nov. 20, 2023).
2
See Health & Saf. Code, §§ 13862, 13875, 13969; see also id., § 13861, subd. (i).
3
See San Joaquin Local Agency Formation Commission, Eastside Rural Fire Protection
District, https://www.sjlafco.org/eastside-rural-fire-protection-district (describing fire
protection district areas) (as of Nov. 20, 2023); San Joaquin Local Agency Formation
Commission, Eastside Rural Fire Protection District Map,
https://www.sjlafco.org/files/d6515e6c3/Eastside_FD.pdf (as of Nov. 20, 2023); San
Joaquin Delta College, District Map, https://deltacollege.edu/about/district-map (as of
Nov. 20, 2023).
4
San Joaquin Delta College, District Map, https://deltacollege.edu/about/district-map (as
of Nov. 20, 2023).
5
See Code Civ. Proc., § 803; Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th
1221, 1225; People ex rel. Pennington v. City of Richmond (1956) 141 Cal.App.2d 107,
117.
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Civil Procedure section 803 authorizes this form of action, stating that it “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.” 6 In this context, the
term “private party” refers to any “individuals or entities other than the Attorney
General,” including a local agency such as the College District. 7
When a party seeks to pursue a quo warranto action, that party must first apply for
and obtain the Attorney General’s consent to do so. 8 In determining whether to grant
consent, we do not attempt to resolve the merits of the controversy. 9 Rather, we consider
(1) whether quo warranto is an available and appropriate remedy; (2) whether the
application raises a substantial issue of law or fact that warrants judicial resolution; and
(3) whether authorizing the quo warranto action will serve the public interest. 10 Here, the
answer to all three questions is “yes,” and we therefore grant leave to sue.
1. Availability of Quo Warranto Remedy
The forfeiture of an incompatible public office is enforceable through a quo
warranto action to remove a person who unlawfully holds public office. 11 As relevant
here, a public office includes membership on a governmental board or body, such as a
community college district board or a fire protection district board. 12 If those offices are
incompatible, as alleged, then Garcia would have “resigned by operation of law” from the
board of the San Joaquin Delta Community College District upon accession to the board
of the Eastside Rural Fire Protection District, and would be unlawfully holding office on
6
Code Civ. Proc., § 803; see Rando v. Harris (2014) 228 Cal.App.4th 868, 873;
97 Ops.Cal.Atty.Gen. 12, 14 (2014).
7
People ex rel. Lacey v. Robles (2020) 44 Cal.App.5th 804, 826; see id. at pp. 815, 817.
8
Internat. Assn. of Fire Fighters v. City of Oakland (1985) 174 Cal.App.3d 687, 693-
698.
9
See, e.g., 95 Ops.Cal.Atty.Gen. 43, 49 (2012) (“To be clear, it is not our role here to
predict how a court would ultimately resolve the question,” and granting “leave is not an
indication that the position taken by the relator is correct, but rather that the question
should be judicially determined and that quo warranto is the only proper remedy”).
10
Rando v. Harris, supra, 228 Cal.App.4th at p. 879; 72 Ops.Cal.Atty.Gen. 15, 20
(1989).
11
Gov. Code, § 1099, subd. (b), citing Code Civ. Proc., § 803.
12
Gov. Code, § 1099, subd. (a); 104 Ops.Cal.Atty.Gen. 15, 17, fn. 8 (2021);
97 Ops.Cal.Atty.Gen. 50, 52-53 (2014).
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the board of the community college district. 13 Thus, quo warranto is an available and
appropriate remedy.
2. Substantial Issue Regarding Incompatibility of Offices
We first examine the law on incompatible offices, then address whether a
substantial issue of law or fact exists regarding the incompatibility of the two offices in
question. We conclude that such an issue exists.
Prohibition on Holding Incompatible Offices
Government Code section 1099(a) provides that “[a] public officer . . . shall not
simultaneously hold two public offices that are incompatible . . . unless simultaneous
holding of the particular offices is compelled or expressly authorized by law.” 14 This
prohibition “springs from considerations of public policy which demand that a public
officer discharge his or her duties with undivided loyalty.” 15 As relevant here, two
offices are legally incompatible if “there is a possibility of a significant clash of duties or
loyalties between the offices.” 16 We have previously opined that a “significant” clash is
one that is not trivial and is more certain than mere chance. 17
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 might
occur in the regular operation of the statutory plan. 18 Nor is it necessary for a clash of
duties or loyalties to occur in all or in the greater part of the official functions. 19 Indeed,
13
75 Ops.Cal.Atty.Gen. 112, 113-114 (1992); Gov. Code, § 1099, subd. (b); see
98 Ops.Cal.Atty.Gen. 94, 96 (2015) (“[A] person’s assumption of the second
incompatible office has the effect of automatically and immediately vacating the person’s
right to hold the first office,” citing People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d
636, 644).
14
The enactment of this statute codified the common law; the Legislature expressed its
intent that existing judicial and administrative precedent would guide interpretation of the
statute. (Gov. Code, § 1099, subd. (f); Stats. 2005, ch. 254, §§ 1-2.)
15
68 Ops.Cal.Atty.Gen. 337, 339 (1985).
16
Gov. Code, § 1099, subd. (a)(2).
17
104 Ops.Cal.Atty.Gen., supra, at p. 20; 93 Ops.Cal.Atty.Gen. 104, 108 (2010).
18
98 Ops.Cal.Atty.Gen., supra, at p. 96.
19
People ex rel. Chapman v. Rapsey, supra, 16 Cal.2d at pp. 641-642.
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“[o]nly one potential significant clash of duties or loyalties is necessary to make offices
incompatible.” 20
When two offices are incompatible, the conflicted officeholder may not escape the
effects of the prohibition by choosing not “to perform one of the incompatible roles.” 21
Instead, under section 1099(b), the “officer shall be deemed to have forfeited the first
office upon acceding to the second.”
Substantial Issue of Incompatibility
No law compels or expressly authorizes the simultaneous office-holding at issue
here. We will therefore examine the powers and duties of the two offices to determine
whether a substantial issue on incompatibility warrants judicial resolution. 22 We begin
with the statutory powers of each district to provide education and training.
A fire protection district is to authorized operate educational programs, including
those that help to prevent fire, eliminate life hazards, and prepare for medical
emergencies. 23 And the board of a fire protection district may provide any training
program for district employees, and shall provide emergency services training such as
first aid to certain district employees. 24 A community college district board may provide
similar educational and training programs, pursuant to the board’s extensive powers to
approve educational programs and courses of instruction. 25 The two districts could
therefore become competitors—or collaborators—in providing educational and training
programs. We observed in a prior opinion that “[e]ven in establishing or maintaining
projects involving cooperation, collaboration, or assistance, as permitted by the
governing statutes of the two types of districts, a member of the governing board of both
districts is placed on both sides of the negotiating table.” 26 As a result, we concluded that
20
85 Ops.Cal.Atty.Gen. 199, 200 (2002).
21
67 Ops.Cal.Atty.Gen. 409, 414 (1984), quoting 3 McQuillin, Municipal Corporations
(rev. ed. 1973) § 12.67, pp. 295-296.
22
See People ex rel. Chapman v. Rapsey, supra, 16 Cal.2d at p. 642 (“‘true test is
whether the two offices are incompatible in their natures, in the rights, duties or
obligations connected with or flowing from them,’” quoting 2 McQuillin, Municipal
Corporations, supra, § 469.)
23
Health & Saf. Code, § 13875.
24
Health & Saf. Code, § 13969.
25
See Ed. Code, § 70902.
26
104 Ops.Cal.Atty.Gen., supra, at p. 23.
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a substantial issue of law warranted judicial resolution on incompatibility. 27 We see no
reason to depart from that outcome; instead, we see support for such an outcome based on
the specific allegations made here.
First, the College District alleges that actual events illustrate the conflict created
by the powers of education and training held in common by the two districts. According
to the College District, Garcia has allegedly sought collaboration between the College
District and the Eastside Rural Fire Protection District (and a third-party commercial
ambulance service provider) to create an Emergency Medical Technician and Paramedic
program at the community college. And Garcia has allegedly advocated against the
creation of such a program with a different fire protection district. 28 The College District
explains that each district board on which Garcia sits would need to determine its level of
participation in the program and whether an agreement or memorandum of understanding
between the entities would be beneficial, and if so, the terms of such agreement or
memorandum. As the College District points out, each board in doing so might take a
position that conflicts with, or is contrary to, the other board’s interests.
The College District next alleges that further potential clashes of duties and
loyalties could arise in matters involving real estate and eminent domain. For instance, a
fire protection district may acquire any property for the district’s benefit and may
“acquire by eminent domain any property necessary to carry out any of its powers or
functions.” 29 Similarly, a community college district manages and controls district
property and “may acquire by eminent domain any property necessary to carry out the
powers or functions of the district.” 30 In a prior opinion, we concluded that two offices
were legally incompatible because both entities “could seek to acquire the same property
or the property of the other based on an asserted higher public use.” 31 At the very least
then, the overlapping eminent domain powers here create a substantial issue of law
warranting judicial resolution. And it would be no different if the two districts sought to
acquire a property interest in the same parcel, and could do so without exercising eminent
domain powers in a condemnation action.
27
Ibid.
28
According to the College District, Garcia asked the community college’s
superintendent and president if Garcia should tell a different fire protection district who
had expressed interest in the program to go “pound salt.”
29
Health & Saf. Code, § 13861, subds. (b) & (c).
30
Ed. Code, § 70902, subd. (b)(6) & (13); see also Ed. Code, §§ 81250-81440 (property-
related powers), 81470-81474 (same).
31
101 Ops.Cal.Atty.Gen. 81, 86 (2018); see Code Civ. Proc., §§ 1240.610, 1240.660.
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The College District also generally asserts that a potential significant clash of
duties and loyalties might arise in the realm of fire code enforcement. 32 A fire protection
district board may make and enforce rules and regulations to administer, operate, and
maintain services including fire protection and any other services relating to the
protection of lives and property. 33 More specifically, the board is empowered to issue
written orders “to correct or eliminate a fire hazard or life hazard.” 34 This power to issue
an order to correct or eliminate such a hazard on any community college district property
located within the fire protection district’s territory could create conflicting loyalties and
duties because what is best for the fire protection district might not be so for the
community college district. For example, the two districts might have different views on
what measures of fire protection are required or optimal. Upon issuing such an order, the
recipient community college district would have to decide whether to request a hearing to
challenge the order, after which the fire protection district board “may modify, vacate, or
affirm the order.” 35 At each stage of the process, an officer serving on the board of each
district would be on both sides of a dispute over the propriety of the order.
Yet another potential conflict might arise from the fire protection district board’s
authority to charge a fee, even to public agencies such as a community college district, to
cover the cost of enforcing a regulation or providing any service. 36 The board may waive
a fee if doing so would be in the public interest. 37 One board could thus charge (or
waive) fees that would obligate the other board to pay (or relieve it from having to pay).
32
Because the College District territory expands well beyond the territory of the fire
protection district, it so happens that the campus of San Joaquin Delta College itself is not
located within the territory of the fire protection district. (See notes 3-4, ante, and
accompanying text in the body.) We are not informed whether the College District
presently holds any property other than the college campus, and if so, whether such other
property is located within the territory of the fire protection district. Regardless, the
College District could at any time acquire property within the territory of the fire
protection district, so we will consider how a fire protection district’s enforcement
powers could affect a community college district.
33
Health & Saf. Code, §§ 13861, subd. (i), 13862, subd. (f).
34
Health & Saf. Code, § 13870, subd. (a). A failure or refusal to correct the cited hazard
is punishable by misdemeanor. (Health & Saf. Code, § 13871, subd. (b).)
35
Health & Saf. Code, § 13870, subds. (b) & (c).
36
Health & Saf. Code, §§ 13910, 13916, subd. (a), 13918 (“Notwithstanding Section
6103 of the Government Code, a district board may charge a fee authorized pursuant to
Section 13916 to other public agencies”).
37
Health & Saf. Code, § 13919.
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It is therefore conceivable that the interests of the two boards could diverge with regard
to these fees.
Lastly, a fire protection district board is statutorily empowered to form service
zones within which a different level of service is provided, and within this zone may
charge a fee for those services. 38 This authority to assign a different level of service and
fees to an area within the jurisdiction of the College District could create further sources
of conflict between the two district boards. Again, what might be best for one district
might not be best for the other.
Based on all of the above, we conclude that whether the two offices Garcia holds
are incompatible presents a substantial issue of law that warrants judicial resolution.
3. The Public Interest Favors Authorizing Suit
Finally, we conclude that it is in the public interest to have this matter
conclusively resolved through the prescribed legal process of quo warranto. 39 We
generally view the need for judicial resolution of a substantial question of law as a
sufficient “public purpose” to warrant granting leave to sue, absent countervailing
circumstances such as pending litigation or shortness of time remaining in the term of
office. 40 There are no such circumstances here. The office that Garcia allegedly forfeited
on the board of the College District has a term that expires in December 2024, meaning
that approximately one year remains before the term ends. Moreover, allowing the
proposed quo warranto action to proceed would serve the public interest in ensuring that
public officials avoid impermissible conflicting loyalties in performing their public
duties.
Accordingly, the application for leave to sue in quo warranto is GRANTED.
38
Health & Saf. Code, §§ 13950-13951.
39
See Gov. Code, § 1099, subd. (b).
40
98 Ops.Cal.Atty.Gen., supra, at p. 101; 95 Ops.Cal.Atty.Gen. 77, 87 (2012).
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