Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL

State of California

ROB BONTA

Attorney General

_______________

:

OPINION :

: No. 23-302

of :

: November 30, 2023

ROB BONTA :

Attorney General :

:

KARIM J. KENTFIELD :

Deputy Attorney General :

The HONORABLE DAVID A. ALVAREZ, MEMBER OF THE CALIFORNIA

ASSEMBLY, has requested an opinion on questions relating to the legal compatibility of

government offices.

QUESTIONS PRESENTED AND CONCLUSIONS

1. Under state law, may an appointed public member of the City of San Diego

Audit Committee concurrently serve as: (a) an appointed public member of the San

Diego Association of Governments (SANDAG) TransNet Independent Taxpayer

Oversight Committee; (b) an appointed public member of the SANDAG Audit Policy

Advisory Committee; or (c) the Internal Auditor of the San Diego Metropolitan Transit

System?

As to (a) and (b), an appointed public member of the City Audit Committee may

not serve concurrently as an appointed public member of either the SANDAG TransNet

Independent Taxpayer Oversight Committee or the SANDAG Audit Policy Advisory

Committee. Such concurrent service would violate Government Code section 1099,

which prohibits serving in legally incompatible public offices.

As to (c), an appointed public member of the City Audit Committee may serve

concurrently as the Internal Auditor of the San Diego Metropolitan Transit System

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without violating section 1099, because the Internal Auditor position is not a public

office. Such concurrent service also would not violate Government Code section 1126’s

prohibition against engaging in incompatible outside activities, unless the City Council

determines that serving as the System’s Internal Auditor is incompatible with the duties

of a City Audit Committee member. Other state laws prohibiting financial and personal

conflicts of interest would not prohibit the concurrent holding of these positions either.

Those laws generally apply to particular government transactions or decisions, not the

simultaneous holding of government positions, and, in any event, the request does not

reference any type of financial or personal conflict.

2. Would the City Council of San Diego violate state law by appointing a member

of the public to the City Audit Committee if doing so would result in the appointee

holding incompatible public offices in violation of Government Code section 1099?

No. The City Council would not violate state law by appointing a member of the

public to the City Audit Committee if doing so would result in the appointee holding

incompatible public offices in violation of Government Code section 1099. Although

section 1099(b) provides that a public officer who accepts a second, legally incompatible

public office thereby forfeits the first office held, neither section 1099, nor any other

authority we are aware of, provides that an appointing authority violates or is subject to

any sanction under state law by making such an appointment.

BACKGROUND

This opinion request concerns three government entities that serve the

transportation needs of San Diego County residents, along with the committees and

personnel that help oversee their work. First, the City of San Diego is a charter city

governed by a nine-member City Council. 1 Relevant here, the City’s Charter establishes

an Audit Committee (City Audit Committee) as an “independent body” with “oversight

responsibility regarding the City’s auditing, internal controls, and . . . other financial or

business practices.” 2 The Audit Committee consists of two members of the City Council

and three members of the public (referred to herein as “public members”). 3

Second, the San Diego Association of Governments, or SANDAG, is a regional

transportation planning agency and council of governments. 4 Established in its current

1

See The City of San Diego, City Councilmembers,

https://www.sandiego.gov/citycouncil (as of Nov. 28, 2023).

2

San Diego City Charter, art. V, § 39.1.

3

San Diego City Charter, art. V, § 39.1.

4

See SANDAG, About, https://www.sandag.org/about (as of Nov. 28, 2023).

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form by the state Public Utilities Code, SANDAG plans and constructs transportation

projects throughout San Diego County. 5 SANDAG also administers the TransNet

program, a sales tax within the County that funds local transportation projects. 6

SANDAG is governed by a 21-member Board of Directors consisting solely of elected

officials. 7 Several SANDAG committees help oversee the agency’s operations, including

the TransNet Independent Taxpayer Oversight Committee (ITOC) and the Audit Policy

Advisory Committee (SANDAG Audit Committee).

Third, the San Diego Metropolitan Transit System (MTS) is a regional public

transit provider. 8 Also created by the state Public Utilities Code, MTS provides light rail,

bus, and freight service in portions of San Diego County. 9 MTS is governed by a 15-

member Board of Directors consisting solely of elected officials. 10 MTS employs an

Internal Auditor who audits the System’s internal controls and operations. 11

In recent years, an appointed public member of the City Audit Committee has

simultaneously served on both the ITOC and the SANDAG Audit Committee. 12 Another

appointed public member of the City Audit Committee has simultaneously worked as the

MTS Internal Auditor. 13 This opinion request asks whether such concurrent government

service would violate state law. It further asks whether the San Diego City Council

would violate state law if its appointment to the City Audit Committee resulted in the

appointee holding legally incompatible offices. 14

5

See Pub. Util. Code, § 132350 et seq. (consolidating several existing transit-related

agencies under SANDAG).

6

See SANDAG, SANDAG TransNet Program, https://www.sandag.org/funding/transnet

(as of Nov. 28, 2023).

7

See Pub. Util. Code, § 132351.1, subds. (a), (d).

8

See MTS, About MTS, https://www.sdmts.com/about/about-mts (as of Nov. 28, 2023).

9

See Pub. Util. Code, §§ 120050, 120054.

10

See Pub. Util. Code, § 120050.2.

11

See Agenda, Joint Meeting of the Audit Oversight Committee for the MTS (Feb. 14,

2008), at p. C-1 (eighth page of PDF document),

https://www.sdmts.com/sites/default/files/aoc_2-14.pdf (as of Nov. 28, 2023) (Audit

Committee Agenda).

See Assemblymember David A. Alvarez, letter to Acting Senior Assistant Attorney

12

General Marc J. Nolan, Mar. 16, 2023, at p. 1 (Request for Opinion).

13

See Request for Opinion, at p. 1.

14

The opinion request asks only about applicable state law. We express no opinion as to

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ANALYSIS

1. Would the dual office holding violate state law?

The first question here asks whether state law would prohibit a public member of

the City Audit Committee from serving concurrently in one or more of three other

government positions. The primary statute governing that question is Government Code

section 1099, which prohibits a “public officer” from “simultaneously hold[ing] two

public offices that are incompatible.” 15 The prohibition “springs from considerations of

public policy which demand that a public officer discharge his or her duties with

undivided loyalty.” 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

There are two steps in a section 1099 analysis. 18 First, we determine if each

position at issue is a “public office” subject to the prohibition. Second, if both positions

are “public offices,” then we consider whether they are legally incompatible. Applying

that approach here, we will evaluate whether section 1099 would prohibit concurrently

whether the simultaneous government service at issue could violate any local law, such

as the San Diego City Charter or Administrative Regulations. (See State of California,

Office of the Attorney General, Guidelines Regarding Attorney General Opinions Under

Government Code Section 12519, at p. 2, https://oag.ca.gov/system/files/media/ag-

opinion-guidelines.pdf (as of Nov. 28, 2023) [“The Attorney General declines requests

for opinions that exclusively call for interpretation of local laws such as charters or

ordinances. Responsibility for interpreting and enforcing local laws rests with local

government lawyers”].)

15

The prohibition does not apply if the “simultaneous holding of the particular offices is

compelled or expressly authorized by law.” (Gov. Code, § 1099, subd. (a).) No law

compels or expressly authorizes the simultaneous holding of the offices at issue here.

16

68 Ops.Cal.Atty.Gen. 337, 339 (1985).

17

Gov. Code, § 1099, subd. (b). Because section 1099 “codifies the common law rule

prohibiting an individual from holding incompatible public offices” (id., § 1099, subd.

(f)), “our construction and application” of the statute are “guided by administrative and

judicial interpretations developed under the common law,” before section 1099’s

enactment in 2005 (93 Ops.Cal.Atty.Gen. 144, 146 (2010)). (See also 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”].)

18

See 104 Ops.Cal.Atty.Gen. 66, 68-69 (2021); 102 Ops.Cal.Atty.Gen. 39, 41-47 (2019).

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serving in each pair of government positions. If it would not, then we will consider

whether any other state conflict-of-interest law would apply. 19

Are the positions “public offices” subject to section 1099?

The section 1099 prohibition applies only to “public offices” and not to

“position[s] of employment.” 20 The statute provides that a “public officer” includes “an

appointed or elected member of a governmental board, commission, committee, or other

body,” so long as the body’s powers are not merely “advisory.” 21 We evaluate whether a

government position is a “public office” by applying a three-part test: we ask whether it

is “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; (3) in which the incumbent performs a public function for the public benefit

and exercises some of the sovereign powers of the state.” 22 “Sovereign powers of the

state” include statutorily imposed duties related to the exercise of state police powers;

power to dispose of public property; power to incur financial obligations on the part of

the government; and power to act in business or political dealings between individuals

and the public. 23 A position can qualify as a “public office” even if it is not

compensated. 24

Relevant here, past Attorney General opinions and judicial decisions have

considered whether government positions with auditing and oversight authority are

“public offices.” We have concluded, for example, that the position of county auditor is a

“public office” because it is established by statute, it is filled through regular elections,

19

Our analysis is based on the facts provided to us and our reading of the state and local

laws that define the authority of the relevant government positions. If the actual powers

or circumstances of those positions were to differ from our understanding, then our

analysis and conclusion may of course differ as well.

20

Gov. Code, § 1099, subds. (a), (c).

21

Gov. Code, § 1099, subds. (a), (d).

22

102 Ops.Cal.Atty.Gen., supra, at pp. 42-43; see 95 Ops.Cal.Atty.Gen. 77, 78 (2012);

93 Ops.Cal.Atty.Gen., supra, at p. 148; 93 Ops.Cal.Atty.Gen. 104, 105-106 (2010);

82 Ops.Cal.Atty.Gen. 83, 84 (1999); see also Moore v. Panish (1982) 32 Cal.3d 535, 545.

23

73 Ops.Cal.Atty.Gen. 183, 184-185 (1990); see 104 Ops.Cal.Atty.Gen., supra, at pp.

68-69; 102 Ops.Cal.Atty.Gen., supra, at pp. 43-44.

24

See, e.g., 66 Ops.Cal.Atty.Gen. 176, 180-181 (1983) (even if fire chief waived a salary,

he would remain a public officer subject to the incompatible-offices prohibition);

68 Ops.Cal.Atty.Gen. 7, 10-11 (1984) (same for deputy sheriff).

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and it is vested with sovereign government authority to audit county operations. 25 In

contrast, the Court of Appeal held in Schaefer v. Superior Court that an unelected

employee of the California Department of Employment who served as auditor in charge

of a local district audit office did not hold a “public office.” 26 The court reasoned that the

position was not created by law, it was “subordinate to four other positions” in the

organizational hierarchy, and it possessed limited discretionary authority. 27

With these authorities in mind, we will evaluate whether each of the four

government positions at issue is a “public office” subject to section 1099. We conclude

that all positions are “public offices” except for the MTS Internal Auditor.

Public member of City Audit Committee

The City of San Diego Audit Committee is an “independent body” with “oversight

responsibility regarding the City’s auditing, internal controls, and . . . other financial or

business practices.” 28 The Committee’s five members include two City Council

members and three public members appointed by the City Council. 29 The three public

appointees “must possess the independence, experience, and technical expertise

necessary to carry out the [Committee’s] duties.” 30 The Committee meets at least once

per quarter, conducting its meetings in accordance with the requirements of the Brown

Act. 31

To determine whether a public appointee to the City Audit Committee holds a

“public office,” we apply the three-part test described above. 32 First, the Committee is

created by law, specifically, section 39.1 of the San Diego City Charter. 33 Second,

25

89 Ops.Cal.Atty.Gen. 152, 154 (2006); see also, e.g., 88 Ops.Cal.Atty.Gen. 130, 130-

131 (2005) (county auditor-controller is a “public office”); 101 Ops.Cal.Atty.Gen. 56, 60

(2018) (county superintendent of schools is a “public office,” in part due to

superintendent’s “authority to audit the expenditures and internal controls of school

districts”).

26

Schaefer v. Superior Ct. (1952) 113 Cal.App.2d 428, 433-436.

27

Schaefer v. Superior Ct., supra, 113 Cal.App.2d at pp. 433-436.

28

San Diego City Charter, art. V, § 39.1.

29

San Diego City Charter, art. V, § 39.1.

30

San Diego City Charter, art. V, § 39.1; see also San Diego Munic. Code, § 26.1702.

31

San Diego Munic. Code, § 26.1703.

32

See 102 Ops.Cal.Atty.Gen., supra, at pp. 42-43.

33

See also San Diego City Charter, art. V, § 39.2 (further describing role of Audit

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membership on the Committee is continuing, with public members serving four-year

terms and until a successor is appointed. 34 Third, the Committee is charged with

performing “important governmental functions requiring the exercise of independent

judgment” related to the City’s auditing function. 35 The Committee’s duties include

directing and reviewing the work of the City Auditor, who reports directly to the

Committee; conducting the City Auditor’s annual performance evaluation; and reviewing

and approving the City’s annual audit plan. 36 The Committee also monitors the

engagement of the City’s outside auditor, and it resolves any disputes that arise between

the outside auditor and City management concerning the City’s annual financial reports. 37

As noted, we have previously concluded that local government positions with similar

auditing authority are “public offices.” 38 We likewise conclude that a public appointee to

the City Audit Committee holds a “public office” as well.

Public member of ITOC

The next two government bodies at issue are committees of SANDAG, the San

Diego Association of Governments. First, the TransNet Independent Taxpayer Oversight

Committee, or ITOC, provides increased accountability for expenditures made under the

TransNet program. 39 As described above, TransNet is a sales tax administered by

SANDAG that funds local transportation projects, including projects carried out by the

Committee); San Diego Munic. Code, §§ 26.1701-26.1711 (describing structure and

duties of Audit Committee).

34

See San Diego City Charter, art. V, § 39.1; see also 83 Ops.Cal.Atty.Gen. 153, 156

(2000) (membership on commission was “public office” where each “member’s tenure is

not transient, and incumbents succeed one another”).

35

101 Ops.Cal.Atty.Gen., supra, at p. 61.

36

San Diego Munic. Code, §§ 26.1701, subd. (a), 26.1710, subd. (a); see, e.g.,

82 Ops.Cal.Atty.Gen. 201, 202-203 (1999) (city administrator was “public office” due, in

part, to administrator’s authority to direct and supervise other government actors).

37

San Diego Munic. Code, § 26.1701, subd. (a)(7).

38

See, e.g., 89 Ops.Cal.Atty.Gen., supra, at p. 154 (county auditor);

88 Ops.Cal.Atty.Gen., supra, at pp. 130-131 (county auditor-controller).

39

TransNet Extension & Ordinance, at p. 14, § 11 (2004) (voter initiative establishing

ITOC), https://www.sandag.org/-

/media/SANDAG/Documents/PDF/funding/transnet/transnet-extension-ordinance-and-

expenditure-plan.pdf (as of Nov. 28, 2023); id., Statement of Understanding Regarding

the Implementation of the Independent Taxpayer Oversight Committee For the TransNet

Program, at p. 44 (Statement of Understanding Regarding Implementation of ITOC).

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City of San Diego. 40 A 2004 voter initiative that extended TransNet created the ITOC to

provide increased oversight of program implementation. 41 The ITOC consists of seven

voting members, selected by a committee of public officials to represent different areas of

subject matter expertise. 42 Members serve without compensation except for

reimbursement of expenses. 43

Applying the three-part test, we conclude that a public appointee to the ITOC

holds a “public office.” 44 The ITOC is created by law, specifically, the 2004 voter

initiative that extended TransNet. 45 Membership on the ITOC is continuing, with

members serving four-year terms. 46 And the ITOC performs important “public

function[s] for the public benefit” concerning auditing and oversight. 47 The ITOC is

charged with conducting an annual fiscal and compliance audit of all TransNet-funded

activities through an independent fiscal auditor and preparing a report for the SANDAG

Board. 48 It also conducts triennial performance audits of SANDAG and other agencies to

review delivery, cost control, and schedule adherence of TransNet-funded projects; it

reviews ongoing SANDAG system performance evaluations; and it reviews proposed

debt financings and major congestion relief projects. 49

40

See SANDAG, SANDAG TransNet Program, https://www.sandag.org/funding/transnet

(as of Nov. 28, 2023); Request for Opinion, at p. 1.

41

See TransNet Extension & Ordinance, at p. 14, § 11; Statement of Understanding

Regarding Implementation of ITOC, at p. 44.

42

See Statement of Understanding Regarding Implementation of ITOC, at pp. 45-46;

SANDAG, TransNet Independent Taxpayer Oversight Committee Bylaws, at pp. 1-2,

§§ A, B, https://www.sandag.org/-/media/SANDAG/Documents/PDF/meetings-and-

events/policy-advisory-committees/transnet-ITOC/ITOC-bylaws.pdf (as of Nov. 28,

2023).

43

See Statement of Understanding Regarding Implementation of ITOC, at p. 46.

44

See 102 Ops.Cal.Atty.Gen., supra, at pp. 42-43; see also 89 Ops.Cal.Atty.Gen., supra,

at p. 154 (county auditor is a “public officer”); 88 Ops.Cal.Atty.Gen., supra, at pp. 130-

131 (county auditor-controller is a “public officer”).

45

See TransNet Extension & Ordinance, at p. 14, § 11.

46

See Statement of Understanding Regarding Implementation of ITOC, at pp. 46-47.

47

101 Ops.Cal.Atty.Gen., supra, at p. 59.

48

Statement of Understanding Regarding Implementation of ITOC, at p. 47.

49

Statement of Understanding Regarding Implementation of ITOC, at pp. 47-48.

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Public member of SANDAG Audit Committee

The second SANDAG committee at issue, the Audit Policy Advisory Committee,

“assist[s] the [SANDAG] Board in fulfilling its oversight responsibilities.” 50 Established

by statute as one of five standing policy advisory committees, the SANDAG Audit

Committee “provide[s] a forum for pursuing . . . opportunities for improvements in

operations, financial reporting and internal controls.” 51 The Committee has five voting

members, including two SANDAG Board members and three members of the public

appointed by the Board. 52 Public members serve without compensation. 53

Applying the three-part test, we conclude that a public appointee to the SANDAG

Audit Committee holds a “public office” as well. The Committee is established by

statute, specifically, section 132351.4 of the Public Utilities Code. 54 Membership on the

Committee is continuing, with public members serving two-year terms. 55 And the

SANDAG Audit Committee, like the ITOC, exercises important government powers

concerning auditing and oversight. 56 The Committee’s duties include recommending an

outside auditing firm to conduct annual financial statement audits and overseeing both the

conduct of such audits and the implementation of corrective action to address audit

deficiencies. 57 In addition, the Committee appoints (subject to approval by the SANDAG

Board) an independent performance auditor who has broad authority to audit all agency

departments, offices, boards, activities, and programs. 58 The independent performance

50

SANDAG Board Policy No. 39, § 2.5, https://www.sandag.org/-

/media/SANDAG/Documents/PDF/about/about-SANDAG/bylaws-and-policies/board-

policy-no-039.pdf (as of Nov. 28, 2023).

51

See Pub. Util. Code, § 132351.4, subd. (a)(5); SANDAG Board Policy No. 39, § 2.5.

52

Pub. Util. Code, § 132351.4, subd. (a)(5).

53

See Request for Opinion, at p. 8.

See Pub. Util. Code, § 132351.4, subd. (a), (a)(5) (establishing SANDAG Audit

54

Committee); see also id., § 132354.1, subd. (b)(1) (describing Committee’s duties).

55

See SANDAG Board Policy No. 39, § 4.1.4.

56

See 101 Ops.Cal.Atty.Gen., supra, at p. 59 (third prong of test for “public office”).

57

See SANDAG Board Policy No. 39, §§ 3.1.1, 3.1.3.

58

See Pub. Util. Code, § 132354.1, subd. (b)(1), (2); SANDAG Board Policy No. 39,

§ 3.1.4. The independent performance auditor has the “power to appoint, employ, and

remove assistants, employees, and personnel” and receives “unrestricted access to

employees, information, and records.” (Pub. Util. Code, § 132354.1, subd. (b)(2), (3).)

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auditor reports directly to the Audit Committee, which oversees the performance

auditor’s work and conducts the auditor’s annual performance evaluation. 59

We received one comment letter arguing that membership on the SANDAG Audit

Committee is not a “public office” on the ground that the Committee’s powers are purely

advisory. Under Government Code section 1099(d), the incompatible-office prohibition

does “not apply to a governmental body that has only advisory powers.” As we have

previously explained, “[m]embers of advisory boards and commissions do not hold

‘offices’” for these purposes because “they do not exercise any of the sovereign powers

of the state.” 60 For example, we have applied this limitation to conclude that membership

on the California Senior Legislature was not a “public office” because the Senior

Legislature was only an “advisory body” that proposed “model legislation” for

consideration by the Legislature. 61 In contrast, we have concluded that membership on

the Job Training, Development and Placement Services Advisory Board was a “public

office.” 62 We acknowledged that the Board had “Advisory” in its name. But “despite its

title,” we reasoned that the Board had “affirmative duties [taking] it out of the ‘advisory’

category”—including responsibility to consult with other agencies to develop job-training

programs, and authority to approve plans for related government spending. 63

59

SANDAG Board Policy No. 39, §§ 3.1, 6.1.

60

83 Ops.Cal.Atty.Gen., supra, at p. 154; see also 83 Ops.Cal.Atty.Gen. 50, 52 (2000);

62 Ops.Cal.Atty.Gen. 325, 328-329 (1979).

61

83 Ops.Cal.Atty.Gen., supra, at p. 157; see also id. at pp. 157-160 (Area Agency on

Aging Advisory Council of California is an advisory body and membership is not a

“public office”); 42 Ops.Cal.Atty.Gen. 93, 95 (1963) (membership on advisory board of

the Joint Legislative Committee for the Revision of the Penal Code not a public office);

57 Ops.Cal.Atty.Gen. 583, 585 (1974) (“Since the function of the Committee of Bar

Examiners is advisory only, neither it nor its members exercise any of the sovereign

powers of the State”); 57 Ops.Cal.Atty.Gen. 303, 306 (1974); Cal.Atty.Gen., Indexed

Letter, No. I.L. 69-226 (Nov. 18, 1969); Cal.Atty.Gen., Indexed Letter, No. I.L. 79-3

(Jan. 5, 1979); see California Coastal Com. v. Quanta Investment Corp. (1980) 113

Cal.App.3d 579, 593, fn. 11 (“An indexed letter is different from a formal opinion of the

Attorney General, which is widely disseminated throughout the state and is ultimately

published in bound volumes. Indexed letters are kept in the Attorney General’s four

libraries and are ordinarily made available to interested members of the public upon

request”).

62

Cal.Atty.Gen., Indexed Letter, No. I.L. 72-143 (Aug. 16, 1972).

63

Cal.Atty.Gen., Indexed Letter, No. I.L. 72-143, supra, at pp. 2-3.

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Here too, “despite its title”—the SANDAG Audit Policy Advisory Committee—

we conclude that the Committee’s powers “take it out of the ‘advisory’ category.” 64

Although some of the Committee’s duties involve making recommendations subject to

SANDAG Board approval, in other respects the Committee exercises independent

authority and discretion. For example, the Committee oversees and evaluates the work of

the independent performance auditor, who has considerable authority to audit and

investigate the agency’s performance. 65 As part of its oversight role, the Committee is

charged with approving the annual audit plan prepared by the independent performance

auditor. 66 It also monitors the auditor’s implementation of the plan and approves follow-

up audit procedures. 67 And the Committee has veto power over the performance

auditor’s removal: the auditor can be removed only “for cause” by a two-thirds vote of

both “the audit committee and the [SANDAG] board.” 68 Given these important oversight

responsibilities, we conclude that the SANDAG Audit Committee “exercises a portion of

the sovereign powers of the state,” such that Committee membership is a “public

office.” 69

64

Cal.Atty.Gen., Indexed Letter, No. I.L. 72-143, supra, at p. 2.

65

See SANDAG Board Policy No. 39, § 3.1.6 (SANDAG Audit Committee “[o]versee[s]

the work of the independent performance auditor in preparing and issuing audit and

investigative reports and other audit, review or attest activities”); id., § 3.1.11

(Committee “[c]onduct[s] the independent performance auditor’s annual performance

evaluation against performance measures established and adopted by the Audit

Committee”); id., § 6.1 (“The independent performance auditor shall report to the Audit

Committee and shall be independent of SANDAG’s internal management and

administration”); Pub. Util. Code, § 132354.1, subd. (b)(2)-(4) (describing authority and

responsibility of independent performance auditor); SANDAG Board Policy No. 39, § 6

(same); see also, e.g., 82 Ops.Cal.Atty.Gen., supra, at pp. 202-203 (city administrator

position was “public office” due, in part, to administrator’s authority to oversee and

supervise the work of other government personnel).

66

SANDAG Board Policy No. 39, § 3.1.7; Pub. Util. Code, § 132354.1, subd. (b)(2); see

Cal.Atty.Gen., Indexed Letter, No. I.L. 72-143, supra, at p. 3 (board’s power not advisory

where it was charged with approving course of action).

67

See SANDAG Board Policy No. 39, §§ 3.1.8, 3.1.9 (monitoring implementation of

audit plan and corrective action), 6.9 (approval of follow-up audit procedures).

68

See Pub. Util. Code, § 132354.1, subd. (b)(1); SANDAG Board Policy No. 39,

§ 3.1.12; see also, e.g., 67 Ops.Cal.Atty.Gen. 409, 413 (1984) (authority to “fire

personnel” is indicia of “public office”).

69

83 Ops.Cal.Atty.Gen., supra, at p. 52. We emphasize that the power to audit can

indicate that a body is not purely “advisory” for purposes of section 1099(d). As

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MTS Internal Auditor

Finally, we consider the Internal Auditor for the Metropolitan Transit System. As

described above, the MTS provides light rail, bus, and freight service in San Diego

County. MTS employs an Internal Auditor, who audits internal controls, program

operations, program outcomes, and financial and other management data quality. 70 The

Internal Auditor executes an annual audit plan that is developed and approved by senior

management and the MTS Board. 71 In the organization’s hierarchy, the Internal Auditor

is three steps removed from the Board—with the Auditor reporting to the General

Counsel, who reports to the Chief Executive Officer, who is appointed by the Board. 72

Applying the three-part test, we conclude that the position of MTS Internal

Auditor is not a “public office.” First, unlike the committee memberships discussed

above, the Internal Auditor position is not created by any law; its “duties and powers

. . . are not specified by statute, charter, or ordinance.” 73 Second, as to the position’s

“tenure,” it is not one where “the office itself is an entity in which incumbents succeed

one another”—for example, with a fixed term and regular succession. 74 Rather, our

understanding is that the position is “transitory” in that it is “subject to being abolished if

[senior decision makers] so choose.” 75 Third, the position’s structure and authority

discussed below, section 1099(a)(1) provides that two offices are legally incompatible if

either office can “audit” the other. Given that auditing authority is a type of government

power that can render two offices incompatible, it would make no sense to conclude that

a government office with significant auditing responsibility is nonetheless an “advisory”

body, exempt from section 1099 entirely.

70

See Request for Opinion, at p. 4; Audit Committee Agenda, at p. C-1 (eighth page of

PDF document).

71

See Audit Committee Agenda, at p. C-1 (eighth page of PDF document).

72

See Request for Opinion, at p. 4; MTS Organizational Chart, at pp. 1 (fifth page of

PDF), 6 (tenth page of PDF), https://www.sdmts.com/sites/default/files/attachments/org-

chart-021723.pdf (as of Nov. 28, 2023).

73

78 Ops.Cal.Atty.Gen. 362, 367 (1995) (sheriff’s deputy chief not a “public office,” in

part because position not created by law); see also 81 Ops.Cal.Atty.Gen. 274, 276 (1998)

(position of housing authority secretary and executive director “is a creature of a contract

entered into by the authority, which sets the terms of employment. A public officer is not

the offspring of a contract”); 104 Ops.Cal.Atty.Gen., supra, at p. 73.

74

Dibb v. Cnty. of San Diego (1994) 8 Cal.4th 1200, 1212.

75

81 Ops.Cal.Atty.Gen., supra, at p. 276; see also 78 Ops.Cal.Atty.Gen, supra, at p. 367

(“A [sheriff’s] deputy chief . . . does not hold a policy-making position. Rather, he has an

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further indicate that it is not a “public office.” Unlike the City Audit Committee, for

instance—which approves the City’s annual audit plan—the MTS Internal Auditor

executes an audit plan developed and approved by senior MTS management and the

Board. 76 Where a government position “execut[es] decisions made by” more senior

actors, the position does not typically “exercise [the] independent judgment[,]

discretion,” or policy-making authority that are hallmarks of a “public office.” 77 The

Internal Auditor’s placement in the organizational hierarchy—three steps removed from

the Board—also suggests that the position is one of employment. 78 The circumstances

here are analogous to Schaefer, where the Court of Appeal held that a state employee

with auditing responsibilities did not hold a “public office” because the position was not

created by law, it was four steps removed from the agency director, and it had relatively

limited discretionary authority. 79

Would the dual office holding violate section 1099 or any other state law?

Having determined which positions are “public offices,” we turn to the second

step of the section 1099 analysis: evaluating whether the offices are legally incompatible.

Section 1099 codifies the common-law rule that two offices are incompatible where a

dual office holder could face a “conflict of interest.” 80 Specifically, it provides that two

“public offices” are incompatible if either office exercises a supervisory, auditing, or

removal power over the other; if there is a possibility of a significant clash of duties or

administrative position which could be eliminated by internal reorganization”).

76

See Audit Committee Agenda, at p. C-1 (eighth page of PDF document).

77

104 Ops.Cal.Atty.Gen., supra, at p. 73; see id. at p. 74 (charter school directors

“typically carry out the directives of their employer rather than exercising sovereign state

authority”); see also 101 Ops.Cal.Atty.Gen., supra, at p. 59 (“The authority to make

policy or to exercise independent judgment and discretion is also the hallmark of an

officer, as opposed to an employee”); 93 Ops.Cal.Atty.Gen., supra, at pp. 148-149.

78

See, e.g., People v. Rosales (2005) 129 Cal.App.4th 81, 86 (superintendent of county

department of parks and recreation not a “public office” where position was subject to

multiple levels of supervision); 80 Ops.Cal.Atty.Gen. 74, 77 (1997) (assistant city

manager was an employee where position’s responsibilities were “as directed by the city

manager”; the “fact that the assistant city manager may from time to time perform some

of the duties of the city manager does not transform . . . the position . . . into a public

office”); 65 Ops.Cal.Atty.Gen. 316, 318-321 (1982).

79

See Schaefer v. Superior Ct., supra, 113 Cal.App.2d at pp. 433-436.

80

People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636, 642 (legal incompatibility

“does not consist in the physical impossibility to discharge the duties of both offices” but

rather lies “in a conflict of interest”).

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loyalties between the offices; or if the dual office holding would be improper for reasons

of public policy. 81 To find that two offices are incompatible, a conflict need not have

actually occurred; it is enough that a conflict might occur in the regular operation of the

statutory plan. 82 Nor is it necessary for a clash of duties to occur in all or in the greater

part of the official functions. 83 Indeed, “[o]nly one potential significant clash of duties or

loyalties is necessary to make offices incompatible.” 84 When two offices are

incompatible, the conflicted officeholder 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.’” 85

Applying these rules here, we conclude that the offices at issue in questions 1(a)

and 1(b) would be legally incompatible. For question 1(c), we conclude that section 1099

would not apply, so we will also analyze other state conflict-of-interest laws.

Question 1(a): City Audit Committee and ITOC

Question 1(a) asks whether a public member of the City Audit Committee could

serve simultaneously on the SANDAG TransNet Independent Taxpayer Oversight

Committee, or ITOC. Given our conclusion above that both positions are “public

offices” subject to section 1099, we must evaluate whether the two offices are legally

incompatible. Relevant to that inquiry, the two committees could oversee an audit of the

same subject matter. For example, the City receives TransNet funds from SANDAG. 86

Both the City Audit Committee and the ITOC could be charged with performing or

overseeing an audit of the City’s use of those funds. 87

81

Gov. Code, § 1099, subd. (a)(1)-(3); see 101 Ops.Cal.Atty.Gen., supra, at pp. 61-62.

82

98 Ops.Cal.Atty.Gen. 94, 96 (2015).

83

People ex rel. Chapman v. Rapsey, supra, 16 Cal.2d at pp. 641-642.

84

85 Ops.Cal.Atty.Gen. 199, 200 (2002).

85

67 Ops.Cal.Atty.Gen., supra, at p. 414, quoting 3 McQuillin, Municipal Corporations

(rev. ed. 1973) § 12.67, pp. 295-296.

86

See Request for Opinion, at p. 1; San Diego City Attorney, Memorandum to

Independent Budget Analyst, Oct. 5, 2022, at p. 2.

87

The ITOC conducts “an annual fiscal and compliance audit of all TransNet-funded

activities using the services of an independent fiscal auditor.” (Statement of

Understanding Regarding Implementation of ITOC, at p. 47.) The audit must “cover all

recipients of TransNet funds.” (Ibid.) As to the City Audit Committee, it could also

oversee an audit of the City’s use of TransNet funds given its broad oversight authority.

(See San Diego Munic. Code, §§ 26.1701, subd. (a), 26.1710.)

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Given this overlap in auditing jurisdiction, we conclude that dual committee

membership could create a conflict of interest that compromises independent decision-

making. In the above scenario, for example, one committee (or its direct reports) might

conclude that the City’s use of TransNet funds complied with all legal requirements. If

the other committee then identified improprieties, its conclusions could reflect poorly on

the first committee and its members, who failed to uncover any issues. To avoid that

outcome, a dual committee member could be influenced to encourage both committees to

reach the same conclusions. 88 The remaining committee members might also be

influenced, “even unconsciously,” to avoid any findings that could impugn their

colleague’s work on the other committee. 89 Where, as here, an official is “in the

untenable position of having to advise . . . on a proposal or stance he or she had already

approved” in another office, the two offices are incompatible. 90

Moreover, a person serving simultaneously on both committees could also face

divided loyalties if the interests of SANDAG and the City diverged. 91 We have

previously concluded, for example, that where a county office and a statewide office

shared overlapping supervisory authority over school districts, it “would inevitably lead

88

See 85 Ops.Cal.Atty.Gen. 239, 240 (2002) (“If the performance of the duties of either

office could have an adverse effect on the other, the doctrine precludes acceptance of the

second office”); 101 Ops.Cal.Atty.Gen., supra, at pp. 64-65 (two offices incompatible

where one office had “auditing authority” that “could adversely affect” the other office; a

person serving in both roles “might not be able to remain free of bias in deciding whether

or how such [audits] should be undertaken”).

89

63 Ops.Cal.Atty.Gen. 710, 715 (1980) (where one office can audit another, a dual

officeholder can create a conflict “because of the inability of [the officeholder’s

colleagues] to act impartially with respect to [their] co-worker in the office”; “[t]his is

analogous to the concept that law partners should not represent conflicting interests any

more than an individual lawyer should represent them”).

90

101 Ops.Cal.Atty.Gen., supra, at p. 67. One comment letter argued that there is no

conflict in this scenario because the ITOC would be auditing the City’s spending—not

the spending of the City Audit Committee. The commenter argued that incompatibility

under section 1099(a)(1) requires that one “office[] may audit . . . the other office”—not

the other office’s parent organization. (Gov. Code, § 1099, subd. (a)(1).) But whether

section 1099(a)(1) applies or not, we conclude that the dual office holding could

compromise independent decision-making—making the offices incompatible under

section 1099(a)(2) due to the “possibility of a significant clash of duties or loyalties

between the offices.” (Gov. Code, § 1099, subd. (a)(2).)

91

See Gov. Code, § 1099, subd. (a)(2) (offices incompatible where “there is a possibility

of a significant clash of duties or loyalties between the offices”).

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to divided loyalties” for the same person to serve in both offices: the two positions may

need to perform their overlapping supervisory duties from different “perspective[s],” one

“local” and one “statewide.” 92 Similarly, here, the City Audit Committee and the ITOC

may bring different “perspective[s]” to bear in carrying out their overlapping authority,

for example, to oversee an audit of the City’s use of TransNet funds. 93 “What may be in

the best interests” of the City in performing such an audit “may not be in the best

interests of” SANDAG. 94 In these circumstances, “[h]aving the same person performing”

both auditing roles could result in “divided loyalties.” 95

We recognize that the City Audit Committee and the ITOC were created to

provide independent oversight of the City and SANDAG, respectively. For this reason,

one commenter argued that the duties of the two committees’ members—to ensure good

governance and legal compliance—are aligned, not in conflict. But despite the measures

taken to encourage independence, each committee has an ongoing relationship with its

parent entity; for example, the three public members of the City Audit Committee serve

alongside two sitting San Diego City Councilmembers. 96 And, in executing its oversight

functions, each committee may need to make judgment calls informed by its parent

organization’s interests. For example, the ITOC must allocate finite auditing resources

between the City and other TransNet fund recipients. In these circumstances, an

individual serving simultaneously on both committees—charged with overlapping

auditing functions that impact both the City and SANDAG—could face loyalties divided

between the two entities. 97 For these reasons, we conclude that section 1099 would

prohibit a public member of the City Audit Committee from serving concurrently as a

public member of the ITOC. 98

92

78 Ops.Cal.Atty.Gen. 316, 321-322 (1995) (membership on county board of

supervisors incompatible with membership on California Community Colleges Board of

Governors due to overlapping supervisory authority over community college districts in

the county); see also 74 Ops.Cal.Atty.Gen. 116 (1991) (membership on State Board of

Education incompatible with position of county superintendent of schools given

overlapping authority to supervise schools within the county).

93

78 Ops.Cal.Atty.Gen., supra, at p. 322

94

78 Ops.Cal.Atty.Gen., supra, at p. 322.

95

78 Ops.Cal.Atty.Gen., supra, at p. 322.

96

See San Diego City Charter, art. V, § 39.1.

97

See 78 Ops.Cal.Atty.Gen., supra, at p. 322.

98

In light of that conclusion, we need not consider whether any other state conflict-of-

interest law would also apply.

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Question 1(b): City Audit Committee and SANDAG Audit Committee

For similar reasons, we conclude that section 1099 would also prohibit a public

member of the City Audit Committee from serving simultaneously as a public member of

the SANDAG Audit Committee. Once again, both positions are “public offices” subject

to the section. And dual committee membership could again create a conflict of interest

because the two committees could oversee audits of the same subjects. For example,

both the SANDAG Audit Committee and the City Audit Committee could oversee audits

of a project involving both SANDAG and the City. 99 The two committees could also

have overlapping jurisdiction to audit contracts between SANDAG and the City—with

each committee potentially gaining access to the other contracting party’s records. 100

Given these overlaps in auditing jurisdiction, a dual committee member could face the

same conflicts discussed above. 101

Question 1(c): City Audit Committee and MTS Internal Auditor

As explained above, section 1099 prohibits serving in two government positions

only if they are both “public offices.” 102 We concluded above that the Metropolitan

Transit System’s Internal Auditor does not hold a “public office” for these purposes. We

therefore conclude, in response to question 1(c), that section 1099 would not prohibit the

Internal Auditor from serving concurrently on the City Audit Committee. We will

consider next whether any other state law would apply in these circumstances.

Government Code section 1126. Government Code section 1126 prohibits local

agency personnel from engaging in certain incompatible outside activities. 103

Specifically, it prohibits “a local agency officer or employee” from “engag[ing] in any

employment, activity, or enterprise for compensation which is inconsistent, incompatible,

99

See SANDAG Board Policy No. 39, §§ 3.1.6-3.1.7, 6; San Diego Munic. Code,

§§ 26.1701, subd. (a), 26.1710; see also San Diego City Attorney, letter to City Audit

Committee member, Apr. 21, 2022, at p. 2.

100

See San Diego City Charter, art. V, § 39.2 (“All City contracts with consultants,

vendors, or agencies will be prepared with an adequate audit clause to allow the City

Auditor access to the entity’s records needed to verify compliance with the terms

specified in the contract”); SANDAG Board Policy No. 39, § 6.16 (describing

SANDAG’s rights of access to the records of contracting parties).

101

See 85 Ops.Cal.Atty.Gen., supra, at p. 240; 101 Ops.Cal.Atty.Gen., supra¸ at p. 65.

102

See Gov. Code, § 1099, subd. (a) (“A public officer . . . shall not simultaneously hold

two public offices that are incompatible,” italics added).

103

A similar prohibition exists for state officers and employees. (See Gov. Code,

§ 19990.)

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in conflict with, or inimical to his or her duties as a local agency officer or employee.” 104

Importantly, however, the section 1126 prohibition is “not self-executing.” 105 Rather, the

statute gives each local agency’s appointing authority discretion to determine which

outside activities, if any, are incompatible. 106 The statute provides a non-exhaustive list

of activities that the agency may draw on in making that determination. 107 An agency

must notify its officers and employees as to which activities are incompatible and provide

notice of any “intended disciplinary action.” 108 If an agency does not determine that a

given outside activity is incompatible and provide appropriate notice, then section 1126

does not apply. 109

There are two government positions at issue here—MTS Internal Auditor and City

Audit Committee member—so we will consider whether section 1126 could apply to

either. First, the position of MTS Internal Auditor is subject to section 1126 because the

Auditor is an “employee” of a “local agency,” the MTS. 110 Section 1126 would not

prohibit the Internal Auditor from also serving on the City Audit Committee, however,

because the prohibition applies only to outside activities that are compensated, and public

members of the City Audit Committee are unpaid. 111

104

Gov. Code, § 1126, subd. (a). The statute further prohibits engaging in any

compensated outside activities that are inconsistent with “the duties, functions, or

responsibilities of [the local agency officer or employee’s] appointing power or the

agency by which he or she is employed.” (Ibid.)

105

81 Ops.Cal.Atty.Gen., supra, at p. 277.

106

See 81 Ops.Cal.Atty.Gen., supra, at p. 277; Mazzola v. City & Cnty. of San Francisco

(1980) 112 Cal.App.3d 141, 154; Long Beach Police Officers Assn. v. City of Long Beach

(1988) 46 Cal.3d 736.

107

See Gov. Code, § 1126, subd. (b); see also Long Beach Police Officers Assn. v. City of

Long Beach, supra, 46 Cal.3d at p. 746 (local agency is “free to set standards different

from or more rigorous than those suggested in the statute”).

108

Mazzola v. City & Cnty. of San Francisco, supra, 112 Cal.App.3d at p. 154; see ibid.

(notice gives employee or officer “a chance to either appeal the agency’s determination”

or else resolve the conflict by “resign[ing] from either his outside or agency position”).

109

E.g., Mazzola v. City & Cnty. of San Francisco, supra, 112 Cal.App.3d at p. 155

(agency was precluded from alleging section 1126 violation where it knew of employee’s

outside activities at time of appointment and did not notify him they were incompatible).

110

Gov. Code, § 1126, subd. (a); see Gov. Code, § 1125 (defining “local agency” as “a

county, city, city and county, political subdivision, district, or municipal corporation”).

111

See Gov. Code, § 1126, subd. (a); Request for Opinion, at p. 7.

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Second, members of the City Audit Committee are also subject to section 1126

because they are “officer[s]” of the City of San Diego, a “local agency.” 112 Because the

MTS Internal Auditor position is compensated, section 1126 could potentially be applied

to prohibit City Audit Committee members from simultaneously serving as the MTS

Internal Auditor. As described above, however, section 1126 would apply only if the

City Council—the appointing authority for the City Audit Committee—lawfully

exercised its “discretion under the statute to determine” that the duties of City Audit

Committee members are “incompatible with [the] duties” of serving as the MTS Internal

Auditor. 113 In the absence of such a determination—and we are not aware of any—

section 1126 would not prohibit a City Audit Committee member from serving

concurrently as the MTS Internal Auditor.

Other state conflict-of-interest laws. Other state laws prohibit personal and

financial conflicts of interest. For example, Government Code section 1090 prohibits city

and county officers and employees from being “financially interested in any contract

made by them in their official capacity, or by any body or board of which they are

members.” 114 And the Political Reform Act generally disqualifies public officials from

participating in government decisions in which they have a prohibited financial

interest. 115 Finally, local officials are also subject to the common-law prohibition on

public officials “placing themselves in a position where their private, personal interests

may conflict with their official duties.” 116

We see no reason that these prohibitions would apply here. These laws generally

regulate conflicts of interest arising from particular transactions or decisions, not status-

based conflicts arising from the concurrent holding of multiple government positions. 117

In any event, the request does not reference any type of financial or personal conflict of

interest, and the positions at issue do not appear to implicate any such conflict.

112

Gov. Code, § 1126, subd. (a); see Gov. Code, § 1125 (defining “local agency” as “a

county, city, city and county, political subdivision, district, or municipal corporation”).

113

81 Ops.Cal.Atty.Gen., supra, at p. 277.

114

Gov. Code, § 1090, subd. (a); see 67 Ops.Cal.Atty.Gen. 369, 375-377 (1984);

81 Ops.Cal.Atty.Gen., supra, at pp. 277-279.

115

Gov. Code, § 87100; see 85 Ops.Cal.Atty.Gen. 115, 119-122 (2002).

116

Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1171; see also

81 Ops.Cal.Atty.Gen., supra, at pp. 280-281.

117

See 81 Ops.Cal.Atty.Gen., supra, at p. 281 (“[C]onflict of interest principles generally

do not bar a person from holding two different positions, instead requiring only

abstention when a particular matter arises”).

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2. Would the City Council violate state law if its appointment to the City Audit

Committee resulted in the appointee holding incompatible public offices?

The second question presented asks whether the San Diego City Council would

violate state law if its appointment to the City Audit Committee resulted in the appointee

holding legally incompatible offices. We conclude that it would not.

As noted above, Government Code section 1099(b) provides the remedy when a

public officer assumes two incompatible offices: the officer is “deemed to have forfeited

the first office upon acceding to the second.” 118 The statute further provides that the

officer can be removed from the first office through an action in quo warranto. 119 But

neither section 1099, nor any other authority we are aware of, provides that an appointing

authority violates state law by making such an appointment. 120 We therefore conclude

that the City Council would not violate state law by making an appointment to the City

Audit Committee that results in the appointee holding legally incompatible offices.

Rather, under section 1099(b), the appointee would be deemed to forfeit the first office

held.

118

Gov. Code, § 1099, subd. (b).

119

See Gov. Code, § 1099, subd. (b); Code Civ. Proc., § 803.

120

For example, we are aware of no authority suggesting that the City Council could

violate Government Code section 1126 through an Audit Committee appointment. (See

Gov. Code, § 1126, subd. (a) [prohibiting local agency personnel from engaging in

certain incompatible outside activities].) Rather, as discussed above, section 1126 gives

local agencies discretion to determine which outside activities, if any, are inconsistent

with an agency position. (See 81 Ops.Cal.Atty.Gen., supra, at p. 277.)

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