The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_______________
:
OPINION :
: No. 22-802
of :
: February 29, 2024
ROB BONTA :
Attorney General :
:
MANUEL M. MEDEIROS :
Deputy Attorney General :
VICTORIA GUNTER, TANESHA TRAVIS, AND MARA HARVEY
(Applicants) have applied for leave to sue PAUL KEEFER—who is currently a Trustee
on the Sacramento County Board of Education and the President, Chief Executive
Officer, and Executive Director of the Pacific Charter Institute—in quo warranto to
remove him from his seat on the County Board of Education.
QUESTION PRESENTED AND CONCLUSION
The application alleges that Keefer’s service on the County Board violates (1)
Government Code section 1099, which prohibits holding incompatible public offices, and
(2) Education Code section 1006, which makes school district employees ineligible to
serve on a county board of education with jurisdiction over their district.
We conclude that there are substantial issues of fact or law as to whether Keefer is
(1) simultaneously holding incompatible public offices in violation of Government Code
section 1099, and (2) serving on the County Board while an employee of a school district
within the Board’s jurisdiction in violation of Education Code section 1006.
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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BACKGROUND
Education Code section 1000 creates county boards of education consisting of five
to seven members. 1 A county board of education generally oversees the schools in the
county and approves the budget prepared by the county superintendent. 2
Charter schools are a class of public school usually initiated by some combination
of teachers, parents, community leaders, and community-based organizations. 3 Charter
schools operate differently from traditional public schools. The California Charter
Schools Act exempts them from many laws governing traditional school districts. 4 The
Act “is intended to allow ‘teachers, parents, pupils, and community members to
establish . . . schools that operate independently from the existing school district
structure.’” 5 It “seeks to expand learning opportunities, encourage innovative teaching
methods, provide expanded public educational choice, and promote educational
competition and accountability within the public school system.” 6
Charter schools must apply for and obtain a charter from the public school system
to operate. The charter approval process typically begins at the school district level,
although in certain circumstances it can begin with the county board of education. 7 A
party wishing to operate a charter school typically presents a petition to the governing
board of the school district in which the charter school would be located. 8 If the district
board denies the petition, the petitioner may appeal that denial to the relevant county
board of education or it may present its application to the county board in the first
instance. 9 If the county board of education also denies the petition, the petitioner may
1
Ed. Code, § 1000, subd. (a).
2
Ed. Code, §§ 1040, 1042, 1043, 1080; 85 Ops.Cal.Atty.Gen. 77, 77 (2002).
3
See Cal. Dept. of Education, Charter Schools-CalEdFacts, https://tinyurl.com/ycxsmff6
(as of Feb. 27, 2024).
4
Ed. Code, § 47610.
5
Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1186, quoting
Ed. Code, § 47601.
6
Ibid.
7
Ed. Code, §§ 47605, subd. (a) (petition submitted to governing board of school district),
47605.5 (petition submitted to county board where school would serve students for whom
county office is responsible for direct education), 47605.6 (petition submitted to county
board where school would provide services for pupils across districts within county).
8
Ed. Code, § 47605, subd. (a)(1).
9
Ed. Code, § 47605, subds. (k)(1)(A)(i), (k)(1)(A)(ii).
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appeal that denial to the State Board of Education. 10 If the district or county board grants
a charter petition, the granting board is designated as the chartering authority. 11 If the
State Board of Education grants a charter petition, it designates either the district or
county board as the chartering authority. 12
Although charter schools generally operate independently from the traditional
public school system, they are nonetheless “subject to public oversight” and government
regulation. 13 It is this public oversight that prompts the question before us: May the
chief executive officer of a charter school management organization (Pacific Charter
Institute) sit as a Trustee on a county board of education that has geographical
jurisdiction over charter schools that the organization manages?
A charter school may elect to operate as (or be operated by) a nonprofit public
benefit corporation organized and operated pursuant to the Nonprofit Public Benefit
Corporation Law. 14 Pacific Charter Institute is a nonprofit public benefit corporation that
serves as the “entity managing a charter school” or charter management organization with
respect to several charter schools in the Sacramento region. 15 Pacific Charter, whose
10
Ed. Code, §§ 47605, subds. (k)(2), (k)(2)(E). There is an exception for counties in
which the county board of education has jurisdiction over a single school district. In
those cases, the petitioner may elect to submit a petition denied by the district board
directly to the state board. (Ed. Code, § 47605, subd. (k)(1)(B).)
11
California School Bds. Assn. v. State Bd. of Ed. (2010) 186 Cal.App.4th 1298, 1307;
see Ed. Code, § 47604.32. A county board of education may also approve the petition for
a charter school that operates at one or more sites within the county and that provides
instructional services not generally provided by a county office of education. (Ed. Code,
§ 47605.6, subd. (a)(1).)
12
Ed. Code, § 47605, subd. (k)(2)(E).
13
Today’s Fresh Start, Inc. v. Los Angeles County Office of Ed. (2013) 57 Cal.4th 197,
206.
14
Ed. Code, § 47604; Corp. Code, § 5110 et seq. California law forbids a for-profit
charter management organization to operate a charter school. (Ed. Code, § 47604,
subd. (b)(1).)
15
Memorandum in Opposition, p. 10; see Ed. Code, §§ 47604.1, subd. (a) (“For purposes
of this section, an “entity managing a charter school” means a nonprofit public benefit
corporation that operates a charter school consistent with Section 47604”); cf. 20 U.S.C.
§ 7221i(3) (“The term “charter management organization” means a nonprofit
organization that operates or manages a network of charter schools linked by centralized
support, operations, and oversight”); see Pacific Charter Institute,
https://www.pacificcharters.org/organization/overview (as of Feb. 27, 2024).
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corporate offices are located in the City of Sacramento, describes itself as a “family of
schools” 16 and operates the Heritage Peak Charter School and the New Pacific Charter
School in Sacramento County. Pacific Charter also operates the Sutter Peak Academy in
Sutter County, New Pacific Charter in Placer County, and the Valley View Charter Prep
School and Rio Valley Charter School in San Joaquin County. 17
Paul Keefer, the proposed defendant in this quo warranto matter, is the President,
Chief Executive Officer, and Executive Director of Pacific Charter, which he co-founded
in 2005. 18 The Pacific Charter Bylaws provide that the president of the corporation “shall
be known as the ‘Executive Director,’” and that “[t]he Executive Director . . . is the chief
executive officer” and “the general manager of the Corporation,” who supervises the
corporation’s activities, affairs, and officers. 19 The Executive Director also has such
other powers and duties as the Board of Directors may require. 20 In addition, Keefer has
been a member of the Sacramento County Board of Education (County Board) since June
2018. In 2022, he was reelected to the County Board for a second term, which will
expire in June 2026. 21
The applicants here are Victoria Gunter, Tanesha Travis, and Mara Harvey. Their
application for leave to file a complaint in quo warranto alleges two causes of action.
The first alleges that Keefer is unlawfully occupying the two incompatible public offices
of Executive Director of a charter school system that operates in Sacramento County and
Trustee on the Sacramento County Board, in violation of Government Code section
1099(a), which prohibits the holding of incompatible public offices. 22 Under Education
16
Pacific Charter Institute, supra, https://www.pacificcharters.org/organization/overview
(as of Feb. 27, 2024).
17
Verified Statement in Opposition, ¶ 3; see also Pacific Charter Institute,
https://www.pacificcharters.org/schools/ (as of Feb. 27, 2024).
18
Pacific Charter Institute, Executive Director, http://tinyurl.com/5yesue5p (as of Feb.
27, 2024).
19
Bylaws of Pacific Charter Institute (rev’d 9/5/2019), art. VIII, §§ 1, 8, Appx. C to
Verified Statement of Facts (hereafter Bylaws), copy available at
http://tinyurl.com/mrxwt6e9 (as of Feb. 27, 2024). For the sake of simplicity, we will
refer to Keefer only in his capacity as Executive Director of Pacific Charter. The fact
that he has alternative titles for his duties in the Pacific Charter administration is
immaterial to our analysis and conclusion.
20
Bylaws, art. VIII, § 8; Verified Statement in Opposition, ¶¶ 3, 9.
21
Sacramento County Office of Education, https://www.scoe.net/divisions/board/ (as of
Feb. 27, 2024); Verified Statement in Opposition, ¶ 2.
22
Gov. Code, § 1099, subd. (a) (“A public officer, including, but not limited to, an
4
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Code section 47604.1(b)(3), this prohibition applies to an entity managing a charter
school or charter management organization, such as Pacific Charter. 23 The second cause
of action alleges that, as an employee of a charter school within the jurisdiction of the
County Board, Keefer unlawfully occupies the office of Trustee on the County Board in
violation of Education Code section 1006(a). This section excludes from membership on
a county board of education “any employee of a school district that is within the
jurisdiction of the county board of education.” 24
Quo warranto is a civil action used most commonly to challenge an incumbent
public official’s right or eligibility to hold a given public office.25 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.” 26
ANALYSIS
Where a private party seeks to pursue a quo warranto action to oust an incumbent
public official from office, that party must first apply for and obtain the Attorney
General’s consent. 27 In determining whether to consent to the proposed action, we do not
appointed or elected member of a governmental board, commission, committee, or other
body, shall not simultaneously hold two public offices that are incompatible”).
23
See Ed. Code, § 47604.1, subd. (b)(3) (“A charter school and an entity managing a
charter school shall be subject to . . . Article 4 (commencing with Section 1090) of
Chapter 1 of Division 4 of Title 1 of the Government Code.”)
24
Ed. Code, § 1006, subd. (a) (“Any registered voter is eligible to be a member of the
county board of education except the county superintendent of schools or any member of
his or her staff, or any employee of a school district that is within the jurisdiction of the
county board of education”).
25
Code Civ. Proc., § 803; Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221,
1225; 103 Ops.Cal.Atty.Gen. 1, 71 (2022). The statutory proceeding is the modern
successor to the common law writ of quo warranto, a proceeding by which the Crown
inquired “by what authority” a person is holding a public office. (People ex rel. Lacey v.
Robles (2020) 44 Cal.App.5th 804, 811 (Lacey); Rando v. Harris (2014) 228 Cal.App.4th
868, 875 (Rando); 101 Ops.Cal.Atty.Gen. 76, 77 (2018).)
26
Code Civ. Proc., § 803; see Rando, supra, 228 Cal.App.4th at p. 873;
97 Ops.Cal.Atty.Gen. 12, 14 (2014).
27
International Association of Fire Fighters v. City of Oakland (1985)
174 Cal.App.3d687, 693-698.
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resolve the merits of the controversy. Rather, we employ a three-part analysis that
considers: (1) whether quo warranto is an available remedy under the circumstances; (2)
whether the relator has raised a substantial issue of law or fact concerning the official’s
right to hold office, and (3) whether authorizing the quo warranto action will serve the
public interest. 28 Because we conclude that each of these conditions exists here, we grant
the application to proceed in quo warranto.
1. Quo Warranto Is an Available Legal Remedy
As to the first cause of action, Government Code section 1099 prohibits the
holding of incompatible public offices. Keefer was re-elected to the Sacramento County
Board of Education in June 2022, and we have previously concluded that the position of
Trustee on a county board of education is “undoubtedly” a public office. 29 If Keefer’s
position at Pacific Charter is a public office (or treated as such for purposes of an
incompatibility analysis) and is incompatible with his simultaneous service as a Trustee
of the County Board of Education, then Keefer’s occupancy of both positions would
violate section 1099. Forfeiture of office under this prohibition is enforceable by an
action in quo warranto. 30
As to the second cause of action, Education Code section 1006 directs that an
“employee of a school district” is ineligible to serve on a county board of education with
jurisdiction over that district. If Keefer’s role with Pacific Charter, which operates
schools in Sacramento County, constitutes being an “employee of a school district” for
purposes of section 1006, then he would be ineligible to serve as a Trustee on the
Sacramento County Board of Education. Quo warranto is the proper means to test
eligibility to hold a public office.31
28
Rando, supra, 228 Cal.App.4th at p. 879; 72 Ops.Cal.Atty.Gen. 15, 20 (1989); see also
Lacey, supra, 44 Cal.App.5th at p. 816 (“Attorney General’s gatekeeping function ‘also
protects public officers from frivolous lawsuits’”), internal quotation marks and citations
omitted; 101 Ops.Cal.Atty.Gen. 42, 42 (2018) (Attorney General acts as “gatekeeper”);
98 Ops.Cal.Atty.Gen. 84, 87 (2015) (same).
29
104 Ops.Cal.Atty.Gen. 47, 49, fn. 16 (2021), citing 79 Ops.Cal.Atty.Gen. 155, 156
(1997); 31 Ops.Cal.Atty.Gen. 170, 170-171 (1958).
30
Gov. Code, § 1099, subd. (b) (“When two public offices are incompatible, a public
officer shall be deemed to have forfeited the first office upon acceding to the second. This
provision is enforceable pursuant to Section 803 of the Code of Civil Procedure [the quo
warranto statute].”)
31
See 95 Ops.Cal.Atty.Gen. 77 (2012) (statute precluding certain persons from holding
office as director of a hospital district).
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Accordingly, as to both proposed causes of action, quo warranto is an available
and appropriate remedy. 32
2. The Application Presents Substantial Legal Issues that Warrant Judicial
Resolution.
a. There Is a Substantial Legal Issue as to Whether Keefer’s Position as Pacific
Charter’s Executive Director Qualifies as a “Public Office” under Section
1099 and, If So, Whether It Is Incompatible with Keefer’s Public Office on
the Sacramento County Board of Education.
i. “Public office”
As a threshold matter, we note that Education Code section 47604.1(b)(3)
specifies that section 1099 (and the other provisions of the article in which it is
contained) apply to an “entity managing a charter school.” In this context, we believe
that this coverage must be read as encompassing individual officers of the managing
entity, as section 1099 prohibits an individual person from holding incompatible offices.
While section 47604.1 does not expressly state that charter school-managing officers are
public officers, we believe the statute must be read to treat them as such for purposes of
the several conflict-of-interest provisions that it makes applicable to them. Otherwise,
the statute would be meaningless. Indeed, the title of Article 4 (which includes section
1099) when it was enacted was “Prohibitions Applicable to Specified Officers.” 33
A contemporaneous legislative committee analysis stated that the “measure
requires entities managing charter schools to comply with the conflict of interest code
sections described above.” The analysis described charter management organizations as
operating charter schools in much the same way that school districts operate traditional
public schools, such as by “acting as the administrator of the school, appointing the
governing body of the school, selecting curriculum, hiring teachers and staff, [and]
providing budget and payroll services.” 34 Clearly the legislative committee had in mind
charter management organizations such as Pacific Charter, which manages and oversees
32
105 Ops.Cal.Atty.Gen. 65, 67 (2022); see Code Civ. Proc., § 803; Nicolopulos v. City
of Lawndale, supra, 91 Cal.App.4th at p. 1225; 103 Ops.Cal.Atty.Gen. 33, 35-36 (2020).
33
Stats. 1943, ch. 134, § 1090, p. 956, emphasis added; see now Gov. Code, Art. 4, Div.
4, Tit 1, commencing with § 1090. In interpreting statutes, we may consider titles of acts,
headnotes, and chapter and section headings to determine legislative intent.
(62 Ops.Cal.Atty.Gen. 81, 83 (1979); see also Lacagnina v. Comprehend Systems, Inc.
(2018) 25 Cal.App.5th 955, 969.)
34
Assem. Comm. on Ed., analysis of Sen. Bill No. 126 (2019-2020 Reg. Sess.) as
amended Feb. 14, 2019, p. 5 (hearing. date Feb. 26, 2019).
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multiple charter schools. Defendant Keefer is undoubtedly an officer of Pacific Charter
and is, therefore, subject to the restrictions of section 47604.1(b)(3). This in itself raises
a substantial issue as to whether his position qualifies as a “public office” for purposes of
an incompatible-office analysis.
Even apart from section 47604.1, though, a substantial legal issue as to the nature
of Keefer’s position arises from applying the traditional test for determining whether a
given position is a “public office” for purposes of the incompatible-offices prohibition.
An important indicator of a public office is that the position be created or authorized by
some statute. 35 “And it is essential that the incumbent be clothed with a part of the
sovereignty of the state to be exercised in the interest of the public.” 36 Since 2019, the
function of charter school executive director has been expressly authorized by statute.
Education Code sections 47604(b)(2)(A)(ii) and (iii) expressly define a corporation’s
“operation” of a charter school to include “[e]mploying, supervising, or dismissing
employees of the charter school, including certificated and noncertificated school
personnel,” and “[m]anaging the charter school’s day-to-day operations as its
administrative manager.” 37
According to Pacific Charter’s bylaws, Keefer is the “general manager of the
Corporation [who] shall supervise, direct, and control the Corporation’s activities, affairs,
and officers.” 38 Pacific Charter’s website describes him as “work[ing] with his team to
create systems to effectively manage an organization that extends over 10,000 square
miles and yet still meet the needs of individual students with all abilities.” 39 Keefer’s
duties and responsibilities are informed by significant public interests concerning the
education of children. 40 His position is that of a charter superintendent, which in our
view is reasonably equated to the public office of a district or county superintendent of
schools. 41
35
68 Ops.Cal.Atty.Gen 337, 341 (1985).
36
Levmel v. Johnson (1930) 105 Cal.App. 694, 697.
37
Ed. Code, § 47604, subd. (b)(2)(A)(ii), (iii).
38
See Bylaws, art. VIII, § 8; Verified Statement in Opposition, p. 4, ¶ 9.
39
Pacific Charter Institute, Executive Director, http://tinyurl.com/5yesue5p (as of Feb.
27, 2024).
40
Ed. Code, § 47601.
41
Keefer argues that his position is solely contractual and that he is therefore a mere
employee not subject to section 1099. But Keefer manifestly carries out statutorily
defined responsibilities included in “operating” a charter school, whether or not he does
so pursuant to a contract with the corporation. Moreover, he carries out these duties in
8
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Accordingly, the question whether Keefer’s position at Pacific Charter qualifies as
a “public office” for purposes of section 1099 is a substantial question of law and fact
that warrants judicial resolution.
ii. Incompatibility
The test for determining whether offices are incompatible under section 1099 is
whether “one of the offices has supervisory, auditory or removal power over the other or
if there would be any significant clash of duties or loyalties in the exercise of official
duties,” or if public policy considerations otherwise make it improper for one person to
hold both offices. 42 Only one potential significant clash of duties or loyalties is necessary
to render offices incompatible. 43 An actual conflict is not required; rather, the mere
possibility of a conflict is sufficient to make two offices incompatible. 44
The County Board is not presently the chartering authority for a Pacific Charter
school. 45 Nor does it appear that a Pacific Charter charter school petition has ever been
the subject of an appeal to the county board of education. 46 Yet Keefer acknowledges
that if the County Board were the chartering authority for a Pacific Charter school, then
the board “would have substantial oversight duties with respect to that charter school.” 47
Indeed, the application argues that the county board “may be called upon to evaluate a
proposed charter; and, if the county board becomes the chartering authority, it will have
the power to revoke or renew the school’s charter.” This, in turn, could create a
“significant clash of loyalties” for an individual who is both a Trustee on the county
board and the Executive Director of the charter management organization operating the
charter school. 48
oversight of multiple charter schools. (Cf., Ghafur v. Bernstein (2005) 131 Cal.App.4th
1230, 1238-1240 [superintendent of multiple charter schools is a “public official” for
purposes of libel].)
42
104 Ops.Cal.Atty.Gen. 66, 69 (2021), citing 85 Ops.Cal.Atty.Gen. 60, 61 (2002); Gov.
Code, § 1099, subd. (a); Lacey, supra, 44 Cal.App.5th at p. 819.
43
Lacey, supra, 44 Cal.App.5th at p. 819; 87 Ops.Cal.Atty.Gen. 153, 154 (2004).
104 Ops.Cal.Atty.Gen., supra, at p. 69; see 93 Ops.Cal.Atty.Gen. 110, 111 (2010); 85
44
Ops.Cal.Atty.Gen., supra, at p. 61.
45
Verified Statement in Opposition, ¶ 16.
46
Id., ¶ 17.
47
Memorandum in Opposition, pp. 20-21.
48
Relators’ Supporting Memorandum of Petition, p. 18.
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Keefer rejects what he calls the application’s “conditional argument,” but he does
not address the potential for a conflict should a Pacific Charter petition become subject to
the County Board’s chartering authority. 49 The Charter Schools Act subordinates a
charter school to the “supervisorial oversight” of its chartering authority. 50 “A chartering
authority is required to monitor the fiscal condition of each charter school under its
authority, and to ensure that each charter school under its authority completes all proper
reports. A chartering authority may revoke a charter if the school violates its charter;
fails to achieve student outcomes; fails to follow generally accepted accounting
principles; engages in fiscal mismanagement; or violates any provision of law.” 51
While Keefer acknowledges that Pacific Charter chose not to appeal a petition
denial from the Folsom-Cordova Unified School District to the County Board of
Education, 52 a different choice by the corporation could have presented Keefer with a risk
of conflicting loyalties. Or, Pacific Charter’s governing board might decide in the future
to directly petition the County Board as a chartering authority. 53 Again, such a decision
could present Keefer with a conflict of loyalties. Moreover, Keefer himself emphasizes
that Pacific Charter’s governing board, not Keefer, “is responsible for all decisions
regarding whether to petition a chartering authority for the right to operate a charter
school within the authority’s boundaries,” 54 thereby underscoring that he may have little
or no control to prevent a future conflict in loyalties. In any event, even where the
County Board of Education is not the chartering authority, the potential for conflicts of
interest exist. The County Board has oversight responsibilities with respect to actions
taken by chartering school districts within the county. 55
49
Memorandum in Opposition, p. 21.
50
101 Ops.Cal.Atty.Gen. 92, 108 (2018).
51
Ibid.
52
Memorandum in Opposition, p. 22; see Ed. Code, § 47605, subd. (k)(1)(A)(i) (appeal
to county board after petition denial).
53
See Ed. Code, § 47605.5 (“A petition may be submitted directly to a county board of
education in the same manner as set forth in Section 47605 for charter schools that will
serve pupils for whom the county office of education would otherwise be responsible for
providing direct education and related services. Any denial of a petition shall be subject
to the same process for any other county board of education denial of a charter school
petition pursuant to this part”).
54
Verified Statement in Opposition, ¶ 8.
55
See, e.g., Ed. Code, §§ 47605, subd. (k)(1)(A)(i) (appeal of petition denial to county
board of education), 47605.9, subds. (b) & (c) (county board of education designated as
chartering authority by state board), 47607, subd. (i) (appeal of charter revocation to
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Section 1099 prohibits the simultaneous occupation of two public offices if “there
is a possibility of a significant clash of duties or loyalties between the offices.” 56 As we
have observed, the mere possibility of a conflict is sufficient to make two offices
incompatible. 57 Moreover, it is not “pertinent to say that the conflict in duties may never
arise, it is enough that it may, in the regular operation of the statutory plan. Nor is it an
answer to say that if a conflict should arise, the incumbent may omit to perform one of
the incompatible roles.” 58 The prohibition against incompatible office holding “was
designed to avoid the necessity for that choice.” 59
We therefore conclude that there are substantial questions of fact and law as to
whether Keefer’s position as Pacific Charter’s Executive Director and his responsibilities
as Trustee on the County Board of Education present him with the potential for a
significant clash of duties and loyalties. 60
b. There is a Substantial Legal Question Whether Education Code Section 1006
Precludes Keefer’s Service as Trustee on the Sacramento County Board of
Education While Employed by Pacific Charter.
The application’s second cause of action alleges that Keefer’s employment with
Pacific Charter renders him ineligible to occupy the office of a Trustee on the Sacramento
County Board of Education under Education Code section 1006(a). That statute provides
that no “employee of a school district that is within the jurisdiction of the county board of
education” may simultaneously serve on that county’s board of education. 61 As we have
county board of education); Cal. Code Regs., tit. 5, § 11968.5.3 (appeal of charter
revocation to county board of education).
56
Gov. Code, § 1099, subd. (a)(2), italics added.
57
98 Ops.Cal.Atty.Gen. 94, 98 (2015); 97 Ops.Cal.Atty.Gen. 50, 52 (2014);
93 Ops.Cal.Atty.Gen., supra, at p. 111; see also Lacey, supra, 44 Cal.App.5th at p. 820 &
fn. 8, quoting with approval 93 Ops.Cal.Atty.Gen., supra, at p. 110.
58
67 Ops.Cal.Atty.Gen. 409, 414 (1984), quoting 3 McQuillin, Municipal Corporations
(rev. ed. 1973) § 12.67, pp. 295-296; see also 105 Ops.Cal.Atty.Gen., supra, at p. 72.
59
67 Ops.Cal.Atty.Gen., supra, at p. 414.
60
The parties also dispute whether the county board of education’s supervision of the
county superintendent of schools presents an additional potential for conflicting interests,
but we need not address this additional issue in determining whether to grant the present
application. “Only one potential significant clash of duties or loyalties is necessary to
make offices incompatible.” (Lacey, supra, 44 Cal.App.5th at p. 819, citing
87 Ops.Cal.Atty.Gen. 153, 154 (2004); see also 75 Ops.Cal.Atty.Gen. 10, 12 (1992).)
61
Ed. Code, § 1006, subd. (a).
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explained, the purpose of section 1006(a) is to extend the common law rule against
holding incompatible offices beyond its original application to two public offices, to also
include a situation where one position is a public office and the other is a position of
public employment. 62
In Opinion No. 20-102, discussed above, we construed section 1006 to apply to
employees of charter schools. We acknowledged that the text of section 1006 did not
state expressly that its use of the term “school district” included charter schools. But
after examining legislative history and the statute’s purpose, we concluded that, when the
Legislature authorized corporate charter schools, it expected the phrase “any employee of
a school district” to include charter school employees. At that time, there would have
been little reason for the Legislature to assume that charter school employees would be
exempted from section 1006(a). Under the original enactment, charter schools—though
operationally independent—were not legally separate from their chartering school
districts. 63 Accordingly, the Legislature would reasonably have expected that charter
school employees, just like their non-charter colleagues in the school district, would be
subject to the conflict-of-interest restriction in section 1006(a). When the Legislature
later authorized charter schools to be operated by a nonprofit public benefit corporation, 64
it did not exempt employees of those corporate charter schools from section 1006(a).
We reaffirm our conclusion in Opinion No. 20-102, although we acknowledge
both Keefer’s contrary views on the issue and the absence of controlling judicial
precedent. In the context of the present quo warranto application, however, it is enough
that there exists a substantial question of law as to whether Keefer occupies his position
on the Sacramento County Board of Education in violation of Education Code section
1006(a), and that this question warrants a judicial resolution. 65 Here, we conclude there
is.
62
104 Ops.Cal.Atty.Gen., supra, at p. 76, citing 69 Ops.Cal.Atty.Gen. 290, 291-292
(1986).
63
81 Ops.Cal.Atty.Gen. 140, 143 (1998) (“charter school remains a component part of
the school district that created it”).
64
Stats. 1998, ch. 34, § 3; see now Ed. Code, § 47604, subd. (a).
65
Keefer also asserts that applying Education Code section 1006 to him would
contravene Education Code section 47610 the so-called “mega-waiver” provision of the
Charter Schools Act. That section states that a “charter school shall comply with this part
and all of the provisions set forth in its charter, but is otherwise exempt from the laws
governing school districts” with specified exceptions, the enumeration of which does not
include section 1006. But by its terms, and as the exceptions impliedly confirm, section
47610 applies to “charter schools” themselves, not to individual charter school
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3. The Public Interest Would Be Served by Granting the Application
Generally, the existence of a substantial question of law or fact presents a
sufficient “public purpose” to permit an action in quo warranto, absent countervailing
circumstances. 66 Keefer alleges the existence of a number of such circumstances, but we
do not find them persuasive.
As an initial matter, he objects that the applicants unduly delayed in challenging
his qualifications to hold office, and that allowing them to proceed would encourage
“gaming the system.” Keefer acknowledges that Opinion No. 20-102 issued in late 2021,
when his previous term of office on the County Board was ending. But he argues that he
filed paperwork for re-election four months after our opinion issued, and that the
applicants could have brought either a pre-election or a post-election challenge to his
qualification, but that they did not do so. We received this application in September
2022, only a few months after Keefer’s June election to another four-year term on the
County Board. 67
We have previously recognized that the “the defense of laches requires
unreasonable delay in asserting an equitable right, plus either acquiescence of the
plaintiff or prejudice to the defendant caused by the delay.” 68 In our view, the applicants
did not “unreasonably delay” in bringing their application when they did. Moreover,
Keefer’s current term as Trustee does not expire until June 2026. Both the strong public
interest in a court settling Keefer’s entitlement to hold office, and the novel question
whether Education Code section 1006(a) applies to charter school employees, persuades
us that any delay in filing of this application should not prevent the proposed lawsuit
from being filed. 69
Keefer also notes that an unsuccessful piece of legislation would have codified
Opinion No. 20-102 insofar as it addressed the application of section 1006(a) to charter
school executive directors, effective January 1, 2023, but would also have exempted
Keefer because he was elected to the county board in 2022. 70 Keefer argues that,
employees. We accordingly do not construe section 47610 to exempt charter school
employees from the disability imposed by Education Code section 1006(a).
66
105 Ops.Cal.Atty.Gen. 69, 74 (2022); see 86 Ops.Cal.Atty.Gen. 82, 85 (2003).
67
Sacramento County Office of Education, https://www.scoe.net/divisions/board/ (as of
Feb 27, 2024).
68
103 Ops.Cal.Atty.Gen., supra, at p. 6.
69
See 105 Ops.Cal.Atty.Gen. 101, 109 (2022).
70
See Assem. Bill No. 1652 (2021-2022 Reg. Sess.), § 1.
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although the bill failed passage, it nevertheless “calls into question the public interest in
seeking to remove him from office.” 71 We disagree. It is a “well-established principle
that failed legislation is of little value in determining the Legislature’s original intent.” 72
Instructive on this point are the circumstances surrounding our Opinion No. 11-201, in
which we noted the multiple failed legislative efforts to clarify whether corporate charter
schools are subject to public-integrity statutes. 73 We declined to infer from these failings
a legislative opposition to extending California’s public-integrity statutes to charter
schools. 74 Similarly, we decline to infer from Keefer’s proffered failed bill any
legislative intent concerning Education Code section 1006(a). As the California Supreme
Court has put it: “At best, ‘Legislative silence is a Delphic divination.’” 75
We are satisfied that allowing the proposed suit in quo warranto will serve the
public interest by (1) determining whether the positions of Pacific Charter Institute
executive director and Sacramento County Board of Education Trustee are incompatible
public offices, (2) determining whether Education Code section 1006(a) applies to
employees of charter schools, and (3) by ensuring that public officials avoid conflicting
loyalties in performing their public duties.
Accordingly, the application for leave to sue in quo warranto is GRANTED.
71
Memorandum in Opposition, p. 31.
72
Frazier Nuts, Inc. v. American Ag Credit (2006) 141 Cal.App.4th 1263, 1272, fn. 11.
73
101 Ops.Cal.Atty.Gen., supra, at pp. 95-96.
74
Id., at pp. 102-103. As already discussed, the Legislature recently added Education
Code section 47604.1, affirming our 2018 conclusion that the state’s public integrity
statutes apply to a nonprofit “entity managing a charter school.” (Stats. 2019, ch. 3, § 1.)
75
Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 418.
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