XAVIER BECERRA Attorney General
AGO 18-301
No. 18-301
California Attorney General Opinion
Office of The Attorney General State of California
April 19, 2019
CATHERINE
BIDART Deputy Attorney General
OPINION
Proposed
relator, MIGUEL SANCHEZ, requests leave to sue proposed
defendant LETICIA PRADO in quo warranto to remove her from
the public office of member of the Governing Board of the
Vineland School District (School District trustee) on the
ground that she has assumed a second, incompatible public
office as a director of the Lamont Public Utility District
(Utility District trustee), in violation of the ban on
simultaneously holding incompatible offices set forth in
Government Code section 1099.
CONCLUSION
Leave
to sue is GRANTED because we find that a substantial issue of
fact or law exists as to whether the offices of School
District trustee and Utility District trustee are
incompatible and cannot be held at the same time under
Government Code section 1099, and therefore whether proposed
defendant LETICIA PRADO has forfeited and must vacate her
office of School District trustee.
ANALYSIS
We are
asked to grant leave to sue in quo warranto[1] to remove
proposed defendant Leticia Prado from the office of School
District trustee on the ground that she simultaneously holds
the incompatible office of Utility District
trustee.2 As we will explain, the Utility
District’s power to supply water and sewer services to
the School District creates a substantial issue of fact or
law as to whether the offices are incompatible, warranting
leave to sue.
In
December 2016, shortly after Ms. Prado assumed office as
School District trustee, she assumed the additional office of
Utility District trustee.3 The School District has two
schools, at least one of which is within the service area of
the Utility District.4 The Utility District provides water
and sewer services, but such a district may also provide a
variety of other services ranging from fire protection to
cable television.5
Government
Code section 1099 codifies the common law prohibition against
holding incompatible public offices, and the common law
prohibition continues to inform and govern application of the
statutory prohibition.6 An office is incompatible with another
office if one of them has supervisory, auditory, removal, or
veto power over the other.7 Incompatibility also exists where
there is a potential for a significant clash of duties or
loyalties between the offices in light of their respective
powers and jurisdiction.8 Public policy considerations may
also require a finding of incompatibility.[9] However,
holding incompatible offices is nevertheless permitted where
it is compelled or expressly authorized by law.[10]
Upon
assuming a public office that is incompatible with one that
the officer already holds, the officer is “deemed to
have forfeited the first office upon acceding to the
second.”11 If the officer does not vacate the
first office, an action to enforce the forfeiture may exist
under Code of Civil Procedure section 803.[12] This
section authorizes a person, with permission from the
Attorney General, to bring a quo warranto lawsuit (in the
name of the People of the State of California) “against
any person who usurps, intrudes into, or unlawfully holds or
exercises any public office . . . .”[13]
Seeing
that quo warranto is the applicable remedy, we must decide
whether to grant leave to sue.14 In doing so, we do not
endeavor to make a conclusive determination on the
merits.15 Rather, we assess whether a
substantial issue of fact or law exists warranting judicial
resolution,16 and, if so, whether allowing the
proposed action to proceed would serve the overall public
interest.17
Substantial
Issue as to Incompatibility of Offices
In
light of the incompatible-offices ban, does simultaneous
service as School District trustee and Utility District
trustee create a substantial issue of fact or law warranting
judicial resolution? In looking at potential grounds for
incompatibility we observe that neither of these public
offices18 holds supervisory, auditory,
removal, or veto power over the other. Thus, we must look to
the relevant duties and powers of the two offices to discern
whether holding them at the same time risks a significant
clash of duties or loyalties.19
A
school district, acting through its trustees, is responsible
for obtaining water and sewer services for the benefit of its
constituent schools, students, and employees.[20] A utility
district, acting through its trustees, is empowered to supply
those services.21 Indeed, the Utility District here
supplies water and sewer services.22
We have
previously determined that a person simultaneously holding
offices with similar duties would potentially face a
significant clash of duties or loyalties. Though our prior
opinions did not arise in the precise context of school
district trustee and utility district trustee, they arose in
a similar context where a school district trustee
simultaneously held office with an entity empowered to
provide that school district with water or sewer...
