Becerra, 102518 CAAGO, AGO 17-903

Docket Nº:AGO 17-903
Case Date:October 25, 2018
Court:California
 
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XAVIER BECERRA Attorney General
MANUEL M. MEDEIROS Deputy Attorney General
AGO 17-903
No. 17-903
California Attorney General Opinion
Office of the Attorney General State of California
October 25, 2018
         THE HONORABLE STACEY SIMON, MONO COUNTY COUNSEL, has requested an opinion on the following question:          May a member of the Southern Mono Healthcare District board of directors simultaneously serve as a member of the city council for the Town of Mammoth Lakes or on the city's Planning and Economic Development Commission?          CONCLUSION          A member of the Southern Mono Healthcare District board of directors may not simultaneously serve as a member of the city council for the Town of Mammoth Lakes or on the Mammoth Lakes Planning and Economic Development Commission.          ANALYSIS          The Southern Mono Healthcare District (District) is a special district organized pursuant to the Local Healthcare District Law,1 which authorizes health care districts to establish, maintain, and operate health facilities within their territorial limits.2 The District operates a hospital and a medical clinic within the Town of Mammoth Lakes (hereafter, City).3 Mammoth Lakes is a general law city governed by a city council comprising five elected members.4 The City's Planning and Economic Development Commission (Planning Commission) consists of five members appointed by the City council.[5]          We are asked whether an individual who is a member of the District's board of directors may simultaneously serve as a member of the City council or the Planning Commission—that is, whether such simultaneous service violates the prohibition against holding incompatible offices. We conclude that it does.          The doctrine of incompatible offices prohibits an individual from simultaneously holding two public offices if the performance of the duties of either office could have a significant adverse effect on the other.6 "The doctrine springs from considerations of public policy which demand that a public officer discharge his or her duties with undivided loyalty."7          In 2005, the Legislature codified the common law doctrine of incompatible offices by enacting Government Code section 1099. That section provides, in relevant part:
(a) A public officer, including, but not limited to, an appointed or elected member of a governmental board, commission, committee, or other body, shall not simultaneously hold two public offices that are incompatible. Offices are incompatible when any of the following circumstances are present, unless simultaneous holding of the particular offices is compelled or expressly authorized by law:
(1) Either of the offices may audit, overrule, remove members of, dismiss employees of, or exercise supervisory powers over the other office or body.
(2) Based on the powers and jurisdiction of the offices, there is a possibility of a significant clash of duties or loyalties between the offices.
(3) Public policy considerations make it improper for one person to hold both offices.
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(c) This section does not apply to a position of employment, including a civil service position.
(d) This section shall not apply to a governmental body that has only advisory powers.
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(f) This section codifies the common law rule prohibiting an individual from holding incompatible public offices.8
         In an unmodified section of the bill that enacted Government Code section 1099, the Legislature declared: "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."9 Accordingly, in conducting our analysis, we look both to Government Code section 1099 and to precedent established under the common law.          Are the governmental positions at issue "public offices"?          The doctrine of incompatible offices applies only to public offices, and not to positions of employment.[10] We have previously characterized a public office, for purposes of the doctrine, as "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;11 (3) in which the incumbent performs a public function for the public benefit and exercises some of the sovereign powers of the state."[12]          Under Government Code section 1099, subdivision (a), "public office" expressly includes membership on a governmental board or body.13 There can be little doubt, and we have previously concluded on numerous occasions, that a member of a city...

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