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.
** * *
(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.
** * *
(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...
