De Kamp, 041684 CAAGO, AGO 84-409

Docket Nº:AGO 84-409
Case Date:April 16, 1984
Court:California
 
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JOHN K. VAN DE KAMP Attorney General
RICHARD D. MARTLAND Chief Assistant
AGO 84-409
No. 84-409
California Attorney General Opinion
Office of the Attorney General State of California
April 16, 1984
         The California Chamber Of Commerce has requested leave to file suit in quo warranto to challenge the qualifications of Mel Rubin to serve as a member of the Board Of Administration of the Public Employees' Retirement System.[*] The request presents the following questions:          Under what circumstances will the Attorney General grant leave for a private party to sue in quo warranto?          Is a trustee of a Taft-Hartley trust an "official of a life insurer" for purposes of Government Code section 20100, subdivision (c), qualifying him to serve on the Board of Administration of the Public Employees' Retirement System? CONCLUSION          The Attorney General will grant leave for a private party to sue in quo warranto when (1) the application presents a substantial question of law or fact and (2) it appears the public interest would be served by judicial resolution of the question.          A trustee of a Taft-Hartley trust is an "official of a life insurer" for purposes of Government Code section 20100, subdivision (c), and is therefore qualified to serve on the Board of Administration of the Public Employees' Retirement System.          ANALYSIS          The proposed relator, the California Chamber of Commerce, a California corporation, challenges the qualifications of the proposed defendant, Mel Rubin, to serve on the Board of Administration of the Public Employee's Retirement System (PERS) as an "official of a life insurer" (Gov. Code, § 20100, subd. (c)) and has presented the matter to the Attorney General for consideration as a possible quo warranto action pursuant to the regulations of the Department of Justice (Cal. Admin. Code, tit. 11, §§ 1-11). The proposed relator has submitted to this office an application for leave to sue in quo warranto together with a proposed complaint in quo warranto, a verified statement of facts, points and authorities, notice to proposed defendant, and proof of service.          The proposed defendant submitted a memorandum of points and authorities and declaration in opposition to the application for leave to sue in quo warranto. The proposed relator filed a written reply to the showing made by the proposed defendant.          During the review process, this office requested additional information on the attributes and responsibilities of a trustee of the Taft-Hartley trusts for which the proposed defendant serves as a trustee and on which he bases his claim to being an official of a life insurer. A supplemental memorandum was received from the proposed defendant to which the proposed relator responded.          Facts          The Public Employees' Retirement Law is contained in section 20000 et seq. of the Government Code. The Retirement System is administered by a Board of Administration consisting of 11 members.          Prior to January 16, 1984, section 20100, subdivision (c), of the Government Code provided:
"The board of administration of this system is continued in existence. "It consists of: " ..................... "(c) An official of a life insurer, an officer of a bank, and an elected official of a contracting agency, and one person representing the public, appointed by the Governor."
         Effective January 16, 1984, section 20100(c) was amended but still retains the requirement for "an official of a life insurer."          On or about April 30, 1981, then-Governor Edmund G. Brown, Jr., appointed Mel Rubin to the Board of Administration of the Public Employees' Retirement System as the "official of a life insurer" pursuant to Government Code section 20100, subdivision (c). Since April 30, 1981, Mr. Rubin has held and exercised this position on the Board of Administration. His term continues to January 15, 1985.          At the time of his appointment, the proposed defendant was a trustee of certain Taft-Hartley trust funds.[1] The Taft-Hartley plan is a benefit program negotiated by a labor union with the employer, pursuant to which the employer makes contributions into the plan on behalf of the members of the union. (29 U.S.C. § 186.) The particular plans at issue here provide for a retirement pension; a joint vacation plan; a supplementary unemployment and disability plan; a medical and dental insurance program; and a joint death benefit plan. Under the joint death benefit plan, employers contribute into a fund from which beneficiaries of employees are paid death benefits upon the employees' death. There are additional payments in the event of an accidental death.          Contentions          The proposed relator contends that a trustee of a Taft-Hartley trust which pays death benefits to an employee's family and other benefits does not hold the requisite qualifications for appointment to the Board of Administration of the Public Employee's Retirement System as "[a]n official of a life insurer."          The proposed defendant contends that his position as trustee of a Taft-Hartley employee benefit plan renders him an official of a life insurer as that term is used in Government Code section 20100, subdivision (c).[2]          Criteria for Deciding Whether to Grant Leave to Sue in Quo Warranto          An action in quo warranto challenging the qualification of an office-holder may be brought only by the Attorney General or, with the Attorney General's consent, by a private party. (Gov. Code, §§ 803, 810.) Quo warranto actions are commenced in the interest of the public to redress wrongs that injure the public. (City of Campbell v. Misk (1961) 197 Cal.App.2d 640, 648, 650; People v. Lowden (1855) 2 Cal.Unrep. 537, 542.)          Historically, the Attorney General has not granted leave to sue in quo warranto unless some "public purpose would be served." (E.g., 36 Ops.Cal.Atty.Gen. 317, 319 (1960); 29 Ops.Cal.Atty.Gen. 204, 208 (1957); 27 Ops.Cal. Atty.Gen. 225, 229 (1956); 26 Ops.Cal.Atty.Gen. 180, 190 (1955); 21 Ops.Cal.Atty.Gen. 197, 201 (1953).) The "public purpose" requirement has been viewed as requiring "a substantial question of law or fact which calls for judicial decision." (25 Ops.Cal.Atty.Gen. 237, 240 (1955).) While "it is not the province of the Attorney General to pass upon the issues in controversy, but rather to determine whether there exists a state of facts or questions of law that should be determined by a court" (25 Ops.Cal.Atty.Gen. 332, 341 (1955); 24 Ops.Cal.Atty.Gen. 146, 151-152 (1954); 19 Ops.Cal.Atty.Gen. 87, 88 (1952); 17 Ops.Cal.Atty.Gen. 46, 47 (1951); 15 Ops.Cal.Atty.Gen. 62, 63 (1950)), the mere existence of a legal dispute does not establish that the public interest requires a judicial resolution of the dispute or that leave automatically should be granted for the proposed relator to sue in quo warranto. In City of Campbell v. Mosk, supra, 197 Cal.App.2d 640, the court said:
"We do not believe . . . that the debatable issue inevitably produces the quo warranto. Indeed, the Attorney General's exercise of discretion is posited upon the existence of a debatable issue. To hold that the mere presentation of an issue forecloses any exercise of discretion would mean, in effect, that, contrary to the holding in Lamb [v. Webb (1907) 151 Cal. 451] case, the Attorney General could exercise no discretion. The crystallization of an issue thus does not preclude an exercise of discretion; it causes it. " ..................... "The exercise of the discretion of the Attorney General in the grant of such approval to sue calls for care and delicacy. Certainly the private party's right to it cannot be absolute; the public interest prevails . . . ." (197
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