De Kamp, 052783 CAAGO, AGO 82-1207

• Case Date: May 27, 1983
• Court: California

JOHN K. VAN DE KAMP Attorney General CLAYTON P. ROCHE Deputy Attorney General AGO 82-1207 No. 82-1207 California Attorney General Opinion Office of the Attorney General State of California May 27, 1983          THE HONORABLE CHARLES O. LAMOREE, COUNTY COUNSEL, SOLANO COUNTY, has requested an opinion on the following questions:

1. Are the positions of fire chief of a county fire protection district and member of the board of supervisors of the same county incompatible offices? 2. If the fire chief were to waive his compensation as fire chief or were to act merely in the capacity of an uncompensated volunteer firefighter, would either of such actions obviate the incompatibility of office problems? 3. Would the incompatibility of office problems be avoided where the district board becomes an elective body?

         CONCLUSIONS          1. The position of fire chief of a county fire protection district and member of the board of supervisors of the same county are incompatible offices.          2. Waiver of salary by the fire chief would not obviate the incompatibility of office problems. However, resignation as fire chief and acting in the capacity of an uncompensated volunteer firefighter would obviate such problems.          3. Incompatibility of office problems would not be avoided where the district board becomes an elective instead of an appointive body.          ANALYSIS          The questions1 are presented in the context of a county fire protection district (hereinafter "district") formed pursuant to the Fire Protection District Law of 1961 (Health & Saf. Code, § 13801 et seq.). The district is governed by a five-member board of directors appointed by the board of supervisors (the "supervising authority") for a four-year term (see Health & Saf. Code, §§ 13806, 13831). However, the district board will soon become an elective board. The district board has established the position of district fire chief and provided a salary for that position.^[2] No civil service system has been established (See Health & Saf. Code, § 13856). Accordingly, the fire chief serves at the district board's pleasure. The fire chief has been elected to the board of supervisors of the county in which the fire protection district lies and has assumed that office.          1. Are the Positions of District Fire Chief and Member, Board of Supervisors Incompatible Offices?          The first question presented is whether the positions of district fire chief and member of the county board of supervisors of the county in which the district lies are incompatible offices.

"Offices are incompatible, in the absence of statutes suggesting a contrary result, if there is any significant clash of duties or loyalties between the offices, if the dual office holding would be improper for reasons of public policy, or if either officer exercises a supervisory, auditory, or removal power over the other." (38 Ops.Cal.Atty.Gen. 113 (1961).)

(See also, generally, People ex rel Chapman v. Rapsey (1940) 16 Cal.2d 636, 641-642, and e.g. 65 Ops.Cal.Atty.Gen. (1982), Opn. No. 82-901; 64 Ops.Cal.Atty.Gen. 288, 289 (1981); 64 Ops.Cal.Atty.Gen. 137, 138-139 (1981); 63 Ops.Cal.Atty.Gen. 623 (1980); 63 Ops.Cal.Atty.Gen. 607, 608 (1980).)          The policy set forth in People ex rel Chapman v. Rapsey, supra, 16 Cal.2d 636 comprehends prospective as well as present clashes of duties and loyalties. (See 63 Ops.Cal.Atty.Gen. 623, supra.)

". . . Neither is it 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. . . ." (3 McQuillin, Municipal Corporations (3d Ed. 1973, § 12.67, p. 297)."

         "[O]nly one significant clash of duties and loyalties is required to make . . . offices incompatible. . . ." (37 Ops.Cal.Atty.Gen. 21, 22 (1961).) Furthermore, "[t]he existence of devices to avoid . . . [conflicts] neither changes the nature of the potential conflicts nor provides assurance that they would be employed. . . ." (38 Ops.Cal.Atty.Gen. 121, 125 (1961).) Accordingly, the ability to abstain when a conflict arises will not excuse the incompatibility or obviate the effects of the doctrine. A public officer who enters upon the duties of a second office automatically vacates the first office if the two are incompatible. (People ex rel. Chapman v. Rapsey, supra, 16 Cal.2d 636, 644.) Both positions, however, must be offices. If one or...