De Kamp, 052783 CAAGO, AGO 82-1207
|Docket Nº:||AGO 82-1207|
|Case Date:||May 27, 1983|
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 questions
"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...
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