MANUEL M. MEDEIROS Deputy Attorney General
XAVIER BECERRA Attorney General
AGO 16-702
No. 16-702
California Attorney General Opinion
Office of the Attorney General State of California
August 23, 2018
THE
HONORABLE MARK L. NATIONS, KERN COUNTY COUNSEL, has requested
an opinion on the following question:
Does
Elections Code section 10515, subdivision (a), require a
board of supervisors to appoint a director to a water
district if to do so would result in the appointee holding
incompatible public offices under Government Code section
1099?
CONCLUSION
Elections
Code section 10515, subdivision (a), requires a board of
supervisors to appoint a director to a water district without
regard to whether the appointment might result in the holding
of incompatible offices under Government Code section 1099.
Nonetheless, an individual so appointed may not lawfully hold
incompatible public offices; thus, if the particular offices
are incompatible, the appointee and would-be dual
officeholder will be deemed to have forfeited the first-held
office upon accepting appointment to the second.
ANALYSIS
We are
informed that two adjoining water districts located in Kern
County (County) scheduled at-large general elections for
their respective boards of directors. A director on each
water district board filed a declaration of candidacy for
election to the other district. No other declarations of
candidacy were filed in either district within the time for
filing. Elections Code section 10515 governs water district
elections,1 and provides that, in such a
circumstance—and where a sufficient number of voters do
not petition for an election be conducted anyway—an
unopposed candidate may request that, in lieu of holding a
pro forma election, the "supervising authority"
(here, the County's board of supervisors) appoint him or
her to the seat for which he or she declared
candidacy.2
Both
unopposed candidates sought appointment under Elections Code
section 10515, but the County Registrar of Voters raised
concerns about whether the appointments would create
incompatibility-of-office issues under Government Code
section 1099, subdivision (a),3 and we are informed that, because
of the Registrar's concerns, the County's board of
supervisors did not make the appointments.
Here we
are asked whether the board of supervisors may properly
decline to make appointments to the director positions based
on a concern over incompatibility of offices— i.e.,
despite the facially mandatory language of Elections Code
section 10501, subdivision (a), which states that the
"supervising authority shall make these
appointments." We conclude that the board may not
decline to make the appointments based on this concern, but
hasten to add that incompatible dual office-holding—if
that is indeed the result of such appointments—is
nonetheless impermissible and carries specified legal
consequences. Our analysis follows.
First,
we think it important to clarify what is not at
issue here. County Counsel has not asked whether the
simultaneous occupancy of both director positions would
amount to a holding of incompatible offices. The question of
incompatibility requires consideration of the facts and
circumstances of the individual case.4 "The doctrine springs
from considerations of public policy which demand that a
public officer discharge his or her duties with undivided
loyalty."5 We have not been informed of the
relationship between the two water districts, or of how the
two districts might interact, or of how the duties of a
director in respect to one district might be incompatible
with his or her duty of loyalty to the other district. For
purposes of analysis, however, we will assume that the board
of supervisors could entertain a reasonable concern that the
simultaneous occupancy of the two offices would run afoul of
Government Code section 1099, subdivision (a).
In
construing section Elections Code 10515, subdivision (a)
(hereafter "section 10515(a)"), we apply settled
principles of statutory construction. Our task "is to
ascertain the intent of the Legislature so as to effectuate
the purpose of the law."6 We start with the words of the
statute themselves, "giving to the language its usual,
ordinary import and according significance, if possible, to
every word, phrase and sentence in pursuance of the
legislative purpose."7 Where the plain meaning does not
resolve a question of interpretation, we may consider
legislative history and, if ambiguity persists, we may
consider the consequences that will flow from a particular
interpretation.8
Generally
speaking, the rule with California codes is that...