Medeiros, 082318 CAAGO, AGO 16-702

Case DateAugust 23, 2018
CourtCalifornia
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...

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