BILL NUMBER: SB 274	CHAPTERED
	BILL TEXT

	CHAPTER  254
	FILED WITH SECRETARY OF STATE  SEPTEMBER 22, 2005
	APPROVED BY GOVERNOR  SEPTEMBER 22, 2005
	PASSED THE SENATE  AUGUST 29, 2005
	PASSED THE ASSEMBLY  AUGUST 18, 2005
	AMENDED IN ASSEMBLY  JULY 12, 2005
	AMENDED IN ASSEMBLY  JUNE 20, 2005
	AMENDED IN SENATE  APRIL 13, 2005
	AMENDED IN SENATE  MARCH 29, 2005

INTRODUCED BY   Senator Romero
   (Coauthor: Senator Alquist)

                        FEBRUARY 16, 2005

   An act to add Section 1099 to the Government Code, relating to
public service.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 274, Romero  Incompatible offices: elected and appointed
positions.
   Existing statutory law forbids specified officers or employees
from engaging in any employment, activity, or enterprise for
compensation which is inconsistent, incompatible, or in conflict
with, or inimical to, his or her duties as an officer or employee or
with the duties, functions, or responsibilities of his or her
appointing power or the agency by which he or she is employed, except
as specified. The common law forbids the simultaneous holding of 2
offices that exercise sovereign power that are incompatible, the test
for which is satisfied in each of the following circumstances: (1)
when one office is superior to and exercises some supervisory power
over the other, or has the power to remove the incumbent of the other
or to audit the accounts of the other, (2) when there are
inconsistent functions or divided loyalties between the offices, or
(3) when the nature and duties of the 2 offices render it improper,
from consideration of public policy, for one incumbent to retain
both.   Existing law authorizes the Attorney General to bring an
action against any person who unlawfully holds or exercises any
public office.
   This bill would, except as specified, provide that a public
officer, including, but not limited to, an appointed or elected
member of a governmental board, commission, committee, or other body,
shall not simultaneously hold 2 public offices that satisfy this
common law test for incompatibility. It would provide when 2 offices
are incompatible that a public officer shall be deemed to have
forfeited the first office upon acceding to the 2nd. It would state
that this provision is enforceable by the Attorney General. It would
further state that its provisions do not apply to a position of
employment, as specified, or to a governmental body with only
advisory powers.
    The bill would state that it codifies the common law rule
prohibiting an individual from holding incompatible public offices.
It would further state that nothing in its provisions is intended to
expand or contract the common law, and that it is intended that
courts interpreting its provisions be guided by judicial and
administrative precedent developed under the common law.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 1099 is added to the Government Code, to read:

   1099.  (a)  A public officer, including, but not limited to, an
appointed or elected member of a governmental board, commission,
committee, or other body, shall not simultaneously hold two public
offices that are incompatible.  Offices are incompatible when any of
the following circumstances are present, unless simultaneous holding
of the particular offices is compelled or expressly authorized by
law:
   (1) Either of the offices may audit, overrule, remove members of,
dismiss employees of, or exercise supervisory powers over the other
office or body.
   (2)  Based on the powers and jurisdiction of the offices, there is
a possibility of a significant clash of duties or loyalties between
the offices.
   (3) Public policy considerations make it improper for one person
to hold both offices.
   (b) When two public offices are incompatible, a public officer
shall be deemed to have forfeited the first office upon acceding to
the second. This provision is enforceable pursuant to Section 803 of
the Code of Civil Procedure.
   (c) This section does not apply to a position of employment,
including a civil service position.
   (d) This section shall not apply to a governmental body that has
only advisory powers.
   (e) For purposes of paragraph (1) of subdivision (a), a member of
a multimember body holds an office that may audit, overrule, remove
members of, dismiss employees of, or exercise supervisory powers over
another office when the body has any of these powers over the other
office or over a multimember body that includes that other office.
   (f) This section codifies the common law rule prohibiting an
individual from holding incompatible public offices.
  SEC. 2.  Nothing in this act is intended to expand or contract the
common law rule prohibiting an individual from holding incompatible
public offices. It is intended that courts interpreting this act
shall be guided by judicial and administrative precedent concerning
incompatible public offices developed under the common law.