BILL ANALYSIS SENATE LOCAL GOVERNMENT COMMITTEE Senator Christine Kehoe, Chair BILL NO: SB 274 HEARING: 4/6/05 AUTHOR: Romero FISCAL: No VERSION: 3/29/05 CONSULTANT: Detwiler INCOMPATIBLE OFFICES Background and Existing Law In 1850, the Legislature adopted the English common law to guide the California courts, to the extent that the common law isn't inconsistent with the United States Constitution, the California Constitution, or state statutory laws. The common law prohibits holding incompatible offices. Many court decisions and Attorney Generals' opinions have interpreted and applied the prohibition against incompatible offices. The Attorney General restated this doctrine in a 1999 opinion: 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 supervisory, auditory, or removal power over the other. A person who assumes the duties of a second, incompatible office automatically vacates the first office. A November 2004 Attorney General's opinion determined that the offices of a unified school district trustee and a county water district director are incompatible. The Attorney General gave permission for a private citizen to file a quo warranto action --- a lawsuit challenging a person's right to hold an office. A request for summary judgment is pending in the Los Angeles County Superior Court. Several state laws require or allow local officials to serve on other public agencies. The Cortese-Knox-Hertzberg Act, for example, requires two county supervisors and two city councilmembers (or mayors) to serve as LAFCO commissioners. About half of the LAFCOs have special district representatives who are also members of districts' SB 274 -- 3/29/05 -- Page 2 governing boards. Under the Joint Exercise of Powers Act, local officials serve on the governing boards of joint powers agencies. Because the prohibition against holding incompatible offices is a common law doctrine and not a statutory ban, some observers say that local officials fail to understand the concept. They want the Legislature to codify this doctrine. Proposed Law Senate Bill 274 declares that service on a local governmental board, commission, committee, or other body is incompatible with service on another local government board, commission, committee, or body if: Either body can audit, overrule, remove members of, dismiss employees of, or supervise the other body, There is a significant clash of duties or loyalties, or Public policy makes it improper for a person to hold both offices. This rule does not apply to advisory bodies. SB 274 prohibits an elected or appointed member of a local government body from accepting election or appointment to a second local government body without resigning from the first. The bill prohibits a person from exercising the powers of the first office after acceding to the second office. However, SB 274 recognizes three exceptions to the new statutory rule: (1) an attorney employed by a local agency in a nonelective position does not create a conflict, (2) serving as a director of the Local Agency Self-Insurance Authority does not create a conflict for a local agency's officers or employees, and (3) where a local ordinance provides an exception. Comments SB 274 -- 3/29/05 -- Page 3 1. Serving two masters . The common law doctrine is perfectly clear: one person cannot hold two incompatible offices. Decades of court decisions and Attorney Generals' opinions have spelled out the three tests for incompatibility. Nevertheless, a few local officials still try to hang onto positions that have inherent conflicts. Some even refuse to leave office, even when their errors are known. By codifying the common law doctrine, SB 274 spells out the three tests and the consequences in black-and-white. Once the Legislature adopts this statute, there will be no excuse for violating the public's trust by holding incompatible offices. 2. Searching for a problem . Among the Legislature's earliest decisions was to embrace the English common law. For 155 years public officials have understood the common law's prohibition against holding incompatible offices. The remedies for violating that prohibition are equally well known and successive Attorneys General have not been shy about allowing quo warranto suits when the facts justified them. Codifying the rules won't make them stronger or easier to enforce. The Committee may wish to consider whether SB 274 exalts form over substance. 3. Goose and gander ? SB 274 applies only to local governments and is silent about state and regional offices. The common law prohibition against incompatible offices applies to all public offices, not just to counties, cities, special districts, school districts, and joint powers agencies. By codifying the common law doctrine only for local officials, SB 274 might imply that it's OK for state officials to hold incompatible offices. The Committee may wish to consider amending SB 274 so that it codifies the common law for all public agencies. 4. More exceptions needed . SB 274 recognizes two existing statutory exceptions to the common law prohibition against incompatible offices, but there are plenty of others scattered throughout state law. For example, when the Senate Local Government Committee revised the Recreation and Park District Law, it continued the provision that allows an elected member of a recreation and park district's governing board to serve on a municipal advisory council (SB 707, Senate Local Government Committee, 2001). Likewise, there are many statutes that require dual-office SB 274 -- 3/29/05 -- Page 4 holding. SB 274 neglects to acknowledge those other statutes. The Committee may wish to consider an amendment that inserts the phrase, "Except as otherwise provided in statute or by law?" 5. Local loopholes loom . By deferring to exceptions provided by local ordinances, SB 274 creates an overly-broad exception to the ban on incompatible offices. Local officials could use the bill's language to side-step the current controversy involving the Baldwin Park Unified School District and the Valley County Water District. Either the water district or the school district could adopt a local ordinance that allows dual-office holding and avoid the bill's ban. Any time the Attorney General finds conflicts, local officials could wiggle out of the problem by persuading their colleagues to adopt local ordinances. The Committee may wish to avoid this unintended consequence by amending the bill to delete that phrase. 6. Technical amendments needed . The statutory article to which SB 274 would codify the common law refers to a "local agency," and defines that term to include counties, cities, political subdivisions, districts, or municipal corporations (Government Code 1125). SB 274 uses --- but does not define --- the term "local governmental body." To avoid confusion, the Committee should adopt technical amendments that use the term, "local agency." Support and Opposition (3/31/05) Support : Unknown. Opposition : Association of California Water Agencies, Central Basin Municipal Water District, City of Rancho Palos Verdes, Metropolitan Water District of Southern California, West Basin Municipal Water District.