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'  




           
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          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  






           
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          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  





           
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          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.