BILL ANALYSIS
SB 274
Page 1
Date of Hearing: July 5, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 274 (Romero) - As Amended: June 20, 2005
SENATE VOTE : 30-3
SUBJECT : INCOMPATIBLE OFFICES: ELECTED AND APPOINTED POSITIONS.
KEY ISSUE : SHOULD THE COMMON LAW PROHIBITION AGAINST PUBLIC
OFFICERS HOLDING INCOMPATIBLE OFFICES BE CODIFIED?
SYNOPSIS
The author-sponsored measure is intended to codify the existing
common law prohibition against holding two incompatible public
offices. According to the author, the codification of the
common law will give better notice to potential office holders
in advance of any potential conflicts. The analysis suggests
several questions regarding whether this laudable goal can be
achieved by the bill. For example, there may be inherent
tension between precisely instructing public officials and the
need for inherently general language to capture common law
principles intended to be of general application. If the goal
of better informing public officials can be achieved, there is
also some question whether the benefits of doing so outweigh the
potential risks.
SUMMARY : Codifies common law regarding the prohibition of
public officers holding incompatible offices. Specifically,
this bill :
1)Prohibits a public officer, including, but not limited to, an
appointed or elected member
of a governmental board, commission, committee, or other body,
from simultaneously holding two public offices that are
incompatible.
2)Specifies that offices are incompatible when any of the
following circumstances are present:
a) Either of the offices may audit, overrule, remove
members of, dismiss employees of, or exercise supervisory
powers over the other office or body.
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b) Based on the powers and jurisdiction of the offices,
there is a possibility of a significant clash of duties or
loyalties between the offices.
c) Public policy considerations make it improper for one
person to hold both offices.
3)Provides that if compelled or expressly authorized by law, a
public officer may simultaneously hold two public offices that
are incompatible.
4)Specifies that when two public offices are incompatible, a
public officer will be deemed
to have forfeited the first office upon acceding to the second.
5)Prohibits the provisions of this bill from applying to a
governmental body that has only advisory powers.
6)Specifies that 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.
EXISTING LAW :
1)Pursuant to common law, prohibits public officers from holding
incompatible offices. (See, e.g., 04 Ops.Cal.Attny.Gen. 904
(2004).)
2)Provides that an action may be brought by the
attorney-general, in the name of the people of this state,
upon his own information, or upon a complaint of a private
party, against any person who usurps, intrudes into, or
unlawfully holds or exercises any public office, civil or
military, or any franchise, or against any corporation, either
de jure or de facto, which usurps, intrudes into, or
unlawfully holds or exercises any franchise, within this
state. And the attorney-general must bring the action,
whenever he has reason to believe that any such office or
franchise has been usurped, intruded into, or unlawfully held
or exercised by any person, or when he is directed to do so by
the governor. (Code of Civil Procedure section 803.)
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FISCAL EFFECT : As currently in print, this bill is keyed
non-fiscal.
COMMENTS : The author states that the purpose of this bill is to
codify well-settled common law principles in order to give
notice to potential office holders in advance of any potential
conflicts that might arise by holding two offices or board
positions that are incompatible.
Dispute Giving Impetus To The Bill. The author explains that
the bill arose from a district issue in which a director of the
Valley County Water District simultaneously served as a trustee
of the Baldwin Park Unified School District. The Attorney
General issued an opinion last November that there were
substantial issues of fact and law requiring judicial resolution
whether the offices were incompatible under the existing common
law rules, and therefore granted the application, as provided by
statute, of an individual who sought to file a quo warranto
action for a court determination of the issue. The Committee
understands that this action has been filed in Los Angeles
Superior Court, and that a motion for summary judgment is
currently pending.
Common Law Prohibition Against Holding Incompatible Public
Offices . The common law prohibits holding incompatible offices.
Many court decisions and Attorney Generals' opinions have
interpreted and applied this prohibition. "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." (85 Ops.Cal.Attny.Gen 60, 61.)
Because the prohibition against holding incompatible offices is
a common law doctrine and not a statutory ban, supporters argue
that local officials may fail to understand the concept. They
believe this would be prevented if the Legislature were to
codify the doctrine. On the other hand, it is possible to cite
examples where the problem is not lack of clarity but
recalcitrant public officials - such as where, despite Attorney
General opinions on point, officials holding incompatible local
offices still try to hang onto positions that have inherent
conflicts, and indeed even refuse to leave office when their
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errors are known.
Whatever incremental advantage statutory codification may offer,
it might be asked on the other hand whether a common law rule
intended to be of general application in order to fit a wide
variety of factual circumstances is sufficiently susceptible to
codification without danger of inadvertent omission or
confusion. As drafted, the bill purports to precisely codify
the existing common law in all of its nuances. This approach
necessarily must employ general language that, some might argue,
is too vague to truly provide effective guidance to public
officials. For example, two offices are incompatible under the
bill if "there is a possibility of a significant clash of duties
or loyalties between the offices." Likewise, the bill provides
that two offices would also be incompatible if "public policy
considerations make it improper for one person to hold both
offices." One may wonder whether this language gives the
affected public officials sufficiently meaningful notice of the
prohibited conduct. Of course, in a judicial proceeding, a
court may consider the various facts and circumstances and use
language to describe its reasoning in light of the case before
it. But different facts and circumstances would warrant
different language.
To the extent it might be questioned whether it is possible to
statutorily capture all of the common law - but no more than the
common law - another possibility might be to simply adopt a
statement to the effect that the Legislature intends to
expressly adopt the common law on this issue, along the lines of
subdivision (e) and section 2 of the bill. Either approach of
course assumes that the benefits of statutory codification
outweigh any potential risks.
Potential Questions Regarding Clarity. Recent amendments
reference the quo warranto statute, but there may still be
lingering concern that the new section created by the bill is to
be located in the same article as Government Code section 1090,
which provides in relevant part that "members of the
Legislature, state, county, district, judicial district, and
city officers or employees shall not be financially interested
in any contract made by them in their official capacity, or by
any body or board of which they are members. Nor shall state,
county, district, judicial district, and city officers or
employees be purchasers at any sale or vendors at any purchase
made by them in their official capacity." The remedies for
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violation of section 1090 (felony penalties, disqualification
from office-holding) are so severe that it may be useful to
further clarify that the quo warranto action is the only remedy
authorized under the new statute for what may be an innocent
violation of the incompatible offices prohibition.
It might also be asked whether the bill is meant to be
understood literally to the effect that in every case involving
incompatible offices the officer is "deemed to have forfeited
the first office upon acceding to the second." Attorney General
opinions have sometimes denied quo warranto applications and
permitted the public official at issue to resign or complete
service of one of the offices. In the case of the Baldwin Park
controversy giving rise to this bill, the public official
apparently indicated that she did not plan to run again for the
water board and had only one year left to serve. The Attorney
General concluded that one year was too long to permit the
simultaneous service, so the complaining party should be
permitted to go to court to seek a resolution as to the
incompatibility issue. On the other hand, the Attorney
General's opinion cites two cases in which quo warranto requests
were denied because the officer had only two-four months of
service left. It may not be clear whether this potential
inconsistency between the automatic forfeiture provision of the
bill and the opinions permitting completion of service can be
explained as a matter of the Attorney General's discretion with
respect to the quo warranto application, as opposed to a change
in the common law remedy.
Finally, questions may be raised regarding the scope of the
offices to which the bill applies. For example, the bill
exempts governmental bodies that have only "advisory powers."
It may not be clear in some circumstances which bodies are
"advisory." An officeholder might be left to guess at the risk
of being deemed to have forfeited an office. In addition, the
bill exempts situations in which the "simultaneously holding of
the particular offices is compelled or expressly authorized by
law." Several state laws require or allow local officials to
serve on other public agencies. The Cortese-Knox-Hertzberg
Local Reorganization Act of 2000, for example, requires two
county supervisors and two city council members (or mayors) to
serve as local agency formation commission (LAFCO) members.
About half of the LAFCOs have special district representatives
who are also members of districts' governing boards. Also,
under the Joint Exercise of Powers Act, local officials serve on
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the governing boards of joint powers agencies. While this
provision presumably covers circumstances where city and county
officials serve as an appointee to a joint powers authority
established by statute fixing the appointment process, some may
wonder how "express" the authorization must be. Indeed, one may
ask what "law" must "express" the authorization. In addition to
statute sources, would prior court decisions and Attorney
General opinions, for example, holding that two offices are not
incompatible be sufficiently "express" to be the source of law
authorizing exemption?
Author's Clarifying Amendment. To avoid potential unintended
consequences, the author has appropriately agreed to take the
following amendment, adding a new subdivision (c) and
re-designating the remaining subdivisions:
(c) This section does not apply to a position of employment,
including a civil service position.
REGISTERED SUPPORT / OPPOSITION :
Support
Louie Lujan, Mayor, City of La Puente
Opposition
None on file.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334