BILL ANALYSIS
SB 274
Page 1
SENATE THIRD READING
SB 274 (Romero)
As Amended July 12, 2005
Majority vote
SENATE VOTE : 30-3
LOCAL GOVERNMENT 7-0 JUDICIARY 8-0
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|Ayes:|Salinas, Emmerson, De La |Ayes:|Jones, Harman, Evans, |
| |Torre, Mountjoy, Lieber, | |Haynes, Laird, Levine, |
| |Nation, Wolk | |Lieber, Montanez |
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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;
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; and,
c) Public policy considerations make it improper for one
person to hold both offices.
3)States 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
SB 274
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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.
7)Clarifies that for the purposes of a common law incompatible
offices analysis, the provisions of this bill do not apply to
a position of employment, including a civil service position.
EXISTING LAW prohibits, under common law, public officers from
holding incompatible offices.
FISCAL EFFECT : None
COMMENTS : In 1850, the Legislature adopted the English common
law to guide the California courts, to the extent that the
common law is not 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 November 2004 Attorney General's opinion determined that the
offices of unified school district trustee and 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.
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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 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.
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.
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
Legislature may wish to consider whether it is even necessary to
take the actions to codify common law.
Analysis Prepared by : Katie Kolitsos / L. GOV. / (916)
319-3958
FN: 0011602