BILL ANALYSIS
AB 1955
Page 1
Date of Hearing: April 21, 2010
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 1955 (De La Torre) - As Amended: April 12, 2010
SUBJECT : Public officers: incompatible offices.
SUMMARY : Adds three public offices that are incompatible for a
public officer to hold simultaneously. Specifically, this bill :
1)Adds three public offices that are incompatible for a public
officer to hold simultaneously. Those three additional
offices are where:
a) Both public entities in which the offices exist have the
power of eminent domain in an area in which the geographic
jurisdictions of each office or body overlap;
b) Either public entity in which an office exists has the
power to set a fee or rate or to impose a tax or a levy
that may directly or indirectly affect the other office or
body; and,
c) Either public entity in which an office exists has the
authority to investigate, monitor, or sue the other office
or body.
2)Exempts from the prohibition on holding incompatible offices
the members of a legislative body who simultaneously serve on
a redevelopment agency for which the legislative body has
declared itself to be the redevelopment agency.
EXISTING LAW :
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 offices are incompatible when any of the following
circumstances are present:
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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 a public officer may simultaneously hold two public
offices that are incompatible
if compelled or expressly authorized by law.
4)Specifies a public officer will be deemed to have forfeited
the first office upon acceding
to the second when two public offices are incompatible.
5)Prohibits the provisions dealing with incompatible offices
from applying to a governmental body that has only advisory
powers.
6)Specifies nothing in law dealing with incompatible offices is
intended to expand or contract the common law rule prohibiting
an individual from holding incompatible public offices.
It is intended courts interpreting these provisions be guided by
judicial and administrative precedent concerning incompatible
public offices developed under the common law.
7)Clarifies the provisions dealing with incompatible offices do
not apply to a position
of employment, including a civil service position for the
purposes of a common law incompatible offices analysis.
8)Authorizes a legislative body that declares a need for a
redevelopment agency to either appoint members of the
redevelopment agency or declare itself to be the redevelopment
agency.
FISCAL EFFECT : None
COMMENTS :
1)In 1850, the Legislature adopted the English common law to
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guide the California courts, to the extent the common law is
consistent 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."
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.
2)Section 1099 was added by SB 274 (Romero), Chapter 254,
Statutes of 2005, to codify the common law doctrine of office
incompatibility. The intent of the bill was the idea that the
codification of the common law would give better notice to
potential office holders in advance of any potential
conflicts.
3)According to the author, AB 1955 will ensure the common law
regarding incompatible offices is more precisely codified in
Section 1099. Two opinions from the Attorney General dating
October 2, 2004, and November 8, 2004, list additional
examples from the common law of when an official is holding
two incompatible offices simultaneously. The author says
codifying these additional common law examples will aid judges
in ruling in Section 1099 cases.
4)Support Arguments : Supporters say there is a need to ensure
the common law is more precisely codified to aid prosecutors
who are enforcing Section 1099.
Opposition Arguments : The opposition, Water Replenishment
District of Southern California, says AB 1955 might have
far-reaching consequences to local elected officials that have
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not been thoroughly vetted. For instance, a 2001 Attorney
General opinion opined that an individual may concurrently
hold the positions of city fire chief and director of a fire
protection district. However, it is unclear if AB 1955 will
make those two offices incompatible. The Committee also may
wish to consider whether it is even necessary to undertake
actions to further codify common law.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
Water Replenishment District of Southern CA
Analysis Prepared by : Jennifer R. Klein / L. GOV. / (916)
319-3958