BILL ANALYSIS
AB 1955
Page 1
CORRECTED - 06/02/2010 per consultant.
ASSEMBLY THIRD READING
AB 1955 (De La Torre)
As Amended April 12, 2010
Majority vote
LOCAL GOVERNMENT 8-0
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|Ayes:|Smyth, Caballero, | | |
| |Arambula, Bradford, | | |
| |Knight, Logue, Solorio, | | |
| |Hill | | |
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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
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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:
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
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redevelopment agency to either appoint members of the
redevelopment agency or declare itself to be the redevelopment
agency.
FISCAL EFFECT : None
COMMENTS : In 1850, the Legislature adopted the English common
law to 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.
Government Code (GC) 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.
According to the author, this bill will ensure the common law
regarding incompatible offices is more precisely codified in GC
Section 1099. Two opinions from the Attorney General dating
October 2, 2002, 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 GC Section 1099 cases.
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Support arguments: Supporters say there is a need to ensure the
common law is more precisely codified to aid prosecutors who are
enforcing GC Section 1099.
Opposition arguments: The opposition, Water Replenishment
District of Southern California, says this bill might have
far-reaching consequences to local elected officials that have
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 this bill will
make those two offices incompatible. The Legislature also may
wish to consider whether it is even necessary to undertake
actions to further codify common law.
Analysis Prepared by : Jennifer R. Klein / L. GOV. / (916)
319-3958
FN: 0004007