BILL ANALYSIS
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Dave Cox, Chair
BILL NO: AB 1955 HEARING: 6/16/10
AUTHOR: De La Torre FISCAL: No
VERSION: 4/12/10 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. Many
court decisions and Attorney Generals' opinions interpreted
the common law ban on holding incompatible offices. A
person who assumes the duties of a second, incompatible
office automatically forfeits the first office.
Frustrated by local officials who ignored the ban on
incompatible offices, the Legislature codified the common
law doctrine (SB 274, Romero, 2005). Written with the
Attorney General's help, the statutes declare that a public
official shall not simultaneously hold two public offices
that are incompatible. State law spells out three
circumstances where offices are incompatible:
Either office can audit, overrule, remove members
of, dismiss employees of, or supervise the other
office or body,
A significant clash of duties or loyalties between
the offices is possible, or
Public policy considerations make it improper to
hold both offices.
The ban against holding incompatible offices doesn't apply:
When state law compels or allows simultaneous
office holding.
To government employment, including civil service
positions.
To advisory bodies.
When two public offices are incompatible, a public officer
is deemed to have forfeited the first office when assuming
the second office. The Attorney General can enforce this
ban.
AB 1955 -- 4/12/10 -- Page 2
The Los Angeles County District Attorney is prosecuting the
first known case under the 2005 Romero bill. Sergio
Calderon won election to the Maywood city council in 2005
and in 2006 won election to the Water Replenishment
District of Southern California's board of directors. In
2008, the District Attorney sued to remove Calderon from
his city council seat. Calderon won a second term on the
Maywood city council in November 2009, but resigned from
his unexpired first term later that month. He was not
sworn in for the second term, but the case against Calderon
is still pending. The District Attorney wants the statute
to be more specific in spelling out the circumstances where
public offices are incompatible.
Proposed Law
Assembly Bill 1955 adds three more circumstances to the
statutory list of situations in which public offices are
incompatible:
Both entities have eminent domain powers where the
geographic jurisdictions overlap.
Either entity can set a fee or rate or impose a tax
or levy directly or indirectly on the other.
Either entity can investigate, monitor, or sue the
other.
AB 1955 declares that simultaneously serving on a city
council or county board of supervisors that has declared
itself as a community redevelopment agency is not deemed to
be holding incompatible offices.
Comments
1. You can't serve two masters . The ban on holding
incompatible public offices relies on a perfectly
understandable premise. One person cannot serve two
competing interests; inevitably one or the other will be
compromised. The public's trust in state and local
officials rests on knowing that leaders will advance their
constituents' interests. Trying to promote two competing
agencies' conflicting goals always results in a conflict of
interests, undermining integrity and public trust. AB 1955
builds on this premise by describing three more
circumstances that lead to incompatible offices. The
AB 1955 -- 4/12/10 -- Page 3
clearer the statutory language, the easier it is for public
officials to anticipate and avoid improper behavior.
Statutory clarity also makes it easier to depose officials
who scorn public integrity.
2. Tread lightly . The language of the 2005 codification
of the common law doctrine was the product of legal
experts' careful drafting. The Attorney General shaped the
final language, based on deep knowledge of case law and
prior formal legal opinions. The statute openly declares
that it codifies the common law rule, as did an uncodified
declaration in the 2005 Romero bill. The language proposed
by AB 1955 was not part of the Legislature's 2005
codification of the common law rule. The Committee may
wish to consider how AB 1955 can add three more
circumstances to the statute, but still retain the claim
that it codifies the common law. Either the 2005
legislation was incomplete and wrongly claimed to codify
the common law, or AB 1955 goes beyond the former common
law and wrongly claims to codify that rule. When writing
state laws that lead to the automatic forfeiture of a
public official's status, legislators must proceed
carefully.
3. Illustrative instead of determinative ? When the 2005
Romero bill listed the three characteristics that result in
incompatible offices, it also contained an explanation of
the first characteristic --- supervisory powers. Instead
of adding three more characteristics to the statutory list,
the Committee may wish to consider amendments that convert
those three items into illustrations of the current law's
second characteristic --- the possibility of a significant
clash of duties or loyalties. While eminent domain,
revenues, and lawsuits might result in incompatible duties,
there are plenty of circumstances where the potential use
of those powers never produces conflicts of interest. If
the Los Angeles District Attorney wants more statutory
detail, converting the proposed circumstances to
illustrative examples might be sufficient.
4. Recipe for unintended consequences ? While legal
scholars, judges, and public lawyers knew and understood
the common law doctrine that banned incompatible offices,
less sophisticated elected officials occasionally stumbled
on that prohibition without knowing what they were doing.
Others may have deliberately violated the ban, hoping not
AB 1955 -- 4/12/10 -- Page 4
to get caught. By writing the rule with its three
circumstances into the statute with the 2005 Romero bill,
the Legislature removed the excuse of not knowing. AB 1955
may have the unintended consequence of confusing public
officials by listing three fairly common situations.
Because nearly all local governments have the powers of
eminent domain, the power to impose taxes and fees, and the
ability to file lawsuits, AB 1955 sets up many
controversies about which offices might be incompatible.
When the law is that broad, which offices aren't
incompatible?
5. Count me out . Even when a person holds two offices
that could be incompatible under the current statute, the
ban against holding incompatible offices doesn't apply when
state law allows or compels dual office holding. 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
council members (or mayors) to serve as LAFCO
commissioners. About half of the LAFCOs have special
district representatives who are also members of districts'
governing boards. The Community Redevelopment Law allows a
city council or county board of supervisors to either
appoint a redevelopment agency or declare itself to be the
agency. More than 90% of the cities and counties that use
redevelopment have declared themselves to be the agencies.
By adding three more circumstances to the statute, AB 1955
will cause more local governments to seek specific
clarifications that dual office holding is not prohibited.
The first of those clarifications is in the bill itself ---
declaring that city councils and county boards of
supervisors that serve as their own redevelopment agencies
are not holding incompatible offices. Legislators should
get ready for more requests.
6. Technical amendment . The Committee should correct the
statutory cross-reference to redevelopment agencies. The
reference to Health and Safety Code Section "33220" should
be "33200" (page 3, line 11).
Assembly Actions
Assembly Local Government Committee: 8-0
Assembly Floor: 72-0
AB 1955 -- 4/12/10 -- Page 5
Support and Opposition (6/10/10)
Support : Los Angeles County District Attorney's Office.
Opposition : Association of California Water Agencies,
California State Association of Counties, League of
California Cities, Eastern Municipal Water District, Friant
Water Authority, Kings River Conservation District,
Sacramento Area Flood Control Agency, San Gabriel Basin
Water Quality Authority, San Luis & Delta-Mendota Water
Authority, Three Valleys Municipal Water District, Valley
Ag Water Coalition, Water Replenishment District of
Southern California.