BILL ANALYSIS
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Dave Cox, Chair
BILL NO: AB 1955 HEARING: 6/30/10
AUTHOR: De La Torre FISCAL: No
VERSION: 6/23/10 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.
Regarding the first circumstance, state law says that a
member of a multimember body holds an office that may
audit, overrule, remove members of, dismiss employees of,
or supervise another office when the multimember body has
any of these powers over the other office or over a
multimember body that includes that other office.
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.
AB 1955 -- 6/23/10 -- Page 2
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.
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 two examples of situations in which
public offices are incompatible:
When an office has eminent domain power over
property that is under the other office's
jurisdiction.
When an office has the power to set a fee or a rate
or impose a tax or a levy that may directly or
indirectly affect the other office.
AB 1955 deletes the current declaration that a member of a
multimember body holds an office that may audit, overrule,
remove members of, dismiss employees of, or supervise
another office when the multimember body has any of these
powers over the other office or over a multimember body
that includes that other office. Instead, the bill says
that a member of a multimember body holds an office that
may exercise powers over another office when the
multimember body has powers over the other office or over a
multimember body that includes the other office.
Comments
AB 1955 -- 6/23/10 -- Page 3
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 listing two examples of
situations in which public offices are incompatible. The
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 a separate
declaration in the 2005 Romero bill. The examples created
by AB 1955 were not part of the Legislature's 2005
codification of the common law rule. The Committee may
wish to consider how AB 1955 can add examples, 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. 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
to get caught. By writing the rule into the statute, the
Legislature removed the excuse of not knowing. But it also
left in place the need to conduct an agency-by-agency
analysis. AB 1955 may have the unintended consequence of
tripping up public officials by listing two fairly common
AB 1955 -- 6/23/10 -- Page 4
situations as automatic examples of incompatible offices.
Because many cities, water districts, and sewer agencies
set utility rates and charge for services, their officers
probably can't hold many other public offices under AB
1955. One agency's monthly water, sewer, or electricity
bills "may directly or indirectly affect" another local
government's operations. The Committee may wish to
consider whether a board member of a municipal utility
district that sells retail electricity could ever be on a
mosquito abatement district's governing board. Instead of
the agency-by-agency analysis used under current law, AB
1955 may go too far. When the statute is that broad, which
offices aren't incompatible?
4. 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 two examples to the statute, AB 1955 will cause
more local governments to seek specific clarifications that
dual office holding is not prohibited. Legislators should
get ready for more requests.
Assembly Actions
Assembly Local Government Committee: 8-0
Assembly Floor: 72-0
Support and Opposition (6/24/10)
Support : Los Angeles County District Attorney's Office.
Opposition : Association of California Water Agencies,
California State Association of Counties, California
AB 1955 -- 6/23/10 -- Page 5
Transit Association, League of California Cities, Alameda
County Congestion Management Agency, Eastern Municipal
Water District, Friant Water Authority, Kings River
Conservation District, Metro Gold Line Foothill Extension,
Riverside County Transportation Commission, Sacramento Area
Flood Control Agency, San Bernardino Associated
Governments, San Gabriel Basin Water Quality Authority, San
Luis & Delta-Mendota Water Authority, Santa Cruz
Metropolitan Transit District, South Coast Air Quality
Management District, Southern California Association of
Governments, Stockton East Water District, Three Valleys
Municipal Water District, Valley Ag Water Coalition, Water
Replenishment District of Southern California, Merle J.
Aleshire, Ph.D.