                         TO BE PUBLISHED IN THE OFFICIAL REPORTS


                              OFFICE OF THE ATTORNEY GENERAL

                                        State of California


                                        DANIEL E. LUNGREN

                                          Attorney General


                            ______________________________________

                   OPINION              :
                                        :          No. 96-910
                   of                   :
                                        :          December 2, 1996
          DANIEL E. LUNGREN             :
            Attorney General            :
                                        :
        ANTHONY M. SUMMERS              :
         Deputy Attorney General        :
                                        :
______________________________________________________________________________

                DALE S. HOLMES, RIVERSIDE COUNTY SUPERINTENDENT OF SCHOOLS,
has requested leave to sue in quo warranto to remove NAN SANDERS from the office of TRUSTEE
OF THE PERRIS ELEMENTARY SCHOOL DISTRICT on the following question of fact or law:

                Does the doctrine of incompatible public offices preclude a person from simultaneously
holding the offices of trustee of a high school district and trustee of an elementary school district which
is wholly within the geographic boundaries of the high school district?

                                             CONCLUSION

                The doctrine of incompatible public offices precludes a person from simultaneously
holding the offices of trustee of a high school district and trustee of an elementary school district which
is wholly within the geographic boundaries of the high school district.

                                               ANALYSIS

                Dale S. Holmes, Superintendent of Schools for Riverside County ("relator"), contends
that Nan Sanders ("defendant") is unlawfully serving as a Trustee of the Perris Elementary School
District. In November 1993, defendant was elected to serve a four-year term as Trustee of the Perris
Elementary School District and currently holds that office. In November 1995, defendant was elected
to serve a four-year term as Trustee of the Perris Union High School District and currently holds that
office. The boundaries of the Perris Elementary School District are within the boundaries of the Perris
Union High School District.

                                                    1.                                             96-910

                In 75 Ops.Cal.Atty.Gen. 10, 11-13 (1992) we noted the governing principles applicable
here:

                 "In deciding whether to grant leave to sue in the name of the People of the State
        of California, we consider the following fundamental precepts which provide the basis
        for this analysis: leave will be granted where there is a substantial question of law or
        fact which requires judicial resolution and where the action in quo warranto would
        serve the overall public interest. (74 Ops.Cal.Atty.Gen. 26 (1990).)

                "This application for leave to sue concerns the common law doctrine of
        incompatible public offices.       The doctrine prevents a person from holding
        simultaneously two public offices if the performance of the duties of either office could
        have an adverse effect on the other. (68 Ops.Cal.Atty.Gen. 337, 338-339 (1985).) As
        explained by the Supreme Court in the landmark case of People ex rel. Chapman v.
        Rapsey (1940) 16 Cal.2d 636:

                 "`Two offices are said to be incompatible when the holder cannot in every
        instance discharge the duties of each. Incompatibility arises, therefore, from the nature
        of the duties of the offices, when there is an inconsistency in the functions of the two,
        where the functions of two are inherently inconsistent or repugnant, as where
        antagonism would result in the attempt by one person to discharge the duties of both
        offices, or where the nature and duties of the two offices are such as to render it
        improper from considerations of public policy for one person to retain both. The true
        test is whether the two offices are incompatible in their natures, in the rights, duties or
        obligations connected with or flowing from them.' (Id. at pp. 641-42.)

                "In 73 Ops.Cal.Atty.Gen., supra, 270, we summarized as follows:

                "`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                "`We have previously stated that only one potential and significant clash of
        duties need be found to render two offices incompatible. In 63 Ops.Cal.Atty.Gen. 623
        (1980), for example, the offices of city mayor and airport district director were found to
        be incompatible even though there were currently "no significant `interactions' between
        the city and the district." (Id. at p. 624.) We concluded that in many situations that
        would arise "in the regular operation of the statutory plan," "the person holding both
        offices would have [t]he potential for significant clashes" of loyalties. (Id. at p. 627.)

               "`If the two positions are "offices" and if they are "incompatible," the
        consequence is that "`the mere acceptance of the second incompatible office per se
        terminates the first office as effectively as a resignation.'" (People ex rel. Chapman v.
        Rapsey, supra, 16 Cal.2d 636, 644.)'"



                                                                                                                    96-910
                                                                        2.                                          96-910
                We have previously applied the doctrine of incompatible public offices to a person
serving as a trustee of a high school district and as a trustee of an elementary school district
encompassed by the high school district. In 68 Cal.Ops.Atty.Gen. 171 (1985) we concluded that the
two offices were incompatible and could not be simultaneously held by the same person. In reaching
that conclusion, we relied upon our analysis contained in a 1975 letter opinion (Cal. Atty. Gen.,
Indexed Letter, No. IL 75-22 (Feb. 18, 1975)) as follows:

                "`An examination of the powers of school district boards reveals areas wherein
       the potentiality of significant clashes of members' duties or loyalties exist. For
       instance, under the Community Recreation Act, [citation], school districts can enter
       into agreements to jointly establish systems of recreation. [Citations.] They may also
       organize and conduct recreation programs, establish systems of playgrounds and
       recreation, and obtain, build, maintain and operate recreation centers within or without
       their territorial limits. [Citations.] School districts can grant the use of their grounds,
       buildings, and equipment to other school districts for community recreational purposes.
        [Citations.] Thus, where two school boards have a common member, and each
       desires to enter into an agreement for recreational purposes with the other, a conflict
       arises because the common member's loyalty is necessarily divided between the two
       boards.

                "`The "Joint Exercise of Powers Act," [citation], allows two or more public
       entities which have powers in common to exercise said powers jointly, pursuant to
       written agreement. It is patently obvious that community college districts, high school
       districts, and elementary school districts have numerous powers in common. Thus,
       there are many areas in which there could be joint powers agreements between such
       school districts. A division of loyalties, in the form of a contractual conflict, would
       result from the mere fact that the same person sits on each of the boards desiring to
       enter into a joint agreement.

                "`Each of the types of school districts involved has the power of eminent
       domain. [Citation.] When the power is exercised by one of the districts, a conflict
       with the best interests of the other district could arise. For example, one district might
       desire to acquire property for a new school site, the location of which could be of great
       interest of the other district. Thus, the individual who serves on the two boards would
       find himself or herself in a position of having to choose between the loyalty owed to
       each board on which the member sits.

               "`Governing boards of school districts can also sue and be sued. [Citations.]
       It is conceivable that a person who holds office on two boards could be faced with
       having to decide whether or not to sue the other school district on whose board that
       person also sits. Similarly, substantial conflicts would arise during the litigation
       process when the member common to each district board is faced with making
       decisions with regard to said litigation.



                                                                                                     96-910
                                                   3.                                                96-910
                "`It should also be noted that school boards have a great amount of discretion in
        the management of their property. A school district may sell or lease certain personal
        property. A school district may sell or lease certain personal property to another
        school district without advertising for bids. [Citations.] The governing board may sell
        or lease any real property, and any personal property located thereon, when not needed
        for classroom buildings. [Citations.] The governing board can sell, exchange, grant
        or quitclaim to another school district owning the property. [Citations.] Significant
        clashes of loyalty would result when the person holding dual offices is required to act in
        the best interests of each school district in the transaction.'" (Id., at pp. 172-174.)

                 The doctrine of incompatible public offices precludes a person from serving in both
offices in the absence of statutory authorization to do so. It is based upon considerations of public
policy to prevent a division of loyalty, and not upon any notion of personal pecuniary conflict or
advantage to the officeholder. Thus, even where a person has served honorably in one office for many
years, and assumes a second office only out of a sense of civic obligation, the doctrine of incompatible
offices applies. The rule is applicable because of the character of the offices, not because of the
character of the particular officeholder.

                 Only one significant clash of loyalties is required to make public offices incompatible,
and the possibility of such a clash exists in the situation presented here. (See 68 Ops.Atty.Gen., supra,
at 174; 37 Ops.Cal.Atty.Gen. 21, 22 (1961).) The public and each of the school districts in question
have an interest in the undivided loyalty of their elected officials. (73 Ops.Cal.Atty.Gen. 354, 357
(1990); 73 Ops.Cal.Atty.Gen. 183, 188, (1990).) The public interest is served by permitting suit in this
case, where more than one year remains in the overlapping terms of the defendant's public offices. The
relator's application for leave to sue in quo warranto is granted.

                                                *****




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