                       TO BE IN PUBLISHED IN THE OFFICIAL REPORTS


                                 OFFICE OF THE ATTORNEY GENERAL

                                           State of California


                                                DANIEL E. LUNGREN

                                                  Attorney General


                              ______________________________________

                   OPINION           :
                                     :          No. 91-404
                  of                 :
                                     :          July 18, 1991
        DANIEL E. LUNGREN            :

           Attorney General          :

                                     :

         CLAYTON P. ROCHE            :

        Deputy Attorney General      :

                                     :

______________________________________________________________________________


              THE STATE DEPARTMENT OF EDUCATION has requested an opinion on the
following questions:

              1.      May a person who is elected or appointed to the position of county
superintendent of schools continue to serve as a member of the State Board of Education?

             2.      If not, what is the legal effect of the person's vote as a member of the State
Board of Education once the person assumes the position of county superintendent of schools?

                                                      CONCLUSIONS

              1. A person who is elected or appointed to the position of county superintendent of
schools has accepted an office which is incompatible with membership on the State Board of
Education, and has automatically vacated the board membership.

                 2.    The person's vote as a member of the State Board of Education after the
assumption of the office of county superintendent of schools would be valid since the officer would
still be a de facto member of the Board.

                                                          ANALYSIS

               In 66 Ops.Cal.Atty.Gen. 176, 177-178 (1983), we summarized the common law rule
prohibiting the simultaneous holding of incompatible public offices as follows:

                "`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 a supervisory, auditory, or removal power over the other." (38
       Ops.Ca.Atty.Gen. 113 (1961).

               " . . . . . . . . . . . . . . . . . . . . . . .

              "The policy set forth in People ex rel. Chapman v. Rapsey, supra, 16 Cal.2d
       636 comprehends prospective as well as present clashes of duties and loyalties. (See
       63 Ops.Cal.Atty.Gen. 623, supra.)

              "`Neither is it pertinent to say that the conflict in duties may never arise, it
       is enough that it may, in the regular operation of the statutory plan. . . .' (3
       McQuillan, Municipal Corporations (3d Ed. 1973, § 12.67, p. 297).

                "`[O]nly one significant clash of duties and loyalties is required to make . .
       . offices incompatible. . . .' (37 Ops.Cal.Atty.Gen. 21, 22 (1961).) Furthermore, `the
       existence of devices to avoid . . . [conflicts] neither changes the nature of the
       potential conflicts nor provides assurance that they would be employed.' (38
       Ops.Cal.Atty.Gen. 121, 125 (1961).) Accordingly, the ability to abstain when a
       conflict arises will not excuse the incompatibility or obviate the effects of the
       doctrine. A public officer who enters upon the duties of a second office
       automatically vacates the first office if the two are incompatible. (People ex rel.
       Chapman v. Rapsey, supra, 16 Cal.2d 636, 644. Both positions, however must be
       offices. If one or both of the positions is a mere employment as opposed to a public
       office, the doctrine does not apply. (See 58 Ops.Cal.Atty.Gen. 109, 111 (1975)."

                There are no statutes which permit the simultaneous holding of the positions of
member of the State Board of Education ("Board") and county superintendent of schools.1
Accordingly, the first question to be resolved is whether the positions of member of the Board and
county superintendent of schools are public offices within the meaning of the common law rule,
since the rule is not applicable where one or both positions are employments.

                In 68 Ops.Cal.Atty.Gen. 337 (1985), we reviewed the leading case law as to what
constitutes a public office for the purposes of the incompatibility doctrine. We concluded that:

               ". . . a public office is a position in government (1) which is created or
       authorized by the Constitution or some law; (2) the tenure of which is continuing and
       permanent, not occasional or temporary; (3) in which the incumbent performs a
       public function for the public benefit and exercises some of the sovereign power of
       the state." (Id., at p. 342.)
                That both the positions of member of the Board and county superintendent of schools
are offices within the incompatible offices doctrine would appear to be clear. The Board is provided
for both by constitutional provision and statute. (Cal. Const., art. IX; § 7; Ed. Code, § 33000.)2
Members are appointed by the Governor for a term of four years. (§ 33001.) They are designated
by law as civil executive officers. (Gov. Code, § 1001.) As to duties, the Board is "the governing
and policy determining body of the department" of Education (§ 33301, subd. (a)) and inter alia

   1
    The Legislature may abrogate the common law rule by statute. (See American Canyon Fire
Protection Dist. v. County of Napa (1983) 141 Cal.App.3d 100, 104-106.) This is most often done
with respect to regional commissions where local officials serve as commissioners in what otherwise
might be deemed to be incompatible offices. (See, e.g., California Coastal Commission and
Regional Commissions, Pub. Resources Code, § 30301; Bay Area Air Pollution Control District,
Health & Saf. Code, § 40221.5.)
   2
    Further section references are to the Education Code unless otherwise specified.

                                                 2.                                              91-404

adopts rules and regulations for the government of all elementary and secondary public schools in
the state (§ 33031). Board members are required to adopt textbooks for use in grades one through
eight in this state. (Cal. Const., art. IX, § 7.5.) Without the necessity of further elaboration, it is
clear that the Board performs a public function for the public benefit and exercises part of the
sovereign power of the state.

                County superintendents of schools are likewise provided for both by constitutional
provision and statute. They are either elected or are appointed by the county board of education, as
determined by the electors of the county. (Cal. Const., art. IX, § 3.) They are also designated by
law as "civil executive officers" (Gov. Code, § 1001) and also as "county officers" (Gov. Code, §
24000, subd. (k)). Their duties are prescribed by statute and include many duties which are for the
public benefit and clearly constitute an exercise of the sovereign power of the state. These include
such matters as superintending the schools of their county (§ 1240), enforcing the course of study
and the use of state adopted textbooks (§ 1241) and entering into numerous forms of contracts and
agreements relating to school matters (e.g., §§ 1250, 1251, 1258, 1259). They may also operate
schools in their counties if the school district neglects to do so. (§ 1256.)

              Having concluded that both positions are offices, we now proceed to determine if the
offices of member of the Board and county superintendent of schools are incompatible.

                Initially we note from the summary of the rules concerning incompatibility of offices
set forth above that offices are incompatible if either office exercises a supervisory or auditory
power over the other. Or as stated in more detail in the leading California case on the subject,
People ex. rel. Chapman v. Rapsey (1940) 16 Cal.2d 636, 642:

               "`. . . The inconsistency, which at common law makes offices incompatible,
       does not consist in the physical impossibility to discharge the duties of both offices,
       but lies rather in a conflict of interest, as where one is subordinate to the other and
       subject in some degree to the supervisory power of its incumbent, or where the
       incumbent of one of the offices has the power to remove the incumbent of the other
       or to audit the accounts of the other.' In State v. Jones, 130 Wis. 572 [110 N.W. 431,
       118 Am.St.Rep. 1042, 10 Ann.Cas. 696, 8 L.R.A. (N.S.) 1107], the Court said:

               "`It is not an essential element of incompatibility at common law that the
       clash of duty should exist in all or in the greater part of the official functions. If one
       office is superior to the other in some of its principal or important duties, so that the
       exercise of such duties might conflict, to the public detriment, with the exercise of
       other important duties in the subordinate office, then the offices are incompatible. .
       . .'" (Emphasis added).

                Examining the hierarchy of California's educational system, we see that the Board
is "the governing and policy determining body" of the State Department of Education. (§ 33301.)
We also see that "[t]he Superintendent of Public Instruction shall execute, under direction of the
State Board of Education, the policies which have been decided by the board. . . ." (§ 33111.) The
Superintendent of Public Instruction also is required to "superintend the schools of this state." (§
33112, subd. (a).) Since the primary duty of a county superintendent of schools is to "supervise the
schools of his county," it would appear to follow that a member of the Board, who is also a county
superintendent of schools, would essentially be supervising himself with respect to implementing
the policies of the state at the county level.

                However, we need not stop there. In addition to this overall supervisory or auditory
relationship, a number of specific conflicts of duties or loyalties can be identified between the

                                                  3.                                                91-404

specific offices. As noted, the Board is required to adopt rules and regulations for the government
of all elementary and secondary schools in the state. In doing so, a Board member who is also a
county school official could run into a situation of divided loyalties as between the interest of the
state as a whole and county interests. As we noted in Atty.Gen.Unpub.Op. I.L. 74-223, wherein we
concluded that the office of city planning commissioner and state highway commissioner were
incompatible: "What is best for the state in highway location may differ significantly from what
. . . is best for the . . . city itself." Likewise, what is best for the state in educational administration
may differ significantly as to what is best for the county itself. (See also 66 Ops.Cal.Atty.Gen. 293,
296 (1983), offices of county planning commissioner and city planning commissioner with
overlapping territory incompatible; 64 Ops.Cal.Atty.Gen. 288 (1981), offices of county planning
commissioner and water district director with overlapping territory incompatible.)

             Turning to even more specific matters, we find a number of interrelationships
wherein incompatibility may arise. For example:

               1.     In budgetary matters, the Board adopts standards and criteria to be used by
local educational agencies in the development and management of annual budgets and expenditures
therefrom. (§§ 33127, 33129.) These standards are then used to monitor the fiscal stability of local
educational agencies by the Superintendent of Public Instruction.
(§ 33132.)

               2.     The county superintendent of schools is ex-officio the executive officer of the
county board of education. (§ 1010.) The county board of education may request the Board to
waive laws or regulations pursuant to section 33050 et seq.

               3.      The Board governs through its regulations or otherwise the disbursement of
funds to the county office of education or county superintendent of schools with respect to such
matters as driver training (§ 41900), operation of regional occupational centers (§ 41880), the
development of certain educational programs (§§ 33322, 33323), special educational projects (§
33514) and experimental, demonstration or operational projects (§ 33516 et seq.).

               4.     Section 39831 requires the Board to adopt reasonable rules and regulations
relating to the use of school buses used by school districts and others, including the county
superintendent of schools. (See § 1270.)

                5.     Section 8391 requires the Board to adopt rules and regulations for the
administration of programs for the care and development of infants, and the training of students in
their roles as parents. The county superintendent of schools in turn is authorized to enter into
agreements with the State Superintendent of Public Instruction for the establishment and
maintenance of such programs. (§ 8390.)

                The foregoing are examples and are not intended to be exhaustive of specific
potential clashes of duties and loyalties as between the offices of member of the Board and county
superintendent of schools.3 It was such type of clashes which lead us to conclude in an analogous
situation that the offices of member of the Board and member of a county board of education are

   3
    We have not attempted to identify the interrelationships between the Department of Education
or the Superintendent of Public Instruction and local educational agencies where incompatibility
might arise. Since the Board has supervisory power over the Department of Education and the
Superintendent of Public Instruction, these could also be attributed to the Board itself. (See 41
Ops.Cal.Atty.Gen. 105 (1963).)

                                                    4.                                              91-404
incompatible offices and may not be simultaneously held by the same individual.                       (31
Ops.Cal.Atty.Gen. 170 (1958).)

                We likewise conclude that the office of member of the Board and county
superintendent of schools are incompatible offices. Accordingly, a person may not hold both
offices, and the assumption of the second office constitutes an automatic vacating of the first office.


                 This conclusion brings us to the second question presented, that is, where the first
office is that of member of the Board, what is the effect of that member's vote once he assumes the
position of county superintendent of schools? In our view, the officer would be a de facto, if not de
jure, member of the Board. (See, e.g., In Re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d
21, 42; Town of Susanville v. Long (1904) 144 Cal. 362, 365; Oakland Pav. Co. v. Donovan (1912)
19 Cal.App. 488.) As stated in the Bunker Hill case:

                "The de facto doctrine in sustaining official acts is well established. Present
       a de jure office, `Persons claiming to be public officers while in possession of an
       office, ostensibly exercising their functions lawfully and with the acquiescence of the
       public, are de facto officers . . . The lawful acts of an officer de facto, so far as the
       rights of third persons are concerned, are, if done within the scope and by the
       apparent authority of office, as valid and binding as if he were the officer legally
       elected and qualified for the office and in full possession of it.' (Town of Susanville
       v. Long (1904) 144 Cal. 362, 365 [77 P. 987]; see also Oakland Paving Co. v.
       Donovan (1912) 19 Cal.App. 488, 494-496 [126 P. 388]; Clark v. City of Manhattan
       Beach (1917) 175 Cal. 637, 639 [166 P. 806, 1 A.L.R. 1532].)"

                 We thus conclude that the individual's vote as a member of the Board, after the
assumption of the office of county superintendent of schools, would be valid since the officer would
still be a de facto Board member.

                                              *****




                                                  5.                                               91-404

