                           OFFICE OF THE ATTORNEY GENERAL

                                     State of California


                                     DANIEL E. LUNGREN

                                       Attorney General


                         ______________________________________

                  OPINION            :
                                     :          No. 90-925
                  of                 :
                                     :          February 26, 1991
        DANIEL E. LUNGREN            :
           Attorney General          :
                                     :
        ANTHONY S. DaVIGO            :
        Deputy Attorney General      :
                                     :
______________________________________________________________________________


               GLENN MONDO ("relator") has requested this office to grant leave to sue
RICHARDS L. NORTON ("defendant") in quo warranto pursuant to section 803 of the California
Code of Civil Procedure. Relator contends that defendant is unlawfully occupying a public office,
to wit: member of the city council, City of Santa Ana.

                                          CONCLUSION

               It is concluded that leave to sue should be DENIED.

                              CRITERIA FOR QUO WARRANTO

                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 of the
people of this state. (72 Ops.Cal.Atty.Gen. 15, 19 (1989).)

                                       MATERIAL FACTS

               In April of 1989, defendant was elected, qualified, and assumed office as a member
of the city council of the City of Santa Ana. On November 6, 1990, defendant was reelected, and
on November 26, qualified and assumed said office for a full term.

                Relator alleges that defendant used his status as a city council member to obtain a
discount for transportation by a public carrier, in that the airline tickets which he had previously
purchased for himself and his spouse were, upon identifying himself as a city council member, and
based upon such official capacity, upgraded from coach to first class without additional payment by
defendant.

             Defendant alleges that he and his wife were, on July 19, 1990, leaving on their
honeymoon to the Virgin Islands. When the ticket agent discovered the purpose of the trip, she

                                                 1.                                          90-925

offered in accordance with standard company policy, and he accepted, the upgrade from coach to
first class tickets without additional cost. During his conversation with the ticket agent, she inquired
about his badge, and he identified himself as a city council member; however, this fact had no
bearing upon the upgrade from coach to first class tickets.

                                           ISSUES OF FACT OR LAW

             1.      Did defendant accept the free upgrade from coach to first class tickets as a
member of the city council or by virtue of the public carrier's policy regarding persons on their
honeymoon?

                2.      Does article XII, section 7, of the California Constitution apply without regard
to a public officer's membership in some other relevant class?

                                                      ANALYSIS

                     Article XII, section 7, of the California Constitution provides as follows:

                    "A transportation company may not grant free passes or discounts to anyone
            holding an office in this state; and the acceptance of a pass or discount by a public
            officer . . . shall work a forfeiture of that office. . . ."

                     The following factual premises are not controverted:

                     1.       Defendant is a city council member.1

                     2.       Defendant purchased tickets from a common air carrier2 for his honeymoon
voyage.

              3.     The common carrier regularly upgrades to first class without additional charge
persons who are on their honeymoon voyage.

              4.              The common carrier offered and defendant accepted an upgrade to first class
without charge.

                 There is no evidence or allegation that the common carrier has regularly or in any
other instance offered a free upgrade to any passenger because of his status as a public officer.
Relator's allegation that the offer to and acceptance by defendant of an upgrade was based on his
status as a city council member, is fundamentally uncorroborated by direct evidence. While we are
acutely aware of the constitutional prohibition and the public policy which it serves, we simply do
not find, under the recitations presented, the existence of a substantial issue of fact concerning the
basis for the upgrade.

                A legal issue does arise, however as to whether the constitutional prohibition applies
without regard to a public officer's membership in a class of persons other than public officers (such
as all those traveling on their honeymoon) who are granted free or discounted passes by a public


   1
       A member of a city council holds a public office in this state. (73 Ops.Cal.Atty.Gen. 354, 356 (1990).)
   2
   An airline is a "transportation company" within the meaning of California Constitution, article XII, section 7. (67
Ops.Cal.Atty.Gen. 81, 82 (1984).)

                                                            2.                                                   90-925
carrier. In 67 Ops.Cal.Atty.Gen. 81 (1984), we considered whether a transportation pass may be
provided to a public officer as a member of a larger group unrelated to the functions of his office.
Specifically, it was concluded that the Constitution does not prohibit a member of the California
Legislature who is a spouse of a flight attendant from accepting a free or discounted air travel pass
when such passes are offered on the same conditions to spouses of all flight attendants. We stated
at pages 83-84:

                 "It is unclear from a literary examination of article XII, section 7, whether it
         applies to a public officer only in such specific capacity, or extends to such officer
         without regard to his membership in some external class or universe. . . . In arriving
         at the meaning of constitutional language, consideration must be given to the words
         employed, giving to every word, clause and sentence their ordinary significance. If
         doubt or ambiguity remains, then well recognized extrinsic aids may be introduced.
         Among these is a consideration of the objective sought to be accomplished. (State
         Board of Education v. Levit (1959) 52 Cal.2d 441, 462; Mosk v. Superior Court
         (1979) 25 Cal.3d 474, 495.)

                 "Article XII, section 7 (formerly § 19), was adopted to control the perceived
         corruptive influences of the railroads on the legislative process. (See Debates and
         Proceedings of the Constitutional Convention, p. 379; John K. McNulty,
         `Background Study - California Constitution Article XII, Corporations and Public
         Utilities' (1966) p. 100.) Would the acceptance of a free or discounted transportation
         pass by a member of the Legislature as a spouse of a flight attendant tend to corrupt
         the legislative process? It is apparent that the perceived corruptive influence
         consisted of the granting of special benefits in exchange for legislative favor. Thus,
         explicitly or implicitly, legislation favorable to the railroads was the quid pro quo.
         From this perspective, the pertinent question is not whether the pass be gratuitous
         vis-a-vis the company employee but whether it be granted subject to some express
         or implied condition of legislative or other official approbation.

                 "If, as we assume in the absence of contrary advisement or indication, the
         sole condition for the receipt of the propounded benefit is the spousal relationship,
         then the element of corruptive influence appears to be lacking, and the application
         of the constitutional prohibition would fail to serve its intended objective.

                 "Accordingly, it is concluded that the acceptance by a member of the
         California Legislature who is the spouse of a flight attendant of a free or discounted
         air travel pass is not prohibited by article XII, section 7, of the California
         Constitution when such passes are offered on the same conditions to spouses of all
         flight attendants. . . ."

Similarly, it is concluded that the Constitution does not prohibit a person on his honeymoon, whether
or not such person holds a public office, from accepting a free or discounted air travel pass when
such passes are offered on the same conditions to all such persons.3

   3
     We are neither asked nor do we now consider the propriety of such a discount (see Pub. Util. Code, §§ 453, 523; Civ.
Code, § 2170), nor whether such provisions are superseded by federal law regulating interstate and foreign travel by air
carriers (49 U.S.C. §§ 1373, subd. (b)(1), and 1305, subd. (a)(1); and cf. 67 Ops.Cal.Atty.Gen., supra, 82, n. 3). We did
not intend to suggest in the latter opinion (Id. at n. 3) that the forfeiture of public office by a person accepting such a
discount, pursuant to the California Constitution, is superseded by such federal statutes. (49 U.S.C. § 1506; Bradfield
v. Trans World Airlines, Inc. (1979) 88 Cal.App.3d 681, 687; Information Control Corp. v. United Airlines (1977) 73
Cal.App.3d 630, 640; and see unpub. opns. I.L. 64-111 (1964), I.L. 71-159 (1971), and I.L. 75-294 (1975).)

                                                            3.                                                    90-925

                                               PUBLIC INTEREST


                It is not the province of the Attorney General to determine which party should or is
likely to prevail in a quo warranto proceeding. (72 Ops.Cal.Atty.Gen. 15, 19 (1989).) However,
the mere existence of a justiciable issue does not establish that the public interest requires a judicial
resolution of the dispute or that leave automatically should be granted for the proposed relator to sue
in quo warranto. (67 Ops.Cal.Atty.Gen. 151, 154 (1989).) As stated in City of Campbell v. Mosk
(1961) 197 Cal.App.2d 640, 650:

                "The exercise of the discretion of the Attorney General in the grant of such
         approval to sue calls for care and delicacy. Certainly the private party's right to it
         cannot be absolute; the public interest prevails."

                We believe it would not be in the public interest to burden the city or the courts with
this dispute, and that a contrary disposition would discourage participation by citizens in public
office. (72 Ops.Cal.Atty.Gen., supra, at 24.) Further, we are mindful of the general principle that
ambiguities concerning the right to hold public office should be resolved in favor of eligibility. The
court stated in Helena Rubenstein Internat. v. Younger (1977) 71 Cal.App.3d 406, 418:

                  "We consider disqualification from public office a significant civil disability.
         In California, the right to hold public office has long been recognized as a valuable
         right of citizenship. In 1869, in People v. Washington, 36 Cal. 658, 662, our Supreme
         Court declared that `[t[he elective franchise and the right to hold public offices
         constitute the principle political rights of citizens of the several States.' In Carter v.
         Com. on Qualifications etc., 14 Cal.2d 179, 182, the court pointed out: `[T]he right
         to hold public office, either by election or appointment, is one of the valuable rights
         of citizenship . . . The exercise of this right should not be declared prohibited or
         curtailed except by plain provisions of law. Ambiguities are to be resolved in favor
         of eligibility to office. . . .' (Italics added.) More recently, the high court, citing
         Carter, has termed the right to hold public office a `fundamental right.' (Zeilenga v.
         Nelson, 4 Cal.3d 716, 720; Fort v. Civil Service Commission, 61 Cal.2d 331, 335.)
         Thus, any ambiguity in a constitutional provision calling for forfeiture of an existing
         office and disqualification from holding public office should be resolved in favor of
         continued eligibility. . . ."

                  For the foregoing reasons, leave to sue is denied.4

                                                      *****




   4
    We note but do not consider, in view of the result reached here, the effect of defendant's reelection to a succeeding
full term.

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