                       TO BE PUBLISHED IN THE OFFICIAL REPORTS

                            OFFICE OF THE ATTORNEY GENERAL

                                      State of California


                                      DANIEL E. LUNGREN

                                        Attorney General


                          ______________________________________

                  OPINION            :
                                     :          No. 92-1010
                  of                 :
                                     :          MARCH 3, 1993
        DANIEL E. LUNGREN            :
           Attorney General          :
                                     :
         CLAYTON P. ROCHE            :
        Deputy Attorney General      :
                                     :
______________________________________________________________________________
              DEBRA DORST-PORADA, RELATOR, has requested leave to sue James R. Fatland
in quo warranto pursuant to section 803 of the Code of Civil Procedure to test his right to hold the
office of Mayor of the City of Ontario.

                                          CONCLUSION

               Leave to sue is granted to test whether Mayor Fatland forfeited his office under the
terms of Article XII, section 7 of the California Constitution.

                                   FACTUAL ALLEGATIONS

                Relator alleges that on or about July 1, 1992, Mayor Fatland, who was planning a
vacation trip to Hawaii with his family, requested Hawaiian Airlines employees to upgrade two
round-trip coach tickets (his and his wife's) to first class tickets without any additional charge to
him. His two coach tickets were in fact upgraded by the carrier without charge to him.

                Mayor Fatland asserts that he did not request Hawaiian Airlines to upgrade his
tickets, but that such was done on a unilateral basis by the airline itself. This is supported by an
affidavit of an official of Hawaiian Airlines who states that he was authorized for promotional
purposes to grant approximately 20 first-class upgraded tickets to "high profile, prominent members
of the community." The promotional activities were to generate business for the airline's new
service from Ontario International Airport to Hawaii, and the official indicates that he personally
knew Mayor Fatland and considered him to meet the criteria for receiving the free upgraded tickets.

                 Mayor Fatland states that when he learned after his Hawaiian trip that acceptance of
the first-class upgraded tickets might constitute a violation of the Constitution, he paid the airline
for the upgraded tickets. Mayor Fatland also states that the application for leave to sue was initiated
by persons who differ with his views regarding developmental matters in the City of Ontario.

                Finally, Mayor Fatland alleges that as mayor, he has no ability to aid Hawaiian
Airlines, since Ontario International Airport is administered by the Los Angeles Department of
Airports. In response, the relator cites numerous examples of actions the city has taken in past years
with respect to the airport itself, such as planning, construction approvals, and the setting of airport
fees, all of which necessarily impact upon all airlines, including Hawaiian Airlines.

                                   LEGAL ISSUE PRESENTED

                Article XII, section 7 of the California Constitution provides:

                "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, other than a Public Utilities Commissioner, shall work a forfeiture of that
        office. A Public Utilities Commissioner may not hold an official relation to nor have
        a financial interest in a person or corporation subject to regulation by the
        commission."

              The legal issue presented is whether the acceptance of the two first-class upgraded
tickets by Mayor Fatland without payment therefor at the time of receipt constituted acceptance of
a "discount" by him within the meaning of the Constitution so as to result in his forfeiture from
office.

                                             ANALYSIS

               In determining whether to grant leave to sue, this office considers the following
factors: (1) whether the application has raised a substantial issue of law or fact which a court should
decide and (2) whether it would be in the public interest to grant leave to sue. (See, e.g., 75
Ops.Cal.Atty.Gen. 112, 113 (1992); 73 Ops.Cal.Atty.Gen. 357, 358 (1990).)

               Section 7 of Article XII (or its predecessor, section 19 of Article XII) has been in the
Constitution since its adoption in 1879. We note that the current language was adopted by the
electorate in 1974, when the Legislature submitted a proposed revision to the voters that was
contrary to the recommendation of the Constitutional Revision Committee. (See Cal. Const.
Revision Com., Proposed Revision (1968) p. 93.)1

                While case law is virtually nonexistent with respect to interpreting section 7 of
Article XII, this office has rendered a number of opinions, both formal and informal, regarding it
or its predecessor provisions. We have concluded that a court may find a forfeiture of office even
though (1) the officer was completely unaware of the provision; (2) the officer had no regulatory
power or other official influence over the activities of the transportation company or any other
transportation company; (3) the transportation company's activities were not restricted to intrastate
business, but included interstate and international operations as well; (4) the officer, upon learning
of the prohibition, immediately reimbursed the carrier for the transportation received; and (5) the
officer's travel was personal travel rather than official business. (See 74 Ops.Cal.Atty.Gen. 26
(1991); 67 Ops.Cal.Atty.Gen. 81 (1984); 24 Ops.Cal.Atty.Gen. 129 (1954); Indexed Letter No. 75-
294 (Mar. 23, 1975); Indexed Letter No. 71-159 (Aug. 24, 1971); Indexed Letter No. 70-155 (Aug.
7, 1970); Indexed Letter No. 64-111 (June 8, 1964).)


   1
    The committee's recommendation stated in part:

                "The provisions requiring forfeiture of office for accepting passes are deleted
        as harsh, inflexible, and unnecessary in view of general constitutional and statutory
        provisions which punish misconduct in office."

                                                   2.                                          92-1010

                  In a letter opinion of March 1, 1982, we granted leave to sue two members of the
Santa Monica City Council who accepted free airline tickets to London given by Laker Airlines as
part of the airline's promotion of its new Los Angeles to London service. The councilmembers were
unaware of section 7 of Article XII, and upon learning of the constitutional prohibition, they paid
Laker Airlines for the tickets. We concluded that substantial questions of law were presented which
should be decided by a court, despite the general rule that the law looks with disfavor upon
forfeitures of office. (See Helena Rubenstein Internat. v. Younger (1977) 71 Cal.App.3d 406, 418.)2

                 While Mayor Fatland did not receive free airline tickets, he did receive first-class
tickets for the price of coach tickets. In substance, we believe this constituted a "discount" within
the meaning of Article XII, section 7.

                Mayor Fatland, however, attempts to fit his situation within an "exception" carved
out by our opinions in interpreting section 7 of Article XII. We have indicated that the constitutional
provision would not appear to be applicable where the free transportation or discount is provided
to a public officer as a member of a larger group unrelated to the functions of his office. In 74
Ops.Cal.Atty.Gen. 26 (1984), we concluded that a public officer could accept first-class tickets
upgraded by virtue of the airline's policy to do so for all persons who were on their honeymoon. In
67 Ops.Cal.Atty.Gen. 81 (1984), we concluded that a public officer, whose spouse was a flight
attendant, could accept a free transportation pass or discount when such was offered to all spouses
of flight attendants without distinction. In both instances the fact that the individual was a public
officer was deemed irrelevant. The free transportation or discount was awarded by the airline
because the public officer was also a member of a larger, discrete class of persons; the officer was
not singled out for the pass or discount by the carrier.

               We believe the situation here is distinguishable. The class at issue, "high profile,
prominent citizens" of Ontario, was small in number (20), and Mayor Fatland was singled out from
the general population by the Hawaiian Airlines official. Mayor Fatland met the criteria for the
upgraded tickets because of his status as mayor. At a minimum, the application of our "exception"
rule to Mayor Fatland presents substantial questions of fact and law which a court should decide.

                Finally, we note Mayor Fatland's allegation that this application for leave to sue was
filed against him because of the relator's political motivations. In 75 Ops.Cal.Atty.Gen. 112, 116-
117 (1992), we observed in a similar situation:

              "As to the allegation that the relator may have a personal interest in this
       application, we note that such a factor might be a consideration taken with others in
       determining whether the public interest would be served in granting leave to sue.
       (See, e.g., City of Campbell v. Mosk (1961) 197 Cal.App.2d 640, 648-649; 36
       Ops.Cal.Atty.Gen. 317, 320 (1960).) However, our quo warranto regulations
       presuppose and state that `any person' may file a quo warranto application. (Cal.
       Code Regs., tit. 11, § 1.) We normally do not attempt to assess the motivation of
       individual relators. In deciding whether to grant or deny leave to sue, we focus upon
       the public interest as our paramount concern. (See City of Campell v. Mosk, supra,
       197 Cal.App.2d at pp. 648-650.)"




  2
   The Santa Monica quo warranto matter was filed in court, but was settled before judgment was
entered.

                                                  3.                                          92-1010

                 In sum, we believe that it would be in the public interest to have this matter presented
to a court for a judicial determination of the legal issues which inhere in the wording of Article XII,
section 7, and its proper application. Accordingly, leave to sue is hereby granted.

                                              ******




                                                   4.                                           92-1010

