                      TO BE PUBLISHED IN THE OFFICIAL REPORTS


                           OFFICE OF THE ATTORNEY GENERAL

                                     State of California


                                     DANIEL E. LUNGREN

                                       Attorney General


                         ______________________________________

                  OPINION            :
                                     :          No. 93-802
                  of                 :
                                     :          November 10, 1993
        DANIEL E. LUNGREN            :

           Attorney General          :

                                     :

         CLAYTON P. ROCHE            :

        Deputy Attorney General      :

                                     :

______________________________________________________________________________


              Patricia A. Moore ("relator") has requested leave to sue Ronald Green ("defendant")
in quo warranto pursuant to section 803 of the Code of Civil Procedure upon the following:

                                         ISSUE OF LAW

                Does defendant validly hold the office of Councilmember of the City of Compton by
virtue of his appointment on June 8, 1993?

                                          DISPOSITION

               Leave to sue in quo warranto is granted to determine whether defendant was validly
appointed to the office of Councilmember of the City of Compton.

                                    STATEMENT OF FACTS

               The City of Compton is a charter city. Pursuant to the city charter, the city council
consists of an elected mayor and four elected councilmembers. With respect to the filling of
vacancies in the city's elective offices, section 505 of the charter provides:

              "A vacancy in any elective office, from whatever cause arising, shall be filled
       by appointment by the City Council . . . .

               "In the event the City Council shall fail to fill a vacancy by appointment
       within thirty days after such office shall have been declared vacant, it shall forthwith
       cause an election to be held to fill such vacancy."

               On December 15, 1992, Mayor Walter Tucker tendered his written resignation
effective January 1, 1993. On June 1, 1993, Councilmember Omar Bradley was elected mayor for
a four-year term commencing on July 1, 1993.

                                                 1.                                               93-802

              On June 8, 1993, Councilmembers Woods, Robbins, and Bradley appointed
Councilmember Bradley to the vacancy in the office of mayor created by the resignation of Mayor
Tucker. Immediately following the appointment, Councilmembers Woods, Robbins, and Bradley
declared Councilmember Bradley's seat on the city council to be vacant, and appointed defendant
to such vacancy for the unexpired term to and including June 30, 1995.

                          QUESTIONS OF FACT OR ISSUES OF LAW

               Was the city council authorized to fill the vacancy in the office of mayor on June 8,
1993, or had such authority expired under the provisions of section 505 of the city charter?

             Did the appointment of Councilmember Bradley as mayor on June 8, 1993 violate
the common law rule against self-appointments?

              Irrespective of the city council's authority to fill the vacancy in the office of mayor
on June 8, 1993, or the application of the rule against self-appointments, did Councilmember
Bradley's acceptance of the appointment create a vacancy in his council seat to which defendant
could be appointed?

                                            ANALYSIS

                Section 803 of the Code of Civil Procedure provides that an action in the nature of
quo warranto "may be brought by the attorney-general, in the name of the people of this state, upon
his own information, or upon the complaint of a private party, against any person who usurps,
intrudes into, or unlawfully holds or exercises any public office. . . ."

                In determining whether to grant leave to sue upon the complaint of a private party,
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., 76 Ops.Cal.Atty.Gen. 1, 2 (1993); 75 Ops.Cal.Atty.Gen. 112, 113 (1992);
73 Ops.Cal.Atty.Gen. 357, 358 (1990).) We believe that the application herein presents at least three
questions of fact or law which should be judicially resolved.

               1.	     Was The City Council Authorized On June 8, 1993 To Fill The Vacancy In
                       the Office Of Mayor?
                As noted at the outset, section 505 of the city charter states that if a vacancy arises
in an elective office, the vacancy is to be filled by the city council within 30 days. Otherwise, the
city council "shall forthwith" call a special election to fill the vacancy. Here, the city council
attempted to fill the vacancy in the office of mayor five months after it occurred. If the council
could not fill the vacancy at that time, could it appoint defendant to replace the councilmember
appointed to the office of mayor?

                In 64 Ops.Cal.Atty.Gen. 42, 45 (1981), we stated with respect to the interpretation
of city charters:

              "In interpreting the charter provision at issue, the same principles of
       construction are applicable as are applied in interpreting the Constitution or general
       laws. (See Diamond International Corp v. Boas (1979) 92 Cal.App.3d 1015, 1030-
       1031.) Accordingly, the ordinary and usual import of the language used must be
       given effect (Rockwell v. Superior Court (1976) 18 Cal.3d 420, 423; Leroy T. v.
       Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 434, 438), with consideration given

                                                  2.	                                           93-802

       to the document as a whole in order to ascertain the intent and purposes of its
       individual provisions. (California Mfgs. Assn. v. Public Utilities Com. (1979) 24
       Cal.3d 836, 844; Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222,
       230.)"

              Although we have not previously interpreted the charter provision in question, we
have construed the following similar provision:

                "The City Council shall fill any vacancy occurring in the office provided for
       in this chapter by appointment. If a vacancy occurs in an elective office and the city
       council fails to fill it within 30 days, it shall immediately call an election to fill the
       vacancy. . . ."

We concluded in a 1975 informal opinion that under this provision, the city council's duty to call an
election was mandatory if the vacancy was not filled within the 30-day period. (Cal. Atty. Gen.,
Indexed Letter, No. IL 75-199 (Sept. 2, 1975); see also 41 Ops.Cal.Atty.Gen. 98, 101 (1963).)

               The governing principle of law to be followed here is that when legislation prescribes
the method by which a vacancy in a public office is to be filled, the mode prescribed is the measure
of the power. (See People v. Zamora (1980) 28 Cal.3d 88, 98; People v. Cazneau (1862) 20 Cal.
503, 508; Woodmansee v. Lowery (1959) 167 Cal.App.2d 645, 653; Cal. Atty. Gen., Indexed Letter,
No. IL 76-94 (Mar. 27, 1976).)

               Accordingly, a substantial question of law exists as to whether the city council was
authorized to fill the vacancy in the elective office of mayor on June 8, 1993, since the vacancy
arose on January 1, 1993, some five months prior thereto. If that appointment was void, there was
not a vacancy to which defendant could be appointed.

               2.	     Did The Appointment Of Councilmember Bradley Violate The Doctrine
                       Against Self-Appointments?

                 Councilmember Bradley was appointed on June 8, 1993, to the office of mayor based
upon three affirmative votes, including his own, with one abstention. Following the usual rules of
parliamentary procedure, his appointment would be valid (assuming the council had the authority
to make the appointment) regardless of his own vote, since an abstention acts as an acquiescence
"in the action taken by the majority of those who vote affirmative or negatively." (62
Ops.Cal.Atty.Gen. 698, 700 (1983); see Dry Creek Valley Assn., Inc. v. Board of Supervisors (1977)
67 Cal.App.3d 839, 843; 66 Ops.Cal.Atty.Gen. 336, 337, fn. 2 (1983).) However, in this case,
section 607 of the city charter requires "the affirmative votes of at least three members of the City
Council . . . for the enactment of any ordinance or resolution. . . ." Three "affirmative" votes would
call into question Councilmember Bradley's own vote, since the abstention would not so qualify.
(See 55 Ops.Cal.Atty.Gen. 26, 29 (1972).) But was the appointment an "ordinance or resolution"
requiring three affirmative votes under the charter? This is but another question of law that merits
judicial review and resolution.

               If the council was authorized to make the appointment and three affirmative votes
were required, did the appointment violate the common law rule against self-appointments? In 73
Ops.Cal.Atty.Gen. 357 (1990) we analyzed the rule against self-appointments with respect to the
appointment of the Mayor of Oakland to the Oakland Port Commission. We stated:

              "The Labor Council argues that an application of this common law rule to our
       facts would mean that Wilson was ineligible to be appointed by the city council to

                                                  3.	                                               93-802

       the port commission and his appointment was invalid. Wilson, however, seeks to
       avoid this common law rule of public policy on the grounds that Oakland, as a `home
       rule' charter city, is not restricted by the common law and that any limitations on the
       city council's ability to appoint an individual to a city office must be found in the city
       charter itself. . . .

              "In 66 Ops.Cal.Atty.Gen. 293 (1983) we considered the effect of common
       law rules on the appointment of a charter city's planning commissioner to
       simultaneously hold the office of county planning commissioner. We concluded:

               `. . . Thus, the authority of a charter city [to authorize the holding of two
       offices at the same time] is not constrained by common law. The City may obviate,
       by appropriate legislation, the force and effect of the common law doctrine, thereby
       enabling the county to appoint a city planning commissioner as a county planning
       commissioner.' (Id., at p. 297.)

Likewise, we believe that Oakland, a charter city, could by appropriate legislation abrogate the
common law rule against self-appointments. The Legislature has made common law rules generally
applicable throughout California by enacting Civil Code section 22.2. The statute provides:

                `The common law of England, so far as it is not repugnant to or inconsistent
       with the Constitution of the United States, or the Constitution or laws of this State
       is the rule of decision in all the courts of this State.'

In 66 Ops.Cal.Atty.Gen. 293, supra, we concluded that the `laws of this State' included ordinances
adopted by cities and counties. (Id., at pp. 298-300.) Accordingly, although a city or county
normally may not adopt an ordinance inconsistent with a state statute (Cal. Const., art. XI, § 7;
Griffis v. County of Mono (1985) 163 Cal.App.3d 414, 425-426), here Civil Code section 22.2 itself
`authorizes' such inconsistency with respect to common law rules.

               "This result would be equally applicable to charter cities. Although
       `ordinances enacted in a charter city relating to matters which are purely municipal
       affairs prevail over state laws covering the same subject' (Committee of Seven
       Thousand v. Superior Court (1988) 45 Cal.3d 491, 505), `[a]s to matters which are
       of statewide concern, . . . home rule charter cities remain subject to and controlled
       by applicable general state laws regardless of the provisions of their charters' (Bishop
       v. City of San Jose (1969) 1 Cal.3d 56, 61). Civil Code section 22.2, establishing the
       common law `in all the courts of this State,' appears to address a matter of statewide
       concern. (See Baggett v. Gates (1982) 32 Cal.3d 128, 136; City of Los Angeles v.
       State of California (1982) 138 Cal.App.3d 526, 533.) Hence, Oakland would be
       subject to common law rules pursuant to Civil Code section 22.2, even though the
       qualifications for city offices might otherwise be considered a `municipal affair' over
       which a charter city normally has plenary authority. (See City of Downey v. Board
       of Administration (1975) 47 Cal.App.3d 621, 629; Hiller v. City of Los Angeles
       (1961) 197 Cal.App.2d 685, 689.)"

              In addition to the common law rule against self-appointments, Government Code
section 17521 may also be relevant to this issue. Section 1752 provides:


   1
    All references hereafter to the Government Code are by section number only.

                                                  4.                                                93-802

               "(a) Except as provided in subdivision (b), no person elected or appointed
       to the governing body of any city, county, or district having an elected governing
       body, shall be appointed to fill any vacancy on such governing body during the term
       of which he or she was elected or appointed.

               "(b) With respect to a general law city, if a vacancy in the elected office of
       mayor occurs, the council may fill that vacancy by appointing a member of the
       council to the office of mayor. Any person appointed to fill the vacancy shall hold
       the office of mayor for the unexpired term of the former mayor. Any vacancy
       created in the membership of a city council as the result of an appointment of a
       member to the office of mayor shall be filled in accordance with Section 36512,
       36512.1, or 36512.2."

Subdivision (a) of section 1752 essentially codifies the doctrine against self-appointments with
respect to the governing bodies of cities, counties, and districts. Subdivision (b), however, excepts
the factual situation presented herein -- where a councilmember is appointed to a vacancy in the
office of mayor -- "with respect to a general law city." Does the statute apply to charter cities as
well?2

                In our view, a substantial question of law is presented concerning the applicability
of the rule against self-appointments with respect to the appointment of Councilmember Bradley
to the vacancy in the office of mayor on June 8, 1993, either in the context of the common law rule
or section 1752 or otherwise. As previously indicated, if Councilmember Bradley's appointment was
invalid, defendant's appointment must also be subject to challenge.

               3.      Did The Appointment On June 8, 1993 Create A Vacancy In Office?

              If the city council was not authorized to appoint Councilmember Bradley to the office
of mayor on June 8, 1993, or if the rule against self-appointments caused his appointment to be void,
no vacancy would be created in his office as a councilmember to which defendant could be
appointed. Both appointments could thus be ruled void.

                 If, on the other hand, the city council was authorized to appoint Councilmember
Bradley to the office of mayor on June 8, 1993, there would be little question that the appointment
created a vacancy in his council seat. He could not hold both offices at the same time under the
city's charter. The acceptance of the second office would constitute an automatic resignation from
the first. (Cal. Atty. Gen., Indexed Letter No. IL 76-94, supra ["were a councilman to be elected
mayor or were he to assume that office, his qualifying as mayor would automatically vacate his
office as a city councilman"].)

                Alternatively, it may be argued that even if the city council was not authorized to fill
the vacancy or the rule against self-appointments voided the appointment, Councilmember Bradley's
acceptance of the office of mayor constituted a resignation from or abandonment of his council seat.
A vacancy would thus be created to which defendant could have been appointed.

   2
    We note the possibility that section 1752 could be applicable to the City of Compton pursuant
to section 400 of the city charter which provides in part:

               ". . . [the city] shall also have the power to exercise any and all rights, powers
       and privileges heretofore or hereafter established, granted or prescribed by any law
       of the state, by this Charter, or by other lawful authority . . . ."

                                                  5.                                                93-802

               Pursuant to article XI, sections 3 and 5 of the California Constitution, as to matters
of purely municipal concern, charter cities are autonomous and not subject to general laws. This
autonomy extends to the election and appointment and other matters relating to municipal officers
and employees. (See Johnson v. Bradley (1992) 4 Cal.4th 389, 394-411; California Fed. Savings
& Loan Assn v. City of Los Angeles (1991) 54 Cal.3d 1, 11-18; Cawdrey v. City of Redondo Beach
(1993) 15 Cal.App.4th 1212, 1218-1228.) However, here the city charter does not contain a
provision regarding the resignation or abandonment of office by municipal officers.

                   With this "vacuum" in mind, we note that as to resignations, section 1750 provides
in part:

                   "Resignations shall be in writing, and made as follows:

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

                  "(e) By officers of a municipal corporation, to the clerk of the legislative
           body of their corporation."

Councilmember Bradley did not indicate orally or in writing that he intended to resign his council
seat unconditionally (i.e., that he intended to give up his council seat even if his appointment as
mayor was void) when he was appointed mayor on June 8, 1993.

                As to whether Councilmember Bradley's conduct demonstrated an "abandonment"
of his council seat, we find that section 1770 provides numerous situations whereby a vacancy is
created in an office, including the officer's "ceasing to discharge the duties of his office for a period
of three consecutive months, except when prevented by sickness, or when absent from the state with
the permission required by law." In Walter v. Adams (1952) 110 Cal.App. 2d 484, the Court of
Appeal ruled that this form of statutory abandonment was not exclusive:

                    "Although, as respondent states, Government Code, section 1770, enumerates
           the `Events Causing Vacancy in Office' . . . that is not to say that . . . said section is
           exclusive. In the early case of People v. Porter, 6 Cal. 26, 27, it was held that `the
           tenure of an office' depends on `the incumbent.' The rule as stated in 43 American
           Jurisprudence, section 172, page 26, is that `The abandonment of an office may be
           indicated by the action of the incumbent in voluntarily surrendering it to another
           under a mistaken belief that the latter has been elected as his rightful successor, or
           even by acquiescing in his own removal,' and that text, speaking of the elements
           necessary to constitute such an abandonment, says in section 172, `In order to
           constitute an abandonment of office, the abandonment must be total, and under such
           circumstances as clearly to indicate an absolute relinquishment. Moreover, the
           officer should manifest a clear intention to abandon the office and its duties, although
           his intention may be inferred from conduct. If the acts and statements are such as
           clearly indicate absolute relinquishment, a vacancy is thereby created without the
           necessity of a judicial determination.' Also in McQuillin on Municipal Corporations,
           volume 3, section 12.123, page 439, it is stated that `An office may be vacated by
           abandonment. Abandonment may be treated as a constructive resignation. . . . But
           what acts will constitute abandonment or implied resignation of an official depend,
           of course, upon the circumstances of the particular case and the controlling law."
           (Id., at pp. 489-490.)

               Accordingly, even if Councilmember Bradley's appointment to the office of mayor
was void for one or more reasons, he may still have vacated his council seat by his conduct, enabling

                                                                       6.                                           93-802

defendant to be validly appointed. We believe that whether Councilmember Bradley effectively
resigned or abandoned his council seat on June 8, 1993, either pursuant to the city charter or under
other legal principles, presents substantial questions of law and fact.

                                     THE PUBLIC INTEREST

                As noted at the outset, we require not only that a substantial question of law or fact
is presented in an application for leave to sue, but that it would be in the public interest to have the
matter decided by a court.3

               Since the unexpired term to which defendant was appointed does not terminate until
July 1, 1995, we believe it would be in the public interest to have a court determine if defendant does
or does not validly hold the office of councilmember,4 and if he does not, to permit the vacancy to
be filled by someone legally elected to or legally appointed to that office.

                                               *****




  3
   "In this regard, we note that "[i]t is not the province of the Attorney General to determine which
party should or is likely to prevail in a quo warranto proceeding." (74 Ops.Cal.Atty.Gen. 26, 29
(1991).)
  4
    In a recent opinion, we concluded that it was particularly appropriate for a court to decide upon
the proper interpretation and application of the terms of a city charter. (76 Ops.Cal.Atty.Gen. 157,
167 (1993).)

                                                  7.                                            93-802
