                  TO BE PUBLISHED IN THE OFFICIAL REPORTS

                       OFFICE OF THE ATTORNEY GENERAL
                                 State of California

                                     BILL LOCKYER
                                     Attorney General



                                              :
                 OPINION                      :                  No. 99-207
                                              :
                     of                       :                April 13, 1999
                                              :
             BILL LOCKYER                     :
             Attorney General                 :
                                              :
         GREGORY L. GONOT                     :
         Deputy Attorney General              :
                                              :




             WILLIAM R. McDANIEL has requested this office to grant leave to sue in
quo warranto upon the following question:

             Does the doctrine of incompatible public offices preclude a person from
holding simultaneously the positions of director of the Victor Valley Water District and city
council member of the City of Victorville?


                                      CONCLUSION

              The holding simultaneously of the positions of director of the Victor Valley
Water District and city council member of the City of Victorville presents substantial
questions of fact and law concerning the application of the incompatible public offices
doctrine that warrants the granting of leave to sue in quo warranto.


                                             1                                        99-207
                                           PARTIES

               WILLIAM R. McDANIEL (“relator”) contends that RODOLFO CABRIALES
(“defendant”) is unlawfully holding the office of director of the Victor Valley Water District
(“District”) as a result of his appointment to the office of city council member for the City
of Victorville (“City”).


                                     MATERIAL FACTS

             The City is a general law city with jurisdictional boundaries substantially
contiguous with those of the District. The District is a public corporation organized under
the County Water District Law (Wat. Code, §§ 30000-33901).


               On November 27, 1997, defendant was elected to a four-year term as a director
of the District. On November 17, 1998, defendant was appointed to fill a vacancy on the
city council of the City.


                                          ANALYSIS

               In deciding whether to grant leave to sue in the name of the People of the State
of California, we consider initially whether there exists a substantial question of fact or law
that requires judicial resolution, and if so, whether the filing of an action in the nature of quo
warranto would serve the overall public interest. (80 Ops.Cal.Atty.Gen. 242, 243 (1997).)

                The relator’s application for leave to sue concerns the common law prohibition
against the holding of incompatible public offices. (See Civ. Code, § 22.2; Mott v.
Horstmann (1950) 36 Cal.2d 388, 391-392; People ex rel. Chapman v. Rapsey (1940) 16
Cal.2d 636, 640-644; Eldridge v. Sierra View Local Hospital Dist. (1990) 224 Cal.App.3d
311, 319.) The prohibition 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).) In 81 Ops.Cal.Atty.Gen. 304, 304-305
(1998), we quoted from our previous opinions in describing the prohibition 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

                                                2                                          99-207
      over the other.’ [Citations.]

             “ ‘ “The policy set forth in People ex rel. Chapman v. Rapsey [(1940)
      16 Cal.2d 636] comprehends prospective as well as present clashes of duties
      and loyalties. [Citation.]

              “ ‘ “ ‘Neither is it pertinent to say that the conflict in duties may never
      arise; it is enough to say that it may, in the regular operation of the statutory
      plan.’ [Citation.]

              “ ‘ “ ‘Only one significant clash of duties and loyalties is required to
      make offices incompatible . . . .’ [Citation.] Furthermore, ‘[t]he existence of
      devices to avoid . . . [conflicts] neither changes the nature of the potential
      conflicts nor provides assurance that they would be employed . . . .’
      [Citation.] 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. [Citation.] 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. [Citation.]” ’ ”

              A county water district director holds a public office for purposes of the
common law prohibition. (73 Ops.Cal.Atty.Gen. 268, 270 (1990); 64 Ops.Cal.Atty.Gen.
288 (1981); 37 Ops.Cal.Atty.Gen. 21, 22, fn. 1 (1961); 32 Ops.Cal.Atty.Gen. 250, 252
(1958); see also 80 Ops.Cal.Atty.Gen., supra, at 244 (1997); 76 Ops.Cal.Atty.Gen. 81, 83
(1993); 75 Ops.Cal.Atty.Gen. 10, 13 (1992).) A member of a city council also holds a
public office for purposes of the incompatible offices doctrine. (75 Ops.Cal.Atty.Gen.,
supra, at 13; 73 Ops.Cal.Atty.Gen. 354, 356 (1990).)

             Not only are the two positions in question “offices” for purposes of the
common law prohibition, we have concluded that the offices are incompatible. In 37
Ops.Cal.Atty.Gen., supra, at 22-23, we stated with respect to these two offices:

              “Sharp clashes could arise between the offices of councilman and
      district director. For example, the district is authorized to construct sewer
      facilities and contract with any public agency for sewer outfall facilities
      [citation]. The city council is also authorized to construct sewers [citation].
      In a closely analogous opinion holding the offices of rapid transit district
      director and councilman of a city within the district incompatible, this office
      stated that ‘obviously, the conclusions of the directorate in such respects may

                                              3                                             99-207
       collide with the avowed interests of the component cities . . .’ [Citation.] A
       County water district may take property by condemnation and eminent domain
       [Citations]. The decision of the board of directors ‘may conflict with the
       views and interests of . . . [a] city within the district’ [citation]. The district
       may make contracts with the city [citations]. ‘In such circumstances a city
       councilman . . . would have to serve two masters if he held the two offices
       concurrently’ [citation]. These examples do not nearly exhaust the
       possibilities of conflict. Indeed, only one significant clash of duties and
       loyalties is required to make the offices incompatible [citations]. The
       examples illustrate the compelling force of the district attorney’s conclusion
       that on a number of occasions ‘a person who is both a director of the district
       and a councilman of the city may find a conflict between the action which is
       in the best interests of the district and the action which is in the best interests
       of the city.’ The two offices are therefore incompatible and may not be held
       by the same person.” (Fns. omitted.)

               More recently, in 75 Ops.Cal.Atty.Gen. 10, supra, we granted leave to sue in
quo warranto to obtain judicial resolution of whether the offices of city council member and
director of a water district established under the California Water District Law (Wat. Code,
§ 34000 et seq.) were incompatible.

              As defendant’s potential conflicting loyalties would essentially be the same
as those examined in 37 Ops.Cal.Atty.Gen. 21, supra, and in 75 Ops.Cal.Atty.Gen. 10,
supra, we conclude that substantial questions of fact and law are present here concerning
the application of the incompatible offices doctrine.


                                    PUBLIC INTEREST

              As a general rule, we have viewed the existence of a substantial question of
fact or law as presenting a sufficient “public purpose” to warrant the granting of leave to
sue. Accordingly, leave will be denied only in the presence of other overriding
considerations. (81 Ops.Cal.Atty.Gen. 94, 98 (1998).) We have found no countervailing
considerations herein. Rather, the inhabitants of the City and of the District have a
paramount interest in the undivided loyalties of their public officers.

              Accordingly, the application for leave to sue in quo warranto is GRANTED.

                                           *****




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