                        TO BE PUBLISHED IN THE OFFICIAL REPORTS


                             OFFICE OF THE ATTORNEY GENERAL

                                       State of California


                                       DANIEL E. LUNGREN

                                         Attorney General


                           ______________________________________

                  OPINION               :
                                        :          No. 95-1008
                   of                   :
                                        :          July 8, 1996
          DANIEL E. LUNGREN             :
            Attorney General            :
                                        :
          MAXINE P. CUTLER              :
         Deputy Attorney General        :
                                        :
______________________________________________________________________________

                THE HONORABLE CHARLES R. MACK, COUNTY COUNSEL, YOLO COUNTY,
has requested an opinion on the following question:

                May a county planning commissioner simultaneously serve as a member of the county
board of education?

                                           CONCLUSION

               A county planning commissioner may not simultaneously serve as a member of the
county board of education.

                                             ANALYSIS

                 We are asked to determine whether the common law prohibition against a person
holding "incompatible public offices," applicable in California (Mott v. Horstmann (1950) 36 Cal.2d
388, 391; People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636, 644), precludes a county planning
commissioner from serving simultaneously as a member of a board of education. We conclude that
these offices are incompatible, and thus a person may not serve in both capacities at the same time.

                Initially we note that no constitutional or statutory provision prohibits an individual
from simultaneously serving as a county planning commissioner and as a member of a county board of
education. With respect to the common law prohibition, we summarized the principles governing its
application in 66 Ops.Cal.Atty.Gen. 176, 177-178 (1983) as follows:

                                                  1.                                          95-1008

                "`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.Cal.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 McQuillin,
        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, `[t]he
        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).)'"

                 Applying these principles, we find that a county planning commissioner and a member
of a county board of education hold public office for purposes of the incompatible offices prohibition.
(Gov. Code, ' 1001; People v. Elliot (1953) 115 Cal.App.2d 410, 415; 64 Ops.Cal.Atty.Gen. 288
(1983); 31 Ops.Cal.Atty.Gen. 170 (1958).)1 Hence the issue to be resolved is whether there is an
incompatible conflict between the two: (1) whether the functions and duties of the two might produce
a significant clash of loyalties, (2) if the dual office holding would be improper for reasons of public
policy, or (3) if either officeholder would exercise a supervisory, auditory, or removal power over the
other.

                 1. County Planning Commissioner




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


                                                                         2.                                         95-1008

                A county planning commission is responsible for the preparation and implementation
of the county general plan ('' 65300-65302, 65400), which designates the uses of land in the county for
various purposes, including education, public buildings, and grounds (' 65302, subd. (a)).

                 Several functions of a county planning commission pertain directly to school districts.
For example, the planning commission reviews all proposed public works for conformity with the
general plan, including those proposed by the governing board of a school district. (' 65401.) A
five-year capital improvement program prepared by a school district must be referred to the planning
commission for review as to its consistency with the general plan and any applicable specific plans. ('
65403.) With respect to school facilities built with state funds, the planning commission "shall
consider in its review for approval information relating to attendance area enrollment, adequacy of the
site upon which the construction is proposed, safety features of the site and proposed construction, and
present and future land utilization . . . ." (' 53091.) A planning commission also typically hears and
decides applications for conditional use permits and variances from zoning ordinances. (''
65900-65906.)

                2. The County Board of Education

          The county board of education has supervisory duties over the county superintendent of schools
in the operation of district schools. (Cal. Const. art., IX, ' 3.1; Ed. Code '' 1040, 1042, 1043, 1080.)
The specific duties and responsibilities of a county board of education include the establishment and
maintenance of community schools. (Ed. Code, ' 1980.) In so doing, the board is "deemed to be a
school district." (Ed. Code, ' 1984.) Section 53094 provides that "the governing board of a school
district . . . may render a city or county zoning ordinance inapplicable to a proposed use of property by
such school district . . . ."

                3. Clashes of Duties and Loyalties

                We have previously found that holding the office of county planning commissioner
would be incompatible with simultaneously holding various other public offices. (See, e.g., 64
Ops.Cal.Atty.Gen. 288 (1981) [county planning commissioner and county water district director]; 58
Ops.Cal.Atty.Gen. 323 (1975) [county planning commissioner and hospital district director]; 56
Ops.Cal.Atty.Gen. 488 (1973) [county planning commissioner and school district trustee].) We have
also found that serving on a county board of education would be incompatible with simultaneously
serving on the State Board of Education. (31 Ops.Cal.Atty.Gen. 170 (1953).)

                  A county planning commission and a county board of education both have an interest in
the location of educational facilities. The county planning commission must consider educational
facilities in relation to the general plan (' 65302 subd. (a)) and any implementing specific plan ('
65451, subd. (a)). The county board of education, when establishing and maintaining community
schools, may invalidate county zoning ordinances. (Ed. Code, '' 1984, 53094; People ex rel. Cooper
v. Rancho Santiago College (1990) 226 Cal.App.3d 1281, 1286.) What the county board of education
considers to be in the best interests of the public in the placement of community schools may differ
from that of the planning commission in determining consistency with the county's general plan. We
believe that any decision relating to the siting of community schools would present a "significant clash

                                                   3.                                           95-1008

of duties and loyalties" (37 Ops.Cal.Atty.Gen. 21, 22 (1961)) "`in the regular operation of the statutory
plan'" (66 Ops.Cal.Atty.Gen., supra, at 177) so as to disqualify a person from holding both offices.

                 Moreover, to the extent that land use decisions regarding the placement of school
facilities may be made by the county superintendent of schools, the county board of education does
have a supervisory role regarding the superintendent's activities. We have previously found two offices
to be incompatible where, although one office does not directly interact with the other, each office has a
supervisory relationship with a third office. (78 Ops.Cal.Atty.Gen. 316 (1995) [county board of
supervisors and Board of Governors of the California Community Colleges incompatible due to each
office's supervisory relationship with community college districts].) This additional consideration fully
supports our conclusion that the two offices in question are incompatible.

                 For the foregoing reasons, we conclude that a county planning commissioner may not
simultaneously serve on a county board of education. A planning commissioner who enters upon his
or her duties as a member of a county board of education would automatically vacate the first office.

                                                *****




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