                  TO BE PUBLISHED IN THE OFFICIAL REPORTS

                      OFFICE OF THE ATTORNEY GENERAL
                                State of California

                                    BILL LOCKYER
                                    Attorney General



                                             :
                 OPINION                     :                 No. 99-102
                                             :
                     of                      :                April 21, 1999
                                             :
             BILL LOCKYER                    :
             Attorney General                :
                                             :
       ANTHONY M. SUMMERS                    :
        Deputy Attorney General              :
                                             :




         THE HONORABLE ALAN K. MARKS, COUNTY COUNSEL OF SAN
BERNARDINO COUNTY, has requested an opinion on the following question:

                May an individual serve simultaneously on the governing board of a school
district and as the community development director for the City of Colton, where 70 percent
of the city lies within the school district?


                                     CONCLUSION

               An individual may serve simultaneously on the governing board of a school
district and as the community development director for the City of Colton even though 70
percent of the city lies within the school district.



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                                                    ANALYSIS

               We are asked to consider whether the community development director for the
City of Colton may serve on a local school district’s governing board in light of the
prohibition against holding incompatible public offices. This prohibition is of common law
origin and is applicable in California. (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.) We
conclude that the prohibition is inapplicable here.

           In 74 Ops.Cal.Atty.Gen. 82, 83 (1991), we explained the nature of the
common law prohibition as follows:

             “. . . The doctrine 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. [Citation.] In 73 Ops.Cal.Atty.Gen. 183, 183-184
      (1990), we summarized the following considerations:

              “ ‘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. [Citations.]

             “ ‘. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

             “ ‘. . . 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.]’

             “For the purposes of the doctrine, we have summarized the nature of
      a public office as (1) a position in government, (2) which is created or
      authorized by the Constitution or by law, (3) the tenure of which is continuing
      and permanent, not occasional or temporary, (4) in which the incumbent
      performs a public function for the public benefit and exercises some of the
      sovereign powers of the state. [Citation.]



                                                             2                                                                99-102
              “In Schaefer v. Superior Court (1952) 113 Cal.App.2d 428, 432-433,
       the court clarified the meaning of ‘sovereign powers of the state’ as follows:

              “ ‘If specific statutory and independent duties are imposed upon an
       appointee in relation to the exercise of the police powers of the State, if the
       appointee is invested with independent power in the disposition of public
       property or with the power to incur financial obligations upon the part of the
       county or state, if he is empowered to act in those multitudinous cases
       involving business or political dealings between individuals and the public,
       wherein the latter must necessarily act through an official agency, then such
       functions are a part of the sovereignty of the state.’ ”

               Unquestionably, one who serves on the governing board of a school district
holds a public office for purposes of the incompatible offices prohibition. (See, e.g., 79
Ops.Cal.Atty.Gen. 284 (1996).) However, whether the position of community development
director for the City of Colton constitutes a public office for purposes of the rule requires
an analysis of various factors. As noted above, if the director’s position is not an office, the
prohibition is inapplicable.

              In Neigel v. Superior Court (1977) 72 Cal.App.3d 373, the court examined the
incompatible offices prohibition, as incorporated into a city’s charter, with respect to a city
police officer. The court concluded that even though the officer performed sovereign
governmental functions and was an officer for some purposes, he did not hold a public
office for purposes of the incompatible offices doctrine. The court explained:

              “The city relies on cases holding that a policeman falls within the
       category of a public officer because he is entrusted with the duty and power
       to exercise a part of the sovereign governmental powers of the entity for
       which he is acting. [Citations.] However, the fact that policemen have been
       held to be public officers for certain purposes does not lead inevitably to the
       conclusion that they are ‘officers’ for all purposes. [Citation.] The meaning
       of the words ‘officer’ or ‘official’ varies with the conditions and
       circumstances in which they are used. [Citations.]

               “Section 225 [of the city charter] provides that no ‘person holding a
       salaried office of this City, whether by election or appointment,’ shall hold
       any other governmental office described and declares that any such person
       who, ‘during his term of such office,’ shall accept such other governmental
       office ‘shall be deemed thereby to have vacated the office held by him under
       this City Government, and the same shall immediately become vacant.’

                                               3                                         99-102
       Although the charter does not define the word ‘office,’ it does provide for
       various elective and appointive officers such as mayor, councilmen, city
       attorney, city assessor, treasurer, city engineer, superintendent of streets, chief
       of police, chief engineer of the fire department, and members of various
       boards and commissions established by the charter. Those persons occupy
       policy-making positions; they are elected or appointed for either a prescribed
       term or serve at the pleasure of the appointing authority; and their duties and
       powers are prescribed by the charter. Section 225 was manifestly intended to
       apply to such persons.

              “Policemen, however, are employed pursuant to open competitive civil
       service examinations and are referred to in the charter as classified employees.
       They do not serve either for a definite ‘term’ or at the pleasure of the
       appointing authority; their duties are not prescribed by the charter; nor are they
       clothed with policy-making authority. In these circumstances, we do not deem
       a policeman to be a ‘person holding a salaried office of this City’ in the
       context of section 225.” (Id., at pp. 378-379, fn. omitted.)

              With respect to the position held by the community development director for
the City of Colton, we find that under the city’s municipal code, the director is given
enforcement authority regarding zoning, building codes, and land divisions. (Colton Mun.
Code, § 2.64.010.) The power to issue citations for code violations clearly constitutes the
exercise of “sovereign powers.” Nevertheless, as indicated in Neigel v. Superior Court,
supra, 72 Cal.App.3d at 373, exercising sovereign powers does not necessarily mean that
the person holds a public office for purposes of the common law prohibition. We have
previously concluded that a sheriff’s deputy chief does not hold an office for purposes of the
common law doctrine. (78 Ops.Cal.Atty.Gen. 362 (1995).) We have reached the same
conclusion with respect to a fire captain (68 Ops.Cal.Atty.Gen. 337 (1985)) and a fire
division chief (74 Ops.Cal.Atty.Gen. 82 (1991)).

              The director’s formal job description indicates that he exercises managerial
functions for the city under the supervision and direction of the city manager. Such
managerial functions and supervision are indicative of an employment relationship rather
than the holding of a public office. (78 Ops.Cal.Atty.Gen., supra, at 368.) Moreover, the
director holds a civil service classification with the city as did the police officer in Neigel
v. Superior Court, supra, 72 Cal.App.3d at 373. He does not serve a definite “term” or at
the pleasure of the appointing authority, and his policy-making authority is limited by the
conditions of his job description and his subordination to the city manager.



                                               4                                             99-102
               Based upon the foregoing factors, we believe that the community development
director for the City of Colton does not hold a public office for purposes of the common law
prohibition. Because two public offices are not involved here, we conclude that an
individual may serve simultaneously on the governing board of a school district and as the
community development director for the City of Colton even though 70 percent of the city
lies within the school district.

                                         *****




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