                            OFFICE OF THE ATTORNEY GENERAL

                                      State of California


                                     JOHN K. VAN DE KAMP

                                        Attorney General


                          ______________________________________

                   OPINION           :
                                     :          No. 90-493
                  of                 :
                                     :          JUNE 13, 1990
       JOHN K. VAN DE KAMP           :
           Attorney General          :
                                     :
        ANTHONY S. DA VIGO           :
        Deputy Attorney General      :
                                     :
______________________________________________________________________________

                CHARLES RAY and JOE CULVER, applicants herein, filed their petition for leave
to sue in quo warranto on April 18, 1990. On April 30, 1990, proposed defendant JOHN BOSTA
filed his opposition to application for leave to sue. On May 4, 1990, applicants filed their reply to
the opposition.

                                           CONCLUSION

                 It is concluded that leave to sue should be DENIED without prejudice.

Material Facts

                The Eagle Lake Community Services District ("ELCSD," post), a community
services district within the County of Lassen, was formed on June 11, 1985, for the purpose of
providing fire protection and sanitary sewer service within its boundaries.

              On November 3, 1987, proposed defendant John Bosta ("defendant," post), who
resided within the district, was elected as a director on the board of directors of ELCSD, and
assumed that office, which he presently occupies, on December 1, 1987.

               On January 10, 1990, the Board of Supervisors of Lassen County approved a
reorganization, consisting of a detachment from ELCSD and formation of the Stones\Bengard
Community Services District ("SBCSD," post), resulting in the division of ELCSD into two separate
districts.

               By virtue of the reorganization, defendant's residence is presently located within the
territory of SBCSD, and not of ELCSD.

Legal Issues

               The principal issues presented are whether continued residence within ELCSD is a
statutory prerequisite for holding the office of director on the board of directors of that district, and

                                                   1.                                            90-493

whether defendant, who no longer satisfies that prerequisite, was disqualified from continuing in
office as of the date of reorganization.

               A public office of a district becomes vacant upon its occupant ceasing to be an
inhabitant therein, where local residence is required by law. (Gov. Code, § 1770, subd. (e).)
Government Code section 61200 provides as follows:

               "Each district shall have a board of three or five directors, as stated in the
       petition for formation, all of whom shall be registered electors residing within the
       boundaries of the proposed district and all of whom shall be elected at large."

The issue first arising would be whether, under the quoted statute, continued residence throughout
the term of office is required.

              We have not been apprised by this application as to the appointment of a qualified
successor. (See generally Gov. Code, § 1780.) Government Code section 61206 provides as
follows:

               "Each director elected or appointed shall hold office until his successor
       qualifies."

The second issue arising would be whether, under the quoted statute, defendant may nevertheless
continue to hold office until his successor qualifies.

The Public Interest

               There is, in any event, an action now pending in the Court of Appeal for the Third
Appellate District, styled Eagle Lake Community Services District, appellant v. Lassen County
Local Agency Formation Commission, Board of Supervisors of the County of Lassen, respondents,
case No. 3 Civil C008575 on the files of said court. The issue presented for judicial determination
in that case and which underlies the contentions raised in this application for leave to sue in quo
warranto, is whether the reorganization of ELCSD into two separate districts was validly
accomplished and legally effective.

               The Attorney General has discretion to deny leave to sue when it is determined that
such action would not be in the public interest. (City of Campbell v. Mosk (1961) 197 Cal.App.2d
640, 650; 67 Ops.Cal.Atty.Gen. 151, 153 (1984).) We have previously determined that it would not
serve the public interest to grant an application pursuant to section 803 of the Code of Civil
Procedure where the issues to be resolved in such action are pending in a California court in another
action. (73 Ops.Cal.Atty.Gen. 109 (1990).) The issues presented in this application, i.e., whether
continuous residence is required, and if so whether a nonresident officer once duly appointed or
elected may continue to hold office until a successor qualifies, are not pending in a judicial action.
However, the underlying issue, i.e., whether the reorganization was legally effective, which will
determine whether defendant is or is not a resident of ELCSD, and which must be resolved as the
predicate of an action in quo warranto, is now pending in a judicial action.

               The application for leave to sue is denied without prejudice to its reinstatement
should the above referenced action now pending in the Court of Appeal be terminated without
resolution on the merits.

                                             *****



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