                 TO BE PUBLISHED IN THE OFFICIAL REPORTS


                      OFFICE OF THE ATTORNEY GENERAL

                                State of California


                                 XAVIER BECERRA

                                  Attorney General


                             _________________________

                                           :
                OPINION                    :                 No. 17-305
                                           :
                    of                     :             November 2, 2017
                                           :
           XAVIER BECERRA                  :
            Attorney General               :
                                           :
         ANYA M. BINSACCA                  :
         Deputy Attorney General           :
                                           :

________________________________________________________________________


       Proposed relator the CITY OF BELL GARDENS has requested leave to sue
proposed defendant JENNIFER RODRIGUEZ in quo warranto to oust her from the
public office of city council member on the ground that she was absent from all regular
city council meetings without permission for 60 days, thereby forfeiting her office under
Government Code section 36513.

                                    CONCLUSION

       There are substantial questions of law and fact as to whether Rodriguez was absent
from all regular city council meetings for 60 days, thereby forfeiting her office under
Government Code section 36513. As a result, allowing the action to proceed would serve
the public interest. Therefore, leave to sue in quo warranto is GRANTED.




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                                        ANALYSIS

         Standard for Approving a Quo Warranto Application

       Quo warranto is the form of action used to challenge whether a person is
unlawfully holding a public office.1 The process is authorized by Code of Civil
Procedure section 803, which provides: “An action may be brought by the attorney-
general, in the name of the people of this state, upon his own information, or upon a
complaint of a private party, against any person who usurps, intrudes into, or unlawfully
holds or exercises any public office, civil or military, or any franchise, or against any
corporation, either de jure or de facto, which usurps, intrudes into, or unlawfully holds or
exercises any franchise, within this state.”2

Where the quo warranto action is initiated “upon a complaint of a private party,”3 the
Attorney General acts as a gatekeeper; the party must obtain the Attorney General’s

   1
       Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221, 1225; 76
Ops.Cal.Atty.Gen. 157, 165 (1993) (quo warranto is the “appropriate remedy to test the
right of a person to hold public office”).
   2
       Code Civ. Proc., § 803.
   3
     Code Civ. Proc., § 803. Even though section 803 references the “complaint of a
private party,” public officers and public agencies, such as the City of Bell Gardens in
this case, may also pursue a quo warranto application as a relator.                       (76
Ops.Cal.Atty.Gen., supra , at pp. 162-163 [“We believe that a public official or agency
may qualify as a relator under the provisions of section 803”]; see also 97
Ops.Cal.Atty.Gen. 1, 1, fn. 4 (2014).) With respect to cities specifically, we note that city
councils and the courts sitting in quo warranto have concurrent jurisdiction over
questions of councilmember qualifications. We have previously observed that “[t]he
primary authority for determining whether a vacancy exists in a councilman’s office is
the city council itself under its power to fill a vacancy in a council seat, Gov. Code §
36512, and to ‘judge the qualifications of its members,’ Gov. Code § 36812.
[Citations.]” (41 Ops.Cal.Atty.Gen. 98, 100 (1963).) However, as we further observed,
“[t]his power of the city council is not exclusive.” (Id.; see McGregor v. Board of
Trustees of the Town of Burlingame (1911) 159 Cal. 441, 446-447; Klose v. Superior
Court in and for San Mateo County (1950) 96 Cal.App.2d 913, 921-922.) Having
determined there may be a substantial question whether one of its members is
disqualified from further service on the council due to excessive absences, the city
council here has elected to pursue a quo warranto adjudication in the first instance, as it is
authorized to do under Code of Civil Procedure section 803. (97 Ops.Cal.Atty.Gen.,
supra, at p. 1, fn. 4; 76 Ops.Cal.Atty.Gen., supra, at pp. 162-163.)

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permission before filing an action in superior court.4

       In evaluating whether to grant leave to sue, we do not endeavor to resolve the
merits of the controversy, but rather “decide whether the application presents substantial
issues of fact or law that warrant judicial resolution, and whether granting the application
will serve the public interest.”5

         The Application Presents Substantial Questions of Law and Fact

       The City of Bell Gardens is a general law city, and thus derives its powers from
the general statutes enacted by the Legislature.6 Government Codes section 36513
provides that, “If a city councilmember is absent without permission from all regular city
council meetings for 60 days consecutively from the last regular meeting he or she
attended, his or her office becomes vacant and shall be filled as any other vacancy.”7 The
City alleges that Rodriguez was absent for a 60-day period, thereby vacating her seat.

       The City’s municipal code sets the regular meetings of the city council for the
second and fourth Mondays of each month. The regular meetings during the 60-day
period following the council’s July 25, 2016 meeting (i.e., July 26 through September 23,
2016) took place on August 8, August 22, and September 12, 2016. The city council
minutes from each of those meetings reflect that Rodriguez was absent.8

        Rodriguez does not dispute that she was absent from those meetings. Instead, she
maintains that her absences were excused by the fact that her doctor had restricted her
activity during at least part of that time. Rodriguez provides a doctor’s note saying that
she was seen on July 25, 2016, that her activity is restricted, and that she may return to
work or school on August 9, 2016. The City maintains that Rodriguez never requested
permission to be absent from the August 8, August 22, or September 12, 2016 meetings.



   4
       Nicolopulos v. City of Lawndale, supra, 91 Cal.App.4th at pp. 1228-1229.
   5
       95 Ops.Cal.Atty.Gen. 50, 51 (2012).
   6
     See City of Orange v. San Diego County Employees Retirement Assn. (2002) 103
Cal.App.4th 45, 52.
   7
       Gov. Code, § 36513, subd. (a).
   8
    Council minutes also reflect that Rodriguez was absent from the two regular council
meetings that occurred during the 60-day period between November 22, 2016 and
January 21, 2017.

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      The meaning of “permission” to be absent from council meetings is not elucidated
by Government Code section 36513, the City’s municipal code, or the case law.

       We think the scenario here raises substantial questions of law and fact as to
whether Rodriguez vacated her council seat under Government Code section 36513. For
example, can a doctor’s note excuse a city council member’s absence from a meeting? If
so, when must that excuse be proffered? Does a city council have discretion to excuse a
medical absence, or any absence? Questions such as these, as well as any factual
disputes, may be addressed and resolved in a judicial proceeding.

         Judicial Resolution Serves the Public Interest

       “As a general rule, we view the need for judicial resolution of a substantial
question of fact or law as a sufficient ‘public purpose’ to warrant the granting of leave to
sue in quo warranto, absent countervailing circumstances such as pending litigation of the
issues or shortness of the time remaining in the term of office.”9 We are not aware of any
reason here to depart from our general rule. Both the City of Bell Gardens and the public
have an interest in a judicial determination of whether council member Rodriguez
vacated her city council seat by operation of law due to absence over a 60-day period.

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

                                             *****




   9
       95 Ops.Cal.Atty.Gen. 77, 87 (2012).

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