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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

DANIEL E. LUNGREN
 

Attorney General
 

OPINION : 

: No. 95-811 

of : 

: December 18, 1995 

DANIEL E. LUNGREN : 

Attorney General : 

: 

ANTHONY S. Da VIGO : 

Deputy Attorney General : 

: 

PETER FEDELE, EDWARD RANZENBACH, DENNIS B. BARRETT, AND A-1 

AMBULANCE SERVICE, INC., have requested this office to grant leave to sue in quo warranto upon 

the following: 

ISSUE OF FACT OR LAW 

May an individual hold simultaneously the positions of Monterey County Director of 

Health, Monterey County Health Officer, Monterey County Local Emergency Medical Services 

Agency Director, and Monterey County Local Emergency Medical Services Agency Medical Director? 

CONCLUSION 

An individual may hold simultaneously the positions of Monterey County Director of 

Health, Monterey County Health Officer, Monterey County Local Emergency Medical Services 

Agency Director, and Monterey County Local Emergency Medical Services Agency Medical Director. 

PARTIES 

PETER FEDELE, et al. ("relators") contend that ROBERT J. MELTON, M.D. 

("defendant") is unlawfully serving as the Monterey County Director of Health ("Director of Health"), 

Monterey County Health Officer ("Health Officer"), Monterey County Local Emergency Medical 

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Services Agency Director ("Director"), and Monterey County Local Emergency Medical Services 

Medical Director ("Medical Director"). 

MATERIAL FACTS 

The County of Monterey ("County") has designated by ordinance the County's Health 

Department ("Department") as its Local Emergency Medical Services Agency ("Agency"). The 

County has also designated by ordinance the Department's Director of Health as its Health Officer, the 

Agency's Director, as well as the Agency's Medical Director. 

Defendant was appointed to these various positions by the County's Board of 

Supervisors in 1982, and he continues to exercise the duties of each position. 

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 law or fact which requires 

judicial resolution, and if so, whether the action in quo warranto would serve the overall public interest. 

(75 Ops.Cal.Atty.Gen. 287, 288 (1992).) 

This application for leave to sue concerns the common law doctrine of incompatible 

public offices. The doctrine prevents a person from holding simultaneously two public offices if the 

performance of the duties of either could have an adverse effect on the other. (People ex rel. Chapman 

v. Rapsey (1940) 16 Cal.2d 636, 641-642; 76 Ops.Cal.Atty.Gen. 81, 82-83 (1993).) If the two 

positions are offices, and if they are incompatible, the consequence is that the mere acceptance of the 

second acquired office automatically terminates the occupation of the first office as effectively as a 

resignation. (People ex rel. Chapman v. Rapsey, supra, 16 Cal.2d at 644; 76 Ops.Cal.Atty.Gen., 

supra, at 83.) However, if one or both of the positions is a mere employment as distinguished from a 

public office, the doctrine does not apply. (74 Ops.Cal.Atty.Gen. 82, 83 (1991); 73 Ops.Cal.Atty.Gen. 

183, 184 (1990).) 

We need not determine herein whether the positions under consideration are public 

offices, whether they are in fact distinct and separate from each other, or whether they are incompatible 

for purposes of the incompatible offices doctrine. Regardless of such determinations, the common law 

rule does not apply where it has been abrogated by the laws of this state. (American Canyon Fire Prot. 

Dist. v. County of Napa (1983) 141 Cal.App.3d 100, 104; 66 Ops.Cal.Atty.Gen. 293, 301 (1983).) As 

expressly provided in Civil Code section 22.2: "The common law of England, so far as it is not 

repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of 

this state, is the rule of decision in all courts of this State." (Italics added.) 

Here the County has designated its Director of Health as its Health Officer. No dispute 

arises as to this appointment. (See Health & Saf. Code, '' 450-465.) The County has by ordinance 

also designated its Director of Health as the Agency's Director and the Agency's Medical Director. 

Does the common law prohibition against holding incompatible offices apply when a county combines 

offices by ordinance which state statute authorizes? 

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We have previously determined that the "laws of this state" within the meaning of Civil 

Code section 22.2 encompass duly enacted local legislation. Specifically, in 66 Ops.Cal.Atty.Gen., 

supra, at 300-301, we observed: 

"An ordinance has the same force within the corporate limits of a city (Brown 

v. City of Berkeley (1976) 57 Cal.App.3d 223, 231) or within county limits (Evola v. 

Wendt Construction, Co. (1959) 170 Cal.App.2d 21, 24), as the case may be, as does a 

statute throughout the state. Hence, every part of the state is governed by the 

ordinances of a county or city, each such ordinance having, when duly enacted, and 

within its territorial limits, the same force and dignity as a law of general application. 

Such ordinances, adopted under the constitutional and legislative authority of the state, 

constitute an integral part of the `laws of the state.' Accordingly, a local ordinance is 

as much a part of the legal system, and an exercise of the sovereign power of 

governance, as any statute of limited geographical effect (cf. McGlothlen v. Department 

of Motor Vehicles (1977) 71 Cal.App.3d 1005) or statewide significance. 

"We discern no basis for the suggestion that the adoption of the common law as 

`the rule of decision' was intended to restrict the legislative powers of local 

governments. In our view, therefore, the `laws of this state' include duly enacted local 

legislation. Indeed, it has been held in a different statutory context that the `law of this 

state' includes municipal and county ordinances. (People v. Williams (1962) 207 

Cal.App.2d Supp. 912, 915; In re Johnson (1920) 47 Cal.App. 465, 467; Ex parte 

Sweetman (1907) 5 Cal.App. 577, 579; In re Miller (1910) 13 Cal.App. 564, 566.)" 

We reaffirmed our 1983 opinion in 73 Ops.Cal.Atty.Gen. 357, 360-361 (1990). ". . . [A]lthough a city 

or county normally may not adopt an ordinance inconsistent with a state statute (Cal. Const., art. XI, '

7; Griffis v. County of Mono (1985) 163 Cal.App.3d 414, 425-426), here Civil Code section 22.2 itself 

`authorizes' such inconsistency with respect to common law rules." (Id., at p. 361.) 

The ordinance under consideration herein is plainly contemplated by state law. The 

Emergency Medical Services System and the Prehospital Emergency Medical Care Personnel Act 

(Health & Saf. Code, ' 1797 et seq.) specifically provides as follows: 

"Each county may develop an emergency medical services program. Each 

county developing such a program shall designate a local EMS agency which shall be 

the county health department, an agency established and operated by the county, an 

entity with which the county contracts for the purposes of local emergency medical 

services administration, or a joint powers agency created for the administration of 

emergency medical services by agreement between counties or cities and counties 

pursuant to the provisions of Chapter 5 (commencing with Section 6500) of Division 7 

of Title 1 of the Government Code." (Health & Saf. Code, ' 1797.200.) 

Inasmuch as the County is expressly authorized by statute to designate its Department as its Agency, it 

follows that the County's Director of Health and Health Officer and the Agency's Director may be the 

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same individual under such circumstances. Assuming the Agency's Director satisfies the Legislature's 

prerequisites for acting as the Agency's Medical Director, i.e., a licensed physician and surgeon with 

substantial experience in the practice of emergency medicine (Health & Saf. Code, ' 1797.202), there 

is no statutory basis for precluding the simultaneous occupation of the positions in question by the same 

individual. 

Accordingly, we find no impediment to the County's enactment of the ordinance 

combining the various county positions. In the absence of any substantial question of fact or law 

which could give rise to the forfeiture of any office, the application herein for leave to sue in quo 

warranto is denied. 

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