______________________________________ 

______________________________________________________________________________ 

OFFICE OF THE ATTORNEY GENERAL
 State of California
 

JOHN K. VAN DE KAMP
 Attorney General
 

OPINION : 

: No. 90-491 

of : 

: JUNE 13, 1990 

JOHN K. VAN DE KAMP : 

Attorney General : 

: 

ANTHONY S. DA VIGO : 

Deputy Attorney General : 

: 

The BRITTAN SCHOOL DISTRICT by its Board of Trustees, applicant herein, filed

its application for leave to sue in quo warranto on April 3, 1990. On April 23, 1990, proposed

defendant ELLWOOD D. MUNGER filed his opposing memorandum of points and authorities. On 

April 30, 1990, applicant filed its reply to the opposition. 

CONCLUSION 

It is concluded that leave to sue should be GRANTED. 

ANALYSIS 

Material Facts 

Proposed defendant Ellwood D. Munger ("Munger", post) was elected, qualified, and

assumed the office of trustee on the Board of Trustees of the Brittan School District, County of

Sutter, for a four year term commencing November 8, 1988. 

On or about June 29, 1989, Munger was elected, qualified, and assumed a second

public office as a director on the Board of Directors of the Sutter Community Services District

("CSD", post), for a term which expires in November, 1992. 

CSD is located entirely within the pupil residence area of the Brittan School District 

("BSD", post), and was formed under the Community Services District Law for the purpose of

supplying water for domestic use, irrigation, sanitation, industrial use, fire protection and recreation. 

Legal Issues 

The principal issue presented is whether the office of school district trustee and the

office of community services district director are incompatible, and whether upon his assumption

of the latter office, Munger forfeited the former. 

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The application concerns the common law doctrine of incompatible public offices

as applied to dual membership on BSD and CSD. 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. (68 Ops.Cal.Atty.Gen. 337, 338-339 (1985).) In 71 Ops.Cal.Atty.Gen.

39, 39-40 (1988), we summarized as follows: 

"`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).) 

"(See also, generally, People ex rel Chapman v. Rapsey (1940) 16 Cal.2d

636, 641-642, and e.g. 65 Ops.Cal.Atty.Gen. 606 (1982); 64 Ops.Cal.Atty.Gen. 288,

289 (1981); 64 Ops.Cal.Atty.Gen. 137, 138-139 (1981); 63 Ops.Cal.Atty.Gen. 623

(1980); 63 Ops.Cal.Atty.Gen. 607, 608 (1980).) 

"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).)'" 

For the purposes of the doctrine, a public office is (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. (68

Ops.Cal.Atty.Gen, supra, 342.) 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." 

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We have previously concluded that a member or trustee of a school district governing board holds

a public office (68 Ops.Cal.Atty.Gen. 240, 241 (1985); 66 Ops.Cal.Atty.Gen. 382, 384 (1983); 65

Ops.Cal.Atty.Gen. 606 (1982); 56 Ops.Cal.Atty.Gen. 488, 489 (1973); 48 Ops.Cal.Atty.Gen. 141

(1966)), as does a member of the board of directors of a community services district (68

Ops.Cal.Atty.Gen, supra, 344). 

A community services district is established under the provisions of the Community

Services District Law (Gov. Code, § 61000 et seq.) and may consist of designated unincorporated

territory of one or more counties. (Gov. Code, §§ 61100-61102.) A district is governed by a board 

of three or five directors. (Gov. Code, §§ 61200, 61300.) We have observed that such districts may

possess many of the rights, and perform many of the functions, normally regarded as municipal in 

nature. (67 Ops.Cal.Atty.Gen. 145, 148 (1984); 27 Ops.Cal.Atty.Gen. 261, 262 (1956).) These 

functions, which may be designated in the petition for formation (Gov. Code, § 61600), or thereafter

by resolution and special election (Gov. Code, § 61601), include (a) water supply, (b) sewage

disposal, (c) refuse disposal, (d) fire protection, (e) parks and recreation, (f) street lighting, (g)

mosquito abatement, (h) police protection, (i) library service, (j) street maintenance, (k) construction

of bridges, curbs, and other works incidental to streets, (l) conversion of utilities to underground

locations, (m) ambulance service, (n) airports, and (o) transportation services. (Gov. Code, §

61600.) 

The function specified in the CSD formation petition is to supply the inhabitants of

the district with water for domestic use, irrigation, sanitation, industrial use, fire protection, and

recreation. (Gov. Code, § 61600, subd. (a).) We predicate upon this function alone, without regard

to the numerous others which may be assumed in the future, our determination that principal or

important duties, functions, and responsibilities of the respective offices either are or might come

into conflict. 

Government Code section 61621 prescribes certain powers which may be exercised

by a community services district: 

"A district may prescribe, revise and collect rates or other charges for the

services and facilities furnished by it, and may ... provide for the collection of

charges. Remedies for their collection and enforcement are cumulative and may be

pursued alternatively or consecutively as the local agency determines. 

"A district may provide for a basic penalty of not more than 10 percent for

nonpayment of the charges within the time and in the manner prescribed by it, and

in addition may provide for a penalty of not exceeding one-half of 1 percent per

month for nonpayment of the charges and basic penalty. It may provide for 

collection of the penalties herein provided for. 

"In case any charges for water or other services, or either, remain unpaid the

amount of the unpaid charges may in the discretion of the district be secured at any

time by filing for record in the office of the county recorder of any county, a

certificate specifying the amount of such charges and the name and address of the

person liable therefor. 

"From the time of recordation of the certificate, the amount required to be

paid together with interest and penalty constitutes a lien upon all real property in the

county owned by the person or afterwards, and before the lien expires, acquired by

him. The lien has the force, priority, and effect of a judgment lien and shall continue 

3. 90-491
 
for 10 years from the date of the filing of the certificate unless sooner released or

otherwise discharged...." 

Under this section, defendant, as a CSD director, is responsible for the fixing of rates for all users,

including school districts, for prescribing different rates for different uses, and for assigning users

into appropriate rate categories. In this regard, the exercise of his judgment and discretion as to the

best interests of CSD as a provider of services, and as to those of BSD as a ratepayer, is necessarily

divided. 

All payments from the funds of a school district shall be made by written order,

signed by a majority of the members of its governing board. (Ed. Code, §§ 42631, 42632.) As a 

BSD trustee, defendant is responsible for the approval for payment of the district's obligations,

including the water bill. (Ed. Code, §§ 35200, 42631.) Again, the exercise of his judgment and

discretion as to the respective interests of each agency, one as the obligor and the other as obligee,

is manifestly in conflict. 

Further, if a disputed charge remained unpaid, defendant CSD director would be

responsible for collection. In this regard, he is authorized under Government Code section 61621, 

supra, to provide for a ten percent penalty for nonpayment of charges, to file for record in the office

of the county recorder a lien on the school's real property to secure unpaid charges, penalties, and

interest, and under section 61612 of that code to initiate an action at law for the collection and 

enforcement of charges. Shall defendant sit as a public officer on both sides of such dispute? 

In addition to his responsibilities in connection with the fixing of rates and collection

of charges, defendant may be concerned in his official capacities with a contract between the two

agencies. Prior to its repeal (Stats. 1987, ch. 1452, § 274), Education Code section 39011 provided

as follows: 

"Where a city, district, or other political corporation or subdivision of the

state is authorized by law to furnish sewerage, water, or other utility facilities to a

school district and is not required to provide for the installation thereof to such

school district at its own expense, it may enter into an agreement with such school

district whereby the cost of installation will be paid by the school district under such

terms as the parties may agree to, with reimbursement from charges made or to be

made to other users of such facilities as may be agreed upon between the parties,

save insofar as other provisions of law control the terms of such reimbursement.... 

"The governing body of any entity mentioned in the preceding paragraph may

by contract reimburse a school district for such portion of such utility facilities as it

deems constructed for the benefit of or usable by persons outside of the school site,

provided such facilities are dedicated by the school district to the public. Such 

contract shall provide that the governing body may collect from any person using

such facilities, for the benefit of property not within the school site, a reasonable

charge for such use. The term `person' herein shall have the same meaning as in

Section 11545 of the Business and Professions Code." (Emphasis added.) 

Section 1 (uncodified) of the 1987 legislation expresses the legislative intent respecting the repeal

of section 39011 and other provisions of the Education Code: 

"The Legislature finds and declares that, in 1972, the people of the state

adopted an amendment to Section 14 of Article IX of the California Constitution,

which permits the Legislature to authorize the governing boards of school districts 

4. 90-491
 
 

to initiate and carry on any programs, activities, or to otherwise act in any manner

which is not in conflict with the laws and purposes for which school districts are

established. 

"`It is the intent of the Legislature, in enacting this act, to implement more

fully, for the school districts, county boards of education, and the county offices of

education in California, the intent of the people in adopting the amendment of

Section 14 of Article IX of the California Constitution. The Legislature further finds

and declares that, in order to do so, it is necessary to amend or repeal many

provisions of the Education Code.

 "`Whenever in this act a power, authorization, or duty of a school district

governing board, county board of education, or county office of education is repealed

or otherwise deleted by amendment, it is not the intent of the Legislature to prohibit

the board or office from acting as prescribed by the deleted provisions. Rather, it is 

the intent of the Legislature, that the school district governing boards, county boards

of education, and county superintendents of schools, respectively, shall have the

power, in the absence of other legislation, to so act under the general authority of

Section 35160 of the Education Code.'" (Emphasis added.) 

A community services district is authorized to enter into such contracts. (Gov. Code, §§ 61301,

61616.) A capital facilities fee1

 may be imposed by a public agency upon a school district "after

agreement has been reached between the two agencies through negotiations entered into by both

parties." (Gov. Code, § 54999.3, subd.(b).) Shall defendant sit as a public officer on both sides of 

such negotiations? 

It is concluded that the proposed challenge to Munger's claim of entitlement to the

continued occupancy of the office of trustee on the BSD board of governors is based on substantial

grounds. 

The Public Interest 

As a general rule, we have viewed the existence of a substantial question of law or

fact which calls for a judicial resolution as presenting a sufficient "public purpose" as to warrant the

granting of leave to sue. (See, 67 Ops.Cal.Atty.Gen. 151, 153 (1984).) Accordingly, leave would

be denied only in the presence of other overriding considerations. (See, e.g., 67 Ops.Cal.Atty.Gen., 

supra 161; 36 Ops.Cal.Atty.Gen. 317, 319-320 (1960); 35 Ops.Cal.Atty.Gen. 115, 119 (1960).) We 

find no such countervailing considerations herein. Rather, the public as well as each public entity

has an interest in the undivided loyalty of its elected officers. Therefore, the application for leave

to sue in quo warranto should be granted. 

* * * * * 

1

A "capital facilities fee"means any nondiscriminatory charge to pay the capital cost of a public

utility facility, including one for the provision of water (Gov. Code, § 54999.1, subds. (b) and (d)),

such as the installation referred to in Education Code section 39011, supra. 

5. 90-491