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TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL

State of California

BILL LOCKYER

Attorney General

 

OPINION

of

BILL LOCKYER

Attorney General

GREGORY L. GONOT

Deputy Attorney General

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No. 99-801

October 13, 1999

 

THE HONORABLE SAM AANESTAD, MEMBER OF THE CALIFORNIA

ASSEMBLY, has requested an opinion on the following question:

May a person serve simultaneously as the City Administrator and Fire Chief of

the City of Oroville?

CONCLUSION

A person may not serve simultaneously as the City Administrator and Fire Chief

of the City of Oroville unless a city charter provision or ordinance is adopted that abrogates

the common law prohibition against holding incompatible offices.
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ANALYSIS

We are asked to determine whether the common law prohibition against holding

incompatible public offices would bar the City Administrator of the City of Oroville

(“Oroville”) from also serving as the Oroville Fire Chief. We conclude that it would in the

present circumstances.

 The common law prohibition 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. Offices are incompatible if, among other reasons, one office exercises a

supervisory, auditory, or removal power over the other. ( People ex rel. Deputy Sheriffs’ Assn.

v. County of Santa Clara (1996) 49 Cal.App.4th 1471, 1481.) As noted in People ex rel.

Chapman v. Rapsey (1940) 16 Cal.2d 636, 642:

“. . . The inconsistency, which at common law makes offices

incompatible, does not consist in the physical impossibility to discharge the

duties of both offices, but lies rather in a conflict of interest, as where one is

subordinate to the other and subject in some degree to the supervisory power of

its incumbent, or where the incumbent of one of the offices has the power to

remove the incumbent of the other or to audit the accounts of the other.”

Prospective as well as present clashes of duties and loyalties give rise to the prohibition. Only

one significant clash is required to make offices incompatible. The ability to abstain when a

conflict is presented will not excuse the incompatibility or obviate the effects of the

prohibition. A public officer who enters upon the duties of a second office automatically

vacates the first office if the two are incompatible. However, both positions must be offices.

(82 Ops.Cal.Atty.Gen. 83, 83-84 (1999); 82 Ops.Cal.Atty.Gen. 68, 69 (1999); 82

Ops.Cal.Atty.Gen. 74, 75 (1999).)

The first issue to be resolved in considering application of the common law rule

is to determine whether both positions are “offices.” Here, with respect to the position of city

administrator, we have no doubt that it constitutes a public office for purposes of the rule. In

22 Ops.Cal.Atty.Gen. 83, 86 (1953), we found the position of City Administrator of the City

of San Carlos to be an office where: 

“. . . [t]he powers and duties set out in the ordinance give him among

other things the responsibility to see that all laws and ordinances of the city are

duly enforced . . . to control and give directions to all city officers and

employees except [four] . . . and to keep the city council at all times fully

advised as to the financial conditions and needs of the city beside

recommending such measures and ordinances as he deems necessary or
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expedient. . . .”

In 51 Ops.Cal.Atty.Gen. 183 (1968), we determined that the City Manager of the

City of Laguna Beach held an office for purposes of the incompatible offices rule. We stated

in part:

“Sections 34851-34855 of the Government Code permit a city council

to establish a city manager from of government. Pursuant to this grant of

authority, the city council of the city of Laguna Beach established a city

manager form of government. Laguna Beach, Cal., Code § 2.08.080. A review

of the section leaves no doubt that the position is an ‘office.’ 22 Ops. Cal. Atty.

Gen. 83, 84-86 (1953).” (Id., at p. 184.)

Most recently in 80 Ops.Cal.Atty.Gen. 74, 75-76 (1997), we declared with

respect to the position of City Manager of the City of South San Francisco:

“We have . . . concluded that a city manager occupies a public office (51

Ops.Cal.Atty.Gen. 183, 184 (1968)), as does a city administrator (22

Ops.Cal.Atty.Gen. 83, 84-86 (1953)). (See also 68 Ops.Cal.Atty.Gen. 337,

344-346 (1985) [hospital district general manager holds a public office].) The

city in question is a general law city with a city manager form of government.

[Citation.] The powers and duties of the city manager are defined by ordinance.

[Citation.] We have examined the city’s municipal code and find that the city

manager is the administrative head of the city’s government, charged with the

administration of all affairs of the city. The position of city manager clearly

meets the tests of being a public office in that it is established by law, the tenure

is permanent and continuing, and it is vested with the power to perform a public

function for the public benefit and some of the sovereign powers of the state.

[Citation.]” (Fn. omitted.)

Under Oroville’s municipal code, the Oroville City Administrator is the chief

administrative officer of the city, whose powers and duties include: 

“. . . direct[ing] and supervis[ing] the administration of all departments,

offices and agencies of the city[;] . . . see[ing] that all laws, provisions of the

Charter and acts of the council . . . are faithfully executed[;]. . . prepar[ing] and

submit[ting] the annual budget and capital improvement program to the council[;

and] keep[ing] the council fully advised as to the financial condition and future

needs of the city and mak[ing] such recommendations to the council concerning

the affairs of the city as he deems desirable.” (Oroville City Code, art. III, § 2-

37.)
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Based upon an examination of the Oroville City Code and in keeping with our prior opinions,

we find that the Oroville City Administrator holds a public office for purposes of the common

law rule. 

Turning, then, to the position of fire chief, we find that it also is a public office

for purposes of the rule. In 66 Ops.Cal.Atty.Gen. 176, 178-179 (1983), we concluded that the

fire chief of a county fire protection district formed under the Fire Protection District Law

of 1961 held an office for purposes of the common law rule. In 76 Ops.Cal.Atty.Gen. 38, 42

(1993), we concluded that “[t]he circumstances indicating that a fire chief holds a public office

appear no less probable under the Fire Protection District Law of 1987 than they were under

the Fire Protection District Law of 1961.”

With respect to the duties of the Oroville Fire Chief, section 1 of article XIX

of the Oroville City Charter provides:

“There shall be a fire chief who shall be appointed by the city council and

hold office at the pleasure of the council. He shall be head of the fire

department of the city, and shall have charge of and supervision over all matters

relating to the prevention and extinction of fires, and of all measures necessary

to guard and protect all property impaired thereby. During the time of a fire, he

shall have supreme authority over the territory involved therein, and all persons

in the immediate vicinity of the fire during such time, including policemen, shall

be subject to his orders. The fire chief shall make rules and regulations for the

government of the department, subject to the approval of the council.”

Based upon an examination of the Oroville Charter and consistent with our prior opinions

regarding the fire chiefs of county fire protection districts, we find that the Oroville Fire Chief

holds a public office for purposes of the common law rule.

Next, we consider whether the two offices in question are “incompatible.” Here,

the city administrator would have supervisory and auditory powers over the fire chief. (See 76

Ops.Cal.Atty.Gen., supra, at 42-43.) In 81 Ops.Cal.Atty.Gen. 304, 308 (1998), we found the

offices of city manager and city police chief to be incompatible on the grounds that:

“. . . the city manager, if allowed to serve simultaneously as chief of

police, would be authorized to control, order and give directions to himself,

appoint and remove himself, prepare and submit his own budget to the city

council, conduct investigations into the affairs of his own office, and investigate

complaints in relation to matters concerning the administration of his own

department. . . .”
1 The current job description for the Oroville City Administrator includes the duties of the Oroville

Fire Chief. A council vote to change a job description does not constitute “appropriate legislation” under

controlling constitutional, statutory, and charter provisions. (See 73 Ops.Cal.Atty.Gen., supra, at 360-361;

66 Ops.Cal.Atty.Gen., supra, at 295-301.) Combining the two offices into one would be a different means

of reaching the same result. Although section 1 of article VII of the Oroville City Charter authorizes the

combining of any city offices by ordinance, no ordinance has been adopted that combines the offices of

Oroville City Administrator and Oroville Fire Chief.

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Although the Oroville City Administrator does not serve as the appointing

authority for the city, the conflicts of interest inherent in the two offices here are largely the

same as those found in 81 Ops.Cal.Atty.Gen. 304, supra. In any event, as previously

mentioned, only one significant clash of duties and loyalties is necessary to make offices

incompatible. (82 Ops.Cal.Atty.Gen., supra, at 69; 80 Ops.Cal.Atty.Gen., supra, at 75.) We

thus find that the offices of Oroville City Administrator and Oroville Fire Chief are

incompatible offices under the common law rule.

Finally, we observe that the common law prohibition against holding

incompatible public offices may be abrogated by the Legislature whenever it chooses.

(American Canyon Fire Protection Dist. v. County of Napa (1983) 141 Cal.App.3d 100, 104;

McClain v. County of Alameda (1962) 209 Cal.App.2d 73, 79; 81 Ops.Cal.Atty.Gen. 344,

345-346 (1998); 78 Ops.Cal.Atty.Gen. 60, 62-63; (1985).) We have also concluded that a

charter city may abrogate the common law rule by appropriate legislation. (73

Ops.Cal.Atty.Gen. 357, 360-361 (1990); 66 Ops.Cal.Atty.Gen. 293, 296-297 (1983).) Here,

no city charter provision or ordinance presently so provides.1

In answer to the question presented, therefore, we conclude that a person may

not serve simultaneously as the Oroville City Administrator and Oroville Fire Chief unless a

city charter provision or ordinance is adopted that abrogates the common law prohibition

against holding incompatible public offices.

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