TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

BILL LOCKYER
 

Attorney General
 

: 

OPINION : No. 98-1201 

: 

of : March 30, 1999 

: 

BILL LOCKYER : 

Attorney General : 

: 

CLAYTON P. ROCHE : 

Deputy Attorney General : 

: 

THE UPPER SAN JOAQUIN RIVER ASSOCIATION has requested leave 

to sue in quo warranto Edward M. Kashian upon the following question: 

ISSUES OF FACT OR LAW 

Is Edward M. Kashian unlawfully holding the office of governing board 

member of the San Joaquin River Conservancy? 

CONCLUSION 

Whether Edward M. Kashian is unlawfully holding the office of governing 

board member of the San Joaquin River Conservancy does not present a substantial question 

of fact or law; accordingly, the application for leave to sue in quo warranto is denied. 

1 98-1201 

 


 

PARTIES
 

The Upper San Joaquin River Association (“Association”) contends that 

Edward M. Kashian (“Kashian”) is not qualified to hold the office of governing board 

member of the San Joaquin River Conservancy (“Conservancy”). 

MATERIAL FACTS 

On January 13, 1998, the Board of Supervisors of Fresno County appointed 

Kashian to the office of governing board member of the Conservancy for a four-year term. 

The Conservancy was established by the Legislature in 1992 as part of the State Resources 

Agency with the dual purposes of acquiring and managing land in the San Joaquin River 

Parkway (“Parkway”), consisting of approximately 6,000 acres on both sides of the San 

Joaquin River in Madera and Fresno Counties, for recreational and educational uses and 

wildlife protection. 

The governing board of the Conservancy consists of nine voting members and 

four non-voting ex-officio members, consisting of city, county, district, and state 

representatives and local residents. 

Kashian is a director of the San Joaquin River Parkway and Conservation Trust 

(“Trust”), a non-profit public benefit corporation, which has as one of its purposes the 

acquisition of property within the Parkway for wildlife habitat preservation and recreational 

use. 

ANALYSIS 

In determining whether to grant leave to sue in quo warranto, we consider 

whether there exists a substantial question of fact or law for determination by a court, and 

if so, whether it would be in the public interest to grant leave to sue. (81 Ops.Cal.Atty.Gen. 

240, 241 (1998); 81 Ops.Cal.Atty.Gen. 98, 100 (1998).) 

1. Incompatible Offices 

The first issue to be resolved is whether Kashian is holding two public offices 

by being a Conservancy board member and a director of the Trust in violation of the rule 

prohibiting the holding of incompatible public offices. 

The prohibition against dual office holding is of common law origin and is 

applicable in California. (See Civ. Code, § 22.2; Mott v. Horstmann (1950) 36 Cal.2d 388, 

2 98-1201 

 

391-392; People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636, 640-644; Eldridge v. 

Sierra View Local Hospital Dist. (1990) 224 Cal.App.3d 311, 319.) Offices are incompatible 

if there is any significant clash of duties or loyalties between the offices, or if one office has 

a supervisory, auditory, or removal power over the other. Acceptance of the second office 

constitutes an automatic resignation from the first office. However, the rule is applicable 

only where two public offices are being held simultaneously. It does not apply when one of 

the offices is a nongovernmental, private office. (See 81 Ops.Cal.Atty.Gen. 274, 275 (1998); 

80 Ops.Cal.Atty.Gen. 74, 75-76 (1997); 78 Ops.Cal.Atty.Gen. 362, 363 (1995); 73 

Ops.Cal.Atty.Gen. 183, 184 (1990); Cal.Atty.Gen., Indexed Letter, No. IL 66-94 (June 21, 

1966).) 

Here, Kashian’s position as a director of the Trust, a private non-profit 

corporation, does not meet the standard of an “office” for purposes of the dual office 

prohibition. Thus, no substantial question of fact or law is presented by the Association 

concerning the prohibition against holding incompatible public offices. 

2. Incompatible Employment, Activity, or Enterprise 

Next we address the Association’s contention that Kashian’s service on the 

governing board of the Conservancy violates the terms of Government Code section 1126.1 

Section 1126 provides: 

“(a) Except as provided in Sections 1128 and 1129, a local agency 

officer or employee shall not engage in any employment, activity, or enterprise 

for compensation which is inconsistent, incompatible, in conflict with, or 

inimical to his or her duties as a local agency officer or employee or with the 

duties, functions, or responsibilities of his or her appointing power or the 

agency by which he or she is employed. The officer or employee shall not 

perform any work, service, or counsel for compensation outside of his or her 

local agency employment where any part of his or her efforts will be subject 

to approval by any other officer, employee, board, or commission of his or her 

employing body, unless otherwise approved in the manner prescribed by 

subdivision (b). 

“(b) Each appointing power may determine, subject to approval of the 

local agency, and consistent with the provisions of Section 1128 where 

applicable, those outside activities which, for employees under its jurisdiction, 

are inconsistent with, incompatible to, or in conflict with their duties as local 

1 All references to the Government Code prior to footnote 4 are by section number only. 

3 98-1201 

 

agency officers or employees. An employee’s outside employment, activity, 

or enterprise may be prohibited if it: (1) involves the use for private gain or 

advantage of his or her local agency time, facilities, equipment and supplies; 

or the badge, uniform, prestige, or influence of his or her local agency office 

or employment or, (2) involves receipt or acceptance by the officer or 

employee of any money or other consideration from anyone other than his or 

her local agency for the performance of an act which the officer or employee, 

if not performing such act, would be required or expected to render in the 

regular course or hours of his or her local agency employment or as a part of 

his or her duties as a local agency officer or employee or, (3) involves the 

performance of an act in other than his or her capacity as a local agency officer 

or employee which act may later be subject directly or indirectly to the control, 

inspection, review, audit, or enforcement of any other officer or employee or 

the agency by which he or she is employed, or (4) involves the time demands 

as would render performance of his or her duties as a local agency officer or 

employee less efficient. 

“(c) The local agency shall adopt rules governing the application of this 

section. The rules shall include provision for notice to employees of the 

determination of prohibited activities, of disciplinary action to be taken against 

employees for engaging in prohibited activities, and for appeal by employees 

from such a determination and from its application to an employee. Nothing 

in this section is intended to abridge or otherwise restrict the rights of public 

employees under Chapter 9.5 (commencing with Section 3201) of Title 1. 

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .” 

The terms of section 1126 have no application here. The Conservancy was created by the 

Legislature as part of the State Resources Agency (Pub. Resources Code, § 32510), and 

hence Kashian is a state officer rather than a “local agency officer or employee” for purposes 

of section 1126. Although the Board of Supervisors of Fresno County was Kashian’s 

“appointing power,” he is not under the board’s jurisdiction as a member of the 

Conservancy’s governing board. Kashian’s powers and duties are governed by state law in 

his capacity as a state officer.2 

Accordingly, we conclude that the requirements of section 1126 do not present 

a substantial question of fact or law with reference to Kashian’s appointment to the 

2 We note that section 1126 is not self executing. (Mazolla v. City and County of San Francisco 

(1980) 112 Cal.App.3d 141; 81 Ops.Cal.Atty.Gen. 274, 277 (1998); 70 Ops.Cal.Atty.Gen. 157, 160 (1987).) 

4 98-1201 
 


 

governing board of the Conservancy. 

3. Additional Criteria for Appointment 

The final contention3

 raised by the Association is that Kashian is not qualified 

to be a governing board member of the Conservancy because he does not meet the criteria 

for appointment set by the Board of Supervisors of Fresno County. 

Under the San Joaquin River Conservancy Act (Pub. Resources Code, 

§§ 32500-32538),4

 members of the governing board of the Conservancy are appointed by 

specified public agencies. Kashian was appointed as “a property owner of San Joaquin River 

bottom” by the Board of Supervisors of Fresno County pursuant to the following terms of 

section 32515, subdivision (b)(5): 

“(A) Except as provided in subparagraph (C), one resident of Fresno 

County appointed by the Board of Supervisors of Fresno County from a list 

submitted by environmental organizations within that county. The board of 

supervisors may establish additional criteria for that appointment. 

“(B) Except as provided in subparagraph (C), one resident of Madera 

County appointed by the County Board of Supervisors of Madera County who 

is a property owner of San Joaquin River bottom. The board of supervisors 

may establish additional criteria for that appointment. 

“(C) Fresno County and Madera County shall rotate appointment 

qualifications pursuant to this paragraph so that each alternative time Madera 

County shall appoint a resident from a list submitted by environmental 

organizations within that county and Fresno County shall appoint a property 

owner of San Joaquin River bottom in that county.” 

The Association contends that for purposes of section 32515, subdivision (b)(5), the Board 

of Supervisors of Fresno County has adopted as “additional criteria” Administration Policy 

No. 35 (“Policy”), dated January 28, 1992, as follows: 

“POLICY STATEMENT 

3 Originally the Association raised various other issues, such as that Kashian is not a San Joaquin 

River bottom property owner as required by the statute under which he was appointed (Pub. Resources Code, 

§ 32515, subd. (b)(5)), but it has now reduced its contentions to the three specified herein. 

4 All references hereafter to the Public Resources Code are by section number only. 

5 98-1201 

 

“In addition to any Federal or State conflict of interest requirements 

which may apply, no member of any board, commission or committee shall 

make, participate in making or in any way attempt to use their position to 

influence a decision in which he or she knows or has reason to know that he 

or she or their spouse has a financial interest. In all such cases, the affected 

member shall disclose their interests in the records of the board, commission 

or committee and shall refrain from participating in all discussions and votes 

concerning the matter in which they or their spouse has a financial interest. 

“The purpose of this policy is not only to avoid actual improprieties, but 

also the appearance of possible improprieties. Therefore, it is the policy of the 

Board of Supervisors that any doubts as to whether a member shall refrain 

from participation in a particular matter should be resolved in favor of nonparticipation. 

“While recognizing that state law and regulations may specify 

categories of memberships on certain boards, commissions and committees, 

to the extent possible, no one shall be appointed to a board, commission or 

committee which recommends funding allocations to community based 

organizations, who is or whose spouse is a director, or officer of an agency or 

organization which competes in the funding process before that board, 

commission or committee. 

“MANAGEMENT RESPONSIBILITY 

“The County Administration Officer shall provide all nominees to 

County boards, commissions and committees with copies of the Board’s 

Conflict of Interest policy. Additionally, the County’s staff to each board, 

commission, and committee shall be provided with a copy of the application 

of each appointee so as to be able to assist in monitoring compliance with the 

conflict of interest policy. Monitoring shall include annual review of 

appointee circumstances as they may change during each appointees term of 

office. 

“APPLICANT/NOMINEE RESPONSIBILITY 

“All applicants shall state on their application for appointment what 

affiliation, if any, they or their spouse has with public service agencies. 

Additionally, all applicants shall certify prior to their participation as a voting 

representative of the Board of Supervisors that they have read this policy and 

can serve free of any conflict of interest. The certification will be made by an 

6 98-1201 

 

applicant/nominee by signing the application for their appointment. Further, 

should any conflict of interest arise during the appointee’s term of office, the 

appointee shall so declare and abstain from participation in the proceeding and 

business as it relates to the area of conflict. 

“For those boards, commissions and committees which recommend 

funding allocations to the Board of Supervisors, no member shall participate 

in any discussions or decisions related to an agency of which the member or 

the member’s spouse is a director or officer. Additionally, unless state law or 

regulation require otherwise, any such member shall also refrain from 

participation in discussions or decisions related to proposals which are in 

direct competition with a proposal submitted by the agency of which the 

member or member’s spouse is a director or officer.” 

The Association’s contention is that the Trust, of which Kashian is a director, has an interest 

in seeking public funds from the Conservancy (see § 32537) to serve its purposes of 

acquiring and preserving property within the Parkway and thus Kashian “is . . . a director 

. . . of an agency or organization which competes in the funding process before” the 

Conservancy in violation of the Policy. 

We reject the suggestion that the Policy precludes Kashian’s appointment to 

the Conservancy’s governing board. First, by its own terms, the Policy is applicable to 

“County boards, commissions and committees,” and the Conservancy is not such a public 

agency; it is, instead, a state agency. Moreover, the Policy’s specific funding restrictions 

refer to “boards, commissions and committees which recommend funding allocations to the 

Board of Supervisors,” which the Conservancy does not do but rather makes its own grants. 

(§ 32537.) The Policy itself recognizes that conflicts will arise, requiring that “any . . . 

member shall . . . refrain from participation in discussions or decisions related to proposals 

which are in direct competition with a proposal submitted by the agency of which the 

member . . . is a director . . . .” Accordingly, the Policy is not a direct prohibition against 

appointments but rather is to be followed “to the extent possible.” Finally, the Policy may 

be waived at any time in the discretion of the Board of Supervisors of Fresno County. (See 

Rinaldi v. United States (1977) 434 U.S. 22; Peterson v. City of Long Beach (1979) 24 

Cal.3d 238, 249; Weis v. State Board of Equalization (1953) 40 Cal.2d 772, 776-777; Goleta 

Valley Community Hospital v. Department of Health Services (1983) 149 Cal.App.3d 1124, 

1128; 1 Davis & Pierce, Administrative Law Treatise (3d ed. 1994) § 6.2, p. 228.) 

We conclude that the requirements of the Policy, whether as “additional 

criteria” (§ 32515, subd. (b)(5)) or otherwise, do not present a substantial question of fact or 

law relating to Kashian’s appointment to the governing board of the Conservancy. In so 

concluding, we note that as a state officer, Kashian is subject to numerous laws regarding 

7 98-1201 

 

conflicts of interest. (See Gov. Code, §§ 1090-1097, 8920-8926, 87100-87104.) 

PUBLIC INTEREST 

Having concluded that no substantial question of fact or law has been presented 

for judicial resolution, we find that it would not be in the public interest to grant the 

Association’s application. 

Leave to sue in quo warranto is DENIED. 

* * * * * 

8 98-1201