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TO BE IN PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 State of California
 

DANIEL E. LUNGREN
 Attorney General
 

OPINION : 

: No. 91-404 

of : 

: July 18, 1991

DANIEL E. LUNGREN :
 Attorney General :
 

:
 CLAYTON P. ROCHE :
 Deputy Attorney General :
 

:
 

THE STATE DEPARTMENT OF EDUCATION has requested an opinion on the

following questions: 

1. May a person who is elected or appointed to the position of county

superintendent of schools continue to serve as a member of the State Board of Education? 

2. If not, what is the legal effect of the person's vote as a member of the State

Board of Education once the person assumes the position of county superintendent of schools? 

CONCLUSIONS 

1. A person who is elected or appointed to the position of county superintendent of

schools has accepted an office which is incompatible with membership on the State Board of

Education, and has automatically vacated the board membership. 

2. The person's vote as a member of the State Board of Education after the

assumption of the office of county superintendent of schools would be valid since the officer would

still be a de facto member of the Board. 

ANALYSIS 

In 66 Ops.Cal.Atty.Gen. 176, 177-178 (1983), we summarized the common law rule

prohibiting the simultaneous holding of incompatible public offices 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.Ca.Atty.Gen. 113 (1961). 

" . . . . . . . . . . . . . . . . . . . . . . .
 
 

 

"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

McQuillan, 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, `the 

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)." 

There are no statutes which permit the simultaneous holding of the positions of

member of the State Board of Education ("Board") and county superintendent of schools.1 

Accordingly, the first question to be resolved is whether the positions of member of the Board and

county superintendent of schools are public offices within the meaning of the common law rule,

since the rule is not applicable where one or both positions are employments. 

In 68 Ops.Cal.Atty.Gen. 337 (1985), we reviewed the leading case law as to what

constitutes a public office for the purposes of the incompatibility doctrine. We concluded that: 

". . . a public office is a position in government (1) which is created or

authorized by the Constitution or some law; (2) the tenure of which is continuing and

permanent, not occasional or temporary; (3) in which the incumbent performs a

public function for the public benefit and exercises some of the sovereign power of

the state." (Id., at p. 342.) 

That both the positions of member of the Board and county superintendent of schools

are offices within the incompatible offices doctrine would appear to be clear. The Board is provided

for both by constitutional provision and statute. (Cal. Const., art. IX; § 7; Ed. Code, § 33000.)2 

Members are appointed by the Governor for a term of four years. (§ 33001.) They are designated

by law as civil executive officers. (Gov. Code, § 1001.) As to duties, the Board is "the governing

and policy determining body of the department" of Education (§ 33301, subd. (a)) and inter alia 

1

The Legislature may abrogate the common law rule by statute. (See American Canyon Fire

Protection Dist. v. County of Napa (1983) 141 Cal.App.3d 100, 104-106.) This is most often done 

with respect to regional commissions where local officials serve as commissioners in what otherwise

might be deemed to be incompatible offices. (See, e.g., California Coastal Commission and

Regional Commissions, Pub. Resources Code, § 30301; Bay Area Air Pollution Control District,

Health & Saf. Code, § 40221.5.) 

2

Further section references are to the Education Code unless otherwise specified. 

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adopts rules and regulations for the government of all elementary and secondary public schools in

the state (§ 33031). Board members are required to adopt textbooks for use in grades one through 

eight in this state. (Cal. Const., art. IX, § 7.5.) Without the necessity of further elaboration, it is

clear that the Board performs a public function for the public benefit and exercises part of the

sovereign power of the state. 

County superintendents of schools are likewise provided for both by constitutional

provision and statute. They are either elected or are appointed by the county board of education, as

determined by the electors of the county. (Cal. Const., art. IX, § 3.) They are also designated by

law as "civil executive officers" (Gov. Code, § 1001) and also as "county officers" (Gov. Code, §

24000, subd. (k)). Their duties are prescribed by statute and include many duties which are for the

public benefit and clearly constitute an exercise of the sovereign power of the state. These include 

such matters as superintending the schools of their county (§ 1240), enforcing the course of study

and the use of state adopted textbooks (§ 1241) and entering into numerous forms of contracts and

agreements relating to school matters (e.g., §§ 1250, 1251, 1258, 1259). They may also operate 

schools in their counties if the school district neglects to do so. (§ 1256.) 

Having concluded that both positions are offices, we now proceed to determine if the

offices of member of the Board and county superintendent of schools are incompatible. 

Initially we note from the summary of the rules concerning incompatibility of offices

set forth above that offices are incompatible if either office exercises a supervisory or auditory

power over the other. Or as stated in more detail in the leading California case on the subject,

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.' In State v. Jones, 130 Wis. 572 [110 N.W. 431,

118 Am.St.Rep. 1042, 10 Ann.Cas. 696, 8 L.R.A. (N.S.) 1107], the Court said: 

"`It is not an essential element of incompatibility at common law that the

clash of duty should exist in all or in the greater part of the official functions. If one 

office is superior to the other in some of its principal or important duties, so that the 

exercise of such duties might conflict, to the public detriment, with the exercise of

other important duties in the subordinate office, then the offices are incompatible. .

. .'" (Emphasis added). 

Examining the hierarchy of California's educational system, we see that the Board

is "the governing and policy determining body" of the State Department of Education. (§ 33301.)

We also see that "[t]he Superintendent of Public Instruction shall execute, under direction of the

State Board of Education, the policies which have been decided by the board. . . ." (§ 33111.) The 

Superintendent of Public Instruction also is required to "superintend the schools of this state." (§

33112, subd. (a).) Since the primary duty of a county superintendent of schools is to "supervise the

schools of his county," it would appear to follow that a member of the Board, who is also a county

superintendent of schools, would essentially be supervising himself with respect to implementing

the policies of the state at the county level. 

However, we need not stop there. In addition to this overall supervisory or auditory

relationship, a number of specific conflicts of duties or loyalties can be identified between the 

3. 91-404
 
 

 

specific offices. As noted, the Board is required to adopt rules and regulations for the government

of all elementary and secondary schools in the state. In doing so, a Board member who is also a

county school official could run into a situation of divided loyalties as between the interest of the

state as a whole and county interests. As we noted in Atty.Gen.Unpub.Op. I.L. 74-223, wherein we

concluded that the office of city planning commissioner and state highway commissioner were

incompatible: "What is best for the state in highway location may differ significantly from what

. . . is best for the . . . city itself." Likewise, what is best for the state in educational administration 

may differ significantly as to what is best for the county itself. (See also 66 Ops.Cal.Atty.Gen. 293,

296 (1983), offices of county planning commissioner and city planning commissioner with

overlapping territory incompatible; 64 Ops.Cal.Atty.Gen. 288 (1981), offices of county planning

commissioner and water district director with overlapping territory incompatible.) 

Turning to even more specific matters, we find a number of interrelationships

wherein incompatibility may arise. For example: 

1. In budgetary matters, the Board adopts standards and criteria to be used by

local educational agencies in the development and management of annual budgets and expenditures 

therefrom. (§§ 33127, 33129.) These standards are then used to monitor the fiscal stability of local 

educational agencies by the Superintendent of Public Instruction.

(§ 33132.) 

2. The county superintendent of schools is ex-officio the executive officer of the

county board of education. (§ 1010.) The county board of education may request the Board to

waive laws or regulations pursuant to section 33050 et seq. 

3. The Board governs through its regulations or otherwise the disbursement of

funds to the county office of education or county superintendent of schools with respect to such

matters as driver training (§ 41900), operation of regional occupational centers (§ 41880), the

development of certain educational programs (§§ 33322, 33323), special educational projects (§

33514) and experimental, demonstration or operational projects (§ 33516 et seq.). 

4. Section 39831 requires the Board to adopt reasonable rules and regulations

relating to the use of school buses used by school districts and others, including the county

superintendent of schools. (See § 1270.) 

5. Section 8391 requires the Board to adopt rules and regulations for the

administration of programs for the care and development of infants, and the training of students in

their roles as parents. The county superintendent of schools in turn is authorized to enter into

agreements with the State Superintendent of Public Instruction for the establishment and

maintenance of such programs. (§ 8390.) 

The foregoing are examples and are not intended to be exhaustive of specific

potential clashes of duties and loyalties as between the offices of member of the Board and county

superintendent of schools.3 It was such type of clashes which lead us to conclude in an analogous

situation that the offices of member of the Board and member of a county board of education are 

3

We have not attempted to identify the interrelationships between the Department of Education

or the Superintendent of Public Instruction and local educational agencies where incompatibility

might arise. Since the Board has supervisory power over the Department of Education and the

Superintendent of Public Instruction, these could also be attributed to the Board itself. (See 41

Ops.Cal.Atty.Gen. 105 (1963).) 

4. 91-404 
incompatible offices and may not be simultaneously held by the same individual. (31

Ops.Cal.Atty.Gen. 170 (1958).) 

We likewise conclude that the office of member of the Board and county

superintendent of schools are incompatible offices. Accordingly, a person may not hold both

offices, and the assumption of the second office constitutes an automatic vacating of the first office. 

This conclusion brings us to the second question presented, that is, where the first

office is that of member of the Board, what is the effect of that member's vote once he assumes the 

position of county superintendent of schools? In our view, the officer would be a de facto, if not de 

jure, member of the Board. (See, e.g., In Re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d

21, 42; Town of Susanville v. Long (1904) 144 Cal. 362, 365; Oakland Pav. Co. v. Donovan (1912)

19 Cal.App. 488.) As stated in the Bunker Hill case: 

"The de facto doctrine in sustaining official acts is well established. Present 

a de jure office, `Persons claiming to be public officers while in possession of an

office, ostensibly exercising their functions lawfully and with the acquiescence of the

public, are de facto officers . . . The lawful acts of an officer de facto, so far as the 

rights of third persons are concerned, are, if done within the scope and by the

apparent authority of office, as valid and binding as if he were the officer legally

elected and qualified for the office and in full possession of it.' (Town of Susanville 

v. Long (1904) 144 Cal. 362, 365 [77 P. 987]; see also Oakland Paving Co. v. 

Donovan (1912) 19 Cal.App. 488, 494-496 [126 P. 388]; Clark v. City of Manhattan

Beach (1917) 175 Cal. 637, 639 [166 P. 806, 1 A.L.R. 1532].)" 

We thus conclude that the individual's vote as a member of the Board, after the 

assumption of the office of county superintendent of schools, would be valid since the officer would

still be a de facto Board member. 

* * * * * 

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