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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. 91-906
 

of :
 

: February 4, 1992
 

DANIEL E. LUNGREN :
 

Attorney General :
 

:
 

ANTHONY S. Da VIGO :
 

Deputy Attorney General :
 

:
 

This office has been requested to grant leave to sue in
 

quo warranto upon the following:
 

ISSUES OF FACT OR LAW
 

Does the doctrine of incompatible public offices
 

preclude a person from holding simultaneously the position of
 

director of the Elsinore Water District and the position of city
 

council member of the City of Lake Elsinore?
 

DISPOSITION
 

Whether the doctrine of incompatible public offices
 

precludes a person from holding simultaneously the position of
 

director of the Elsinore Water District and the position of city
 

council member of the City of Lake Elsinore presents a
 

substantial question of law. It is determined, however, that an
 

action in quo warranto would not serve the public interest and,
 

therefore, leave to sue is DENIED.
 

PARTIES
 

KEVIN D. JEFFRIES ("relator") contends that WILLIAM S.
 

BUCK ("defendant") is unlawfully serving as a city council member
 

of the City of Lake Elsinore ("City") by becoming a director of
 

the Elsinore Water District ("District").
 

1.
 
 

MATERIAL FACTS
 

In April 1988, defendant was elected to, assumed, and
 

now continues to occupy the position of city council member of
 

the City. In November 1991, defendant was elected to, assumed,
 

and now continues to occupy the position of director of the
 

District. The City and the District share some common
 

territorial jurisdiction in that approximately one-half of the
 

District is located within the City.
 

ANALYSIS
 

In deciding whether to grant leave to sue in the name
 

of the People of the State of California, we consider the
 

following fundamental precepts which provide the basis for this
 

analysis: leave will be granted where there is a substantial
 

question of law or fact which requires judicial resolution and
 

where the action in quo warranto would serve the overall public
 

interest. (74 Ops.Cal.Atty.Gen. 26 (1990).)
 

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 office could have an
 

adverse effect on the other. (68 Ops.Cal.Atty.Gen. 337, 338-339
 

(1985).) As explained by the Supreme Court in the landmark case
 

of People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636:
 

"Two offices are said to be incompatible when the
 

holder cannot in every instance discharge the duties of
 

each. Incompatibility arises, therefore, from the
 

nature of the duties of the offices, when there is an
 

inconsistency in the functions of the two, where the
 

functions of the two are inherently inconsistent or
 

repugnant, as where antagonism would result in the
 

attempt by one person to discharge the duties of both
 

offices, or where the nature and duties of the two
 

offices are such as to render it improper from
 

considerations of public policy for one person to
 

retain both. The true test is whether the two offices
 

are incompatible in their natures, in the rights,
 

duties or obligations connected with or flowing from
 

them." (Id. at pp. 641-642.)
 

In 73 Ops.Cal.Atty.Gen., supra, 270, we summarized as
 

follows:
 

"The Rapsey analysis has been followed and applied
 

by later courts (see, e.g., Mott v. Horstmann (1950) 36
 

Cal.2d 388, 391-392; People ex rel Bagshaw v. Thompson
 

(1942) 55 Cal.App.2d 147-150) and in opinions of this
 

2. 91-906
 
 

office (see e.g., 67 Ops.Cal.Atty.Gen 409, 413 (1984))
 

in a variety of circumstances.
 

"We have previously stated that only one potential
 

and significant clash of duties need be found to render
 

two offices incompatible. In 63 Ops.Cal.Atty.Gen. 623
 

(1980), for example, the offices of city mayor and
 

airport district director were found to be incompatible
 

even though there were currently `no significant
 

"interactions" between the city and the district.' 


(Id. at p. 624.) We concluded that in many situations
 

that would arise `"in the regular operation of the
 

statutory plan,"' the person holding both offices would
 

have `[t]he potential for significant clashes' of
 

loyalties. (Id. at p. 627.)
 

"If the two positions are `offices' and if they
 

are `incompatible,' the consequence is that `"the mere
 

acceptance of the second incompatible office per se
 

terminates the first office as effectively as a
 

resignation."' (People ex rel. Chapman v. Rapsey,
 supra, 16 Cal.2d 636, 644.)"
 

We have previously determined that a member of a city
 

council holds a public office for purposes of the incompatibility
 

of offices doctrine. (73 Ops.Cal.Atty.Gen. 354, 356 (1990).) We
 

entertain no doubt that a director of the board of a water
 

district established under the California Water District Law
 

(Wat. Code, § 34000 et seq.)1

 holds a public office for purposes
 

of the doctrine. (See §§ 34017-34025; 34700-34727; see also 73
 

Ops.Cal.Atty.Gen. 268, 270 (1990) [county water district
 

director]; 73 Ops.Cal.Atty.Gen. 183, 185 (1990) [community
 

services district water agency director].)
 

In 73 Ops.Cal.Atty.Gen. 183, supra, we determined that
 

concurrent memberships on the board of directors of a community
 

services water agency and a school district presented a
 

substantial question of law as to the application of the
 

incompatible offices doctrine. We stated, in part:
 

"[D]efendant . . . 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 interest of [the water
 

agency] as a provider of services, and as to those of
 

1

Undesignated section references herein are to the Water
 

Code.
 

3. 91-906
 
 

the [school district] as a ratepayer, is necessarily
 

divided." (Id. at 186.)
 

In 73 Ops.Cal.Atty.Gen. 268, supra, we determined that
 

membership on the board of directors of a county water district
 

and a school district presented a substantial question of law
 

with respect to the incompatible offices doctrine. We observed,
 

for example, that the water district had the authority to
 

restrict the use of water during an emergency and to contract
 

with other public agencies concerning the control, distribution,
 

and treatment of water, the construction of public works, the
 

acquisition of property, and the joint operation of any property
 

or public works. (Id., 271.)
 

Citing the powers of contract and eminent domain, we
 

have previously determined that "Sharp clashes could arise
 

between the offices of councilman and [county water] district
 

director." (37 Ops.Cal.Atty.Gen. 21, 22 (1961); see also 41
 

Ops.Cal.Atty.Gen. 98, 99 (1963).) In 67 Ops.Cal.Atty.Gen. 409,
 

414 (1984), we concluded that the offices of county water
 

district general manager and member of the board of county
 

supervisors were incompatible.
 

Here, the District is authorized to fix and collect
 

charges for water and services (§§ 35470, 35472, 35501), to
 

contract with other public agencies (§§ 35403, 35500, 35850.5),
 

and to exercise the right of eminent domain (§ 35600). In
 

keeping with our prior opinions, therefore, the application for
 

leave to sue presents a substantial question of law. 


PUBLIC INTEREST
 

We next consider whether maintaining an action in quo
 

warranto in the present circumstances would be consistent with
 

the public interest. It is well settled that the mere existence
 

of a justiciable issue does not require the Attorney General to
 

grant leave to sue in quo warranto. (City of Campbell v. Mosk
 

(1961) 197 Cal.App.2d 640, 650; 74 Ops.Cal.Atty.Gen. 31, 32
 

(1991).)
 

Investigation of the interests of the public must be
 

undertaken in the context of the particular facts of each case. 


It is recognized that the public and each public entity have an
 

interest in the undivided loyalty of their elected officers. (73
 

Ops.Cal.Atty.Gen. 354, 357 (1990); 73 Ops.Cal.Atty.Gen. 183, 188
 

(1990).) Nevertheless, here the office sought to be declared
 

vacant by the proposed action was acquired in April 1988 and
 

expires in April 1992. Thus, less than four months remain of a
 

four year term. 


While it cannot be accurately predicted how long it
 

would take for the present action to be filed, heard, and
 

4. 91-906
 
resolved, even in the absence of an appeal, it is at least
 

reasonably probable that the issue would become moot prior to
 

resolution. Accordingly, we perceive no basis for the
 

expenditure of public funds for legal fees and court costs in
 

connection with such a proceeding. Accordingly, the application
 

for leave to sue is denied.
 

* * * * *
 

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