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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. 96-910 

of : 

: December 2, 1996 

DANIEL E. LUNGREN : 

Attorney General : 

: 

ANTHONY M. SUMMERS : 

Deputy Attorney General : 

: 

DALE S. HOLMES, RIVERSIDE COUNTY SUPERINTENDENT OF SCHOOLS, 

has requested leave to sue in quo warranto to remove NAN SANDERS from the office of TRUSTEE 

OF THE PERRIS ELEMENTARY SCHOOL DISTRICT on the following question of fact or law: 

Does the doctrine of incompatible public offices preclude a person from simultaneously 

holding the offices of trustee of a high school district and trustee of an elementary school district which 

is wholly within the geographic boundaries of the high school district? 

CONCLUSION 

The doctrine of incompatible public offices precludes a person from simultaneously 

holding the offices of trustee of a high school district and trustee of an elementary school district which 

is wholly within the geographic boundaries of the high school district. 

ANALYSIS 

Dale S. Holmes, Superintendent of Schools for Riverside County ("relator"), contends 

that Nan Sanders ("defendant") is unlawfully serving as a Trustee of the Perris Elementary School 

District. In November 1993, defendant was elected to serve a four-year term as Trustee of the Perris 

Elementary School District and currently holds that office. In November 1995, defendant was elected 

to serve a four-year term as Trustee of the Perris Union High School District and currently holds that 

office. The boundaries of the Perris Elementary School District are within the boundaries of the Perris 

Union High School District. 

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In 75 Ops.Cal.Atty.Gen. 10, 11-13 (1992) we noted the governing principles applicable 

here: 

"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 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. 641-42.) 

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

"`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

"`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.)'" 

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We have previously applied the doctrine of incompatible public offices to a person 

serving as a trustee of a high school district and as a trustee of an elementary school district 

encompassed by the high school district. In 68 Cal.Ops.Atty.Gen. 171 (1985) we concluded that the 

two offices were incompatible and could not be simultaneously held by the same person. In reaching 

that conclusion, we relied upon our analysis contained in a 1975 letter opinion (Cal. Atty. Gen., 

Indexed Letter, No. IL 75-22 (Feb. 18, 1975)) as follows: 

"`An examination of the powers of school district boards reveals areas wherein 

the potentiality of significant clashes of members' duties or loyalties exist. For 

instance, under the Community Recreation Act, [citation], school districts can enter 

into agreements to jointly establish systems of recreation. [Citations.] They may also 

organize and conduct recreation programs, establish systems of playgrounds and 

recreation, and obtain, build, maintain and operate recreation centers within or without 

their territorial limits. [Citations.] School districts can grant the use of their grounds, 

buildings, and equipment to other school districts for community recreational purposes. 

[Citations.] Thus, where two school boards have a common member, and each 

desires to enter into an agreement for recreational purposes with the other, a conflict 

arises because the common member's loyalty is necessarily divided between the two 

boards. 

"`The "Joint Exercise of Powers Act," [citation], allows two or more public 

entities which have powers in common to exercise said powers jointly, pursuant to 

written agreement. It is patently obvious that community college districts, high school 

districts, and elementary school districts have numerous powers in common. Thus, 

there are many areas in which there could be joint powers agreements between such 

school districts. A division of loyalties, in the form of a contractual conflict, would 

result from the mere fact that the same person sits on each of the boards desiring to 

enter into a joint agreement. 

"`Each of the types of school districts involved has the power of eminent 

domain. [Citation.] When the power is exercised by one of the districts, a conflict 

with the best interests of the other district could arise. For example, one district might 

desire to acquire property for a new school site, the location of which could be of great 

interest of the other district. Thus, the individual who serves on the two boards would 

find himself or herself in a position of having to choose between the loyalty owed to 

each board on which the member sits. 

"`Governing boards of school districts can also sue and be sued. [Citations.] 

It is conceivable that a person who holds office on two boards could be faced with 

having to decide whether or not to sue the other school district on whose board that 

person also sits. Similarly, substantial conflicts would arise during the litigation 

process when the member common to each district board is faced with making 

decisions with regard to said litigation. 

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"`It should also be noted that school boards have a great amount of discretion in 

the management of their property. A school district may sell or lease certain personal 

property. A school district may sell or lease certain personal property to another 

school district without advertising for bids. [Citations.] The governing board may sell 

or lease any real property, and any personal property located thereon, when not needed 

for classroom buildings. [Citations.] The governing board can sell, exchange, grant 

or quitclaim to another school district owning the property. [Citations.] Significant 

clashes of loyalty would result when the person holding dual offices is required to act in 

the best interests of each school district in the transaction.'" (Id., at pp. 172-174.) 

The doctrine of incompatible public offices precludes a person from serving in both 

offices in the absence of statutory authorization to do so. It is based upon considerations of public 

policy to prevent a division of loyalty, and not upon any notion of personal pecuniary conflict or 

advantage to the officeholder. Thus, even where a person has served honorably in one office for many 

years, and assumes a second office only out of a sense of civic obligation, the doctrine of incompatible 

offices applies. The rule is applicable because of the character of the offices, not because of the 

character of the particular officeholder. 

Only one significant clash of loyalties is required to make public offices incompatible, 

and the possibility of such a clash exists in the situation presented here. (See 68 Ops.Atty.Gen., supra, 

at 174; 37 Ops.Cal.Atty.Gen. 21, 22 (1961).) The public and each of the school districts in question 

have an interest in the undivided loyalty of their elected officials. (73 Ops.Cal.Atty.Gen. 354, 357 

(1990); 73 Ops.Cal.Atty.Gen. 183, 188, (1990).) The public interest is served by permitting suit in this 

case, where more than one year remains in the overlapping terms of the defendant's public offices. The 

relator's application for leave to sue in quo warranto is granted. 

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