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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. 93-901 

of : 

: January 13, 1994

DANIEL E. LUNGREN : 

Attorney General : 

: 

CLAYTON P. ROCHE : 

Deputy Attorney General : 

: 

The Deputy Sheriffs' Association of Santa Clara, Inc. and Armando Tiano (hereafter

"relators") have requested leave to sue in quo warranto to test the right of Dennis P. Handis

(hereafter "defendant") to simultaneously hold the offices of chief probation officer and chief officer

of the bureau of correction for the County of Santa Clara. 

DISPOSITION 

Leave to sue is granted to determine whether defendant may simultaneously hold the

offices of chief probation officer and chief officer of the bureau of correction for the County of Santa

Clara. 

ANALYSIS 

This application for leave to sue in quo warranto represents the latest chapter in a

five-year history of litigation concerning the County of Santa Clara's establishment of a department

of corrections to take over certain responsibilities of the sheriff's department. (See County of Santa

Clara v. Deputy Sheriffs' Assn. (1992) 3 Cal.4th 873; Beck v. County of Santa Clara (1988) 204

Cal.App.3d 789.) The present quo warranto application centers on whether the same county officer

may serve as the county's chief probation officer and its chief officer of the bureau of correction.

To answer this question, it must be determined whether the county has properly consolidated its

probation department and department of corrections. 

Section 803 of the Code of Civil Procedure provides that an action in the nature of

quo warranto "may be brought by the attorney-general, in the name of the people of this state, upon

his own information, or upon the complaint of a private party, against any person who usurps,

intrudes into, or unlawfully holds or exercises any public office. . . ." Here the relators assert that 

defendant unlawfully holds the office of chief officer of the bureau of correction for the County of

Santa Clara. 

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In determining whether to grant leave to sue upon the complaint of a private party,

this office considers the following factors: (1) whether the application has raised a substantial issue

of law or fact which a court should decide and (2) whether it would be in the public interest to grant

leave to sue. (See, e.g., 76 Ops.Cal.Atty.Gen. 1, 2 (1993); 75 Ops.Cal.Atty.Gen. 112, 113 (1992);

73 Ops.Cal.Atty.Gen. 357, 358 (1990).) We believe that the application herein presents a question

of law which should be judicially resolved. "`"[I]t is not the province of the Attorney General to

pass upon the issues in controversy, but rather to determine whether there exists a state of facts or

questions of law which should be determined by a court."'" (72 Ops.Cal.Atty.Gen. 63, 69 (1989).) 

A. The Consolidation Resolution 

Santa Clara County is a charter county. (See Cal. Const. art. XI, §§ 3, 4, 13.) Section 

509 of the county charter, adopted by the voters in 1987, provides in part: 

"The Board of Supervisors shall establish a Department of Corrections and

appoint a chief officer to operate the county jails for sentenced and unsentenced

prisoners and to carry out such other functions of a Department of Corrections as the

Board determines. . . . 

". . . The Department of Corrections and Chief Officer shall report directly

to the Board of Supervisors."1 

Section 504 of the charter provides: 

"The Chief Adult Probation Officer and Juvenile Probation Officers and the 

Juvenile Justice Commission are appointed and removed as provided by general law.

All other officers and employees of these departments are appointed, suspended or

removed subject to the provisions of Article VII of this Charter. Nothing in this

section shall preclude the Board of Supervisors from exercising the power granted

in Section 302(a) of this Charter."2 

Subdivision (a) of section 302 in turn provides: 

"The Board of Supervisors shall have power to: 

"(a) Consolidate, segregate, transfer, abolish, or reassign the powers, duties,

and functions of any appointed county office, commission, department, or division

thereof whenever the respective duties thereof are not inconsistent. The Board shall 

1

Normally, the sheriff is the custodian of the county jail and county jail prisoners. (See Pen.

Code, § 4000.) Section 23013 of the Government Code permits any county, whether chartered or

not, to establish a Department of Corrections and transfer county functions, personnel, and facilities

relating to the care, treatment, punishment and rehabilitation of prisoners to such a department. 

2

Section 270 of the Welfare and Institutions Code provides for the appointment of a juvenile

probation officer by the juvenile court judge of the county upon the nomination of the juvenile

justice commission. It also provides for removal by that judge for cause or, in his or her discretion,

with the approval of the juvenile justice commission. Section 1203.5 of the Penal Code establishes 

the office of adult probation officer, and further provides that if no separate office of adult probation

officer is established, the juvenile probation officer appointed pursuant to section 270 of the Welfare

and Institution Code shall be ex-officio adult probation officer. 

2. 93-901
 
have similar power as to elected county officers to the extent authorized by general

law. If the Board of Supervisors consolidates two or more offices pursuant to

general law or this Charter, the department head of the consolidated office need not

possess the qualifications required of the occupant of any of the separate offices

which are consolidated if the board finds that sufficient personnel possessing the

qualifications required are employed in the consolidated office to assure that

decisions made by the department head are based upon competent professional

advice." 

On July 13, 1993, the Santa Clara County Board of Supervisors adopted a resolution

consolidating and merging the county's probation department and department of corrections. The 

resolution provided in part: 

"1. Consolidation of Corrections Department under Probation. The county

department of corrections, established by resolution of the Board of Supervisors in

1987, is hereby consolidated under the jurisdiction of the Probation Department. The 

Probation Department shall have jurisdiction of all county functions, personnel and

facilities relating to institutional confinement, punishment, care, treatment and

rehabilitation of offenders, both presentenced and sentenced, juvenile and adult. 

"2. Name. The department of corrections, named in 1987 as the Department

of Detention, is hereby renamed as the Bureau of Correction, hereafter referred to as

the Bureau. 

"3. Head of Correction. There is in the County the position of Chief Officer

of the Bureau of Correction, hereafter referred to as the Chief Officer, appointed by

the Board of Supervisors. The Board of Supervisors hereby appoints the Chief

Probation Officer to serve as Chief Officer. 

"4. Duties of Chief Officer. 

"(a) The Chief Officer shall be in charge of and responsible for the

correctional facilities under the jurisdiction of the Bureau and shall have custody of

the presentenced and sentenced prisoners in them in accordance with such rules and

regulations as prescribed by state law and by the Board of Supervisors. 

"(b) The Chief Officer shall perform those duties with respect to the keeping

of prisoners and the administration of the County jail which are assigned to the

Sheriff by general law. 

"(c) The Chief Officer shall have administrative control over the Bureau and 

shall be responsible for the required annual itemized estimates of expenditures and

revenues for the Bureau. The Chief Officer shall supervise the expenditure of all

funds allocated to the Bureau and review expenditures of those funds." 

Accordingly, by the above consolidation and merger, the county's chief probation officer became

ex-officio the county's chief officer of the bureau of correction. It is this consolidation placing

defendant in the two county offices which the relators now challenge. 

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B. Government Code Section 24300 

We first address the issue of whether state statutory law controls the consolidation

of the two county offices in question. Government Code sections 24300-243073 authorize the 

consolidation of specified county offices. No provision is contained in the legislation for the

consolidation of a county's probation department and its department of corrections (or sheriff's

department). Section 24300 provides in part: 

"By ordinance the board of supervisors may consolidate the duties of certain

of the county offices in one or more of these combinations: 

"(a) Sheriff and tax collector. 

"(b) Auditor and recorder. 

"(c) County clerk, auditor, and recorder. 

"(d) County clerk and public administrator. 

"(e) County clerk and recorder. 

"(f) County clerk and auditor. 

"(g) Treasurer and tax collector. 

"(h) Treasurer and recorder. 

"(i) Treasurer and assessor. 

"(j) Treasurer and public administrator. 

"(k) Public administrator and coroner. 

"(l) District Attorney and public administrator. 

"(m) District attorney and coroner. 

"(n) Sheriff and coroner. 

"(o) Sheriff and public administrator. 

"(p) County agricultural commissioner and county sealer of weights and 

measures. 

"(q) Road commissioner and surveyor. . . ."

 May county offices not specified in section 24300 be consolidated? 

3

All references hereafter to the Government Code are by section number only. 

4. 93-901
 
 

In our view, no substantial question is presented as to the authority of a charter

county to consolidate offices in addition to those permitted by the Government Code. Several court 

decisions clearly support such "additional" consolidations. (Reuter v. Board of Supervisors (1934)

220 Cal. 314, 320-321; Kelly v. Kane (1939) 34 Cal.App.2d 588, 591; More v. Board of Supervisors

(1916) 31 Cal.App. 388, 392-393.) 

Article XI, section 4 of the Constitution states in part: 

"County charters shall provide for: 

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

"(d) The performance of functions required by statute. 

"(e) The powers and duties of governing bodies and all other county officers,

and for consolidation and segregation of county offices, and for the manner of filling

all vacancies occurring therein." 

The authority to consolidate offices in charter counties is a matter governed by Article XI of the

Constitution and is not limited by general law as found in the Government Code.4 

C. Conformity With County Charter 

Looking then at the governing law, we find that section 302, subdivision (a) of the

Santa Clara County Charter permits the consolidation of county offices or reassignment of the duties

and functions of county offices "whenever the duties are not inconsistent." 

The charter's prohibition against the consolidation of offices having inconsistent

duties appears to reflect the common law rule prohibiting a person from simultaneously holding

"incompatible" offices. In 66 Ops.Cal.Atty.Gen. 176, 177-178 (1983), we explained the common 

law rule 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.Cal.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.) 

4

While Reuter, Kelly, and More involved a predecessor constitutional provision, we may rely

upon them in construing section 4 of article XI. (See Cal Const., art. XI, § 13.) Our opinions in 40

Ops.Cal.Atty.Gen. 138 (1962), 38 Ops.Cal.Atty.Gen. 121 (1961), and 22 Ops.Cal.Atty.Gen. 174

(1953), insofar as they indicate that section 24300 is exclusive concerning the consolidation of

county offices, do not purport to rule upon charter county powers. Our opinion in 32

Ops.Cal.Atty.Gen. 161 (1955), insofar as it indicates a contrary result concerning charter counties,

is hereby disapproved. 

5. 93-901
 
 

 

"`. . . 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

McQuillin, 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, 

`[t]he 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.)" 

More specifically, with respect to the issue of inconsistent duties of the particular

offices in question, we note that on August 5, 1993, in a court proceeding involving another lawsuit

between the parties, the court stated: 

"As the judge of a court which effectively deals with both unsentenced and

sentenced inmates of the county jail, I am very sensitive to the requirement by the

probation office to submit reports to the court on persons to be sentenced or persons

who have been sentenced. There are frequently now, much more than used to be,

crimes committed within the penal system of the county. 

"We have a very recent incident two or three days ago that brings that up.

The district attorney has actually formed a jail crimes unit to deal with matters of that 

sort. It seems to me that when a probation office is in charge of a jail that a conflict

of interest may occur when he is required to investigate for the court what actually

occurred and what should be done with either the inmate victim or the inmate 

charged with the crime or with a correctional officer who may have committed the

particular crime or with the victim of one of the inmates." 

We believe that a substantial issue of law exists concerning whether the duties of the

county's probation department and its department of corrections may be considered "inconsistent"

under the terms of the county charter. Whether the duties may be performed on a bifurcated basis,

whether all statutory duties may be performed by a single individual (see Pen. Code, § 3075), and

the precise relationships of the two county departments with the judiciary5

 and the county board of

supervisors all require examination.6 

5

We note that the office of chief probation officer is a county office and that a charter could

provide for appointment of such officer by the board of supervisors. (See Gibson v. Civil Service 

Commission (1915) 27 Cal.App. 396; 53 Ops.Cal.Atty.Gen. 7 (1970).) This, however, would not 

militate against the fact that probation officers, in the performance of their normal duties, are

adjuncts of the courts. 

6

Whether the consolidation resolution complies with other charter requirements may also

necessitate judicial resolution. 

6. 93-901 
 

D. The Public Interest 

In our view, it would be in the public interest to have a judicial resolution concerning

the consolidation of the county's probation department and department of corrections. The right of

defendant to simultaneously hold the offices of chief probation officer and chief officer of the bureau

of correction is dependent upon the validity of the consolidation resolution. Under such 

circumstances, it would be appropriate for a court to resolve the question of the county charter's

proper interpretation. (See 76 Ops.Cal.Atty.Gen. 157, 166-168 (1993).) 

Accordingly, leave to sue is hereby granted. 

* * * * * 

7. 93-901