TO BE PUBLISHED IN THE OFFICIAL REPORTS 

OFFICE OF THE ATTORNEY GENERAL 

State of California 

DANIEL E. LUNGREN 

Attorney General 

______________________________________ 

OPINION : 

 : No. 98-302 

of : 

 : August 18, 1998 

DANIEL E. LUNGREN : 

Attorney General : 

 : 

CLAYTON P. ROCHE : 

Deputy Attorney 

General 

: 

 : 

______________________________________________________________________ 

THE HONORABLE CHARLES R. MACK, COUNTY COUNSEL, YOLO COUNTY, has 

requested an opinion on the following question: 

May a county supervisor be employed by the county housing authority commission to serve 

as its secretary and executive director? 

CONCLUSION 

A county supervisor may be employed by the county housing authority commission to serve 

as its secretary and executive director. 

ANALYSIS 

The Housing Authorities Law (Health & Saf. Code, §§ 34200-34606) Footnote No. 1 was 

enacted by the Legislature to address "a shortage of safe or sanitary dwelling accommodations 

available at rents which persons of low income can afford . . . ." (§ 34201, subd. (a).) Section 

34240 provides: 

"In each county and city there is a public body corporate and politic known as the housing 

authority of the county or city. The authority shall not transact any business or exercise its 

powers unless, by resolution, the governing body of the county or city declares that there is need 

for an authority to function in it." 

Section 34242 states: 
"The governing body may adopt a resolution declaring that there is need for a housing 

authority if it finds either of the following: 

"(a) That insanitary or unsafe inhabited dwelling accommodations exist in the county or 

city. 

"(b) That there is a shortage of safe or sanitary dwelling accommodations in such county or 

city available to persons of low income at rentals they can afford." 

With respect to a county housing authority, the board of supervisors appoints five 

commissioners, and in certain circumstances also appoints tenants of the authority, all of whom 

serve for fixed terms. (§§ 34271-34272.) Footnote No. 2 Housing commissioners may be removed 

by the board of supervisors for "inefficiency, neglect of duty, or misconduct in office." (§ 

34282.) Here, we deal with a county housing authority commission consisting of five 

commissioners and two tenant commissioners appointed by the board of supervisors. The 

question presented for resolution is whether the commission may employ a county supervisor as 

its secretary and executive director. We conclude that it may. 

A county housing authority commission has responsibility for hiring officers and employees 

"as it requires." "An authority . . . may employ a secretary, who shall be executive director, 

technical experts, and such other officers, agents, and employees as it requires, and 

shall determine their qualifications, duties, terms of employment and compensation." (§ 34278, 

subd. (a).) The commission's personnel rules and regulations shall contain "procedures affecting 

conflicts of interest . . . ." (Ibid.; see Figueroa v. Housing Authority (1982) 131 Cal.App.3d 528, 

532.) 

1. Rule Against Incompatible Public Offices 

The first issue to be considered is whether a county supervisor would be precluded from 

serving as a county housing authority's secretary and executive director due to the common law 

doctrine of incompatible public offices. Under this doctrine, acceptance of the second office 

constitutes an automatic resignation from the first office. Offices are incompatible if there is any 

significant clash of duties or loyalties between the offices, or if one office has supervisory, 

auditory, or removal power over the other. The doctrine, however, applies only if both positions 

are offices. If one of the positions is that of an "employee," the doctrine is inapplicable. (See 80 

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

268, 269-270 (1990).) 

Undoubtedly a member of a county board of supervisors holds a public office for purposes 

of the incompatible offices doctrine. (67 Ops.Cal.Atty.Gen. 409, 410 (1984).) However, is a 

secretary and executive director of a housing authority an officer or employee for purposes of the 

common law prohibition? This question was addressed in a 1978 letter opinion (Cal.Atty.Gen., 

Indexed Letter, No. IL 78-102 (July 18, 1978)) in which we concluded that the executive 

secretary of a county housing authority does not hold an "office" for purposes of the common 

law rule. We stated: 
"While Health and Safety Code section 34278(a) authorizes the employment of an 

executive secretary, the position, if created at all, is a creature of a contract entered into by the 

authority, which sets the terms of employment. A public officer is not the offspring of a contract. 

(Pacific Finance Corp. v. City of Lynwood (1931) 114 Cal.App. 509, 514.) No statutory duties 

are set forth for the executive secretary; rather, the commissioners determine the duties and 

functions performed. The commissioners, not the executive secretary, exercise the sovereignty of 

the state. The position of executive secretary is transitory, subject to being abolished if the 

commissioners so choose. If the position is filled, the contract of employment, rather than statute, 

dictates the terms of employment. (Cf., Holtzendorff v. Housing Authority (1967) 250 

Cal.App.2d 596.) 

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

". . . The common law doctrine of incompatibility of office is inapplicable to the position of 

housing authority executive secretary because that doctrine applies only to public offices. . . ." 

We reaffirm our 1978 conclusion. The secretary and executive director of a housing 

authority does not hold an office for purposes of the incompatible offices doctrine. Accordingly, 

this common law rule would not prevent a county supervisor from being employed as the 

secretary and executive director of a county housing authority. 

2. Government Code Section 1126 

Next we consider the conflict of interest provisions of Government Code section 1126. This 

statute generally prohibits local agency officers and employees from engaging in incompatible 

employment for compensation. It states in part: 

"(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. . . . 

"(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 agency officers or employees. . . ." 

The provisions of Government Code section 1126 are not self-executing; officers and 

employees must first be given notice of the prescribed activities and intended disciplinary action 

to be taken and appeals procedures available. (Mazzola v. City and County of San Francisco

(1980) 112 Cal.App.3d 141.) Furthermore, the statute is inapplicable to elected officials, since 

they "have no appointing power other than the electorate . . . ." (64 Ops.Cal.Atty.Gen. 795, 800 

(1981).) 
Hence, as an elected official (Gov. Code, § 25000), the county supervisor in question would 

not be affected by Government Code section 1126. With regard to the position of secretary and 

executive director, the housing authority commissioners have the discretion under the statute to 

determine whether the person's duties as a county supervisor would be incompatible with his 

duties as their employee. 

3. Government Code Section 1090 

The third issue to be considered is whether the terms of Government Code section 1090 

would preclude a county supervisor from being named the secretary and executive director of a 

county housing authority. This statute states in part: 

"Members of the Legislature, state, county, district, judicial district, and city officers or 

employees shall not be financially interested in any contract made by them in their official 

capacity, or by any body or board of which they are members. . . ." 

In 66 Ops.Cal.Atty.Gen. 156, 157 (1983), we observed: 

"'Section 1090 of the Government Code codifies the common law prohibition and the 

general policy of this state against public officials having a personal interest in contracts they 

make in their official capacities. [Citations.] Mindful of the ancient adage, that "no man can 

serve two masters" [citations], "a self-evident truth, as trite and impregnable as the law of 

gravity" [citation], the section was enacted to insure that public officials "making" official 

contracts not be distracted by personal financial gain from exercising absolute loyalty and 

undivided allegiance to the best interest of the entity which they serve, and at least with respect 

to those contracts, it does so by removing or limiting the possibility of their being able to bring 

any direct or indirect personal influence to bear on an official decision regarding them. 

[Citations.] The mechanism of the section is one of prohibiting public officials from being 

personally financially interested as private individuals in any such contract. . . .'" Footnote No. 3 

We have previously concluded that public employment constitutes a "contract" within the 

meaning of Government Code section 1090. (65 Ops.Cal.Atty.Gen. 305, 308, fn. 4 (1962); 36 

Ops.Cal.Atty.Gen. 121 (1960).) Accordingly, a legislative body or other board or commission 

could not appoint one of its own members to an employment position within the agency; the 

board member would have a proscribed financial interest in receiving a salary as an employee. 

However, we do not have that situation here. Significantly, it is the housing authority 

commissioners who would hire the supervisor as their employee. The commissioners act as an 

administrative arm of the state in pursuing the state concern of developing new housing 

opportunities. (Housing Authority v. City of L.A. (1982) 38 Cal.2d 853, 862.) The board of 

supervisors is a separate body and has no role to play in the commissioners' hiring decisions. (§ 

34278.) Hence, it would be the housing authority, not the board of supervisors, that would 

"make" the employment contract with the supervisor for purposes of Government Code section 

1090. Footnote No. 4 
We considered a similar situation in 21 Ops.Cal.Atty.Gen. 90 (1953), where a city treasurer 

contemplated the deposit of city funds in a bank partly owned by a city council member. Our 

analysis was as follows: 

"The Attorney General has held that the fact that a person is a legislator does not prevent his 

entry into contracts of sale with the State of California or its agencies, except that he may not 

enter into a contract with the legislature itself (14 Ops. Cal. Atty. Gen. 78); that a head court 

house gardener who owned a private nursery was not disqualified from selling nursery supplies 

to the county of which he was an employee because of the discretion vested in the county 

purchasing agent to conclude contracts for the county (3 Ops. Cal. Atty. Gen. 188); that a County 

Supervisor is not precluded from contracting for construction work with a school district since 

the contracts for school buildings or school construction are let by Boards of School Trustees 

without control or supervision of the County Board of Supervisors (17 Ops. Cal. Atty. Gen. 44). 

The significant fact in each of these opinions is the independent status of the party contracting on 

behalf of the governmental agency. 

"The selection of the depository in the instant case is in the discretion of the City Treasurer 

and not subject to the supervision or control of the City Council. It is true that the council is 

responsible for the appointment and removal of the Treasurer, but the relationship between one 

member of the council and the Treasurer is no less remote than that of a legislator and an agency 

of the State Government. 

"We are of the opinion that the public funds of the City of Modesto may be deposited by the 

City Treasurer in a bank in which a councilman of the city is a director and a stockholder with 

less than 5% of the outstanding capital stock." (Id., at pp. 91-92.) 

Although here the members of the county housing authority commission are subject to 

removal for cause by the board of supervisors (§ 34282), their independent contracting powers 

would not be affected by such limited supervisorial control for purposes of Government Code 

section 1090. (21 Ops.Cal.Atty.Gen., supra, at 92.) Accordingly, Government Code section 1090 

would not prohibit a person from holding the two positions involved herein. Footnote No. 5 

4. Rule Against Self-Appointments 

In 23 Ops.Cal.Atty.Gen. 75, 75-77 (1954), we discussed at length the common law rule 

against self-appointments. We stated in part: 

"There is no reported California case holding directly that an appointing board or 

commission may not appoint one of its members to office. In most of the states, however, there is 

a well-defined, court announced rule of public policy which prohibits a public board from 

conferring an appointment on one of its own members. This is the rule against self-appointment. 

. . . Authoritative legal texts pronounce the rule as one of general application. . . . It is referred to 

as a rule of common law. . . . 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
" . . . In view of the overwhelming weight of judicial authority in other states and the 

[favorable] dicta in the Thompson [55 Cal.App.2d 147] and Jensen [77 Cal.App.2d 921] cases, 

we do not believe the California courts would reject the rule against self-appointments as an 

expression of California public policy. . . ." 

While we reaffirm the validity of the common law proscription against self appointments in 

California (See 76 Ops.Cal.Atty.Gen. 254, 256-259 (1993); 73 Ops.Cal.Atty.Gen. 357, 359-360 

(1990)), this prohibition has no application here. Even if a housing authority secretary and 

executive director holds a position subject to this rule, it is the housing authority commissioners 

who make the appointment, not the county board of supervisors. As previously indicated, the 

housing authority is a separate body and autonomous in its operations, with its own sources of 

funding and areas of responsibility. (§§ 34310-34334.) We do not attribute the actions of the one 

board to the other in such circumstances. Consequently, there would be no "self" in the 

appointment of a county supervisor by a county housing authority commission. 

5. Rule Against Conflicts of Interest 

Finally, even if a statute does not prohibit a particular conflict of interest, consideration 

must be given to the common law rule against such conflicts. (See Kuner v. Brea Redevelopment 

Agency (1997) 55 Cal.App.4th 511, 519.) In Clark v. City of Hermosa Beach (1996) 48 

Cal.App.4th 1152, 1171, the court observed: 

". . . Actual injury is not the principle the law proceeds on. Fidelity in the agent is what is 

aimed at, and as a means of securing it the law will not permit him to place himself in a position 

in which he may be tempted by his own private interests to disregard those of his principal. This 

doctrine is generally applicable to private agents and trustees, but to public officers it applies 

with greater force, and sound policy requires that there be no relaxation of its stringency in any 

case that comes within its reason. . . . [Citation.] '[T]he common law doctrine against conflicts of 

interest . . . prohibits public officials from placing themselves in a position where their private, 

personal interests may conflict with their official duties.' (64 Ops.Cal.Atty.Gen. 795, 797 (1981); 

accord, 70 Ops. Cal.Atty.Gen. 45, 47 (1987).)" (Fn. omitted.) 

Thus, the county supervisor in question must not act officially when to do so would be to 

his personal gain. For example, with respect to the board of supervisors appointing or removing 

housing authority commissioners, he would have an obvious conflict of interest since the 

commissioners set the terms and conditions of his employment as the secretary and executive 

director of the housing authority. However, the board of supervisors may still act. The interested 

supervisor would only be required to abstain in the matter, neither voting on it nor attempting to 

influence the vote of the other members of the board. (See 78 Ops.Cal.Atty.Gen. supra, at 374; 

73 Ops.Cal.Atty.Gen. 191, 196 (1990); 70 Ops.Cal.Atty.Gen. 157, 162 (1987); 26 

Ops.Cal.Atty.Gen. 5, 7 (1955).). 

Unless the Legislature specifically prohibits the holding of a public office and public 

employment at the same time (see, e.g., Ed. Code, §§ 35107, 72103; Gov. Code, §§ 53227-

53227.2), conflict of interest principles generally do not bar a person from holding two different 

positions, instead requiring only abstention when a particular matter arises. (See Thompson v. 
Call (1985) 38 Cal.3d 633, 645-647; Eldridge v. Sierra View Local Hospital Dist. (1990) 224 

Cal.App.3d 311, 320-321; 73 Ops.Cal.Atty.Gen., supra, at 193-196.) 

In sum, we conclude that a county supervisor may be employed by a county housing 

authority commission to serve as its secretary and executive director. 

* * * * * 

Footnote No. 1 

Section references are to the Health and Safety Code unless otherwise indicated. 

Footnote No. 2 

Alternatively, the board of supervisors may declare itself to be the commissioners of the authority (§ 34290), with a 

separate housing commission (§ 34291) functioning in an advisory capacity (§ 34292). 

Footnote No. 3 

Section 34281 specifically prohibits a housing authority commissioner from having an interest in a housing project 

or any property to be included in any project, or from having any interest in any contract for goods or services 

relating to a housing project, with limited exceptions. 

Footnote No. 4 

In our 1978 letter opinion concluding that a county supervisor could serve as the executive secretary of a county 

housing authority (Cal.Atty.Gen., Indexed Letter No. IL 78-102, supra), the housing authority's executive secretary 

did not hold a salaried position, and we thus did not consider the application of Government Code section 1090. 

Footnote No. 5 

If the county, through its board of supervisors, were to propose entering into a contract with the county housing 

authority (see § 34314), such contract would require examination in light of the requirements of Government Code 

section 1090. (See, e.g., Gov. Code, § 1091.5, subd. (a)(9); 78 Ops.Cal.Atty.Gen., supra, at 369-370.)