1 of 3TO BE PUBLISHED IN THE OFFICIAL REPORTSOFFICE OF THE ATTORNEY GENERALState of CaliforniaDANIEL E. LUNGRENAttorney General______________________________________OPINION :: No. 97-802of :: November 21, 1997DANIEL E. LUNGREN :Attorney General ::GREGORY L. GONOT :Deputy Attorney General ::______________________________________________________________________THE HONORABLE THOMAS JEFFRY, JR., COUNTY COUNSEL, COUNTY OF ALPINE, has requested an opinion on thefollowing question:May a county board of supervisors, in appointing a person to the office of district attorney to serve the remainder of the term ofthe prior officeholder, waive the requirement that the appointed officer be a citizen of the State of California?CONCLUSIONA county board of supervisors, in appointing a person to the office of district attorney to serve the remainder of the term oftheprior officeholder, may not waive the requirement that the appointed officer be a citizen of the State of California.ANALYSISWe are informed that a district attorney has resigned in a sparsely populated, rural county that borders the State of Nevada.Manyresidents in the eastern portion of the county regularly travel to and from Nevada for goods and services. The board of supervisors is considering2 of 3residentsintheeasternportionofthecountyregularlytraveltoandfromNevadaforgoodsandservices.Theboardofsupervisorsisconsideringthe appointment of a person who resides in Nevada to serve out the remainder of the former district attorney's term of office.May the board do so?We conclude that the appointee must be a resident of California.The district attorney's office under consideration is an elective office. (Cal. Const., art. XI, § 1, subd. (b); Gov. Code, §24009,subd. (a).)Footnote No. 1However, whenever a vacancy occurs in the office, the board of supervisors is required to appoint someone to completethe unexpired term. Section 25304 provides:"The board of supervisors shall fill by appointment all vacancies that occur in any office filled by the appointment of theboard and elective county officers, except judge of the superior court and supervisors. The appointee shall hold office for theunexpired term or until the first Monday after January 1st succeeding the next general election."A person must be a citizen of California in order to hold "civil office" in this state. Section 1020 states: "A person is incapable ofholding a civil office if at the time of his election or appointment he is not 18 years of age and a citizen of the state." Theoffice of district attorneyis a "civil office." (See §§ 1001, 24000; 61 Ops.Cal.Atty.Gen. 528, 529 (1978); 57 Ops.Cal.Atty.Gen. 498, 501 (1974).)Footnote No. 2With respect to being a citizen of California, the Legislature has provided in section 241 as follows:"The citizens of the State are:"(a) All persons born in the State and residing within it, except the children of transient aliens and of alien public ministersand consuls."(b) All persons born out of the State who are citizens of the United States and residing within the State."Hence, a person who is a citizen of California must reside within the state. Here, the prospective appointee to the office of district attorney is not aresident of California, but rather a Nevada resident. (See 75 Ops.Cal.Atty.Gen. 26, 27-28 (1992); 73 Ops.Cal.Atty.Gen. 427, 429-430 (1990).) Maythe California residency requirement be waived by the board of supervisors?Section 24001 provides:"Except as otherwise provided in Sections 27550.1 and 27641.1 or in this section, or in Section 21123 or 34711 of theWater Code, or in any landowner voting district, as defined in paragraph (9) of subdivision (b) of Section 10500 of the ElectionsCode, a person is not eligible to [hold] a county or district office, unless he or she is a registered voter of the county or district inwhich the duties of the office are to be exercised at the time that nomination papers are issued to the person or at the time of theappointment of the person."The board of supervisors or any other legally constituted appointing authority in a county or district may, if it finds thatthe best interests of the county or district will be served, waive the requirements of this section for an appointed county ordistrictoffice."Footnote No. 33 of 3It has been suggested that under the terms of section 24001, a board of supervisors may waive the California residency requirement for anappointee to the office of district attorney. We reject the suggestion for a number of reasons.First, section 24001 authorizes the waiver of the registered voter requirement "for an appointed county or district office." Here,the district attorney's office is elective, not appointive. More importantly, even if the waiver provision were applicable to elective offices that aretemporarily filled by appointment, section 24001 authorizes only the waiver of "the requirements of this section." At most, then, a candidate forthe office of district attorney need not be a registered voter in the county at the time of the appointment; a waiver of such requirement does not andcannot waive the additional state citizenship and state residency requirements specified in a different statute.No other statute has been suggested that would authorize a district attorney to be a citizen and resident of another state.FootnoteNo. 4We thus conclude that a board of supervisors, in appointing a person to the office of district attorney to serve the remainderof the term of theprior officeholder, may not waive the requirement that the appointed officer be a citizen of the State of California.* * * * *Footnote No. 1All references herein are to the Government Code unless otherwise specified.Footnote No. 2In 61 Ops.Cal.Atty.Gen. 528,supra, we considered the application of section 1020 to an appointee who was not a United States citizen. That issue is not presenthere,and we do not find the analysis of our prior opinion to be controlling.Footnote No. 3The registered voter requirement of section 24001 is not applicable or may be waived for candidates for "the office of surveyorin a county containing a populationunder 20,000 . . ." (§ 27550.1), the office of "the county counsel" (§ 27641.1), the "offices of assessor, collector, or treasurer" of an irrigation district (Wat. Code, §21123), and any office of "a district whose principal act requires an elector to be an owner of land located within the district" (Elec. Code, § 10500, subd. (b)(9)).Footnote No. 4We also note that under the terms of section 1770, subdivision (e), the office of a district attorney would become vacant when the incumbent no longer was an"inhabitant" (resident) of the county. (See 75 Ops.Cal.Atty.Gen.,supra, at 27-28.)