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TO BE PUBLISHED IN THE OFFICIAL REPORTS 

OFFICE OF THE ATTORNEY GENERAL 

State of California 

XAVIER BECERRA 

Attorney General 

: 

OPINION : No. 17-903 

: 

of : October 25, 2018 

: 

XAVIER BECERRA : 

Attorney General : 

: 

MANUEL M. MEDEIROS : 

Deputy Attorney General : 

: 

THE HONORABLE STACEY SIMON, MONO COUNTY COUNSEL, has 

requested an opinion on the following question: 

May a member of the Southern Mono Healthcare District board of directors 

simultaneously serve as a member of the city council for the Town of Mammoth Lakes or 

on the city’s Planning and Economic Development Commission? 

CONCLUSION 

A member of the Southern Mono Healthcare District board of directors may not 

simultaneously serve as a member of the city council for the Town of Mammoth Lakes or 

on the Mammoth Lakes Planning and Economic Development Commission. 

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ANALYSIS 

The Southern Mono Healthcare District (District) is a special district organized 

pursuant to the Local Healthcare District Law,

1 which authorizes health care districts to 

establish, maintain, and operate health facilities within their territorial limits.2 The District 

operates a hospital and a medical clinic within the Town of Mammoth Lakes (hereafter, 

City).3 Mammoth Lakes is a general law city governed by a city council comprising five 

elected members.

4 The City’s Planning and Economic Development Commission 

(Planning Commission) consists of five members appointed by the City council.5 

We are asked whether an individual who is a member of the District’s board of 

directors may simultaneously serve as a member of the City council or the Planning 

Commission—that is, whether such simultaneous service violates the prohibition against 

holding incompatible offices. We conclude that it does. 

The doctrine of incompatible offices prohibits an individual from simultaneously 

holding two public offices if the performance of the duties of either office could have a 

significant adverse effect on the other.6 “The doctrine springs from considerations of 

1 Health & Saf. Code, § 32000 et seq. For purposes of the Local Healthcare District 

Law, the terms “hospital district” and “health care district” are synonymous. (Health & 

Saf. Code, § 32000.1, subd. (a).) 

2 Health & Saf. Code § 32121, subds. (j), (m); 88 Ops.Cal.Atty.Gen. 213, 213 (2005). 

3 See Mono County Local Agency Formation Com., Municipal Service Review and 

Sphere of Influence Recommendation: Southern Mono Healthcare District (Oct. 2009), 

pp.7-8, https://monocounty.ca.gov/sites/default/files/fileattachments/local_agency 

_formation_commission_lafco/page/3562/southernmonohospitaldistrictoctober2009_000. 

pdf (hereafter, Municipal Service Review). For purposes of general application of the 

Government Code, an incorporated town is a “city.” (Gov. Code, § 20.) An 

unincorporated city or village is not a “city.” (Gov. Code, § 21.) 

4 Gov. Code, §§ 34102, 36501, subd. (a); see https://townofmammothlakes.ca.gov/82/ 

Town-Council. 

5 Mammoth Lakes Mun. Code, §§ 2.04.060, 2.28.010, 2.32.010. 

6 68 Ops.Cal.Atty.Gen. 337, 339 (1985); accord, 93 Ops.Cal.Atty.Gen. 104, 108 (2010); 

87 Ops.Cal.Atty.Gen. 153, 154 (2004); see also Mott v. Horstmann (1950) 36 Cal.2d 388, 

391 (doctrine applies where the functions of the offices concerned are inherently 

inconsistent); accord, Eldridge v. Sierra View Local Hospital Dist. (1990) 224 Cal.App.3d 

311, 319 (1990) (Eldridge). 

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public policy which demand that a public officer discharge his or her duties with undivided 

loyalty.”7 

In 2005, the Legislature codified the common law doctrine of incompatible offices 

by enacting Government Code section 1099. That section provides, in relevant part: 

(a) A public officer, including, but not limited to, an appointed or 

elected member of a governmental board, commission, committee, or other 

body, shall not simultaneously hold two public offices that are incompatible. 

Offices are incompatible when any of the following circumstances are 

present, unless simultaneous holding of the particular offices is compelled or 

expressly authorized by law: 

(1) Either of the offices may audit, overrule, remove members of, 

dismiss employees of, or exercise supervisory powers over the other office 

or body. 

(2) Based on the powers and jurisdiction of the offices, there is a 

possibility of a significant clash of duties or loyalties between the offices. 

(3) Public policy considerations make it improper for one person to 

hold both offices. 

* * * * 

(c) This section does not apply to a position of employment, including 

a civil service position. 

(d) This section shall not apply to a governmental body that has only 

advisory powers. 

* * * * 

(f) This section codifies the common law rule prohibiting an 

individual from holding incompatible public offices.8 

68 Ops.Cal.Atty.Gen., supra, at p. 339; 63 Ops.Cal.Atty.Gen. 623, 625 (1980); 

17 Ops.Cal.Atty.Gen. 129, 130 (1951). 

8 Gov. Code, § 1099, added by Stats. 2005, ch. 254, § 1. 

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In an uncodified section of the bill that enacted Government Code section 1099, the 

Legislature declared: “Nothing in this act is intended to expand or contract the common 

law rule prohibiting an individual from holding incompatible public offices. It is intended 

that courts interpreting this act shall be guided by judicial and administrative precedent 

concerning incompatible public offices developed under the common law.”9 Accordingly, 

in conducting our analysis, we look both to Government Code section 1099 and to 

precedent established under the common law. 

Are the governmental positions at issue “public offices”? 

The doctrine of incompatible offices applies only to public offices, and not to 

positions of employment.10 We have previously characterized a public office, for purposes 

of the doctrine, as “a position in government (1) which is created or authorized by the 

Constitution or some law; (2) the tenure of which is continuing and permanent, not 

occasional or temporary;11 (3) in which the incumbent performs a public function for the 

public benefit and exercises some of the sovereign powers of the state.”12 

Under Government Code section 1099, subdivision (a), “public office” expressly 

includes membership on a governmental board or body.13 There can be little doubt, and 

we have previously concluded on numerous occasions, that a member of a city council 

holds a public office.14 

9 Stats. 2005, ch. 254, § 2. 

10 Gov. Code, § 1099, subds. (a), (c); People ex rel. Chapman v. Rapsey (1940) 16 

Cal.2d 636, 639-640 (Rapsey); Eldridge, supra, 224 Cal.App.3d at p. 319 (doctrine does 

not apply where one position is a public office and the other an employment). 

11 Although an office must have some permanence and continuity, “these terms do not 

refer to the tenure of the appointed officer, but apply to the permanency and continuity of 

the office itself.” (Cerini v. City of Cloverdale (1987) 191 Cal.App.3d 1471, 1478.) 

12 68 Ops.Cal.Atty.Gen., supra, at p. 342; accord, 95 Ops.Cal.Atty.Gen. 77, 78 (2012); 

93 Ops.Cal.Atty.Gen. 144, 148 (2010); 93 Ops.Cal.Atty.Gen., supra, at p. 105; 

82 Ops.Cal.Atty.Gen. 83, 84 (1999); 74 Ops.Cal.Atty.Gen. 116, 118 (1991); see also 

Moore v. Panish (1982) 32 Cal.3d 535, 545. 

13 See also 68 Ops.Cal.Atty.Gen., supra, at p. 344 (citing cases decided under the 

common law doctrine declaring that members of governing boards of public districts or 

entities are public officers). 

14 See, e.g., 98 Ops.Cal.Atty.Gen. 94, 96 (2015); 91 Ops.Cal.Atty.Gen. 25, 26 (2008); 

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Likewise, we have previously concluded that a member of the board of directors of 

a hospital district holds a public office.15 A local health care district is governed by a board 

of directors typically consisting of five members, who are elected to four-year terms 16 The 

position of director of a health care district is created by statute, and is one in which 

incumbents succeed one another.17 The board of directors exercises powers of 

sovereignty,

18 and must “make and enforce all rules, regulations and bylaws necessary for 

the administration, government, protection and maintenance of health care facilities under 

their management and all property belonging thereto . . . .”19 

We have also previously concluded that a member of a city planning commission 

holds a public office for purposes of Government Code section 1099.20 The City’s 

Planning Commission is created by statute.21 It comprises five members, “all of whom 

shall act in the public interest.”22 Members of the Planning Commission serve four-year 

terms.23 The Planning Commission exercises “all of those functions and duties of a 

planning commission and board of zoning adjustment as provided in Chapters 3 and 4 of 

85 Ops.Cal.Atty.Gen. 199, 200 (2002); 82 Ops.Cal.Atty.Gen. 74, 76 (1999); 

76 Ops.Cal.Atty.Gen. 38, 40 (1993); 75 Ops.Cal.Atty.Gen. 10, 13 (1992); 37 

Ops.Cal.Atty.Gen. 21, 22, fn. 1 (1961). 

15 95 Ops.Cal.Atty.Gen., supra, at p. 78. 

16 Health & Saf. Code, § 32100. 

17 Health & Saf. Code, § 32100.02. 

18 Health & Saf. Code, § 32121 (control property, manage officers and employees, 

engage in joint ventures, etc.); see Sutter Health v. Eden Township Healthcare Dist. (2016) 

6 Cal.App.5th 60, 63-64 (describing healthcare district as a public agency); Talley v. 

Northern San Diego County Hosp. Dist. (1953) 41 Cal.2d 33 (a hospital district exercises 

governmental functions), overruled on other grounds, Muskopf v. Corning Hosp. Dist. 

(1961) 55 Cal.2d 211 (repudiating judicial doctrine of sovereign immunity). 

19 Health & Saf. Code, § 32125, subd. (a). 

20 95 Ops.Cal.Atty.Gen. 67, 70 (2012); 84 Ops.Cal.Atty.Gen. 91 (2001); 82 

Ops.Cal.Atty.Gen. 68 (1999); 79 Ops.Cal.Atty.Gen. 155 (1996); see also 66 

Ops.Cal.Atty.Gen. 293, 296 (1983) (treating member of city planning commission as 

public office). 

21 Gov. Code, § 65100. 

22 Gov. Code, § 65101, subd. (a). 

23 Mammoth Lakes Mun. Code, §§ 2.32.010, 2.28.010, ¶ A. 

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Title 7 commencing with Section 65100 of the Government Code.”24 These duties include 

“preparation, maintenance, and implementation of the town’s General Plan.”25 Although 

the Planning Commission “acts as an advisory body to the Town Council on all planning 

and development policy issues,”26 the Planning Commission is also “the decision-making 

body for many land-use related proposals including use permits, variances, and 

subdivisions.”27 Under the City’s ordinance, the Planning Commission “shall conduct 

public hearings and approve or deny applications for Use Permits, Tentative Maps, and 

Variances.”28 We are satisfied that a member of the City’s Planning Commission holds a 

public office within the meaning of Government Code section 1099: it is created by statute, 

the tenure is continuing and permanent, and the incumbent performs a public function for 

the public benefit and exercises some of the sovereign powers of the state. 

Thus, we readily conclude that the offices at issue here are all “public offices” within 

the meaning of Government Code section 1099, and for purposes of our analysis. 

Does a District director’s concurrent holding of either City Council or Planning 

Commission member amount to impermissible incompatibility? 

We conclude that a District director may not concurrently serve on either the city 

council or on the city planning commission. An individual may not simultaneously hold 

two public offices if either office exercises a supervisory, auditing, or removal or veto 

power over the other; if there is any significant clash of duties or loyalties between the 

offices; or if the dual office holding would be improper for reasons of public policy.29 

Long ago we noted that “when the chances of each agency dealing with the other 

are substantial, the two offices are incompatible.”30 It is well established that a “past or 

present conflict in the performance of the duties of either office is not required for a finding 

24 Mammoth Lakes Mun. Code, §§ 2.32.040. 

25 Mammoth Lakes Planning and Economic Development Commission, “Overview,” 

https://www.ci.mammoth-lakes.ca.us/90/Planning-and-Economic-Development-Commis. 

26 Ibid. 

27 Ibid.; see Gov. Code, § 1099, subd. (d) (statute inapplicable to governmental body 

that “has only advisory powers”). 

28 Mammoth Lakes Mun. Code, § 17.96.030, subd. B.1. 

29 Gov. Code, § 1099, subd. (a); Rapsey, supra, 16 Cal.2d at p. 642; 90 

Ops.Cal.Atty.Gen. 24, 26 (2007). 

30 41 Ops.Cal.Atty.Gen. 98, 99 (1963) (emphasis added). 

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of incompatibility; rather, it is sufficient that a conflict may occur ‘“in the regular operation 

of the statutory plan.”’31 Nor is it necessary that the clash of duty exist in all or in the 

greater part of the official functions; it is enough when the holder of the two offices cannot 

in every instance discharge the duties of each.32 Thus, only “one potential significant clash 

of duties or loyalties is necessary to make offices incompatible.”33 Abstention when a 

conflict arises does not cure the incompatibility or obviate the effects of the doctrine.34 

The term “significant” is not defined in section 1099. In such a circumstance, 

applying traditionally accepted rules of statutory construction, we give words their ordinary 

meaning.35 Accordingly, we have construed the term to mean a clash that is not trivial and 

is more certain than mere chance.36 

Both healthcare districts and municipalities are empowered to condemn property by 

eminent domain.37 Both entities could seek to acquire the same property or the property of 

the other based on an asserted higher public use.

38 We have previously found this potential 

31 87 Ops.Cal.Atty.Gen. 142, 145 (2004), quoting 66 Ops.Cal.Atty.Gen. 176, 177 

(1983); accord, 87 Ops.Cal.Atty.Gen., supra, at p. 154; 75 Ops.Cal.Atty.Gen. 112, 116 

(1992) (lack of actual disputes or negotiations between two public entities immaterial to 

application of doctrine); 63 Ops.Cal.Atty.Gen., supra, at p. 624 (absence of significant 

interactions between city and airport district not determinative; potential interaction 

sufficient to render offices incompatible). The incompatible offices prohibition “does not 

await the occurrence of an actual clash before taking effect, but intercedes to prevent it.” 

(93 Ops.Cal.Atty.Gen. 110, 111 (2010).) 

32 Rapsey, supra, 16 Cal.2d at pp. 641, 642. 

33 85 Ops.Cal.Atty.Gen. 60, 61 (2002); 37 Ops.Cal.Atty.Gen., supra, at p. 22. 

34 85 Ops.Cal.Atty.Gen. 239, 240 (2001); 66 Ops.Cal.Atty.Gen., supra, at pp. 177-178; 

63 Ops.Cal.Atty.Gen. 710, 715-716 (1980). 

35 See, e.g., Outfitter Properties, LLC v. Wildlife Conservation Bd. (2012) 207 

Cal.App.4th 237, 244; In re Eureka Reporter (2008) 165 Cal.App.4th 891, 897; 64 

Ops.Cal.Atty.Gen. 905, 908 (1981); 60 Ops.Cal.Atty.Gen. 4, 7 (1977). 

36 93 Ops. Cal. Atty. Gen., supra, at p. 108. 

37 Gov. Code, § 37350.5; Health & Saf. Code, § 32121, subd. (d); see, e.g., Medical 

Acquisition Co., Inc. v. Superior Court (Tri-City Healthcare District) (2018) 19 

Cal.App.5th 313 (healthcare district condemnation); Sierra View Local Health Care Dist. 

v. Sierra View Medical Plaza Associates, LP (2005) 126 Cal.App.4th 478 (same). 

38 Code Civ. Proc., §§ 1240.610, 1240.660. We note that a dispute between a city and 

a hospital district involving the power of eminent domain arose in a matter underlying the 

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conflict to render incompatible the simultaneous holding of the office of city 

councilmember and school district board member.39 We think a similar conclusion is 

compelled here. 

The District and the City are also contracting parties regarding the provision of 

medical services to city government. The District is a major provider of medical and acute 

care services in Mammoth Lakes.40 We are told that the City contracts with the District 

for all pre-employment physicals, annual DMV physicals, and drug and alcohol tests. We 

are also told that the City and the District, together with Mono County and the 

Administrative Office of the Courts, collectively own a parcel of land located within the 

City, which they jointly administer pursuant to a memorandum of understanding. The 

contractual relationship between the District and the City poses a significant potential for 

conflicting interests or loyalties.41 

Planning commissions can regulate zoning and construction of local agencies such 

as a healthcare district.

42 The City’s Planning Commission issues land use permits and 

approvals, as well as building permits, for development within the city, including 

development by the District.

43 The potential for conflict over land-use decisions is an 

unpublished opinion in City of Palmdale v. Bd. of Directors of Antelope Valley Healthcare 

Dist. (No. B195219, Jan. 25, 2008) 2008 WL 204215 (City of Palmdale). We are mindful 

of Rule 8.1115 of the California Rules of Court, prohibiting reliance on unpublished 

opinions “by a court or party in any other action.” By its terms, the rule does not limit 

citations in our opinions. In any event, we mention City of Palmdale, not as support for a 

proposition of law but as a judicial record evidencing a property dispute between a city and 

a hospital district. (Cf. People v. Hill (1998) 17 Cal.4th 800, 847, fn. 9). 

39 73 Ops.Cal.Atty.Gen. 354, 356-357 (1990); 48 Ops.Cal.Atty.Gen. 141, 143 (1966); 

65 Ops.Cal.Atty.Gen. 606 (1982). 

40 See, e.g., Municipal Service Review, ante, note 3. 

41 See, e.g., 80 Ops.Cal.Atty.Gen. 74, 77 (1997) (simultaneous occupancy of offices of 

city manager and school board trustee); 73 Ops.Cal.Atty.Gen. 183, 187 (1990) 

(simultaneous occupancy of school and community services district boards); cf. People ex 

rel. Smith v. Brown (Ill. App. 2005) 828 N.E.2d 306, 309 (incompatibility resulting from 

potential conflict over jointly owned real property). 

42 Gov. Code, § 53090 et seq.; Mammoth Lakes Mun. Code, §§ 17.040.60. 

43 Mammoth Lakes Mun. Code, § 17.96.030, subd. B.1; Gov. Code, §§ 53091, subd. (a) 

(local agencies “shall comply with all applicable building ordinances and zoning 

ordinances of the county or city in which the territory of the local agency is situated”), 

65103, subd. (b) (implementation of general plan); see also Mammoth Lakes Mun. Code, 

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indicator of incompatibility.44 

The Legislature may provide exceptions to the general prohibition against 

simultaneous occupancy of incompatible offices.

45 And, indeed, the Legislature has done 

so in other contexts.46 No such exception exists here, however. We therefore conclude 

that a member of the Southern Mono Healthcare District board of directors may not 

simultaneously serve as a member of the city council for the Town of Mammoth Lakes or 

on the Mammoth Lakes Planning and Economic Development Commission. 

* * * * * 

§§ 2.32.040 (functions, powers, and duties of Planning Commission). 

44 See, e.g., City of Palmdale, supra, 2008 WL 204215; 95 Ops.Cal.Atty.Gen., supra, 

at p. 72 (simultaneous occupancy of city planning commission and sanitary district board); 

84 Ops.Cal.Atty.Gen. 91 (2001) (simultaneous occupancy of city planning commission and 

school district board); 64 Ops.Cal.Atty.Gen. 288 (1981) (simultaneous occupancy of 

county planning commission and county water district board); see also 

58 Ops.Cal.Atty.Gen. 323, 326 (1975) (incompatibility of simultaneous occupancy of 

county planning commission and hospital district boards). 

45 By its terms, Government Code section 1099 prohibits the concurrent holding of 

incompatible offices “unless simultaneous holding of the particular offices is . . . expressly 

authorized by law.” (Gov. Code, § 1099, subd. (a).) 

46 See, e.g., Water Code App., ch. 109, § 56 (West); Stats. 1969, ch. 441, § 13 

(constituent water agency may select one or more members of its governing board to serve 

on Metropolitan Water District board of directors). 

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