If only one person files for a California water district seat and the appointment to fill the seat would create incompatible-office issues, can the county board of supervisors decline to appoint?

Plain-English summary

Two adjoining water districts in Kern County held at-large board elections. A sitting director of each district filed to run for the other district's board. Each was unopposed in the new district. Under Elections Code section 10515, when a candidate is unopposed and no voter petition is filed asking for an election anyway, the candidate can ask the "supervising authority" (here, the County Board of Supervisors) to appoint them rather than hold a pro forma election. The statute says the supervising authority "shall make these appointments."

The Kern County Registrar of Voters raised a concern: if both candidates were appointed, each would simultaneously sit on two water district boards, and that simultaneous service might run afoul of Government Code section 1099, the incompatible-offices statute. Could the Board of Supervisors refuse to make the appointments to avoid creating an incompatibility problem?

The AG said no. Elections Code section 10515 uses "shall," and the general rule is that "shall" is mandatory unless context, legislative history, or implied unreasonable purpose requires otherwise. Nothing in the statute, its legislative history, or the surrounding statutory scheme overcame the mandatory reading. The AG noted that the Legislature gave supervisors discretion in only one closely related circumstance: where no candidate filed at all, supervisors may appoint "any person to the office who is qualified." Where a candidate did file, the statute mandated appointment of that candidate, with no discretion to look behind eligibility.

But the AG's analysis did not stop there. The opinion confirmed that, although supervisors had to make the appointments, the appointed individuals could not lawfully hold incompatible offices once seated. Government Code section 1099 makes simultaneous holding of incompatible offices unlawful and provides for forfeiture of the first-held office on acceptance of the second. So if the two water district seats were ultimately found incompatible, each appointee would automatically forfeit the original water district seat upon accepting the second appointment.

That left two practical questions for the appointees: whether to accept the appointment at all (which would forfeit the original seat), or to decline and keep the original seat. The AG advised the parties to consider the consequences and to use quo warranto under Code of Civil Procedure section 803, the statutory enforcement mechanism in Government Code section 1099(b), to test the compatibility question if doubt remained.

The opinion also briefly noted that the question of incompatibility itself depends on facts and circumstances of each pair of offices. The AG was not asked to decide whether these particular two water district seats were incompatible. The opinion assumes for analysis that the supervisors had a "reasonable concern" without deciding the issue.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does "incompatibility of office" mean in California?

Government Code section 1099 prohibits a person from simultaneously holding two public offices when (1) one office can audit, overrule, remove, or supervise the other; (2) there is a possibility of a significant clash of duties or loyalties between them; or (3) public policy makes it improper. Only one of those needs to apply. The doctrine is structural: it asks whether the offices' powers can pull in opposite directions, not whether the individual would behave well.

What happens if two offices are found incompatible after appointment?

Government Code section 1099(b) provides for automatic forfeiture of the first-held office on acceptance of the second. The official does not choose which one to keep. Quo warranto under Code of Civil Procedure section 803 is the procedural mechanism to confirm and enforce the forfeiture.

Why couldn't the Board of Supervisors just refuse to appoint?

Because Elections Code section 10515(a) said the supervising authority "shall make these appointments," and California's interpretive default is that "shall" is mandatory. Nothing in the statute or its legislative history overcame the mandatory reading. The AG also noted Elections Code section 354 codifies this default for the Elections Code specifically.

Does the board of supervisors ever have discretion in section 10515 appointments?

Yes, but only in a different circumstance. Section 10515(b) addresses the case where no candidate has filed for the office. There the supervisors "shall appoint any person to the office who is qualified on the date when the election would have been held." The Legislature gave supervisors broad discretion to pick a qualified appointee in that no-candidate case. But where someone did file, the appointment of that filer is mandatory.

What can a candidate do if they think their appointment will trigger forfeiture?

Decline the appointment. The forfeiture rule applies only if the candidate accepts the second office. Declining preserves the first office. Alternatively, before accepting, the candidate can investigate the incompatibility question (e.g., by analyzing how the two boards' powers interact, looking at AG opinions about similar pairs, and possibly seeking AG leave to bring a declaratory quo warranto). After acceptance, declining the second is too late; the first is forfeited.

What does this opinion mean for county registrars of voters?

The registrar's concern about incompatibility is reasonable to flag, but it cannot stop the section 10515 appointment. The county must make the appointment, and the incompatibility question gets resolved post-appointment through forfeiture, declination, or a quo warranto proceeding.

Background and statutory framework

Elections Code section 10515

The Uniform District Election Law governs water district elections (Water Code section 35100). Section 10515 of the Elections Code provides that, when the number of candidates does not exceed the number of seats and no voter petition for an election is filed, an unopposed candidate may request that the supervising authority appoint them in lieu of holding a pro forma election. The supervising authority for a water district within a county is the county's board of supervisors. The statute says the supervising authority "shall make these appointments."

The purpose of these in-lieu-of-election statutes is administrative efficiency: where an election would just confirm the only filer, conducting a pro forma election simply burns ballot space and elections costs. The Legislature provided a streamlined alternative.

The "shall" default and its exceptions

In California codes, "shall" is mandatory unless context indicates otherwise. The AG identified the recognized exceptions: where a mandatory construction would be inconsistent with the statute's purpose, where it would imply an unreasonable purpose, where legislative history shows otherwise, or where other factors compel a different construction. Garrison v. Rourke (1948) is the classic example: a statute requiring a court to file findings within ten days in election contests was held not mandatory, because mandatory construction would divest the court of jurisdiction by implication. Hagopian v. State (2014) is a more recent example.

None of those exceptions applied here. Section 10515(a)'s purpose was to fill vacancies expeditiously when an election would not be useful. A mandatory reading served that purpose. Legislative history was silent. No factor suggested a discretionary reading.

The contrast with section 10515(b)

When no candidate has filed, section 10515(b) directs the supervising authority to appoint "any person to the office who is qualified on the date when the election would have been held." The Legislature gave broad discretion in that scenario, allowing supervisors to choose any qualified person. The AG's textual point: where the Legislature wanted supervisor discretion, it said so. Subdivision (a) does not contain similar discretionary language, so the appointment of the unopposed filer is mandatory.

The AG also pointed to Elections Code section 10229, subdivision (a)(3), and Public Utilities Code section 11852.5, subdivision (a)(3), which give cities and municipal utilities districts the option to hold an election anyway when there is an unopposed candidate. These statutes show the Legislature knew how to write discretion when it wanted to. The omission of such discretion in section 10515(a) was meaningful.

Government Code section 1099 and the post-appointment problem

Section 1099(a) prohibits simultaneous holding of incompatible offices except when "compelled or expressly authorized by law." Section 1099(b) makes the prohibition enforceable through quo warranto under Code of Civil Procedure section 803. The combined effect: section 1099 does not stop an appointment from happening; it makes the dual holding unlawful after the fact and forfeits the first office on acceptance of the second.

The AG drew on a long line of incompatibility opinions involving water districts, fire districts, school districts, sanitary districts, and other special districts to illustrate the doctrine's breadth (citations listed in the citations section below). The opinion did not decide whether these two specific water district seats were incompatible; that fact-specific question would be answered on the facts of how the two districts interact.

Quo warranto procedure for the incompatibility question

If parties want to test whether the two offices are incompatible, the statutory path is a quo warranto action. A private party or local agency must seek the AG's leave to sue. The application must be supported by factual allegations demonstrating the alleged incompatibility, and the challenged office holder may file a response and contest the alleged facts. California Code of Regulations title 11, sections 1 through 4, govern the procedural standards.

The quo warranto pathway has been the routine vehicle for testing district-office incompatibilities. It produces a court ruling that confirms forfeiture (or rejects the incompatibility theory) and definitively resolves which seat the official holds.

Citations

The AG's analysis draws on long-standing California incompatibility-of-office and statutory-construction authority:

• Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379 is the standard for California statutory construction.
• Garrison v. Rourke (1948) 32 Cal.2d 430 is the classic example of "shall" being construed as directory rather than mandatory because of jurisdictional implications.
• Hagopian v. State (2014) 223 Cal.App.4th 349 illustrates that a mandatory reading will be displaced when it would disserve the statute's manifest purpose.
• Binns v. Hite (1964) 61 Cal.2d 107 explains the legislative purposes of unopposed-candidate statutes: simplifying ballots, reducing election costs, and facilitating tabulation.
• Nicolopulos v. City of Lawndale (2011) 91 Cal.App.4th 1221 is the modern California authority on quo warranto procedure and the AG leave-to-sue framework.
• 97 Ops.Cal.Atty.Gen. 50 (2014) (Hornbrook fire/community services), 98 Ops.Cal.Atty.Gen. 94 (2015) (water replenishment/city council), 86 Ops.Cal.Atty.Gen. 205 (2003) (irrigation/board of supervisors), and the other AG opinions cited illustrate the doctrine's application to special-district pairings.

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/16-702.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
XAVIER BECERRA
Attorney General

OPINION
of
XAVIER BECERRA
Attorney General
MANUEL M. MEDEIROS
Deputy Attorney General

No. 16-702
August 23, 2018

THE HONORABLE MARK L. NATIONS, KERN COUNTY COUNSEL, has requested an opinion on the following question:

Does Elections Code section 10515, subdivision (a), require a board of supervisors to appoint a director to a water district if to do so would result in the appointee holding incompatible public offices under Government Code section 1099?

CONCLUSION

Elections Code section 10515, subdivision (a), requires a board of supervisors to appoint a director to a water district without regard to whether the appointment might result in the holding of incompatible offices under Government Code section 1099. Nonetheless, an individual so appointed may not lawfully hold incompatible public offices; thus, if the particular offices are incompatible, the appointee and would-be dual officeholder will be deemed to have forfeited the first-held office upon accepting appointment to the second.

ANALYSIS

We are informed that two adjoining water districts located in Kern County (County) scheduled at-large general elections for their respective boards of directors. A director on each water district board filed a declaration of candidacy for election to the other district. No other declarations of candidacy were filed in either district within the time for filing. Elections Code section 10515 governs water district elections, and provides that, in such a circumstance (and where a sufficient number of voters do not petition for an election be conducted anyway) an unopposed candidate may request that, in lieu of holding a pro forma election, the "supervising authority" (here, the County's board of supervisors) appoint him or her to the seat for which he or she declared candidacy.

Both unopposed candidates sought appointment under Elections Code section 10515, but the County Registrar of Voters raised concerns about whether the appointments would create incompatibility-of-office issues under Government Code section 1099, subdivision (a), and we are informed that, because of the Registrar's concerns, the County's board of supervisors did not make the appointments.

Here we are asked whether the board of supervisors may properly decline to make appointments to the director positions based on a concern over incompatibility of offices, i.e., despite the facially mandatory language of Elections Code section 10501, subdivision (a), which states that the "supervising authority shall make these appointments." We conclude that the board may not decline to make the appointments based on this concern, but hasten to add that incompatible dual office-holding (if that is indeed the result of such appointments) is nonetheless impermissible and carries specified legal consequences. Our analysis follows.

First, we think it important to clarify what is not at issue here. County Counsel has not asked whether the simultaneous occupancy of both director positions would amount to a holding of incompatible offices. The question of incompatibility requires consideration of the facts and circumstances of the individual case. "The doctrine springs from considerations of public policy which demand that a public officer discharge his or her duties with undivided loyalty." We have not been informed of the relationship between the two water districts, or of how the two districts might interact, or of how the duties of a director in respect to one district might be incompatible with his or her duty of loyalty to the other district. For purposes of analysis, however, we will assume that the board of supervisors could entertain a reasonable concern that the simultaneous occupancy of the two offices would run afoul of Government Code section 1099, subdivision (a).

In construing section Elections Code 10515, subdivision (a) (hereafter "section 10515(a)"), we apply settled principles of statutory construction. Our task "is to ascertain the intent of the Legislature so as to effectuate the purpose of the law." We start with the words of the statute themselves, "giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose." Where the plain meaning does not resolve a question of interpretation, we may consider legislative history and, if ambiguity persists, we may consider the consequences that will flow from a particular interpretation.

Generally speaking, the rule with California codes is that "shall" is mandatory and "may" is permissive. The general rule applies unless otherwise apparent from context; or unless a mandatory construction would be inconsistent with the statute's legislative purpose or would imply an unreasonable legislative purpose; unless legislative history shows otherwise; or unless other factors compel a different construction.

Section 10515(a) is not unique. Similar provisions, providing for appointments to office in the event of a lack of nominees, exist elsewhere in the codes. Indeed, similar statutes are common throughout the nation. The manifest purpose of these statutes is to fill a vacancy in an elective office expeditiously when election is not a practical or efficient option, either because of a lack of candidates or because the candidates would run uncontested.

We can find no reason to depart from the general rule calling for a mandatory construction where, as in the circumstances presented to us, an eligible candidate for the vacant seat has properly filed for election. Legislative history is silent on the matter and, accordingly, offers no basis for departing from the general rule. Appointment of the sole declared candidate as a ministerial function appears consistent with the intent of the Legislature.

Notably, the only instance in which section 15105 authorizes the board of supervisors to exercise discretion in the choice of appointee is in the circumstance where no candidate has declared for election to the post. In that circumstance, the board of supervisors is given discretion to appoint "any person to the office who is qualified on the date when the election would have been held." The Legislature could have allowed the supervisors similarly broad discretion to select any qualified appointee in any circumstance where an election would not test voter support for a candidate, as where the candidate would run unopposed. But the Legislature did not do so. Instead, in such a circumstance, and in the absence of evident desire among the voters to have an election anyway, the Legislature mandated appointment of the only eligible candidate. In that circumstance, then, we may not read into the statute any qualification for appointment other than eligibility for candidacy.

Our analysis cannot end there, however. Although the board of supervisors is statutorily required to appoint the unopposed candidates under the circumstances contemplated here, it is nonetheless unlawful for an individual to simultaneously hold two incompatible public offices. Thus, although we are not asked to resolve the incompatibility issue itself, we find it appropriate to advise that if the offices in question are legally incompatible, the appointed officials must either decline appointment to the second offices to which they would be appointed, or, if they choose to accept that appointment, they will forfeit their right to hold their original offices. The parties involved should carefully consider whether service on both boards would present a legal incompatibility, what options are available, and the potential consequences.

If there is doubt about whether the offices in question are legally incompatible, there is an established post-appointment judicial remedy available to test the compatibility of the offices. Subdivision (b) of Government Code section 1099 expressly provides that the statutory proscription against holding incompatible offices is enforceable pursuant to section 803 of the Code of Civil Procedure. This procedure, commonly known as quo warranto, is ordinarily brought by a private person or a local agency in the name of the Attorney General to test title to public office.

Quo warranto is a remedy commonly used to test incompatible holding of district offices. Again, in the event that two offices are adjudged to be incompatible, the would-be dual office holder is deemed to have forfeited the first office upon accepting the second. Accordingly, an interested member of the public or a local agency may seek leave to initiate a quo warranto proceeding to declare the first office vacant. A proceeding in quo warranto must be supported by factual allegations demonstrating the disabling incompatibility. The challenged office holder is permitted to file a response and contest the alleged facts.

Section 10515(a) is mandatory by its terms, and no justification appears in either the statutory context or in the legislative history for construing the statute to be other than mandatory. We therefore conclude that the statute requires the board of supervisors to appoint a director to a water district without regard to whether the appointment might subsequently result in the holding of incompatible public offices under Government Code section 1099. Nonetheless, an individual so appointed may not lawfully hold incompatible public offices; thus, if the particular offices are incompatible, the appointee and would-be dual officeholder will be deemed to have forfeited the first-held office upon accepting appointment to the second.