Can losing candidates challenge a California county retirement board election when ballots were mishandled and county resources were used for campaigning?
Plain-English summary
Four candidates who lost the 2017 election for trustee seats on the Fresno County Employees' Retirement Association Board of Retirement asked the California Attorney General for permission to file a quo warranto lawsuit against the three winners. Their evidence pointed to three problems with the election: 56 ballots came from 28 envelopes that each contained two ballots (one general-member ballot and one safety-member ballot, which was not allowed under the county's election rules); some ballots were delivered to the clerk in bulk (also barred by local rules); and county employees, including the winners themselves, allegedly used county time, county email, and county property to campaign. The contests had been very close: 35 votes, one vote, and three votes separated first from second place.
Before going to the AG, the relators had filed an election-contest case in Fresno County Superior Court. The court dismissed it on the basis that the election-contest statute did not cover county retirement-board elections. The relators then appealed, but later asked the appellate court to dismiss the appeal so they could pursue quo warranto instead.
The AG granted the application as to two of the three winners (Talford and Robinson, whose terms ran through December 31, 2020) and denied it as to the third (Adams), whose challenged term had already expired on December 31, 2018, while the election contest was on appeal. The AG noted that quo warranto is the right remedy to challenge a public officer's title once an election has been certified, that retirement-board trustees are public officers under California law, and that close margins combined with concrete documentary evidence of double-voting, bulk delivery, and improper campaigning presented substantial issues for a court to resolve. The opinion did not decide whether the elections were in fact invalid, only that the questions deserved a judicial answer and that the public interest favored letting the case proceed.
Currency note
This opinion was issued in 2019. 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
Q: Why did the AG say a county retirement-board trustee is a "public office" for quo warranto?
A: The opinion ran through the standard test for public office: governmental position, created or authorized by law, with continuing tenure, performing a public function, and exercising sovereign powers. The Fresno County Employees' Retirement Association satisfied all five. Trustees served three-year terms, used taxpayer funds, ruled on disability-retirement applications using subpoena power, and had constitutional plenary authority over the system (Cal. Const., art. XVI, § 17). The AG also pointed out that the Legislature had treated trustees as public officers in 2012 when it carved out a specific exemption from the incompatible-offices rule for them (Gov. Code, § 1099 context).
Q: Why was the earlier election-contest dismissal not preclusive?
A: Defendants Talford and Adams argued that the relators had already lost on the same facts in superior court, so re-litigation doctrines should bar the quo warranto action. The AG disagreed. The superior court had not reached the merits. It had dismissed on the threshold ground that the Elections Code's election-contest procedure (Elec. Code, § 16000 et seq.) did not reach county retirement-board elections at all. Without a merits decision, neither collateral estoppel (issue preclusion) nor res judicata (claim preclusion) applied (People v. Sims (1982) 32 Cal.3d 468, 484).
Q: What was the rule against bulk ballot delivery?
A: Fresno County's resolution governing the retirement-board election (Resolution 15-586) said: "Bulk delivery of voted ballots, defined here as over the counter delivery of more than one ballot by a single individual, will not be accepted by the Fresno County Clerk/Registrar of Voters office." Ballots had to be returned individually by the voter, by mail, or by a county messenger. The relators' evidence (e-mails, declarations, security-camera footage) suggested that two of the defendants had organized "ballot captains" who collected and delivered other members' ballots in bulk during business hours, and that the canvass did not show any ballots having been rejected on bulk-delivery grounds.
Q: What was the rule against using county resources to campaign?
A: Several layers. Government Code section 8314 prohibited public officials from using public resources (money, staff time, equipment, facilities) for campaign activities unless authorized by law. Government Code sections 3201-3207 expressed statewide concern about political activity by public employees and let local agencies regulate political activity during work hours and on agency premises. Fresno County Ordinance 3.08.110 and the county's Administrative Policy 71 echoed those rules at the local level. The relators alleged stationing campaign tables at a county health fair, mass campaign emails sent through county email accounts, and county-resource campaigning during business hours.
Q: Why was Adams treated differently?
A: Adams's three-year term ran from January 1, 2018, through December 31, 2018, because he had been elected to a partial term. By the time the AG was considering the application, his challenged term had already expired. The AG cited a long line of California opinions holding that quo warranto will not issue once the disputed term has ended, because there is no longer an officeholder to remove (87 Ops.Cal.Atty.Gen. 176, 179 (2004), citing earlier opinions back to 1955). For Talford and Robinson, the terms ran through December 31, 2020, so the question of who lawfully held the seat was still live.
Q: What about the local "challenge" procedure under Resolution 15-586?
A: The defendants argued that the relators should have used a local rule allowing candidates to challenge ballot validity before envelopes were opened. The AG said exhaustion was not required because the local procedure could not have addressed the relators' grievances. Double-voting could not be detected before envelopes were opened. Bulk delivery and improper campaigning could not be tied to particular ballots once the envelopes were open. The local resolution also said a candidate "may" challenge, not "shall" or "must," indicating the procedure was permissive rather than exclusive (Tarrant Bell Property, LLC v. Super. Ct. (2011) 51 Cal.4th 538, 542).
Q: Did the AG decide whether the trustees would actually be removed?
A: No. Quo warranto leave-to-sue opinions are gatekeeping decisions. The AG decides whether substantial questions exist and whether the public interest favors a lawsuit (Rando v. Harris (2014) 228 Cal.App.4th 868, 879). A superior court would then decide the merits, including whether the irregularities affected the outcome and whether the proper remedy was removal, a recount, voiding the election, or something else (Elec. Code, §§ 16601-16703; Gooch v. Hendrix (1993) 5 Cal.4th 266, 282). Officers' acts taken before any ouster generally remain valid (In re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21, 42).
Background and statutory framework
California public-employee retirement systems hold constitutional plenary authority over administering benefits (Cal. Const., art. XVI, § 17). Counties may operate their own systems under the County Employees Retirement Law of 1937 (Gov. Code, § 31450 et seq.). The Fresno County Board of Retirement was governed by Government Code section 31520.1 with nine members: the county treasurer, four appointed members, two elected general members, one elected safety member, and one elected retired member. Trustees served three-year terms.
Quo warranto is codified at Code of Civil Procedure section 803. To grant a private relator leave to sue, the AG must find: (1) quo warranto is the proper remedy; (2) a substantial issue of law or fact exists for judicial resolution; and (3) granting leave would serve the public interest (96 Ops.Cal.Atty.Gen. 36, 40 (2013)).
The AG concluded that all three prongs were met as to Talford and Robinson:
1. Proper remedy. Trustees held public offices for quo warranto purposes; the relators were challenging title to office based on election irregularities, which is a recognized quo warranto ground.
2. Substantial questions. The 28-envelope/56-ballot discrepancy could plausibly have decided contests with 35-vote, one-vote, and three-vote margins. Documentary evidence of bulk delivery and county-resource campaigning warranted judicial fact-finding.
3. Public interest. Resolving the recurring "ballot captains" practice in retirement-board elections would itself benefit the public, and no countervailing circumstances applied (98 Ops.Cal.Atty.Gen. 94, 101 (2015)).
Citations and references
Statutes:
- Code of Civil Procedure section 803 (quo warranto)
- California Constitution, article XVI, section 17 (retirement-system plenary authority)
- Government Code section 31450 et seq. (County Employees Retirement Law of 1937)
- Government Code sections 31520, 31520.1 (Fresno-type retirement board structure)
- Government Code section 31526 (regulations for retirement-board elections)
- Government Code section 8314 (use of public resources for political purposes)
- Government Code sections 3201-3207 (political activities of public employees)
- Elections Code sections 16000-16100 (election contests)
- Elections Code section 18521 (bribery)
Cases:
- Flethez v. San Bernardino County Employees Retirement Assn. (2017) 2 Cal.5th 630
- Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221
- Rando v. Harris (2014) 228 Cal.App.4th 868
- Gooch v. Hendrix (1993) 5 Cal.4th 266
- Moore v. Panish (1982) 32 Cal.3d 535
- People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636
- Bd. of Retirement v. Santa Barbara County Grand Jury (1997) 58 Cal.App.4th 1185
Local sources:
- Fresno County Board of Supervisors Resolution 15-586 (Dec. 8, 2015) (election regulations)
- Fresno County Ordinance 3.08.110 (employee political activity)
- Fresno County Administrative Policy 71 (use of government assets for campaigns)
Source
- Landing page: https://oag.ca.gov/opinions/yearly-index
- Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/18-202.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; LAWRENCE M. DANIELS, Deputy Attorney General
No. 18-202
April 19, 2019
Proposed relators EULALIO GOMEZ, THOMAS TRESTER, MONICA DIAZ, and JERI NOWAK have requested leave to sue proposed defendants RILEY TALFORD, JOHN ROBINSON, and JOHN ADAMS in quo warranto to remove them as trustees of the Board of Retirement of the Fresno County Employee Retirement Association on the ground that their elections resulted from violations of election procedures.
CONCLUSION
Leave to sue in quo warranto is GRANTED to determine whether the elections of proposed defendants RILEY TALFORD and JOHN ROBINSON as trustees of the Board of Retirement of the Fresno County Employee Retirement Association resulted from violations of election procedures. Leave to sue in quo warranto is DENIED as to proposed defendant JOHN ADAMS because his challenged term of office has expired.
ANALYSIS
Retirement boards for public employees have plenary authority and the fiduciary responsibility to administer the employees' retirement systems. Pursuant to the California Constitution, retirement board trustees must "administer the system in a manner that will assure prompt delivery of benefits and related services to the participants and their beneficiaries." The County Employees Retirement Law of 1937 permits a county to establish and operate a retirement plan, and to provide disability retirements, for the county's employees.
Under this law, the County of Fresno has established the Fresno County Employees' Retirement Association, governed by a Board of Retirement (Board). The Board's duties "consist primarily of protecting the assets of the retirement system through investment decisions and through actuarial valuations and adjustments; calculating benefits; delivering benefits and services to members and their beneficiaries; and deciding individual members' claims for benefits." The Board consists of nine members: the county treasurer, four appointed members, two elected general members, one elected safety member, and one elected retired member. Safety members are classified as "those employees who are in positions in which the principal duties consist of either active law enforcement or active fire suppression." General members are "all employees not classified as Safety members."
The two Board trustee positions representing general members (trustee positions 2 and 3) and the one Board trustee position representing safety members (trustee position 7) were up for election on November 16, 2017. In this election, the three proposed defendants (Defendants Riley Talford, John Adams, and John Robinson) prevailed over the four proposed relators (Relators Eulalio Gomez, Thomas Trester, Monica Diaz, and Jeri Nowak). For trustee position 2, Defendant Talford received 322 votes, Robert Bash (not a party in this matter) received 287 votes, Relator Nowak received 230 votes, and Bobby Bloyed (not a party in this matter) received 108. For trustee position 3, Defendant Adams received 348 votes, Relator Trester received 347 votes, and Relator Diaz received 243. For trustee position 7, Defendant Robinson received 180 votes and Relator Gomez received 177. The county clerk certified these results.
On December 19, 2017, after the election, Relators brought an election contest in Fresno County Superior Court challenging the election results. On February 2, 2018, the court dismissed the case on the basis that the statute authorizing election contests did not encompass elections for county retirement boards. On April 3, 2018, Relators appealed this dismissal to the Fifth Appellate District of the California Court of Appeal. On January 11, 2019, upon Relators' request, the court dismissed the appeal.
Meanwhile, between the superior court and Court of Appeal dismissals of the election contest case, Relators applied to the Attorney General to sue Defendants, on the same factual grounds, via a quo warranto legal theory. These grounds are that (1) 56 votes were counted from 28 voters who returned envelopes containing both a general member ballot and a safety ballot; (2) some completed ballots were delivered in bulk, rather than individually; and (3) Defendants unlawfully used county resources for political campaigning.
For the reasons that follow, we now find that Relators' well-supported grounds for relief warrant granting them leave to sue in quo warranto against Defendants Talford and Robinson, whose challenged terms will expire on December 31, 2020. We will deny Relators leave to sue against Defendant Adams, however, because the electoral term they challenge as to him expired on December 31, 2018.
Applicable Law on Quo Warranto
Quo warranto is a means of challenging whether a person unlawfully holds a public office. Before initiating a quo warranto proceeding in superior court, a person must obtain leave to sue from the Attorney General against a person "who usurps, intrudes into, or unlawfully holds or exercises any public office . . . within this state." In order to grant a quo warranto application, we must find that (1) quo warranto is the proper remedy to resolve an issue presented, (2) the application presents a substantial issue of law or fact appropriate for judicial resolution, and (3) granting the application would serve the overall public interest. We address these three requirements in turn.
- Is Quo Warranto a Proper Remedy?
For quo warranto to be an available remedy, Defendants must be holding public offices, and Relators must be challenging Defendants' titles to these public offices. A public office is a governmental position that is created or authorized by law with a continuing and permanent tenure in which the incumbent performs a public function and exercises some sovereign powers of government.
An application of this test convinces us that the position of trustee of a county retirement board is a public office. First, the position is governmental because the county and its subsidiary governing bodies are part of our state's governmental system, and because the Board uses taxpayer funds to perform its obligations. Second, the position is created or authorized by law because the state Constitution has authorized, and the Legislature has specifically created, this position. Third, the position has a continuing and permanent tenure because the Board's life is perpetual and its elected members serve regular (three-year) terms of office. Fourth, the Board performs a public function, the Fresno County Board of Supervisors having transferred to it the duty to provide for the county employees' retirement. By this delegation of power, the Board must "administer the [county retirement] system in a manner that will assure prompt delivery of benefits and related services to the [county] participants and their beneficiaries."
Lastly, the Board, through its trustees, exercises some sovereign powers of government using its constitutionally-provided "plenary authority" over the system. It possesses broad discretionary authority regarding investments of monies, and has the power to adjust benefits, correct errors or omissions in benefits, and audit a county or district to determine the accuracy of benefits. The Board further exercises "quasi-judicial powers" by ruling on applications for retirement benefits and disability retirements, and determining factual issues, such as whether a member is permanently incapacitated and whether the disability is service-connected; by appointing referees for hearings; and by exercising subpoena powers and administering oaths to witnesses. The Board is also empowered to formulate regulations, which become effective upon approval by the Fresno County Board of Supervisors. The Board must comply with the Brown Act's open-meeting rules because a county retirement board is a "local agency" for this purpose. And significantly, the Legislature in 2012 evidenced its belief retirement board trustees hold public offices (in the first instance) when it specifically exempted them from the legal prohibition against holding incompatible public offices. We find that Defendants hold public offices for quo warranto purposes as well.
Next, we turn to whether Relators are challenging Defendants' titles to these public offices. On this point, it is well established that a party may challenge an election by means of an election contest or a quo warranto complaint. Under a quo warranto theory, if the election was unlawful, a court may find that the elected official has no legal right to occupy the office.
Defendants Talford and Adams argue that even were quo warranto otherwise appropriate, this same matter was already litigated and dismissed with prejudice. But it was an election contest, not a quo warranto action, that the superior court dismissed with prejudice. The issues and claims presented in the election contest were not resolved on the merits; instead, the court determined that an election contest was not a statutorily authorized action to overturn an election of a trustee of a county retirement board. As a result, the re-litigation doctrines of collateral estoppel (issue preclusion) and res judicata (claim preclusion) do not apply.
- Is a Substantial Question of Law or Fact Presented?
Having found that quo warranto is a proper remedy in these circumstances, we turn to the question whether Relators have raised a substantial question of fact or law warranting judicial resolution. In this inquiry, it is not our role to resolve the merits of the controversy, but only to decide if a substantial question is presented.
Relators first claim that the county clerk erroneously counted 56 ballots from 28 persons who submitted envelopes containing two ballots each, a safety member ballot and a general member ballot. They argue that each of these 28 envelopes could properly contain only one ballot, a safety member ballot or a general member ballot. As mentioned, all members of the county retirement system are general members or safety members; a member may not retain both classifications at the same time. For retirement board elections, the Legislature has prescribed that general members elect the general member trustees, and that safety members elect the safety member trustee. Further, under Fresno County's election regulations, "[i]f the Fresno County Clerk determines that multiple ballots have been received from any voter, none of their ballots will be opened and counted." According to this regulation and state law, it appears the 56 votes from the 28 voters should have been excluded from the count, potentially deciding the three contests at issue, which had a margin between first and second place of 35 votes, one vote, and three votes.
Secondly, Relators contend that Defendants Talford and Adams organized county employees to act as "ballot captains" by collecting and delivering ballots and reporting these completed ballots to their campaigns. In support of this contention, Relators offer detailed documentary evidence, including declarations, office e-mails, and footage from security cameras. This evidence allegedly shows people collecting other members' ballots, one individual delivering "at least five handfuls of ballots in bulk," and others delivering multiple ballots to the ballot drop-box at the clerk's office.
Relators further allege as part of their second claim that on October 17, 2017, before the election, "supervising Fresno County representatives" directed Defendant Talford not to use any county time or systems to conduct retirement-association business but that thereafter, Talford's ballot captains continued their collection and delivery of ballots from other members during business hours. An alleged e-mail from Talford's supervisor subsequently admonished Talford for collecting a ballot envelope from a county janitor as Talford stood outside another supervisor's office on November 1, 2017.
The Fresno County rules for collecting and returning the Board-election ballots specify that "[v]oted ballots shall be returned, each in its official return envelope, by United States Postal Service, over the counter, or by County messenger, to the Fresno County Clerk/Registrar of Voters Office not later than 5:00 p.m. on the date of the election." These local election regulations further dictate, "Bulk delivery of voted ballots, defined here as over the counter delivery of more than one ballot by a single individual, will not be accepted by the Fresno County Clerk/Registrar of Voters office." Nothing recorded in the clerk's official canvass of votes reflects that any ballots were rejected because they were part of a bulk delivery. If it is true that Defendants Talford and Adams directed the collection and delivery of voters' ballots, in violation of election procedures, these ballots were more likely to have been cast in their favor, in which case the ballots may have affected the outcomes of the narrowly decided contests, potentially warranting Defendants' removal from the Board.
Third, Relators claim that Defendants improperly used county resources to campaign for election. To support this claim, Relators submit witness declarations and other documentary evidence indicating that Defendants Talford and Adams, in addition to organizing ballot captains to collect and deliver ballots, stationed tables on county property and at a county health fair (where they gave away campaign flyers and pizza), lobbied county employees, and "allowed entry into a raffle in exchange for written commitment pledges to vote for Defendants Talford and Adams." Regarding Defendant Robinson, Relators allege that his "supporters used County-issued computers and County-issued email addresses to actively campaign for Defendant Robinson during business hours," utilizing mass e-mails in favor of him and against Relator Gomez. If this alleged conduct occurred, it likely ran afoul of laws regarding political activities in the course of public employment, and may also have had an impact on the close trustee elections.
We find that Relators' factual allegations are well-supported and that their legal claims present viable grounds to attack the validity of Defendants' elections. While we do not purport to resolve these allegations, or determine their legal effect, we believe Relators have presented substantial questions of fact or law that warrant a judicial resolution.
- Would It Serve the Public Interest to Grant the Quo Warranto Application?
Absent countervailing circumstances, we view the existence of a substantial question of fact or law as presenting a sufficient "public purpose" to warrant granting leave to sue in quo warranto. Here, too, it is uncontested that the practice of "ballot captains" is a longstanding one in elections to this retirement board; thus, judicially resolving the parties' dispute would have the additional salutary effect of clarifying whether this practice is proper in future Board elections.
Defendants nonetheless assert, as a countervailing circumstance, that Relators should have availed themselves of another remedy afforded by local regulation. To wit, Defendants point to a county resolution that provides, "Prior to opening the official envelopes containing voted ballots, any candidate may challenge the validity of any ballot based on good cause, and in the event of any such challenge, the Fresno County Clerk/Registrar of Voters shall, consistent with these procedures, decide the validity of such ballot so challenged."
In our estimation, however, none of the alleged errors raised in Relators' application could have been raised under this local election procedure. Exhaustion of an administrative remedy is not required "where it would be futile to pursue such remedy." Relators could not have ascertained that 28 envelopes contained two ballots until after they were opened, not "[p]rior to opening." Besides, in canvassing the election results, the clerk reported this double-voting yet found she did not have the "jurisdiction" to determine its "legal effect." As to Relators' other two claims, the bulk delivery of ballots and the improper use of county resources for campaigning, neither one could be tied to a particular ballot when the envelopes were opened, and thus it appears that the clerk could not have afforded any relief. Moreover, we see nothing suggesting this local procedure was intended to be exclusive or mandatory, such that it would preclude a post-election quo warranto challenge, particularly as the county resolution provides that a candidate "may" contest the ballot's validity to the registrar, not that the candidate "shall" or "must" do so.
Having determined that quo warranto is an appropriate remedy here, and that substantial issues of fact and law warrant a judicial resolution of this election controversy, and that the public interest would be served by such a judicial resolution, we must still consider separately each proposed defendant's individual circumstances. Although the factual allegations made in this application involve all three proposed defendants, "[w]e have repeatedly declined to grant leave to sue in a quo warranto proceeding where the alleged unlawful term of office has expired, or the question of unlawfulness has become moot by subsequent events."
As to Defendants Talford and Robinson, a quo warranto action seeking their removal from office based on their disputed elections continues to be viable because the terms of office resulting from those elections do not conclude until December 31, 2020. However, as to Defendant Adams, we are informed that the term resulting from his disputed election ended on December 31, 2018 (while the now-dismissed election contest appeal was pending). Because Defendant Adams's challenged term has now expired, we must deny the quo warranto application as to him.
Accordingly, for the reasons discussed above, Relators' application for leave to sue in quo warranto is GRANTED as to Defendants Talford and Robinson and DENIED as to Defendant Adams.