Can a California city council reverse its earlier appointment of one of its members to a regional joint powers board, and can a voter challenge that reversal in quo warranto?
Plain-English summary
In January 2018, the Santa Barbara City Council voted 3-2 to send Councilmember Jason Dominguez to represent the city on the governing board of the Santa Barbara County Association of Governments, a regional joint powers agency that distributes transportation funds and addresses regional issues. Less than a month later, on February 6, 2018, the council voted 3-2 again, this time to remove Dominguez and replace him with Mayor Cathy Murillo. One councilmember switched his vote.
A Santa Barbara voter, James Fenkner, asked the California Attorney General for permission to file a quo warranto lawsuit to remove Murillo from the SBCAG seat and put Dominguez back. His theory was that the February 6 motion was really a "Motion for Reconsideration" under Rosenberg's Rules of Order (the parliamentary procedures the council had adopted), and that under those rules, a motion to reconsider has to be made at the same meeting as the original vote. Since the original vote had been at a different meeting, he argued the action was procedurally invalid.
The Attorney General denied the application. Three reasons. First, the SBCAG seat was an at-pleasure appointment under both the joint powers agreement and Government Code section 1301, so the council could remove its appointee at any time, for any reason, by majority vote. Second, the February 6 motion was not denominated or treated as a motion for reconsideration, and the relator offered no evidence that any councilmember saw it that way. The motion was a fresh motion to remove and replace, which is a different procedural creature. Third, even if the council had broken its own parliamentary rules, that would not invalidate the action and would not give an individual voter standing to undo it. Parliamentary rules exist for the body's internal guidance; only members can complain about violations, and even they cannot use the rules to nullify otherwise-valid action. Both the city's Rules of Procedure and the city's Municipal Code said this expressly: the procedures are directory, not mandatory, and failure to follow them does not invalidate council action.
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: Can a city council change its mind about who to send to a regional board?
A: Yes, when the appointment is at-pleasure. The SBCAG joint powers agreement said city representatives "shall serve as long as he or she shall hold office [as mayor or city councilmember] or until resignation or removal by majority vote of the City Council represented." Government Code section 1301 added a default rule: any office whose term is not fixed by law is held at the pleasure of the appointing power. The council could remove and replace its appointee at any time, for any reason, with no cause and no hearing required (Brown v. Superior Court (1975) 15 Cal.3d 52, 54; Kimura v. Roberts (1979) 89 Cal.App.3d 871, 874).
Q: What is a Motion for Reconsideration under Rosenberg's Rules?
A: Rosenberg's Rules are simplified parliamentary procedures written by Yolo County Superior Court Judge Dave Rosenberg and adopted by many California public bodies. A Motion for Reconsideration suspends action on the original motion, which is why it must be made at the same meeting as the original motion. After the meeting ends and the action takes effect, reconsideration as a procedural tool is no longer available. Bodies wanting to revisit a completed action use a fresh motion, not reconsideration.
Q: Why did the AG say the February 6 motion was not a Motion for Reconsideration?
A: It was not labeled as one, no councilmember treated it as one, the agenda item said "Motion: Councilmembers Friedman/Murillo to remove Councilmember Dominguez from SBCAG and to replace him with Murillo," and the city attorney advised that a procedural objection raised by Dominguez was not well-taken. The AG noted that Dominguez had attended a January 18 SBCAG meeting as the city's representative, which signaled that the council itself considered the January 9 appointment to be a completed action, not one being suspended. So the February 6 vote was a new motion to remove a sitting at-pleasure appointee, exactly the kind of action the joint powers agreement and section 1301 specifically allowed.
Q: Even if a city council violates its own procedural rules, does that invalidate its action?
A: No, generally. The AG cited Grosjean v. Board of Education (1919) 40 Cal.App. 434, 437, which held that parliamentary rules are "adopted for the guidance, and it may be protection, of the members of the board, and which they [have] power to suspend or ignore when occasion require[s], and, in respect to their action in so doing, no one but the members of the board themselves have a right to complain." Santa Barbara's own Rules of Procedure made this explicit: "These Procedures are directory not mandatory. No action of the City Council shall be held invalid due to any failure to observe the provisions of these procedures, nor shall any person have a claim or cause of action against the City or any of its officers or employees as a result of any such failure." The Municipal Code said the same thing.
Q: Could a councilmember have raised the procedural objection differently?
A: A councilmember could have appealed the chair's decision to allow the motion forward under Rosenberg's Rules. Dominguez voiced an objection, but no other member seconded it as an appeal, no vote was taken on it, and the city attorney advised the objection was not well-taken. Without a seconded appeal followed by a council vote, the procedural objection did not get formal traction. Even if it had succeeded internally, the relator's theory that an outside voter could later invalidate the substantive vote on parliamentary grounds was a separate problem.
Q: What standard does the AG use for quo warranto leave-to-sue?
A: The AG decides whether substantial issues of fact or law warrant judicial resolution and whether granting leave will serve the public interest (Rando v. Harris (2014) 228 Cal.App.4th at 873). Allegations must rest on direct evidence, not on information and belief. Speculation does not suffice, especially when contradicted by facts. Here, the relator offered argument that the motion "should be construed" as a reconsideration, but no evidence that any participant treated it that way. As the AG put it, citing People v. Breaux (1991) 1 Cal.4th 281, 313, "argument is not evidence."
Q: Why was there no public interest in pursuing the case?
A: Even if the motion had been mislabeled, any defect was an internal council matter, not a usurpation-of-public-office issue. Pulling judicial resources into reviewing parliamentary technicalities, where the underlying authority to act was clear and the city's own rules said violations don't invalidate action, would not serve the public interest (citing 99 Ops.Cal.Atty.Gen. 74, 81 (2016)).
Background and statutory framework
Quo warranto under Code of Civil Procedure section 803 lets the AG, on his own information or on a private party's complaint, sue a person who "usurps, intrudes into, or unlawfully holds or exercises any public office." A private relator must obtain the AG's permission first.
The Santa Barbara County Association of Governments was established in 1966 by joint powers agreement among the county and its eight incorporated cities. SBCAG distributes transportation funds and serves as a regional planning forum. The governing body has the five Santa Barbara County supervisors plus one representative from each city.
Under California law, the position of city representative on a joint powers entity is generally an at-pleasure appointment unless the joint powers agreement or local charter says otherwise. The Government Code section 1301 default rule and the SBCAG joint powers agreement combined to make Santa Barbara's seat at-pleasure: the council could appoint and remove by majority vote. The opinion did not finally decide whether the SBCAG seat was a "public office" for quo warranto purposes (see 78 Ops.Cal.Atty.Gen. 60, 62 (1995)). It did not need to, because even assuming the seat was a public office, no substantial question existed.
Parliamentary procedure in Santa Barbara was governed by Rosenberg's Rules of Order, adopted by city resolution. The council's own Rules of Procedure declared the procedures "directory not mandatory" and disclaimed any private cause of action for violations. The Santa Barbara Municipal Code at section 2.04.020 paragraph B repeated the rule: failure to follow procedure does not affect council jurisdiction or invalidate action otherwise lawful.
Citations and references
Statutes:
- Code of Civil Procedure section 803 (quo warranto)
- Government Code section 1301 (offices not fixed by law held at pleasure of appointing power)
- Santa Barbara Municipal Code section 2.04.020 (procedural rules directory only)
Cases:
- Rando v. Harris (2014) 228 Cal.App.4th 868
- Brown v. Superior Court (1975) 15 Cal.3d 52
- Fee v. Fitts (1930) 108 Cal.App. 551
- Kimura v. Roberts (1979) 89 Cal.App.3d 871
- Grosjean v. Board of Ed. of City and County of San Francisco (1919) 40 Cal.App. 434
- City of Pasadena v. Paine (1954) 126 Cal.App.2d 93
- California Building Industry Association v. State Water Resources Control Board (2018) 4 Cal.5th 1032
- People v. Breaux (1991) 1 Cal.4th 281
Other:
- Rosenberg's Rules of Order (parliamentary procedures used by many California public bodies)
- Santa Barbara City Council Rules of Procedure
Source
- Landing page: https://oag.ca.gov/opinions/yearly-index
- Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/18-203_0.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. 18-203
April 11, 2019
Proposed Relator JAMES FENKNER has requested leave to sue proposed defendant CATHY MURILLO, the Mayor of Santa Barbara, in quo warranto, to remove her as the representative for the City of Santa Barbara on the governing board of the Santa Barbara County Association of Governments (SBCAG), and to reinstall Councilmember Jason Dominguez into that position, on the ground that the city council's removal of Dominguez and appointment of Murillo were actions taken in violation of the council's rules of order.
CONCLUSION
Proposed relator has failed to raise a substantial legal or factual question as to whether (1) the Santa Barbara City Council violated its own rules of order in removing Councilmember Dominguez and appointing Mayor Murillo as the city's representative on the SBCAG governing board, or (2) any such procedural violation would invalidate the actions taken. Nor would the public interest be served by allowing a quo warranto action to proceed under these circumstances. Accordingly, the application is DENIED.
ANALYSIS
The Santa Barbara County Association of Governments (SBCAG) is a regional planning agency consisting of Santa Barbara County and all eight incorporated cities within the county. "SBCAG distributes local, state, and federal transportation funds and acts as a forum for addressing regional and multi-jurisdictional issues."
SBCAG was established in 1966 under a joint powers agreement executed by Santa Barbara County and each of the city governments in the county (hereafter, Joint Powers Agreement). SBCAG's governing body comprises "the five members of the Santa Barbara County Board of Supervisors and one additional member from each incorporated city within the boundaries of the County of Santa Barbara which is a party to [the] agreement." The City of Santa Barbara (City) is a constituent member of SBCAG.
The Santa Barbara City Council (City Council) comprises seven members. According to the city's official website: "Each of the six Councilmembers serves a specific district within the City. The Mayor is the only at-large member of the City Council who represents the entire City."
On January 9, 2018, the City Council appointed Councilmember Jason Dominguez on a 3-2 vote to represent the City at SBCAG. Councilmembers Dominguez, Rowse, and Sneddon voted for Dominguez; Councilmember Friedman and Mayor Murillo voted for Murillo; and Councilmember Hart recused himself due to his employment with SBCAG. We are informed that, at the time of the appointment, one of the district-specific seats on the City Council was vacant.
Dominguez was later removed as SBCAG representative at a regular meeting of the City Council held on February 6, 2018. Following presentation of a report from the City Administrator, and testimony by five members of the public, the City Council considered a motion made by Councilmember Friedman and seconded by Mayor Murillo to remove Dominguez and replace him with Murillo. The motion passed 3-2. Councilmembers Dominguez and Sneddon voted "No"; Councilmember Hart again recused himself. Councilmember Rowse, who had previously voted to appoint Dominguez, joined with Friedman and Murillo to remove him and to appoint Mayor Murillo instead.
Proposed Relator alleges that the City Council's renewed consideration of its SBCAG representation at the February 6 meeting, and its subsequent motion to remove Dominguez as representative, amounted to an untimely "Motion for Reconsideration" in violation of Rosenberg's Rules of Order, the parliamentary rules that have been adopted by the City Council. He seeks leave to sue in quo warranto to remove Mayor Murillo from the position of City Council representative on SBCAG and to reinstall Councilmember Dominguez. For the reasons discussed below, we deny the request.
"Quo warranto," literally meaning "by what authority," was a writ at common law, by which the crown instituted a formal inquiry into whether a subject had the right to hold public office. The remedy is currently codified in section 803 of the Code of Civil Procedure, which provides in relevant part:
An action may be brought by the attorney-general, in the name of the people of this state, upon his own information, or upon a complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office . . . . And the attorney-general must bring the action, whenever he has reason to believe that any such office . . . has been usurped, intruded into, or unlawfully held . . . .
A private party seeking to bring such an action must obtain the consent of the Attorney General. In deciding whether to grant leave to sue we do not resolve the merits of the dispute, but only "decide whether the application presents substantial issues of fact or law that warrant judicial resolution, and whether granting the application will serve the public interest." Allegations must be based on direct evidence, not on information and belief. Speculation without evidence is insufficient, especially when contradicted by facts.
At the outset, we clarify what is not at issue here. Proposed Relator does not, and reasonably cannot, contend that Councilmember Dominguez acquired a vested right in the appointment on January 9. The position of SBCAG representative is an "at will" appointment of the City Council. The SBCAG Joint Powers agreement expressly states that "[t]he representative from each city . . . shall serve as long as he or she shall hold office [as mayor or city councilmember] or until resignation or removal by majority vote of the City Council represented." The Government Code specifies that "[e]very office, the term of which is not fixed by law, is held at the pleasure of the appointing power." Councilmember Dominguez, therefore, could be removed from the position at any time, for any reason. Moreover, in the absence of a statutory or charter provision to the contrary, the "pleasure" of the City Council is expressed by majority vote. In any event, Councilmember Dominguez is not himself before us claiming any right to the position.
Nor is Proposed Relator contending that the City Council lacks fundamental power or jurisdiction to remove Councilmember Dominguez. The City Charter provides: "All powers of the City shall be vested in the City Council except as otherwise provided in this Charter." Proposed Relator cites nothing in the City Charter that restricts the City Council's power to remove its designated appointee to SBCAG, and to then fill the vacancy created by that removal.
Instead, Proposed Relator alleges that the February 6 motion to remove Dominguez as representative was procedurally out of order as an untimely "Motion for Reconsideration." Proposed Relator implicitly concedes that the motion at issue was not on its face referred to or denominated as a Motion for Reconsideration. Rather, Proposed Relator argues that, however it was denominated, the motion should be construed to be a Motion for Reconsideration (that was therefore untimely per the council's rules of procedure). According to Proposed Relator, "There is no other reasonable interpretation of this action other than to determine it is a Motion for Reconsideration of the appointment of Mr. Dominguez to the board of SBCAG."
But "[i]t is axiomatic that argument is not evidence." Not only was the motion not denominated, as a "Motion for Reconsideration," but Proposed Relator has submitted no evidence that any member of the City Council believed the motion at issue to be a motion for reconsideration under Rosenberg's Rules. Moreover, no member of the City Council appealed from the Mayor's decision to move the motion forward on the ground that it was procedurally untimely. Accordingly, the evidence fails to demonstrate that the motion to remove Dominguez and appoint Murillo at the February 6 meeting was a Motion for Reconsideration within the meaning of Rosenberg's Rules.
Finally, even if the City Council did violate its own procedural rules, the violation would not invalidate either Dominguez's removal or Murillo's appointment. Nor, indeed, would it give rise to an interest that Proposed Relator may legally enforce. Parliamentary rules are "adopted for the guidance, and it may be protection, of the members of the board, and which they [have] power to suspend or ignore when occasion require[s], and, in respect to their action in so doing, no one but the members of the board themselves have a right to complain." Indeed, this rule is embodied in the City Council's Rules of Procedure:
These Procedures are directory not mandatory. No action of the City Council shall be held invalid due to any failure to observe the provisions of these procedures, nor shall any person have a claim or cause of action against the City or any of its officers or employees as a result of any such failure.
The City's Municipal Code is in accord: "The rules of procedure adopted pursuant to this chapter are deemed to be procedural only, and the failure to strictly observe such rules shall not affect the jurisdiction of the City Council or invalidate any action taken at a meeting that is otherwise held in conformity with law."
We conclude, then, that Proposed Relator has presented no substantial question of law or fact requiring judicial resolution. We therefore see no public interest to be served by the expenditure of scarce judicial resources in the pursuit of a quo warranto action. The application to proceed in quo warranto is DENIED.