Can the same person serve on a California school district board and a local utility district board at the same time?

Plain-English summary

Leticia Prado was elected to two boards in Kern County in 2016: the Vineland School District board and the Lamont Public Utility District board. Miguel Sanchez, another local candidate, asked the California Attorney General for permission to sue Prado in quo warranto and force her out of the school district seat. His theory was that holding both seats at once violated Government Code section 1099, which bars one person from simultaneously holding two incompatible public offices.

The Attorney General granted leave to sue. The opinion did not finally decide whether the two offices are actually incompatible. It only decided that there was a substantial issue of fact or law worth letting a court resolve. The reason it was substantial was concrete: the Lamont Utility District had authority to supply water and sewer service to at least one school inside the Vineland School District. That kind of supplier-customer relationship between the two bodies a single trustee was sitting on was the same pattern earlier AG opinions had treated as a real conflict of duties.

Two further pressure points made the issue substantial. First, a public utility district can offer a wide menu of services beyond water and sewer (fire protection, recreation, refuse, cable television, others), so the school district's options for new services tomorrow could push a dual officeholder into divided loyalties. Second, both the school district and the utility district have the power of eminent domain over each other for a superior public purpose, a feature the AG has repeatedly identified as a structural conflict.

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: What is quo warranto, in plain English?
A: It is a lawsuit, brought in the name of the People of the State of California, to test whether someone is lawfully holding a public office. A private person cannot file one directly. The person has to apply to the Attorney General first, and the AG decides whether to grant leave to sue. If leave is granted, the lawsuit then goes to superior court for a real merits decision.

Q: How does Government Code section 1099 define "incompatible" offices?
A: Three ways. One office has supervisory, audit, removal, or veto power over the other; or there is a possibility of a significant clash of duties or loyalties between the two; or public policy reasons make it improper for one person to hold both. Only one of those needs to apply.

Q: Why was this not just decided on the merits in the AG opinion itself?
A: Because at the leave-to-sue stage the AG does not act as the trier of fact. The AG looks at whether a substantial issue exists and whether a quo warranto suit would serve the public interest. If yes, the case proceeds to court for a real merits ruling. The AG noted that in earlier opinions involving school districts paired with community-services or water districts, it had repeatedly found incompatibility on the merits, but the appellant could still litigate the question.

Q: Why does it matter that the utility district could provide water and sewer services to the school?
A: Because rate-setting, billing, collection, lien enforcement, and contracting decisions made by the utility district directly affect the school district as a customer. Sitting on both boards puts one person on opposite sides of that relationship. The AG had reached the same conclusion in earlier opinions, including 85 Ops.Cal.Atty.Gen. 60 (2002) and 75 Ops.Cal.Atty.Gen. 112 (1992).

Q: What does the eminent domain point add?
A: Section 35270.5 of the Education Code lets a school district condemn property, and Public Utilities Code section 16404 lets a utility district do the same. A board member sitting on both bodies could be voting on takings between the two. Earlier AG opinions, including 98 Ops.Cal.Atty.Gen. 94 (2015) and 76 Ops.Cal.Atty.Gen. 81 (1993), treated overlapping condemnation power on its own as enough to render two offices incompatible.

Q: Are there any incompatible offices that California still permits?
A: Yes. Section 1099, subdivision (a) carves out cases where the simultaneous holding "is compelled or expressly authorized by law." The Joint Exercise of Powers Act and certain transportation statutes are common examples. None of those exceptions applied to the Vineland and Lamont offices.

Q: What does it mean that a person "forfeits" the first office?
A: Under section 1099, subdivision (b), the moment a person accepts a second, incompatible public office, they are deemed to have forfeited the first. The forfeiture is automatic in legal theory, but enforcement is not automatic. Someone has to bring a quo warranto action to actually vacate the seat, which is what Sanchez was applying to do here.

Background and statutory framework

Government Code section 1099 codifies California's common-law rule against holding two incompatible public offices and tells courts to keep applying common-law incompatibility precedents alongside the statute (subdivision (f), citing Stats. 2005, ch. 254, § 2). Code of Civil Procedure section 803 supplies the procedural vehicle: a quo warranto action by the People, which a private relator may bring with the AG's permission.

Public utility districts are creatures of the Public Utility District Act, Public Utilities Code section 15501 et seq. They have broad service-providing authority under sections 16031, 16461, 16463, and 16463.5, and the Cequel III Communications court (149 Cal.App.4th 310, 317 (2007)) cataloged the breadth of services such districts may offer. The Lamont Public Utility District in particular furnished water and sewer service, and at least one of Vineland's two schools sat inside the utility district's service area.

The AG's analysis tracks a long line of its own opinions concluding that a school district trustee and a director of an entity that provides water or sewer service to the school district hold incompatible offices. The 2019 opinion treated the utility district context as substantively the same.

Citations and references

Statutes:
- Government Code section 1099 (incompatible public offices)
- Code of Civil Procedure section 803 (quo warranto)
- Public Utilities Code sections 15501 et seq., 16031, 16404, 16461, 16463, 16463.5
- Education Code section 35270.5

Cases:
- Rando v. Harris (2014) 228 Cal.App.4th 868
- Cequel III Communications I, LLC v. Local Agency Formation Com. of Nevada County (2007) 149 Cal.App.4th 310

Prior AG opinions cited:
- 98 Ops.Cal.Atty.Gen. 94 (2015)
- 87 Ops.Cal.Atty.Gen. 30 (2004)
- 85 Ops.Cal.Atty.Gen. 60 (2002)
- 84 Ops.Cal.Atty.Gen. 154 (2001)
- 76 Ops.Cal.Atty.Gen. 81 (1993)
- 75 Ops.Cal.Atty.Gen. 10 (1992)
- 75 Ops.Cal.Atty.Gen. 112 (1992)
- 73 Ops.Cal.Atty.Gen. 183 (1990)
- 73 Ops.Cal.Atty.Gen. 268 (1990)
- 73 Ops.Cal.Atty.Gen. 354 (1990)
- 68 Ops.Cal.Atty.Gen. 171 (1985)
- 68 Ops.Cal.Atty.Gen. 240 (1985)
- 65 Ops.Cal.Atty.Gen. 606 (1982)
- 64 Ops.Cal.Atty.Gen. 137 (1981)

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/18-301.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; CATHERINE BIDART, Deputy Attorney General

No. 18-301
April 19, 2019

Proposed relator, MIGUEL SANCHEZ, requests leave to sue proposed defendant LETICIA PRADO in quo warranto to remove her from the public office of member of the Governing Board of the Vineland School District (School District trustee) on the ground that she has assumed a second, incompatible public office as a director of the Lamont Public Utility District (Utility District trustee), in violation of the ban on simultaneously holding incompatible offices set forth in Government Code section 1099.

CONCLUSION

Leave to sue is GRANTED because we find that a substantial issue of fact or law exists as to whether the offices of School District trustee and Utility District trustee are incompatible and cannot be held at the same time under Government Code section 1099, and therefore whether proposed defendant LETICIA PRADO has forfeited and must vacate her office of School District trustee.

ANALYSIS

We are asked to grant leave to sue in quo warranto to remove proposed defendant Leticia Prado from the office of School District trustee on the ground that she simultaneously holds the incompatible office of Utility District trustee. As we will explain, the Utility District's power to supply water and sewer services to the School District creates a substantial issue of fact or law as to whether the offices are incompatible, warranting leave to sue.

In December 2016, shortly after Ms. Prado assumed office as School District trustee, she assumed the additional office of Utility District trustee. The School District has two schools, at least one of which is within the service area of the Utility District. The Utility District provides water and sewer services, but such a district may also provide a variety of other services ranging from fire protection to cable television.

Latin for "by what authority," quo warranto was originally a writ used by English monarchs to challenge a royal subject's claim to an office or franchise supposedly granted by the Crown. Quo warranto has evolved into a statutory proceeding to determine, among other things, whether a person is entitled to hold a particular public office.

Government Code section 1099 codifies the common law prohibition against holding incompatible public offices, and the common law prohibition continues to inform and govern application of the statutory prohibition. An office is incompatible with another office if one of them has supervisory, auditory, removal, or veto power over the other. Incompatibility also exists where there is a potential for a significant clash of duties or loyalties between the offices in light of their respective powers and jurisdiction. Public policy considerations may also require a finding of incompatibility. However, holding incompatible offices is nevertheless permitted where it is compelled or expressly authorized by law.

Upon assuming a public office that is incompatible with one that the officer already holds, the officer is "deemed to have forfeited the first office upon acceding to the second." If the officer does not vacate the first office, an action to enforce the forfeiture may exist under Code of Civil Procedure section 803. This section authorizes a person, with permission from the Attorney General, to bring a quo warranto lawsuit (in the name of the People of the State of California) "against any person who usurps, intrudes into, or unlawfully holds or exercises any public office . . . ."

Seeing that quo warranto is the applicable remedy, we must decide whether to grant leave to sue. In doing so, we do not endeavor to make a conclusive determination on the merits. Rather, we assess whether a substantial issue of fact or law exists warranting judicial resolution, and, if so, whether allowing the proposed action to proceed would serve the overall public interest.

Substantial Issue as to Incompatibility of Offices

In light of the incompatible-offices ban, does simultaneous service as School District trustee and Utility District trustee create a substantial issue of fact or law warranting judicial resolution? In looking at potential grounds for incompatibility we observe that neither of these public offices holds supervisory, auditory, removal, or veto power over the other. Thus, we must look to the relevant duties and powers of the two offices to discern whether holding them at the same time risks a significant clash of duties or loyalties.

A school district, acting through its trustees, is responsible for obtaining water and sewer services for the benefit of its constituent schools, students, and employees. A utility district, acting through its trustees, is empowered to supply those services. Indeed, the Utility District here supplies water and sewer services.

We have previously determined that a person simultaneously holding offices with similar duties would potentially face a significant clash of duties or loyalties. Though our prior opinions did not arise in the precise context of school district trustee and utility district trustee, they arose in a similar context where a school district trustee simultaneously held office with an entity empowered to provide that school district with water or sewer service. In deciding a similar issue in the quo warranto context, we found a substantial issue of fact or law warranted the granting of leave to sue. Further, when asked to conclude outright whether the offices were incompatible (i.e., not merely whether a substantial issue exists as to their incompatibility), we determined that the incompatible-offices ban prohibits simultaneously holding such offices.

Here, we are asked for the first time to grant leave to sue where the entity empowered to supply the school district with water or sewer services is a utility district. We think the analysis in our prior opinions applies here and illustrates a potential for a significant clash of duties or loyalties between the offices of School District trustee and Utility District trustee.

For instance, in 2002, we concluded that two public offices within a school district and water district were incompatible, even though there was no direct contractual relationship between the two entities. The school used its own septic tanks for sewage and mostly used its own wells for irrigation water, but obtained non-irrigation water from agencies supplied by the water district. We found that the possibility of a decision by the school district to abandon its wells and instead obtain irrigation water supplied indirectly by the water district created a clash of loyalties. We found a similar clash based on the possible decision by the school district to abandon its septic tanks and instead use the water district's sewer facilities. We recognized that these decisions would affect the school district and water district in different ways, and that what may be in the best interests of one might not be in the best interests of the other. We also identified further potential clashes, including that the water district set the wholesale water rate that is passed on to the school district by the retail water agencies.

And in 1992 and 1990, we granted leave to sue in quo warranto based on the incompatibility-offices ban in the context of a school district trustee and community services district officer. Our 1992 opinion provided in relevant part:

Whether the two offices at issue are incompatible need not be extensively discussed. The precise question was analyzed recently in 73 Ops.Cal.Atty.Gen. 183 (1990). In [that] opinion, a community services district supplied water to a school district. We analyzed the duties of the community services district director with respect to (1) determining water rates for various users, (2) taking action to collect unpaid charges, (3) assessing penalties, (4) entering into contracts with other public entities for the installation of requisite water facilities, and (5) imposing capital facilities fees on water users and contracts with respect thereto. We also pointed out that the same person, as a school district trustee, would be involved in matters such as (1) whether to pay for or contest charges for water services, which if unpaid could become a lien upon school district property, and (2) any contract negotiations with the community services district over matters of mutual interest. Based solely upon the fact that the community services district was supplying water to the school district, we concluded that leave to sue should be granted. We stated [that] "... upon this function alone, without regard to the numerous others which may be assumed in the future, our determination that principal or important duties, functions, and responsibilities of the respective offices either are or might come into conflict."

The 1992 opinion went on to conclude that the danger of a significant clash of loyalties was even greater than in the 1990 opinion because the community services district supplied both water and sewer services (rather than just water) to the school district.

Here, the Utility District, similar to the entities discussed in our prior opinions, is authorized to provide the School District with water and sewer services. While a utility district's authority to provide such services derives mostly from its own statutes (rather than those specific to a community services district or water district), the duties and implications arising from such authority are sufficiently similar for purposes of the incompatible-offices ban. For example, a utility district may charge and set rates; it may institute a special tax or assessment to pay for district operations; and, if a user's payment is delinquent, the district may take action to collect unpaid charges, which may be added to an assessment and become a lien against the land. A dual officeholder's awareness that the School District is on the receiving end of such Utility District decisions may well create a significant conflict of loyalties.

In addition, our prior opinions recognized that a community services district could provide more than just water or sewer services (including, among others, fire protection, parks and recreation, street lighting, refuse disposal, and police protection), and concluded that "the question whether to add one or more community services district functions could place an individual who is both a community services district director and a school district trustee in a role of divided duties and loyalties."

The same is true here. In addition to water and sewer services, a utility district may provide an array of services including fire protection, recreation, light, power, heat, refuse disposal, transportation, and cable television, among other things. A decision by the School District to acquire further services from the Utility District could place a person who is a trustee of both entities in a role of divided duties and loyalties.

Furthermore, both the Utility District and School District have eminent domain power over the other for a superior purpose. On numerous occasions we have determined that this common power of eminent domain creates a significant division of loyalties, so we think this common power here must at least create the possibility of divided loyalties.

In sum, the duties and powers held by a School District trustee and Utility District trustee demonstrate that a person who holds both offices simultaneously could have divided loyalties in numerous situations arising from the conduct and operation of each district. What might be best for the School District might not be best for the Utility District, and vice versa. As only one potential significant clash of duties or loyalties needs to exist to render offices incompatible, we find a substantial issue of fact or law exists warranting judicial resolution.

Public Interest in Allowing Quo Warranto Action to Proceed

We now turn to the question whether granting leave to sue would serve the public interest. "We generally view the need for judicial resolution of a substantial question of fact or law as a sufficient 'public purpose' to warrant granting leave to sue, absent countervailing circumstances not present here (such as pending litigation or shortness of time remaining in the term of office)." And here specifically, allowing the suit in quo warranto would serve the public interest by ensuring that public officials avoid conflicting loyalties in performing their duties.

Based on all of the foregoing, the application for leave to sue in quo warranto is GRANTED.