Can a California county supervisor also sit on the local transportation commission and a regional transit JPA at the same time?

Plain-English summary

Mono County's county counsel asked the Attorney General whether the doctrine of incompatible offices stopped one person from sitting at the same time on the county board of supervisors, the local transportation commission (the LTC), and the board of a joint powers authority (a JPA) created with neighboring counties to run transit service. Government Code section 1099 generally bars holding two public offices that have a possibility of a significant clash of duties or loyalties. The wrinkle is that section 1099 also says the rule does not apply when the simultaneous holding "is compelled or expressly authorized by law."

The Attorney General concluded that the Legislature has, in fact, expressly authorized each of the dual appointments Mono County asked about. Three statutes do the work. Government Code section 29535, part of the Transportation Development Act, says the LTC's seven members "may include members of the board of supervisors, the city councils, the transit district, and other local transit operators." Government Code section 6508, part of the Joint Exercise of Powers Act, lets a JPA's governing board be made up "exclusively of officials elected to one or more of the governing bodies of the parties to such agreement." Government Code section 25000 establishes that the supervisors are themselves elected officials of the county, which makes them eligible appointees under both statutes.

Because the Legislature wrote those statutes expressly to let constituent agencies send their own elected officials to represent them on regional bodies, the AG concluded the incompatible-offices rule does not block any of the four dual roles. The opinion did not need to decide whether each of the positions is technically a "public office" or whether their duties potentially clash. The express statutory authorization controlled.

One operational detail to flag: section 29536 limits the transit-operators' representative on the LTC from voting on certain funding claims that transit operators are not authorized to make (claims under Public Utilities Code section 99400 for streets and roads, bicycle and pedestrian projects, passenger rail, and similar uses). That voting limit is not a bar to the dual seat, just a narrowing of the seat's voice on a defined class of claims.

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 a "local transportation commission" and who funds it?
A: Under the Transportation Development Act (Gov. Code, §§ 29530-29536; Pub. Util. Code, §§ 99200-99420), each county may have a local transportation fund fed by percentages of state sales and fuel taxes. Those monies are continuously appropriated to the county's transportation planning agency. In Mono County the planning agency is set up as a "local transportation commission" with seven seats: three appointed by the supervisors, three by the city council of Mammoth Lakes (the only incorporated city), and one collectively representing the county's transit operators.

Q: What does "incompatible offices" mean under Gov. Code § 1099?
A: A public officer cannot hold two public offices simultaneously if either office can audit, overrule, or supervise the other; if there is a possibility of a significant clash of duties or loyalties; or if public-policy considerations make it improper to hold both. The simultaneous holding is permitted, however, when "compelled or expressly authorized by law." That last carve-out is the engine of this opinion.

Q: Why does sending a supervisor to a regional board not create the same conflict it usually would?
A: Because the Legislature designed it that way. The opinion quotes American Canyon Fire Protection Dist. v. County of Napa (1983) 141 Cal.App.3d 100 and McClain v. County of Alameda (1962) 209 Cal.App.2d 73 for the rule that "[t]here is nothing to prevent the Legislature from allowing, and even demanding, that an officer act in a dual capacity." Where statute provides for a constituent agency's elected official to sit on another body to represent that agency's interests, the divided loyalty is the point: the Lexin v. Superior Court court (47 Cal.4th 1050, 1090 (2010)) called this "a feature, not a bug" of representative democracy.

Q: Can a JPA's board be filled entirely with elected officials of its member agencies?
A: Yes. Government Code section 6508 expressly says the governing body of a JPA, "as provided in such agreement, and in any ratio provided in the agreement, [may] be composed exclusively of officials elected to one or more of the governing bodies of the parties to such agreement." Both the Yosemite Area Regional Transportation System Authority and the Eastern Sierra Transit Authority used that authority in Mono County.

Q: Are there any limits on the same supervisor holding two of these seats at once?
A: The opinion identifies one functional limit, not a categorical bar. Section 29536 prohibits the LTC's transit-operators' representative from voting on Public Utilities Code section 99400 claims (streets and roads, pedestrian and bicycle projects, passenger rail, special transportation assistance, farmworker transportation), because those claims belong to counties, cities, and transit districts, not to transit operators. The opinion's question four assumed the supervisor was filling one of the supervisors' three LTC seats, not the transit-operators' seat, so the section 29536 limit did not apply.

Q: Does this analysis extend beyond transportation boards?
A: The reasoning, yes. Whenever a state statute says member-agency officials may sit on a regional or joint body to represent their agency, that statutory grant generally abrogates the incompatible-offices rule for that pairing. The AG cited prior opinions reaching the same conclusion in fire-protection (84 Ops.Cal.Atty.Gen. 94 (2001)), water (95 Ops.Cal.Atty.Gen. 130 (2012); 90 Ops.Cal.Atty.Gen. 12 (2007)), and airport-authority (78 Ops.Cal.Atty.Gen. 60 (1995)) contexts.

Q: Does the AG decide whether each seat is a "public office" before applying the rule?
A: Section 1099 only applies if both seats are public offices. But where the Legislature has already abrogated the incompatibility rule by statute, the AG does not have to reach the public-office question. That is what the opinion did here, citing 84 Ops.Cal.Atty.Gen. 94 (2001) and 78 Ops.Cal.Atty.Gen. 60 (1995) for that order-of-operations.

Background and statutory framework

Three statutory schemes converge. First, Government Code section 25000 establishes the county board of supervisors and section 6508 lets joint powers agencies seat elected officials of their member agencies. Second, the Joint Exercise of Powers Act (Gov. Code, §§ 6500-6599.3) authorizes counties and cities to band together to perform common functions, including running public transportation services (Gov. Code, §§ 26002, 39732). Third, the Transportation Development Act (Gov. Code, §§ 29530-29536; Pub. Util. Code, §§ 99200-99420) creates the local transportation fund and the local transportation commission that allocates it.

Mono County's transit landscape involved three relevant bodies beyond the board of supervisors: the Mono County local transportation commission, established under Government Code section 29535; the Yosemite Area Regional Transportation System Authority, formed in 1999 with Merced and Mariposa Counties to provide transit service through Yosemite National Park; and the Eastern Sierra Transit Authority, formed in 2006 with Inyo County, the City of Bishop, and the Town of Mammoth Lakes to provide transit service in the eastern Sierra region. The latter two are JPAs that also qualify as "transit operators" under Public Utilities Code section 99420(b)(2).

The opinion's structural move was to rest each conclusion on express statutory authorization rather than on a duties-and-loyalties analysis. Government Code section 29535 authorizes supervisors and transit-operator board members to sit on the LTC. Government Code section 6508 authorizes county supervisors to sit on a JPA's board where the JPA agreement provides for it. Question four (whether the same supervisor can hold both an LTC seat and a JPA seat) was answered yes because the Legislature did not write a limit into either statute, and courts have declined to read in limits the Legislature did not impose (Flores v. Chevron U.S.A. Inc. (2013) 217 Cal.App.4th 337, 342-43; Hildebrand v. Dept. of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1571).

Citations and references

Statutes:
- Government Code section 1099 (incompatible public offices)
- Government Code section 6508 (JPA board composition)
- Government Code section 25000 (county board of supervisors)
- Government Code section 29535 (local transportation commission composition)
- Government Code section 29536 (LTC voting restrictions)
- Public Utilities Code section 99400 (claims by counties, cities, transit districts)
- Public Utilities Code section 99420(b)(2) (JPA as transit operator)

Cases:
- City of El Cajon v. Lonergan (1978) 83 Cal.App.3d 672
- American Canyon Fire Protection Dist. v. County of Napa (1983) 141 Cal.App.3d 100
- McClain v. County of Alameda (1962) 209 Cal.App.2d 73
- Lexin v. Super. Ct. (2010) 47 Cal.4th 1050
- Flores v. Chevron U.S.A. Inc. (2013) 217 Cal.App.4th 337
- Hildebrand v. Dept. of Motor Vehicles (2007) 152 Cal.App.4th 1562
- People v. Duz-Mor Diagnostic Laboratory, Inc. (1998) 68 Cal.App.4th 654

Prior AG opinions cited:
- 98 Ops.Cal.Atty.Gen. 94 (2015)
- 95 Ops.Cal.Atty.Gen. 130 (2012)
- 90 Ops.Cal.Atty.Gen. 12 (2007)
- 90 Ops.Cal.Atty.Gen. 24 (2007)
- 84 Ops.Cal.Atty.Gen. 94 (2001)
- 78 Ops.Cal.Atty.Gen. 60 (1995)
- 56 Ops.Cal.Atty.Gen. 310 (1973)

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/18-304.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. 18-304
July 25, 2019

THE HONORABLE STACEY SIMON, COUNTY COUNSEL OF MONO COUNTY, has requested an opinion on the following questions involving the prohibition against simultaneously holding incompatible public offices:

1. May a member of a county board of supervisors also serve as one of its appointed representatives to the county's local transportation commission, which allocates transportation funds to the county?

2. May a member of a joint powers agency, established by the county as a transit operator, also serve as the appointed representative of the transit operators to the local transportation commission, which allocates transportation funds to the joint powers agency?

3. May a member of the county board of supervisors also serve as one of its appointed representatives to a joint powers agency established by the county as a transit operator?

4. May a member of the county board of supervisors who is serving as one of its appointed representatives to the local transportation commission (see question one) also serve as one of the board's appointed representatives to a joint powers agency established by the county as a transit operator (see question three)?

CONCLUSIONS

1. A member of a county board of supervisors may also serve as one of its appointed representatives to the county's local transportation commission because the Legislature has expressly authorized such simultaneous service.

2. A member of a joint powers agency, established by the county as a transit operator, may also serve as the transit operators' appointed representative to the local transportation commission because the Legislature has expressly authorized such simultaneous service.

3. A member of the county board of supervisors may also serve as one of its appointed representatives to the joint powers agency established by the county as a transit operator because the Legislature has expressly authorized such simultaneous service.

4. Because the Legislature has not limited these express authorizations, the same member of the board of supervisors who is serving as one of its appointed representatives to the local transportation commission may also serve as one of the board of supervisors' appointed representatives to a joint powers agency established by the county as a transit operator.

ANALYSIS

Introduction

Mono County, its local transportation commission, and two transit operators organized by joint powers agreements with the county are responsible for meeting the transportation needs of their constituents. By state law, these governmental entities have their own governing boards.

First, under Government Code section 25000, a county must be governed by a board of supervisors that comprises five elected members. Pursuant to this statute, the Mono County Board of Supervisors has five members, each representing one of five geographical districts.

Second, the Transportation Development Act authorizes a county to have a local transportation fund in the county treasury to help finance local public transportation systems. The fund is generated by percentages of sales and fuel taxes, and its monies are continuously appropriated by the board of supervisors to the county's transportation planning agency. In Mono County, this agency is established as a "local transportation commission." Counties, cities, operators, and transit districts may make claims for transportation funds from the commission, whose board annually determines the quantity of funds that may be appropriated to each claimant. In Mono County, where there is no transit district and only one incorporated city (the Town of Mammoth Lakes), the governing board of its local transportation commission is composed of three members that the board of supervisors appoints, three members that the city council appoints, and one member who collectively represents the transit operators in the county. The Legislature has prescribed that these "appointments to the commission may include members of the board of supervisors, the city councils . . . , and other local transit operators."

Third, under the Joint Exercise of Powers Act, "two or more public agencies by agreement may jointly exercise any power common to the contracting parties . . . ." The governing body of a joint powers authority "may as provided in such agreement, and in any ratio provided in the agreement, be composed exclusively of officials elected to one or more of the governing bodies of the parties to such agreement."

Mono County entered into a joint powers agreement with Merced and Mariposa Counties in 1999 in order "[t]o provide and operate Transit Services to and through Yosemite National Park." The agency, denominated the Yosemite Area Regional Transportation System Authority, is governed by a board comprising "two voting directors from each of the members of the Authority" chosen by each member "from among the elected officials of any publicly elected political office within its geographic limits."

In 2006, Mono County entered into another joint powers agreement, this one with Inyo County, the City of Bishop (located in Inyo County), and the Town of Mammoth Lakes (located in Mono County) in order "to provide public transportation services within the jurisdiction and boundaries of the member entities." This joint powers agency is called the Eastern Sierra Transit Authority, and its board of directors consists of "two members appointed by the governing board of each member entity," at least one of whom must be one of the "members of that member entity's governing body."

We are asked whether the prohibition against holding incompatible public offices affects certain appointments that result in one person simultaneously serving on two or more of these governing boards. As we detail below, the Legislature has expressly authorized the appointments in question, so they are not prohibited.

The Law of Incompatible Offices

Government Code section 1099 provides that "[a] public officer, including, but not limited to, an appointed or elected member of a government board, commission, committee, or other body, shall not simultaneously hold two public offices that are incompatible." Offices are incompatible if "there is a possibility of a significant clash of duties or loyalties between the offices." The incompatible offices prohibition applies only when each position is a public office, rather than just a position of employment. Even so, the prohibition does not apply if the Legislature has authorized the simultaneous holding of offices. "Although a conflict of interest may arise under the . . . rule against incompatible offices, '[t]here is nothing to prevent the Legislature . . . from allowing, and even demanding, that an officer act in a dual capacity.'"

In particular, the incompatible offices doctrine does not apply "to situations where the directors of one public agency are authorized by the Legislature to be the representatives of constituent member public agencies." We have previously explained that where a state statute expressly permits a member of one local governing body to serve as that body's representative on another local governing body, "it would be anomalous to apply the incompatible offices rule . . . due to possible divided loyalties" because "the reason the member agency's representative is on the [other governing body] is to assert and promote the interests of the agency he or she is representing." Specifically, we have found that in the Joint Exercise of Powers Act, the Legislature abrogated the rule against holding incompatible offices as to constituent governing board members serving on the governing boards of joint powers agencies.

Here, we need not reach the questions of whether all three board positions, county supervisor, local transportation commission member, and joint powers authority member, are "public offices" and, if so, whether they are "incompatible" within the meaning of Government Code section 1099, because, as discussed below, we find that the Legislature has abrogated the rule against incompatible offices in the scenarios presented.

1. The Legislature has expressly authorized a county supervisor to serve as one of the board of supervisors' appointees to the local transportation commission.

In question one, we are asked whether a person may simultaneously serve on a county's board of supervisors and local transportation commission. Government Code section 29535 provides that a local transportation commission shall include "three members appointed by the board of supervisors, three members appointed by the city selection committee of the county or by the city council in any county in which there is only one incorporated city, and where applicable, three members appointed by a transit district and one member representing, collectively, the other transit operators in the county." This law expressly allows county supervisors to sit on the local transportation commission, specifying that commission members "may include members of the board of supervisors, the city councils, the transit district, and other local transit operators."

Government Code section 29535 is evidently designed so that each representative on the local transportation commission "may not only have a loyalty to his or her appointing agency but may even promote the interests of the appointing agency." It recognizes that a county supervisor appointed by the board of supervisors may be the best advocate for the county, which is one of the claimants for commission funds. Under this statute, "the 'check' on such representation of interests" by the county supervisor is provided by the other commission members "having loyalties to their appointing agencies", any incorporated cities, transit districts, and transit operators. To apply the incompatible offices prohibition to a supervisor appointed by the board of supervisors to the local transportation commission "would remove the person from the first office, potentially losing his or her knowledge of the interests that are to be represented." We conclude that simultaneous membership on the county board of supervisors and the county local transportation commission is expressly permitted by law.

2. The Legislature has expressly authorized a member of a joint powers authority established as a transit operator to serve as the transit operators' representative to the local transportation commission.

Question two also involves dual service, on a local transportation commission and the board of a joint powers authority established as a transit operator eligible to request funds from the commission. As with question one, Government Code section 29535 speaks to this question of incompatibility. It provides that the board of a local transportation commission shall include, "where applicable . . . , one member representing, collectively, the other transit operators in the county" and "may include members of the board of . . . other local transit operators." Elsewhere, the Legislature has affirmed that a transit operator may be organized as a joint powers authority.

In Mono County, where two joint powers authorities are transit operators that provide bus services for county residents, the board of the county's local transportation commission is to include a representative of these "other local transit operators." Further, this representative on the commission board may be one of the "members of the board" of one of these transit operators (the joint powers authorities). Just as the Legislature intended that a county supervisor may serve on the local transportation commission to represent the interests of the county, so did it intend that a transit operator board member may serve on the local transportation commission to represent the interests of the transit operators. Consequently, we find that the prohibition against simultaneously holding incompatible offices does not apply in this instance.

3. The Legislature has expressly authorized a county supervisor to serve as the board of supervisors' appointee to a joint powers authority established as a transit operator.

We are next asked, in question three, whether a member of a board of supervisors may be appointed to the governing board of a transit operator organized by a joint powers agreement between the county and other counties or cities. The answer to this question lies in a statute governing the composition of the board members of joint powers agencies, Government Code section 6508. This section contemplates that a joint powers agreement involving a county may specify that the board of the joint powers agency include supervisors, the elected officials of the county's governing body:

The governing body of any agency having the power to sue or be sued in its own name, created by an agreement . . . , between parties composed exclusively of parties which are cities, counties, or public districts of this state . . . , may as provided in such agreement, and in any ratio provided in the agreement, be composed exclusively of officials elected to one or more of the governing bodies of the parties to such agreement. . . . In the event that such [joint powers] agency enters into further contracts, leases or other transactions with one or more parties to such agreement, an official elected to the governing body of such party may also act in the capacity of a member of the governing body of such agency.

Consistent with this statute, the founding agreements of the two joint powers agencies supplying transit services in Mono County permit or require that a supervisor be appointed by the board of supervisors to serve on their governing boards.

Through Government Code section 6508, then, the Legislature has expressly authorized a county supervisor to simultaneously sit on the board of a joint powers agency of which the county is a member. It is "statutorily anticipated" that each member of the board of directors of the joint powers authority "is 'representing' the interests of his or her constituent member agency on the [a]uthority's board of directors." We believe that the Legislature intended a joint powers agency member's loyalty to his or her constituency to be "a feature, not a bug," of this system. We therefore conclude that these two positions are not incompatible offices.

4. The Legislature's express authorizations permit a county supervisor to serve both as the board of supervisors' appointee to the local transportation commission and to a joint powers authority established as a transit operator.

In question four, it is supposed that the board of supervisors appoints one of its members to the local transportation commission and also appoints the same supervisor to the board of a transit operator formed by a joint powers agreement with the county. We have concluded in response to questions one and three that, taken separately, each appointment does not violate the doctrine of incompatible offices because the Legislature has expressly authorized the board of supervisors to make each appointment. Having determined that the Legislature overrode any incompatible offices prohibition against serving as a county supervisor and the board of supervisors' appointee to the local transportation commission or as a county supervisor and the board of supervisors' appointee to a joint powers agency established as a transit operator, we must still consider whether the prohibition could nonetheless apply as to the same supervisor being appointed to both of these transportation boards.

We discern no such limitation in these statutory exceptions to the incompatible offices rule. That is, the Legislature, in expressly allowing service on each pair of boards simultaneously, has not prevented service on both pairs of boards simultaneously. The law was crafted so that supervisors may be appointed to the other two boards, and it strikes us as immaterial whether it is the same or different supervisor advocating for the county's interests there. Additionally, as we have explained in response to question two, the Legislature has also specifically authorized one person to serve on the local transportation commission and a transit operator board. We therefore conclude that a member of the board of supervisors who is serving as its appointed representative to the county's local transportation commission may also serve as the board of supervisors' appointed representative to a joint powers authority established by the county as a transit operator.