Can a Californian serve at the same time on a city council and on the local water district board?

Question

The Los Angeles County District Attorney applied to the AG for leave to sue David Argudo in quo warranto to remove him from the La Puente City Council, on the ground that Argudo also holds the second, incompatible office of director of the La Puente Valley County Water District in violation of Government Code § 1099.

Conclusion

Granted. There is a substantial issue under § 1099 as to whether the two offices are incompatible because the Water District supplies water to City residents (and to the City itself), so Argudo as a director may participate in rate-setting and contracting decisions that pit water-district revenue interests against city-resident cost interests. Allowing the quo warranto action to proceed serves the public interest in ensuring public officials avoid conflicting loyalties. The opinion leaves the merits for the court to decide.

Official Citation: 106 Ops.Cal.Atty.Gen. 10

Plain-English summary

David Argudo was elected to the La Puente City Council and to the La Puente Valley County Water District Board of Directors in November 2020. He took both offices in December 2020. The Water District supplies water to La Puente residents and to City facilities. The LA County District Attorney brought a quo warranto application asking for leave to sue Argudo in superior court to remove him from the City Council seat, on the theory that under Government Code § 1099 he could not lawfully hold the two offices simultaneously and forfeited the first when he assumed the second.

The AG applies a three-part test on quo warranto leave applications: (1) is quo warranto an available remedy, (2) is there a substantial issue of law or fact, and (3) is granting leave in the public interest. The AG does not resolve the merits at this stage; the merits go to superior court.

On availability: § 1099(b) directs that the forfeiture of an incompatible public office is enforceable through Code of Civil Procedure § 803 quo warranto. Membership on a city council and on a water district board are both "public offices" under § 1099(a). Quo warranto is the right vehicle.

On substantial issue: § 1099(a) prohibits a public officer from "simultaneously hold[ing] two public offices that are incompatible." Two offices are incompatible if there is a possibility of a significant clash of duties or loyalties between the offices. Only one potential significant clash is needed. The opinion discusses People ex rel. Lacey v. Robles (44 Cal.App.5th 804), where a court found the particular city council and water replenishment district offices incompatible because of conflicting duties over fees. It also discusses prior AG opinions about overlapping city and water district authority. For Argudo, the AG found a substantial issue for judicial resolution without deciding whether his offices are incompatible.

On public interest: the AG generally views the need for judicial resolution of a substantial question as a sufficient public purpose, absent countervailing factors like pending litigation or imminent term expiration. None applied here. Granting leave was therefore appropriate.

What this means for you

City councilmembers, water district directors, and other local officials

The opinion explains that under Government Code section 1099, potential clashes of duties or loyalties can make offices incompatible. It identifies water rates, contracts, and overlapping authority as potential issues in this case. It grants permission to sue so a court can decide whether these particular offices are incompatible. Section 1099(b) provides for forfeiture of the first office if two offices are found incompatible.

Candidates for local office

The opinion explains the incompatibility rule and section 1099(b)'s forfeiture consequence if two offices are incompatible. It does not decide whether Argudo forfeited an office or address candidate strategy.

County district attorneys and city attorneys

The opinion applies the AG's standard three-part quo warranto leave test (availability, substantial issue, public interest). The opinion cites Robles as the closest factual match for water-district / city-council pairs and 37, 73, 82, 85 (twice), and 98 Ops.Cal.Atty.Gen. as related authority.

Voters and good-government observers

The opinion treats quo warranto, prosecuted by the AG or by private relators with AG leave, as the route to judicial resolution of incompatible-office claims.

Common questions

What is "quo warranto" and why does the AG decide who can use it? Quo warranto (Code Civ. Proc. § 803) is a civil action to challenge an incumbent public official's right to hold the office. The AG screens applications for leave to sue (the AG can sue directly or grant a private "relator" leave to sue). Screening filters meritless suits without resolving the merits, which go to superior court.

What test does California use for incompatible offices? Government Code § 1099. Two offices are incompatible if there is "a possibility of a significant clash of duties or loyalties." Only one potential significant clash is needed. The conflict does not need to have actually occurred. § 1099(b) automatically forfeits the first office when the holder accedes to the second.

Does this opinion decide whether a city council seat and water district seat are incompatible? No. The AG found a substantial issue warranting a court case. It cited Robles, where a court found the particular city and water district offices incompatible, and prior AG opinions about overlapping jurisdictions.

What happens if I accept a second incompatible office? Under § 1099(b), a person who accedes to a second incompatible office is deemed to forfeit the first. Forfeiture is enforceable through quo warranto. The opinion says a holder of incompatible offices cannot avoid the doctrine simply by choosing not to perform one role.

Can the doctrine be waived if both bodies consent?
The opinion identifies an exception when holding both offices is "compelled or expressly authorized by law" and says no such law applies to the offices in this case. It does not discuss consent by the two bodies.

How does this opinion compare to People ex rel. Lacey v. Robles? Robles (2020) is the closest factual parallel: a city mayor/councilmember who also served as a director of the area water replenishment district was found to hold incompatible offices. The court emphasized that the water district set rates paid by city residents, creating an obvious potential conflict. The AG used Robles in finding a substantial issue for the court to resolve here.

Background and statutory framework

Incompatibility doctrine:

• Cal. Gov. Code § 1099(a): no simultaneous holding of incompatible public offices.
• Cal. Gov. Code § 1099(a)(2): incompatibility test (possibility of significant clash of duties or loyalties).
• Cal. Gov. Code § 1099(b): automatic forfeiture of first office; enforcement via quo warranto.

Quo warranto procedure:

• Cal. Code Civ. Proc. § 803: AG (or AG-authorized relator) brings action against any person who "usurps, intrudes into, or unlawfully holds or exercises any public office."
• AG three-part test for granting leave: (1) quo warranto available, (2) substantial issue, (3) public interest.

Authorities applied:

• People ex rel. Lacey v. Robles (2020) 44 Cal.App.5th 804 (city + water replenishment district found incompatible).
• People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636 (clash need not occur in all functions).
• Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221.
• Rando v. Harris (2014) 228 Cal.App.4th 868.
• Prior AG opinions: 37 Ops.Cal.Atty.Gen. 21 (1961); 67 Ops.Cal.Atty.Gen. 409 (1984); 68 Ops.Cal.Atty.Gen. 337 (1985); 72 Ops.Cal.Atty.Gen. 15 (1989); 73 Ops.Cal.Atty.Gen. 268 (1990); 76 Ops.Cal.Atty.Gen. 157 (1993); 82 Ops.Cal.Atty.Gen. 68 (1999); 85 Ops.Cal.Atty.Gen. 60 (2002); 85 Ops.Cal.Atty.Gen. 199 (2002); 95 Ops.Cal.Atty.Gen. 77 (2012); 97 Ops.Cal.Atty.Gen. 12 (2014); 98 Ops.Cal.Atty.Gen. 94 (2015).

Citations

• Cal. Gov. Code § 1099
• Cal. Code Civ. Proc. § 803
• People ex rel. Lacey v. Robles (2020) 44 Cal.App.5th 804
• People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636
• Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221
• Rando v. Harris (2014) 228 Cal.App.4th 868

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/22-1001.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
___
:
OPINION
:
:
of
:
:
ROB BONTA
:
Attorney General
:
:
KARIM J. KENTFIELD
:
Deputy Attorney General
:

No. 22-1001
January 26, 2023

The DISTRICT ATTORNEY OF LOS ANGELES COUNTY has applied to this office for leave to sue DAVID ARGUDO in quo warranto to remove him from his public office as a member of the La Puente City Council. The application asserts that Argudo, while serving on the La Puente City Council, assumed a second and incompatible public office as a member of the La Puente Valley County Water District Board of Directors, in violation of Government Code section 1099, and by doing so forfeited his seat on the La Puente City Council. We conclude that there is a substantial legal issue as to whether Argudo is simultaneously holding incompatible public offices. Consequently, and because the public interest will be served by allowing the proposed quo warranto action to proceed, the application for leave to sue is GRANTED. BACKGROUND The City of La Puente is a general law city in Los Angeles County. It is governed by a five-member City Council. 1 In portions of La Puente, water services are managed The City of La Puente, City Council, https://lapuente.org/city-council (as of Jan. 24, 2023).

1

1

22-1001

by the La Puente Valley County Water District. 2 The Water District supplies water from groundwater wells to residential and commercial buildings, including facilities owned and operated by the City itself. The Water District is governed by a five-member Board of Directors. 3 In November 2020, David Argudo was elected to serve on both the La Puente City Council and the Water District Board of Directors. He began his current term on the City Council on December 10, 2020. 4 Four days later, on December 14, 2020, he began his current term on the Water District Board of Directors. The Los Angeles County District Attorney now contends that the two offices Argudo holds are legally incompatible under Government Code section 1099. Section 1099(b) provides that a public officeholder who assumes a second, incompatible public office thereby forfeits the first office held, and that this forfeiture is enforceable through an action in quo warranto. Based on this alleged incompatibility of offices, the District Attorney requests our permission to file a quo warranto lawsuit in superior court seeking Argudo’s removal from the La Puente City Council. Argudo did not file an opposition to the quo warranto application. ANALYSIS Quo warranto is a civil action used, among other purposes, to challenge an incumbent public official’s right or eligibility to hold a given public office. 5 This form of action is codified in section 803 of the Code of Civil Procedure, which provides that “[a]n 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 . . . within this state.” 6

La Puente Valley County Water District, About Us, https://lapuentewater.com/about-us (as of Jan. 24, 2023).

2

La Puente Valley County Water District, Board of Directors, https://lapuentewater.com/governance/board-of-directors (as of Jan. 24, 2023).

3

Argudo has previously served on the La Puente City Council as well. (See The City of La Puente, Election & Voter Information, Past Election Results, https://lapuente.org/election-and-voter-information (as of Jan. 24, 2023).)

4

Code Civ. Proc., § 803; Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221, 1225; 76 Ops.Cal.Atty.Gen. 157, 162-163 (1993).

5

Code Civ. Proc., § 803; see Rando v. Harris (2014) 228 Cal.App.4th 868, 873; 97 Ops.Cal.Atty.Gen. 12, 14 (2014).

6

2

22-1001

Where a private party seeks to pursue a quo warranto action in superior court, that party (known in this context as a relator, or proposed relator) must first apply for and obtain the Attorney General’s consent to do so. In determining whether to grant that consent, we do not attempt to resolve the merits of the controversy. Rather, we consider (1) whether quo warranto is an available and appropriate remedy; (2) whether the proposed relator has raised a substantial issue of law or fact that warrants judicial resolution; and (3) whether authorizing the quo warranto action will serve the public interest. 7 Here, the answer to all three questions is “yes,” and we therefore grant leave to sue.

1. Availability of Quo Warranto Remedy
   Section 1099(b) directs that the forfeiture of an incompatible public office is “enforceable pursuant to Section 803 of the Code of Civil Procedure,” which authorizes an action in the nature of quo warranto to remove a person who unlawfully holds any public office. Under section 1099(a), a public office includes membership on a government board or body, such as a city council or a water district board of directors. Thus, quo warranto is an available and appropriate remedy here.
2. Substantial Issue Regarding Incompatibility
   We next examine whether there is a substantial issue of law or fact as to the incompatibility of the two public offices in question. Section 1099(a) provides that “[a] public officer, including, but not limited to, an appointed or elected member of a governmental board, commission, committee, or other body, shall not simultaneously hold two public offices that are incompatible.” 8 That prohibition “springs from considerations of public policy which demand that a public officer discharge his or her duties with undivided loyalty.” 9 As relevant here, two offices are incompatible if “there is a possibility of a significant clash of duties or loyalties between the offices.” 10 Upon a finding that two offices are legally incompatible, “a public officer shall be deemed to have forfeited the first office upon acceding to the second.” 11 To find that two offices are incompatible based on a significant clash of duties or loyalties, a conflict need not have actually occurred; it is enough that a conflict may occur 7

Rando v. Harris, supra, 228 Cal.App.4th at p. 879; 72 Ops.Cal.Atty.Gen. 15, 20 (1989).

The prohibition does not apply if the “simultaneous holding of the particular offices is compelled or expressly authorized by law.” (Gov. Code, § 1099, subd. (a).) No law compels or expressly authorizes the simultaneous holding of the offices at issue here.

8

9

68 Ops.Cal.Atty.Gen. 337, 339 (1985).

10

Gov. Code, § 1099, subd. (a)(2).

11

Gov. Code, § 1099, subd. (b).
3

22-1001

in the regular operation of the statutory plan. 12 Nor is it necessary for a clash of duties or loyalties to occur in all or in the greater part of the official functions. 13 Indeed, “[o]nly one potential significant clash of duties or loyalties is necessary to make offices incompatible.” 14 When two offices are deemed incompatible, the conflicted officeholder may not escape the effects of the doctrine by choosing not “‘to perform one of the incompatible roles. The doctrine was designed to avoid the necessity for that choice.’” 15 Applying these principles, the California Court of Appeal has held that a city mayor and member of the city council who also served as a director of the area water replenishment district held incompatible offices. 16 The water district set the rate of groundwater replenishment fees that would “ultimately be paid” by city residents and the city itself (for water supplied to municipal buildings). 17 As a water district director, the defendant participated in the rate-setting decision. In doing so, his “duties and loyalties” pointed in “opposite direction[s]”: his duty as a director was to ensure the replenishment fee was high enough to maintain “the adequacy of the groundwater supply,” whereas his duty as mayor was “to minimize” the fees paid by city residents. 18 Given this “obvious” potential conflict, the court found the offices incompatible. 19 Similarly, in a prior Attorney General opinion, we concluded that the offices of county water district director and city councilmember were incompatible where the water district provided services within the city. 20 A water district, we explained, “may make contracts with the city”—in which case a person serving concurrently as water district director and city councilmember “would have to serve two masters” in contract negotiations. 21 And “[s]harp conflicts” could also arise in areas where the city and the water district had overlapping statutory authority, such as the construction of sewer facilities. 22 For similar reasons, we have concluded in other quo warranto matters that 12

98 Ops.Cal.Atty.Gen. 94, 96 (2015).

13

People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636, 641-642.

14

85 Ops.Cal.Atty.Gen. 199, 200 (2002).

67 Ops.Cal.Atty.Gen. 409, 414 (1984), quoting 3 McQuillin, Municipal Corporations (rev. ed. 1973) § 12.67, pp. 295-296. 15

16

People ex rel. Lacey v. Robles (2020) 44 Cal.App.5th 804, 810-812, 814-815.

17

Id. at p. 821.

18

Ibid.

19

Ibid.

20

37 Ops.Cal.Atty.Gen. 21, 22-23 (1961).

21

Id. at p. 22.

22

Ibid.
4

22-1001

there is at least a substantial question as to whether the offices of water district director and city councilmember are incompatible where the two governing bodies have overlapping jurisdiction. 23 We reach the same conclusion here: There is a substantial issue as to whether the two offices held by Argudo are incompatible. The La Puente Valley County Water District sells water to the residents of La Puente. As a Water District Director, Argudo may participate in setting the water rates “that will ultimately be paid by his constituents” and the City itself. 24 In doing so, Argudo may face a conflict between the interests of the Water District in ensuring adequate revenues and the interests of the City and its residents in minimizing water costs. 25 A conflict could also arise if the City and the Water District negotiated a contract or acted in areas of overlapping authority. 26 In our view, these potentially significant clashes of duties and loyalties give rise to a substantial issue as to whether the two offices are incompatible.

3. Public Interest in Favor of Authorizing Suit
   Finally, we conclude that it is in the public interest to have this matter conclusively resolved through the prescribed legal process of quo warranto. 27 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 such as pending litigation or shortness of time remaining in the term of office. 28 We find no such circumstances here. Indeed, allowing the proposed quo warranto action to proceed would serve the public interest in ensuring that public officials avoid conflicting loyalties in performing their public duties. Accordingly, the application for leave to sue in quo warranto is GRANTED.

See 98 Ops.Cal.Atty.Gen., supra, at p. 94; 85 Ops.Cal.Atty.Gen., supra, at p. 199. In addition, we have found at least a substantial question as to whether the office of water district director is incompatible with other local offices with overlapping jurisdiction. (See, e.g., 85 Ops.Cal.Atty.Gen. 60 (2002) [municipal water district director and school district trustee]; 82 Ops.Cal.Atty.Gen. 68 (1999) [county water district director and city planning commissioner]; 73 Ops.Cal.Atty.Gen. 268 (1990) [county water district director and school district trustee].) 23

24

People ex rel. Lacey v. Robles, supra, 44 Cal.App.5th at p. 821.

25

See ibid.

26

See 37 Ops.Cal.Atty.Gen., supra, at p. 22.

27

See Gov. Code, § 1099, subd. (b).

28

98 Ops.Cal.Atty.Gen., supra, at p. 101; 95 Ops.Cal.Atty.Gen. 77, 87 (2012). 5

22-1001