Can a California school board member resign their seat and then be reappointed by the same board to fill the vacancy they just created?
Question
Should the AG grant leave to sue Tim Shaw in quo warranto on the theory that his reappointment to the seat he had resigned on the Orange County Board of Education violates Government Code section 1752(a) and the common-law prohibition against self-appointments?
Conclusion
Substantial questions of law exist; public interest favors judicial resolution. Leave to sue is granted.
Official Citation: 105 Ops.Cal.Atty.Gen. 65
Plain-English summary
This opinion is a sequel to the AG's October 2021 leave-to-sue against Tim Shaw (Opinion 21-103, 104 Ops.Cal.Atty.Gen. 58) for serving on both the Orange County Board of Education (Fourth Trustee District) and the La Habra City Council (which sits within the Fourth District). After the AG granted leave, Shaw resigned the OCBOE seat. He later resigned the La Habra council seat too. Then, on December 21, 2021, the OCBOE appointed Shaw to fill the vacancy his own resignation had created. The appointment ran until the June 2022 special election to finish the term, with Shaw running in that election.
A district resident, Michael Sean Wright, applied for AG leave to challenge the reappointment in quo warranto. The legal theories:
-
Government Code section 1752(a): "no person elected or appointed to the governing body of any city, county, or district having an elected governing body, shall be appointed to fill any vacancy on that governing body during the term for which he or she was elected or appointed." If the OCBOE counts as a "governing body" of a "district" within the meaning of section 1752, Shaw was barred from being appointed to a vacancy during the term to which he had been elected.
-
Common-law doctrine against self-appointments. The AG has previously observed that section 1752 codifies the common-law rule, and that an officer cannot avoid the rule by first resigning the original term.
Shaw argued the OCBOE is not a "governing body" within the meaning of the statute, and that both the statute and the common-law doctrine apply only when the appointment effectively extends the official's original term. (Shaw's reappointment, in his view, did not extend his term.)
Wright had also filed a parallel writ-of-mandate action, in which the superior court ruled that quo warranto was the exclusive remedy for the title-to-office question and denied a preliminary injunction without reaching the merits.
The AG agreed that section 1752 and the common-law self-appointment doctrine raise substantial legal questions on these unusual facts. Whether the OCBOE counts as a "governing body" of a "district" under section 1752, and whether the doctrine bars a resign-and-reappoint pattern even when the term arguably is not extended, are real questions a court should answer. Leave to sue granted.
What this means for you
If you're a school board, city council, or special-district member thinking about resigning and being reappointed
Don't assume resignation lets you reset the section 1752 clock. The AG views section 1752 and the common-law self-appointment doctrine as substantively interlocking, and a sitting member who resigns and immediately reappoints into the same vacancy is exactly the pattern the doctrine targets. If your facts are even close to Shaw's, expect a quo warranto challenge.
If you sit on a body that is asked to fill a vacancy created by a member's recent resignation
The vote is risky if the resigning member is the proposed appointee. Two structural questions to surface in the deliberations: (1) is your body a "governing body of any city, county, or district having an elected governing body" under section 1752, and (2) does the appointment effectively extend the resigning member's original term? Both should be answered in writing by counsel before you vote. The challenge cost (quo warranto plus reputational risk) is real even if you ultimately prevail.
If you're a county counsel or city attorney
This opinion is a useful citation for the proposition that section 1752 plus the common-law doctrine bar a resign-and-reappoint maneuver, even where the appointee resigned the second seat too and even when the appointment runs only until a special election. The AG declined to resolve the merits but flagged Shaw's argument (term-extension only) as one that might lose.
If you're a candidate considering an interim path back to a seat you just resigned
Section 1752 is broad. Even if you genuinely resigned, the appointment back may be barred during your original term. The cleaner path is to wait for the special election or general election rather than to seek interim appointment.
If you're a voter watching a school board or local agency
You can apply for leave to sue under Code of Civil Procedure section 803 if you believe a member is unlawfully holding office. The AG's three-part test (proper remedy, substantial question, public interest) is forgiving on substantive merits and the AG specifically said timing alone is rarely a basis to deny leave.
Common questions
What is "section 1752" and why does it matter?
Government Code section 1752(a) reads: "no person elected or appointed to the governing body of any city, county, or district having an elected governing body, shall be appointed to fill any vacancy on that governing body during the term for which he or she was elected or appointed." It is the principal statutory expression of the common-law rule against self-appointments. The triggering question on novel facts is what counts as a "governing body" of a "district."
What is the common-law self-appointment doctrine?
Cited AG opinions (76 Ops.Cal.Atty.Gen. 254; 23 Ops.Cal.Atty.Gen. 75; 73 Ops.Cal.Atty.Gen. 357) describe it as a structural bar on a sitting member of a public body being appointed to fill a vacancy on that same body during the term they were elected or appointed to. Resigning the first seat does not cure the violation if the resignation and reappointment happen in close sequence.
Does this apply only when the new term is longer than the old one?
That was Shaw's argument. He said the doctrine bars only appointments that extend the original term. The AG noted prior opinions saying the common-law rule cannot be evaded by first resigning, and treated the question as substantial enough for a court but did not adopt either side's reading.
What if the appointment runs only until the next special election?
Doesn't automatically save it. The bar is on the appointment, not on its length. Wright's application went forward even though Shaw's appointment ran only until June 2022.
What's the relationship between this opinion and Opinion 21-103?
21-103 was the original leave-to-sue against Shaw for serving on both the OCBOE and the La Habra City Council. Shaw resigned both seats after that ruling. 22-301 covers what happened next: the OCBOE reappointed Shaw to the vacancy his own resignation created, and a different applicant (Wright) sought leave to challenge the reappointment.
What about timing? Won't the June 2022 election moot this?
The AG addressed this directly. Timing alone is rarely a basis for denying leave, and a court might rule before the election. The validity of the appointment process is a question of public importance regardless of mootness for any particular term.
Background and statutory framework
Quo warranto:
- Code Civ. Proc. § 803 (private quo warranto requires AG leave; covers persons "usurping, intruding into, or unlawfully holding" public office)
- Rando v. Harris (2014) 228 Cal.App.4th 868 (AG's three-part test)
Self-appointment doctrine:
- Cal. Gov. Code § 1752(a) (statutory codification: appointment of sitting governing-body member to vacancy on same body during their elected/appointed term is barred)
- 76 Ops.Cal.Atty.Gen. 254 (1993) (section 1752 codifies the common-law doctrine)
- 23 Ops.Cal.Atty.Gen. 75 (1954); 73 Ops.Cal.Atty.Gen. 357 (1990) (resigning the original term does not avoid the common-law rule)
Procedural posture:
- Wright filed a parallel mandate and declaratory relief action in Orange County Superior Court (No. 30-2022-01243638-CU-WM-CJ) seeking declaration that Shaw's reappointment was void and an injunction ordering a special election.
- The court ruled quo warranto was the exclusive remedy and denied the preliminary injunction without reaching the merits.
- Wright then filed the AG leave-to-sue application as a protective matter on March 2, 2022.
Source
- Landing page: https://oag.ca.gov/opinions/yearly-index
- Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/22-301_0.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
SETH E. GOLDSTEIN
Deputy Attorney General
No. 22-301
April 7, 2022
MICHAEL SEAN WRIGHT, a registered voter and resident of Orange County and
the Orange County Department of Education's Fourth District, has applied to this office
for leave to sue TIM SHAW in quo warranto to remove him from his public office as a
member of the Orange County Board of Education representing the Department of
Education's Fourth District. The application asserts that the Board of Education invalidly
appointed Shaw to a vacancy on the Board in violation of Government Code section
1752(a) and the common law prohibition against self-appointments.
We conclude that there is a substantial legal issue as to whether Shaw's
appointment to the Orange County Board of Education was lawful. 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.
FACTUAL AND PROCEDURAL BACKGROUND
The Orange County Department of Education supports and oversees the finances
of 28 school districts, which collectively serve more than 600 schools and approximately
475,000 students within Orange County. The Department is governed by the Orange
County Board of Education, which consists of five members who represent the five
geographical trustee areas of the county.
In the March 3, 2020, primary election, Shaw was elected to a four-year term on
the County Board of Education representing the County Department of Education's
Fourth District, and he was sworn into that office at the Board meeting held on July 1,
2020. In the November 3, 2020, general election, while already serving as a member of
the Board of Education, Shaw was elected to a four-year term on the La Habra City
Council, and he was sworn into that office on December 21, 2020.
We subsequently received a quo warranto application contending that the offices
of Orange County Board of Education member and La Habra City Council member are
incompatible public offices, such that Shaw forfeited his seat on the Orange County
Board of Education by assuming office on the La Habra City Council. We concluded
that there was a substantial legal question as to whether Shaw was simultaneously
holding two incompatible public offices in violation of Government Code section 1099,
and we granted the application for leave to sue Shaw in quo warranto on October 29,
2021. (104 Ops.Cal.Atty.Gen. 58.)
Shortly after we granted leave to sue, Shaw resigned his seat on the County Board
of Education. He subsequently resigned his seat on the La Habra City Council as well.
Then, on December 21, 2021, the County Board of Education appointed Shaw to fill the
vacant seat created by his earlier resignation. We are informed that this appointment runs
until a June 2022 special election to fill the remainder of the term, and that Shaw is
running in that election.
On January 28, 2022, Wright challenged Shaw's appointment to the County Board
of Education in a petition for writ of mandate and declaratory relief filed in the Orange
County Superior Court (Case No. 30-2022-01243638-CU-WM-CJ). In that action,
Wright sought to have Shaw's appointment declared null and void for several reasons,
including the grounds he now raises in the present quo warranto application, i.e., that
Shaw's appointment to the vacant seat created by his resignation violated Government
Code section 1752(a) and the common law prohibition against self-appointments. Wright
also sought a preliminary injunction ordering a special election to fill the County Board
of Education seat putatively occupied by Shaw. Shaw opposed this request and argued
that the relief Wright sought could only be pursued in quo warranto since, according to
Shaw, the core question of the lawsuit was title to public office. In addition, Shaw
argued that his appointment was lawful and that, for various reasons, Government Code
section 1752 and the common law prohibition against self-appointments did not apply to
the circumstances of his appointment.
On March 2, 2022, Wright filed the current quo warranto application as a
protective matter in case the superior court in the mandate and declaratory relief action
might decide that quo warranto was the exclusive remedy to challenge Shaw's title to
office.
On March 9, 2022, the superior court issued an order denying Wright's request for
a preliminary injunction, ruling that quo warranto is Wright's exclusive remedy under the
circumstances. For that reason, the court did not undertake to decide the substantive legal
question of whether Shaw's appointment was lawful.
On March 17, 2022, Shaw filed his opposition to the quo warranto application. He
contends, among other things, that his appointment was lawful and that we should deny
Wright's application in any event because the issue of the validity of his appointment will
soon become moot by the election to be held in June 2022 for the seat to which Shaw was
appointed.
On March 18, 2022, Wright filed his reply to Shaw's opposition, completing the
briefing on Wright's 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. 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."
Where, as here, a private party seeks to pursue a quo warranto action in superior
court, that party must first apply for and obtain the Attorney General's consent. 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 applicant 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. Here, we conclude that all three conditions are satisfied.
First, quo warranto is an available and appropriate remedy here as Wright's core
contention is that Shaw, via an appointment alleged to be unlawful and invalid, is
unlawfully usurping, intruding into, and/or holding public office on the County Board of
Education.
Second, there is a substantial issue as to whether Shaw was lawfully appointed to
the County Board of Education. As relevant here, Government Code section 1752(a)
provides that "no person elected or appointed to the governing body of any city, county,
or district having an elected governing body, shall be appointed to fill any vacancy on
that governing body during the term for which he or she was elected or appointed."
Wright contends that the clear terms of the statute apply in these circumstances because
Shaw, after resigning from the County Board during the term for which he was elected,
was appointed back onto the County Board during that same term. For his part, Shaw
counters that the County Board is not a "governing body" within the meaning of section
1752, and that the legislative intent behind the statute was to cover situations (unlike
Shaw's) where an official's appointment had the effect of extending the official's original
term. We do not reach the merits of these arguments, but we conclude that there is at
least a substantial question, warranting a conclusive judicial resolution, about whether
section 1752 applies to the facts presented here.
Likewise, the parties differ on the related question of whether Shaw's appointment
violates the common law doctrine against self-appointments. In arguing that the common
law also prohibits Shaw's appointment, Wright relies on our previous observations that
Government Code section 1752 "essentially codifies the doctrine against self-appointments," and that a public officer may not avoid the common law doctrine by first
resigning the original term for which the officer was appointed or elected. As with his
statutory argument, Shaw contends that the common law doctrine does not prohibit his
appointment because that doctrine has been construed to apply only where the challenged
appointment extended the official's original term, a circumstance which did not happen
here. As above, we do not resolve the merits of these competing arguments, but we
believe they raise substantial questions of law that warrant judicial resolution.
Third, it is in the public interest to have a court determine the legal validity of
Shaw's appointment. Shaw maintains that there is only a relatively short time between
now and the June 2022 election and argues that the election will moot issues surrounding
his appointment. But we believe that the superior court should at least have the
opportunity to resolve this matter before the election; it may well be able to render a
ruling before the election, possibly in the context of the already-filed mandate action.
Further, the validity of the appointment process employed here is a question of public
importance that would benefit from judicial review. In sum, the public interest favors a
judicial resolution of an important question already presented to and argued before the
superior court in the related mandate action.
For these reasons, the application for leave to sue in quo warranto is GRANTED.