Does serving on a California county board of education and a city council inside that county at the same time count as holding two incompatible offices?
Question
Should the AG grant leave to sue Rebecca "Beckie" Gomez in quo warranto on the theory that she forfeited her seat on the Orange County Board of Education by simultaneously assuming a seat on the Tustin City Council, in violation of Government Code section 1099?
Conclusion
Substantial legal issue exists about whether the two offices are incompatible. Public interest favors a court resolving it. Leave to sue granted.
Official Citation: 105 Ops.Cal.Atty.Gen. 69
Plain-English summary
Rebecca Gomez was elected to the Orange County Board of Education (First Trustee District) in March 2020 and sworn in July 1, 2020. While serving that term, she ran for and won a seat on the Tustin City Council in November 2020 and was sworn in December 1, 2020. Tustin sits within the First Trustee District.
Government Code section 1099 says a public officer cannot simultaneously hold two public offices that have a "possibility of a significant clash of duties or loyalties." Subsection (b) goes further: if the officer accepts a second incompatible office, the officer is "deemed to have forfeited the first office upon acceding to the second." Quo warranto is the enforcement mechanism.
The AG had already granted leave to sue Tim Shaw on identical facts in October 2021 (Opinion 21-103, 104 Ops.Cal.Atty.Gen. 58) for serving on both the Orange County Board of Education and the La Habra City Council. Shaw resigned both offices after the AG granted leave. The AG saw no reason to reach a different result for Gomez.
Substantial clashes the AG flagged:
- The two bodies could disagree on the location of school sites within the dual officeholder's city.
- Both can use eminent domain to acquire property and could compete for the same parcels.
- Both fund or operate community recreation programs.
- The Orange County Board of Education functions as a school district in some respects (it directly operates county community schools serving expelled, homeless, on-probation, and special-needs students) and prior AG opinions found school-district trustee + city council member incompatible whenever territories overlap.
Gomez argued no incompatibility, that quo warranto wasn't even available because Orange County's charter governs the manner of selecting county board members (Education Code section 1000(a)). The AG rejected the procedural argument: section 1099(b) explicitly authorizes quo warranto and makes no charter-county exception, and the challenge here is about whether the two offices Gomez holds are incompatible, not about how she was selected. Both questions go to a court.
What this means for you
If you're a city council member considering a county board of education seat (or vice versa)
Don't run for both. If your city sits within the trustee district of the county board you would join, expect a quo warranto challenge. The doctrine triggers automatically: assuming the second office forfeits the first as a matter of law, even if no one has yet sued. You don't get to keep both and recuse from conflicts.
If you're a county board of education member
Map the cities inside your trustee district. If you or a candidate on your board is also serving in a council seat for any of those cities, the offices are likely incompatible under section 1099 and the Rapsey line of authority. Document the territorial overlap; talk to county counsel before the second swearing-in.
If you're a city or county attorney being asked to opine on dual-office candidacy
The four-part public-office test plus the "one potential significant clash" standard from Robles gives you a clear analytical frame. The Gomez and Shaw opinions show that if (1) territory overlaps, (2) both bodies have eminent domain, (3) both have school-site or facilities authority, or (4) both fund competing recreation or community programs, the offices are incompatible.
If you're a voter
You have standing as a registered voter in the district to apply for AG leave to sue in quo warranto. The application must show: (a) the remedy is appropriate (yes, for incompatibility under 1099(b)); (b) substantial issues warrant judicial resolution; (c) the public interest favors litigation. The process is paper-based, the AG decides on briefs, and you do not need to be a party in any sense beyond living in the affected district.
If you're an Orange County or county-of-education trustee
Note that the AG flagged the OCBOE's direct-operation role of county community schools (serving expelled, homeless, probation, and other vulnerable students) as part of why the office is functionally a school district for the dual-office analysis. That direct-operations role makes overlap with a city council in the same area inevitable on facilities, transportation, recreation, and zoning questions.
Common questions
What does "deemed to have forfeited the first office" mean?
It means the law treats the first seat as automatically vacated when the officer takes the second office. The forfeiture is structural, not discretionary. The officer doesn't keep both. The seat opens, and is filled per the local rules for vacancies.
Can a charter county opt out of section 1099?
No. The AG specifically addressed this: section 1099(b) makes no charter-county exception. Education Code section 1000(a) lets a charter set the manner of selecting county board members, but selection is a different question from incompatibility.
What if the two bodies have a Memorandum of Understanding to avoid conflicts?
Doesn't cure the incompatibility. The doctrine is structural and rests on the impossibility of undivided loyalty. Even cooperative agreements between the two agencies create the potential for conflict (same person on both sides of negotiation).
What if I recuse from anything where the two bodies might disagree?
Recusal is not a workaround. The doctrine bars holding the offices, not just casting conflicting votes.
Why is "school site location" a clash?
Both city and school authorities have interests in where schools sit. A council member negotiates citywide land use, infrastructure, and zoning; a county board of education has authority over schools county community schools and oversight over district operations. The same person can't faithfully advocate both city land-use priorities and school-program priorities for one location at the same time.
Did the same logic apply to Tim Shaw?
Yes. Opinion 21-103 (October 2021) granted leave to sue Shaw for the same dual office-holding pattern (OCBOE + La Habra City Council). Shaw resigned both seats after the AG decision. The Gomez opinion explicitly relies on 21-103.
Background and statutory framework
Quo warranto and incompatibility:
- Code Civ. Proc. § 803 (private quo warranto requires AG leave)
- Cal. Gov. Code § 1099(a) (public officer includes board members; offices incompatible where significant clash possible)
- Cal. Gov. Code § 1099(a)(2) (clash-of-duties standard)
- Cal. Gov. Code § 1099(b) (forfeiture is automatic; quo warranto is the enforcement tool)
- People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636 (clash need not arise in greater part of duties)
- Rando v. Harris (2014) 228 Cal.App.4th 868 (AG's three-part test)
- Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221 (residency and incompatibility cognizable in quo warranto)
The Orange County Department of Education and Board of Education:
- The Board has five members representing five trustee districts.
- Voters in each district elect their member to a four-year term.
- The Department oversees finances of 28 districts (about 600 schools, 475,000 students) and directly operates county community schools serving expelled, homeless, probation, and special-population students.
Source
- Landing page: https://oag.ca.gov/opinions/yearly-index
- Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/22-302.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
MARC J. NOLAN
Deputy Attorney General
No. 22-302
May 5, 2022
MARK TARDIF, a registered voter and resident of the Orange County
Department of Education's First Trustee District, has applied to this office for leave to
sue REBECCA "BECKIE" GOMEZ in quo warranto to remove her from her public
office as a member of the Orange County Board of Education representing the
Department of Education's First Trustee District. The application asserts that Gomez,
while serving her term on the County Board of Education, assumed a second and
incompatible public office as a member of the Tustin City Council, in violation of
Government Code section 1099, and by doing so forfeited her seat on the Board of
Education.
We conclude that there is a substantial legal issue as to whether Gomez is
simultaneously holding incompatible public offices as a member of both the Orange
County Board of Education and the Tustin City Council. 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.
INTRODUCTION AND 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 also provides direct
instruction to thousands of students throughout the county through its special education
and alternative school programs, which include a number of "county community
schools." 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. The voters of each trustee area elect their respective board members for four-year terms. Trustee District One includes the cities of Fountain Valley and Santa Ana,
as well as portions of the cities of Garden Grove and Tustin.
In the March 3, 2020 primary election, Rebecca "Beckie" Gomez was elected to a
four-year term on the Orange County Board of Education representing the First Trustee
District, and she 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, Gomez won election to a four-year term on the Tustin City
Council, and she was sworn into that office on December 1, 2020.
The applicant here is Mike Tardif, who resides in the Orange County Department
of Education's First Trustee District. Tardif contends that the two offices Gomez
currently holds are legally incompatible under Government Code section 1099. Section
1099(b) provides that an incumbent 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, Tardif requests our permission to initiate a quo warranto lawsuit in superior court
that would seek to oust Gomez from her seat on the Orange County Board of Education.
Tardif's application relies on Opinion No. 21-103, issued in October 2021, in which we
granted a similar application to proceed in quo warranto against another County Board of
Education member, Tim Shaw. Shaw was alleged to be holding incompatible offices as
member of the Orange County Board of Education representing the Fourth Trustee
District, and as a member of the La Habra City Council. Tardif argues that the same
result should obtain here because Gomez's dual office-holding necessarily entails the
same incompatibility as Shaw's.
In opposition, Gomez contends that there is no incompatibility between the two
offices she currently holds, and therefore disagrees with our prior opinion granting leave
to sue against Shaw. In addition, Gomez argues that quo warranto is not even an
available remedy under the circumstances and that, in any event, the public interest
weighs against authorizing a quo warranto lawsuit here.
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 (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. Here, the answer to all three questions is "yes" and we therefore grant leave to
sue.
- 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
governmental board or body, such as a county board of education or a city council. Thus,
quo warranto is an available and appropriate remedy here.
Without addressing section 1099(b), Gomez argues that quo warranto is
unavailable. Specifically, she contends that because Orange County is a charter county,
the Education Code vests the "manner of selection of the county board of education" in
the county charter or the Board of Supervisors, effectively insulating the selection of
such officers from legal review on quo warranto. We disagree. Section 1099(b)'s
prescription of quo warranto as the means of challenging and enforcing the forfeiture of a
public office when legal incompatibility exists makes no exception for the circumstances
Gomez cites. In any event, the challenge here has nothing to do with the manner of
Gomez's selection to the County Board. Rather, it goes directly to the question of
whether the two offices she currently holds are incompatible. Under the circumstances,
section 1099(b) is properly invoked and authorizes quo warranto.
- Substantial Issues Regarding Incompatibility
We next examine whether there are substantial issues of law or fact as to the
incompatibility of the two public offices in question. 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 . . . , unless simultaneous holding of the
particular offices is compelled or expressly authorized by law." The prohibition
"springs from considerations of public policy which demand that a public officer
discharge his or her duties with undivided loyalty." Among other things, two offices
are incompatible in circumstances where "there is a possibility of a significant clash of
duties or loyalties between the offices." 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."
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
in the regular operation of the statutory plan. It is not necessary that the clash of duties
or loyalties occur in all or in the greater part of the official functions; incompatibility
exists when the holder of the two offices cannot in every instance discharge the duties of
each. Indeed, "[o]nly one potential significant clash of duties or loyalties is necessary
to make offices incompatible." 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.'"
As mentioned above, we recently determined in Opinion No. 21-103 that there
was a substantial legal issue as to whether the public offices of member of the Orange
County Board of Education and member of a city council for a city that lies within the
same jurisdiction are legally incompatible. That opinion in turn relied on an opinion we
issued in 2018 in which we determined that the comparable public offices of
superintendent of a county office of education and member of a city council were
incompatible where the territorial jurisdiction of the two offices overlapped.
In Opinion No. 21-103, we found numerous instances where the duties and
loyalties of an individual holding seats on both the Orange County Board of Education
and a city council (for a city located within that county) could significantly clash. We
observed, for example, that the two governing bodies could: differ on the location of
school sites within the dual officeholder's city; attempt to use their powers of eminent
domain to condemn and acquire the same (or each other's) real property; compete with
each other in providing programs of community recreation; or disagree on matters
relating to school district reorganizations. The potential for such differing priorities and
objectives creates conflict and incompatibility for a dual officeholder with an obligation
to pursue the best interests of each of the agencies represented. In addition, we noted
that the Orange County Board of Education functions as a school district in certain
respects (such as in its direct operation of county community schools), and that our
conclusion was therefore consistent with previous Attorney General opinions concluding
that offices of school district trustee and city council member were incompatible where
their territorial jurisdiction overlapped.
We recognize that Gomez disagrees with Opinion No. 21-103, in which we
granted leave to sue Tim Shaw under markedly similar circumstances. In particular, she
criticizes that opinion for what she contends is a failure to sufficiently address or explain
what it means for a clash of duties or loyalties to be "significant" within the meaning of
section 1099. The analysis in Opinion No. 21-103 makes clear that significant clashes of
duty appear in the regular operation of the two governing bodies (school site location,
eminent domain over the same parcels, recreation programming, school-district
reorganization). One such potential clash is enough under the statute and the case law.
For these and the reasons set out at length in Opinion No. 21-103, we conclude
that there is a substantial legal issue as to whether the offices Gomez holds are
incompatible.
- The Public Interest Favors Authorizing the Proposed Action
Finally, we conclude that it is in the public interest to have the matter
conclusively resolved through the prescribed legal process of quo warranto. Substantial
issues of law warrant judicial resolution, and the public interest in clarity over who
holds public office in an Orange County trustee district is plain.
Accordingly, the application for leave to sue in quo warranto is GRANTED.