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

City council members and county-board-of-education members

Under § 1099(b), acceptance of an incompatible second office operates as automatic forfeiture of the first. The opinion holds that substantial legal questions exist whether simultaneous service on the Orange County Board of Education and a city council within that trustee district is incompatible, and grants leave to sue in quo warranto for judicial resolution.

County boards of education

The opinion identifies the OCBOE's direct operation of county community schools (serving expelled, homeless, on-probation, and other students) as part of why the office is functionally a school district for the dual-office analysis. The opinion identifies four substantial-clash categories: territorial overlap; competing eminent-domain authority; school-site or facilities authority; and competing or overlapping community recreation programs.

City and county attorneys

The opinion applies the Rapsey / § 1099(a)(2) "possibility of a significant clash of duties or loyalties" standard and the rule from People ex rel. Lacey v. Robles that only one potential clash is sufficient. The opinion further holds that charter-county selection rules (Ed. Code § 1000(a)) do not exempt a county board member from § 1099(b) forfeiture or from quo warranto enforcement.

Voters

A registered voter in the affected district may apply for AG leave to sue under Code of Civil Procedure § 803. The AG's three-part test asks whether quo warranto is an available remedy, whether a substantial issue warrants judicial resolution, and whether the public interest is served by allowing the suit to proceed.

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.

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 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.

2. 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.

3. 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.