Can a county supervisor in California also serve as the general manager of a special district like an airport district whose territory overlaps the county?
Question
May a member of the Nevada County Board of Supervisors concurrently serve as general manager for the Truckee Tahoe Airport District?
Conclusion
No, a member of the Nevada County Board of Supervisors may not concurrently serve as general manager for the Truckee Tahoe Airport District because these are incompatible public offices.
Official Citation: 105 Ops.Cal.Atty.Gen. 121
Plain-English summary
California's incompatible-offices doctrine, codified at Government Code section 1099, prohibits a person from holding two public offices at the same time when the duties of the two offices could clash. The rule does not require an actual conflict to have occurred. A potential conflict, even one that may never come up in practice, is enough.
The AG worked through two questions. First: are both positions "public offices"? County supervisor clearly is. The general manager of an airport district is too. The position is created by statute (Public Utilities Code section 22437), the tenure is continuing, and the manager exercises real public powers (full charge of construction, maintenance, and operation of district property; full power over hiring and discharge of district employees) for public benefit. That makes general manager a "public office" rather than mere employment.
Second: are the two offices incompatible? Yes, in many ways:
- Aviation overlap. Nevada County itself owns and operates Nevada County Airport in Grass Valley, about 65 miles from Truckee Tahoe Airport. Both are general aviation airports. Both rent hangars, sell fuel, and charge landing fees. They could compete directly on prices, or indirectly for grants and customers.
- Joint Powers Act agreements. Counties and airport districts can enter joint-powers agreements. Negotiating one with yourself on both sides is a textbook conflict.
- Tax revenue. The airport district draws property taxes from land in Nevada County, then funds community projects in the county (recreation, education, transportation, affordable housing). Each project is a potential overlap with the county's own programs.
- Permits and zoning. District projects may need county planning approvals. The same person can't be both applicant and reviewer.
- Eminent domain. Both bodies have it. Each could try to take property, including the other's property.
That's far more than the "one potential significant clash" the statute requires. The two offices are incompatible.
What this means for you
If you're a sitting California county supervisor
Treat any second position with a special district whose territory overlaps your county as a likely violation of Government Code section 1099, until your county counsel has cleared it in writing. The rule applies whether you call the second position "general manager," "executive director," "CEO," or any similar title that comes with operational authority. Section 1099 carves out only "advisory" bodies (no decisional power). If the second body actually decides things, the carve-out doesn't help.
If you sit on or run a California special district board
Background-check candidates against potential incompatibilities. A general manager candidate who already holds another public office in the same geographic footprint is a litigation risk. Counsel can do this in 30 minutes against the four-part test (position in government / created by law / continuing tenure / sovereign powers exercised for public benefit) for both offices.
If you're a county counsel or special district counsel
Use this opinion as a clean citation when advising clients away from dual roles in overlapping geography. The opinion lays out the four-part public-office test and the "single potential conflict is enough" standard from People ex rel. Lacey v. Robles (2020) 44 Cal.App.5th 804 in tight, quotable form.
If you're a candidate considering both jobs
You can hold one or the other, not both. The statute's remedy for accepting a second incompatible office is automatic forfeiture of the first one. There is no "I'll recuse myself from conflicts" workaround. The doctrine is structural, it rests on the impossibility of undivided loyalty, not on the absence of actual misconduct.
If you're a citizen worried about an apparent dual role in your county
You can ask your county counsel to look at it. If there's no movement, the proper procedural vehicle is a quo warranto action, which requires AG leave under Code of Civil Procedure section 803. Section 1099 itself contemplates that path.
Common questions
Does the rule require an actual conflict to have happened?
No. The test is whether a potential conflict can be anticipated from examining the duties of the two offices. The AG explicitly said an actual past or present conflict is not required.
What does "exercises some sovereign powers" mean?
It means the position has decision-making authority that the state itself could exercise: things like setting fees, hiring and firing employees, taking property by eminent domain, executing contracts, regulating uses of district property. Pure employment positions (a clerk, a maintenance worker) do not exercise sovereign powers and are not "public offices" for incompatibility purposes.
What about a county supervisor also serving on a city council in the same county?
Many cities-and-counties combinations have been declared incompatible in earlier AG opinions. The general rule in California is the same: where both offices exercise sovereign powers in overlapping geography or subject matter, expect incompatibility.
Can a person resign one office and take the other?
Yes. Sequential service is fine. The doctrine bars simultaneous service.
Is there a way to cure the incompatibility through recusal or a memorandum of understanding?
No. Government Code section 1099 is a structural prohibition. The AG specifically says even cooperative arrangements between the two agencies create the potential for conflict (one person negotiating on two sides of a contract). Recusal does not solve a structural incompatibility.
Does this apply to general law cities and charter cities?
Section 1099 applies to public officers generally. The doctrine has been applied to city councilors, county supervisors, school board members, special-district directors, and many others.
Background and statutory framework
The incompatible-offices doctrine has a long common-law history. In 2005, the California Legislature codified it as Government Code section 1099, which provides that a person may not simultaneously hold two public offices that have a "possibility of a significant clash of duties or loyalties." The 2020 Robles decision (44 Cal.App.5th 804) confirmed that one potential significant clash is enough.
Public Utilities Code sections 22201 through 22909 authorize formation of California Airport Districts. Section 22437 requires the board of directors to appoint a general manager who serves at the board's pleasure. Section 22439 lists the manager's duties: "full charge" of construction, maintenance, and operation of district property; "full power" over employment, duties, compensation, and discharge of all employees and assistants; and other duties as imposed by the board.
The four-part test for whether a position is a "public office" comes from earlier AG and case authority: (1) a position in government, (2) created or authorized by Constitution or law, (3) with continuing and permanent tenure (not occasional or temporary), (4) where the incumbent exercises some sovereign powers for the public benefit.
Source
- Landing page: https://oag.ca.gov/opinions/yearly-index
- Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/22-403.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
:
:
SUSAN DUNCAN LEE
:
Deputy Attorney General
:
No. 22-403
June 17, 2022
The HONORABLE KATHARINE L. ELLIOTT, COUNTY COUNSEL OF THE
COUNTY OF NEVADA, has requested an opinion about whether two public offices are
incompatible.
QUESTION PRESENTED AND CONCLUSION
May a member of the Nevada County Board of Supervisors concurrently serve as
general manager for the Truckee Tahoe Airport District?
No, a member of the Nevada County Board of Supervisors may not concurrently
serve as general manager for the Truckee Tahoe Airport District because these are
incompatible public offices.
BACKGROUND
The Truckee Tahoe Airport District was formed in 1958 under the California
Airport District Act. An elected board of directors governs the District and appoints its
general manager. According to its website, the District receives revenue primarily from
three sources: (1) property taxes collected within the District's boundaries; (2) fees
charged for services, including leasing and rental revenue; and (3) grant funding from the
Federal Aviation Administration.
Truckee Tahoe Airport is a general aviation airport that supports a variety of
aircraft for recreation, instruction, transportation, and many other public and commercial
purposes. Among other functions, the airport supports charter operations and aircraft
maintenance services, charges landing fees, rents hangar and aircraft parking spaces, and
sells aviation fuel.
The southern portion of the Truckee Tahoe Airport District is located in Placer
County and the northern portion is located in Nevada County. Nevada County is
governed by a five-member board of supervisors that serves as the legislative and
executive body of county government.
ANALYSIS
The rule against holding incompatible offices arises from longstanding public
policy demanding that public officers discharge their duties with undivided loyalty. In
2005, the Legislature codified the common law prohibition on incompatible offices by
enacting Government Code section 1099, which prohibits a person from simultaneously
holding two public offices that are incompatible. Below, we examine whether the two
positions at issue here are public offices, as well as whether they are incompatible.
Are the Two Positions Both Public Offices?
The doctrine of incompatible offices applies only to public offices, and not to
positions of mere employment. It is well established that a member of a County Board of
Supervisors holds a public office. Indeed, section 1099(a) expressly provides that the
term "public officer" includes "an appointed or elected member of a governmental board,
commission, committee, or other body."
We use a four-part test to determine whether the position of an airport district
general manager is a public office. For purposes of the incompatible offices doctrine, a
public office is "(1) a position in government, (2) which is created or authorized by the
Constitution or by law, (3) the tenure of which is continuing and permanent, not
occasional or temporary, (4) in which the incumbent performs a public function for the
public benefit and exercises some of the sovereign powers of the state." An airport
district is a special district, governed by an elected board of directors, with the power to
sue and be sued; to acquire and dispose of property, including to acquire real property by
condemnation; and to use, improve, control, or dispose of the district's property,
equipment, and facilities. The Public Utilities Code requires the board of directors of
an airport district to appoint a general manager who serves at the pleasure of the board.
The general manager's powers and duties include "full charge" of construction,
maintenance, and operation of the District's physical properties; "full power" over
employment, duties, compensation, and discharge of "all employees and assistants;" and
"other duties as may be imposed by the board." Thus, we readily conclude that the
office of general manager of an airport district is a public office because it is a
government position created by statute, its tenure is continuous, and its incumbent
exercises public powers for the public benefit.
Are the Two Offices Incompatible?
Under Government Code section 1099 and established precedent, a person may
not simultaneously hold two public offices if "there is a possibility of a significant clash
of duties or loyalties" based on the powers and jurisdiction of the offices. It is well
established that an actual occurrence of conflict, past or present, between two offices is
not required for incompatibility. It is sufficient that a potential conflict may be
anticipated by examining the duties and functions of the two offices. Nor is it
necessary for the incompatible functions to outweigh the compatible ones; it is enough if
only one potential significant clash of duties or loyalties exists.
The Truckee Tahoe Airport District is located partially within Nevada County.
Because the District and Nevada County have territory in common, decisions made by
one entity can affect the other, especially in cases where both agencies operate within the
same sphere of influence.
In this case, the most glaring source of potential conflict is aviation, because
Nevada County owns and operates the Nevada County Airport located in Grass Valley,
about 65 miles by road from the Truckee Tahoe Airport. Like the Truckee Tahoe
Airport operated by the Airport District, the Nevada County Airport is also a general
aviation airport that supports a variety of aircraft for recreation, instruction,
transportation, and other public and commercial operations. Among other functions, the
Nevada County Airport supports charter operations and aircraft maintenance services,
charges landing fees, rents hangar and aircraft parking spaces, and sells aviation fuel.
When two agencies operate in the same sphere, opportunities can arise for
conflicted loyalties in a person who represents both. Direct competition could arise
between Truckee Tahoe Airport and Nevada County Airport if, for example, one adjusted
its hangar rents, fuel prices, or landing fees, to the detriment of the other. Indirect
competition could also occur if the two agencies were to compete for the same resources,
such as contracts, customers, supplies, or grant opportunities. Even cooperative
arrangements between overlapping agencies create the potential for conflict, as when one
person negotiates on two sides of a contract. Counties and airport districts are
authorized to enter into agreements with each other under the Joint Exercise of Powers
Act, in order to jointly exercise a power they have in common. Negotiating any such
agreement, even for the purpose of collaboration, would entail a clash of loyalties in a
dual office holder. Other types of agreements, such as one to jointly acquire property or
services, could also engender such conflicts.
Outside of airport operations, there are numerous potential conflicts between the
Truckee Tahoe Airport District and Nevada County. As mentioned above, the Airport
District draws a significant portion of its revenues from taxes on property located in
Nevada County, and it uses a portion of its revenues to support community projects
within Nevada County indirectly related to airport operations, such as projects regarding
recreation, education, transportation, environmental quality, and affordable housing.
These District projects could pose potential conflicts with overlapping or competing
projects supported by Nevada County. And District projects involving site plans, use
permits, zoning variances or the like could require the District to seek, and the County to
give, planning approvals. The applicant-evaluator relationship that would exist in such
circumstances naturally presents a conflict if one officer acts in both roles. In addition,
both Nevada County and the Truckee Tahoe Airport District have the power of eminent
domain. Each might seek to acquire the same property, or one might seek to acquire
the property of the other. We have previously recognized that the common ability to use
eminent domain within the same territory results in a potential conflict for the officials
authorized to exercise the power.
These are by no means the only potential conflicts we can anticipate from the
concurrent holding of the offices of Nevada County Supervisor and General Manager of
the Truckee Tahoe Airport District. For purposes of Government Code section 1099, this
is more than enough to cause us to conclude that the two offices are incompatible, and
that one person may not simultaneously hold both.