CA 23-302 2023-11-30

Can a member of the City of San Diego Audit Committee also serve on SANDAG's TransNet ITOC, the SANDAG Audit Policy Advisory Committee, or as the MTS Internal Auditor without violating California's incompatible-offices statute?

Short answer: Mostly no. The AG concluded that simultaneous service on the City Audit Committee and either SANDAG body would violate § 1099 because of overlapping audit jurisdiction. Service as MTS Internal Auditor is allowed because that position is employment, not a public office. The City Council itself does not violate state law by making an incompatible appointment; the appointee just forfeits the earlier office.

Disclaimer: This is an official California Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed California attorney for advice on your specific situation.

Plain-English summary

Assemblymember David Alvarez asked the AG whether a public member of the City of San Diego Audit Committee could also hold any of three other transit-related positions: a seat on the SANDAG TransNet Independent Taxpayer Oversight Committee (ITOC), a seat on the SANDAG Audit Policy Advisory Committee, or the role of MTS Internal Auditor. The AG took each pairing in turn and gave separate answers grounded in the same Government Code § 1099 framework.

For (a) the ITOC and (b) the SANDAG Audit Committee, the answer is no. Both bodies are "public offices" under the AG's three-part test (created by law, continuing tenure, exercise of sovereign powers), and both could end up auditing or overseeing audits of the same underlying transactions as the City Audit Committee, including the City's use of TransNet funds. Holding both seats creates the kind of overlapping audit jurisdiction § 1099 was designed to prevent. The AG read the City and SANDAG bodies as having potentially divergent loyalties: each oversees a different parent organization, and the same person sitting on both could not give either organization the undivided judgment § 1099 requires.

For (c) the MTS Internal Auditor, the answer is yes, with caveats. The Internal Auditor position is not a "public office" under the three-part test. It is not created by law, the Auditor is three steps removed from the MTS Board, and the position executes audit plans approved by senior management rather than setting them. So § 1099 does not apply. Government Code § 1126 (incompatible outside activities) could in principle apply but is not self-executing; it requires the City Council, as the appointing authority, to determine that serving as MTS Internal Auditor is incompatible with serving on the City Audit Committee, and to give appropriate notice. Without such a determination, § 1126 does not bar the dual service. Other conflicts laws (§ 1090 contract-financial interest, the Political Reform Act § 87100, the common-law conflict-of-interest rule) generally regulate transaction-by-transaction conflicts rather than status-based dual office holding, so they would not categorically bar the dual service.

The AG also answered a second question: does the City Council itself violate state law by making an appointment that results in incompatible offices? No. The remedy under § 1099(b) runs against the appointee, not the appointing authority. The appointee automatically forfeits the first office on accepting the incompatible second office; the Council does not commit any violation by making the appointment.

What this means for you

If you sit on a local audit committee in California and someone offers you a seat on a related regional body

Stop and run the § 1099 analysis before accepting. Audit and oversight roles are particularly likely to be incompatible because audit authority over the same transactions in two different organizations creates exactly the kind of conflict the statute targets. Get formal guidance from your city attorney or county counsel before accepting. If the second body is a public office under the three-part test (created by law, continuing tenure, sovereign authority), and there is potentially overlapping audit jurisdiction, do not accept; under § 1099(b), accepting forfeits your first office.

If you are a city council appointing public members to audit committees

You do not violate state law by making an appointment that turns out to create incompatible offices. But the practical effect is that your appointee may have just forfeited their other public office, and you may be giving the appointment to someone who cannot then exercise it without controversy. Vet appointees for existing offices, particularly on regional bodies, before voting.

If you sit on a special-district board (transit, health care, water) and serve in another local government role

Health care districts, transit agencies, and water districts often serve residents within cities you also represent. § 1099 reaches dual service in those circumstances, especially where one body has audit, supervisory, or contracting authority that touches the other. The AG's recent willingness to grant quo warranto leave (see, e.g., Op. 23-203) means a misstep can land in court.

If you are a city HR or compensation officer overseeing employees who serve on outside boards

§ 1126 covers your shop. It is not self-executing: you have to identify which outside activities are incompatible with your agency role and notify employees. If you have not done that work, § 1126 does not currently restrict your employees' outside activities.

Common questions

Q: What is the three-part test for whether a position is a "public office"?
A: (1) The position is created or authorized by the Constitution or some law. (2) Tenure is continuing and permanent, not occasional or temporary. (3) The incumbent performs a public function for public benefit and exercises some of the sovereign powers of the state. All three have to be present.

Q: Why is the MTS Internal Auditor not a "public office"?
A: It is not created by any statute, charter, or ordinance; it sits three layers down in the organizational hierarchy under the Board; and it executes audit plans developed by senior management rather than setting policy. The AG analogized it to Schaefer v. Superior Court (1952), where the Court of Appeal held a state employee with audit responsibilities was not a public officer.

Q: Can two oversight committees ever be compatible?
A: Sometimes. § 1099(d) carves out advisory bodies, so a body with only advisory power is not subject to the prohibition. But if both bodies have substantive audit, supervisory, or removal authority over the same matters, they are likely incompatible. The clean way to check is to apply § 1099(a)'s three triggers: supervisory/auditing/removal power, possibility of significant clash of duties or loyalties, public-policy improperness.

Q: What is the practical consequence under § 1099(b)?
A: The dual office holder is "deemed to have forfeited the first office upon acceding to the second." Forfeiture is automatic on acceptance of the second office. A subsequent quo warranto under Code of Civil Procedure § 803 can establish that the forfeiture occurred and remove the person from the first office.

Q: Why doesn't the appointing authority violate state law?
A: Section 1099 imposes the consequence on the dual office holder, not the appointer. Neither § 1099 nor any other authority the AG could find provides for sanctions on the appointing body.

Background and statutory framework

Government Code § 1099, enacted in 2005, codifies California's common-law incompatible-offices rule. Subdivision (a) lists three independent triggers for incompatibility: one office can supervise, audit, or remove the other; possibility of a significant clash of duties or loyalties; or dual office holding would be improper for public-policy reasons. Subdivision (b) makes acceptance of the second office automatic forfeiture of the first. Subdivision (c) excludes positions of "employment" from the rule. Subdivision (d) excludes purely advisory bodies.

The City of San Diego Audit Committee is established by Article V, Section 39.1 of the City Charter. Five members: two City Council members and three public appointees with auditing or accounting expertise. Duties include directing the City Auditor, conducting the City Auditor's annual review, approving the annual audit plan, and overseeing the engagement of the City's outside auditor.

SANDAG, the San Diego Association of Governments, is a regional transportation planning agency under Public Utilities Code § 132350 et seq. It administers the TransNet program, a sales tax that funds local transportation projects. The TransNet Extension and Ordinance, approved by voters in 2004, established the ITOC. SANDAG's Audit Policy Advisory Committee is established under Public Utilities Code § 132351.4. Both bodies have substantive audit and oversight responsibilities, with the SANDAG Audit Committee specifically overseeing the independent performance auditor under § 132354.1.

The MTS, the San Diego Metropolitan Transit System, is governed by Public Utilities Code §§ 120050 et seq. The Internal Auditor is an MTS employee, not a public officer.

Citations

Statutes:
- Cal. Gov. Code § 1099
- Cal. Gov. Code § 1090
- Cal. Gov. Code § 1126
- Cal. Gov. Code § 87100
- Cal. Pub. Util. Code § 132351.4
- Cal. Pub. Util. Code § 132354.1

Cases:
- Schaefer v. Superior Court (1952) 113 Cal.App.2d 428, auditor employee not a public officer
- Moore v. Panish (1982) 32 Cal.3d 535
- Dibb v. County of San Diego (1994) 8 Cal.4th 1200, tenure analysis
- People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636, incompatibility "lies in a conflict of interest"
- People v. Rosales (2005) 129 Cal.App.4th 81, supervisory layers indicate employment
- Mazzola v. City & County of San Francisco (1980) 112 Cal.App.3d 141, § 1126 not self-executing
- Long Beach Police Officers Assn. v. City of Long Beach (1988) 46 Cal.3d 736, § 1126 standard-setting
- Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152: common-law conflict-of-interest rule

Source

Landing page: https://oag.ca.gov/opinions/yearly-index
Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/23-302.pdf

Official Citation: 106 Ops.Cal.Atty.Gen. 79

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

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No. 23-302
November 30, 2023

The HONORABLE DAVID A. ALVAREZ, MEMBER OF THE CALIFORNIA
ASSEMBLY, has requested an opinion on questions relating to the legal compatibility of
government offices.
QUESTIONS PRESENTED AND CONCLUSIONS
1. Under state law, may an appointed public member of the City of San Diego
Audit Committee concurrently serve as: (a) an appointed public member of the San
Diego Association of Governments (SANDAG) TransNet Independent Taxpayer
Oversight Committee; (b) an appointed public member of the SANDAG Audit Policy
Advisory Committee; or (c) the Internal Auditor of the San Diego Metropolitan Transit
System?
As to (a) and (b), an appointed public member of the City Audit Committee may
not serve concurrently as an appointed public member of either the SANDAG TransNet
Independent Taxpayer Oversight Committee or the SANDAG Audit Policy Advisory
Committee. Such concurrent service would violate Government Code section 1099,
which prohibits serving in legally incompatible public offices.
As to (c), an appointed public member of the City Audit Committee may serve
concurrently as the Internal Auditor of the San Diego Metropolitan Transit System
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without violating section 1099, because the Internal Auditor position is not a public
office. Such concurrent service also would not violate Government Code section 1126’s
prohibition against engaging in incompatible outside activities, unless the City Council
determines that serving as the System’s Internal Auditor is incompatible with the duties
of a City Audit Committee member. Other state laws prohibiting financial and personal
conflicts of interest would not prohibit the concurrent holding of these positions either.
Those laws generally apply to particular government transactions or decisions, not the
simultaneous holding of government positions, and, in any event, the request does not
reference any type of financial or personal conflict.
2. Would the City Council of San Diego violate state law by appointing a member
of the public to the City Audit Committee if doing so would result in the appointee
holding incompatible public offices in violation of Government Code section 1099?
No. The City Council would not violate state law by appointing a member of the
public to the City Audit Committee if doing so would result in the appointee holding
incompatible public offices in violation of Government Code section 1099. Although
section 1099(b) provides that a public officer who accepts a second, legally incompatible
public office thereby forfeits the first office held, neither section 1099, nor any other
authority we are aware of, provides that an appointing authority violates or is subject to
any sanction under state law by making such an appointment.
BACKGROUND
This opinion request concerns three government entities that serve the
transportation needs of San Diego County residents, along with the committees and
personnel that help oversee their work. First, the City of San Diego is a charter city
governed by a nine-member City Council. 1 Relevant here, the City’s Charter establishes
an Audit Committee (City Audit Committee) as an “independent body” with “oversight
responsibility regarding the City’s auditing, internal controls, and . . . other financial or
business practices.” 2 The Audit Committee consists of two members of the City Council
and three members of the public (referred to herein as “public members”). 3
Second, the San Diego Association of Governments, or SANDAG, is a regional
transportation planning agency and council of governments. 4 Established in its current
See The City of San Diego, City Councilmembers,
https://www.sandiego.gov/citycouncil (as of Nov. 28, 2023).

San Diego City Charter, art. V, § 39.1.

See SANDAG, About, https://www.sandag.org/about (as of Nov. 28, 2023).
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form by the state Public Utilities Code, SANDAG plans and constructs transportation
projects throughout San Diego County. 5 SANDAG also administers the TransNet
program, a sales tax within the County that funds local transportation projects. 6
SANDAG is governed by a 21-member Board of Directors consisting solely of elected
officials. 7 Several SANDAG committees help oversee the agency’s operations, including
the TransNet Independent Taxpayer Oversight Committee (ITOC) and the Audit Policy
Advisory Committee (SANDAG Audit Committee).
Third, the San Diego Metropolitan Transit System (MTS) is a regional public
transit provider. 8 Also created by the state Public Utilities Code, MTS provides light rail,
bus, and freight service in portions of San Diego County. 9 MTS is governed by a 15member Board of Directors consisting solely of elected officials. 10 MTS employs an
Internal Auditor who audits the System’s internal controls and operations. 11
In recent years, an appointed public member of the City Audit Committee has
simultaneously served on both the ITOC and the SANDAG Audit Committee. 12 Another
appointed public member of the City Audit Committee has simultaneously worked as the
MTS Internal Auditor. 13 This opinion request asks whether such concurrent government
service would violate state law. It further asks whether the San Diego City Council
would violate state law if its appointment to the City Audit Committee resulted in the
appointee holding legally incompatible offices. 14
See Pub. Util. Code, § 132350 et seq. (consolidating several existing transit-related
agencies under SANDAG).
5

See SANDAG, SANDAG TransNet Program, https://www.sandag.org/funding/transnet
(as of Nov. 28, 2023).
6

See Pub. Util. Code, § 132351.1, subds. (a), (d).

See MTS, About MTS, https://www.sdmts.com/about/about-mts (as of Nov. 28, 2023).

See Pub. Util. Code, §§ 120050, 120054.

See Pub. Util. Code, § 120050.2.

See Agenda, Joint Meeting of the Audit Oversight Committee for the MTS (Feb. 14,
2008), at p. C-1 (eighth page of PDF document),
https://www.sdmts.com/sites/default/files/aoc_2-14.pdf (as of Nov. 28, 2023) (Audit
Committee Agenda).
11

See Assemblymember David A. Alvarez, letter to Acting Senior Assistant Attorney
General Marc J. Nolan, Mar. 16, 2023, at p. 1 (Request for Opinion).
12

See Request for Opinion, at p. 1.

The opinion request asks only about applicable state law. We express no opinion as to
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ANALYSIS
1. Would the dual office holding violate state law?
The first question here asks whether state law would prohibit a public member of
the City Audit Committee from serving concurrently in one or more of three other
government positions. The primary statute governing that question is Government Code
section 1099, which prohibits a “public officer” from “simultaneously hold[ing] two
public offices that are incompatible.” 15 The prohibition “springs from considerations of
public policy which demand that a public officer discharge his or her duties with
undivided loyalty.” 16 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.” 17
There are two steps in a section 1099 analysis. 18 First, we determine if each
position at issue is a “public office” subject to the prohibition. Second, if both positions
are “public offices,” then we consider whether they are legally incompatible. Applying
that approach here, we will evaluate whether section 1099 would prohibit concurrently
whether the simultaneous government service at issue could violate any local law, such
as the San Diego City Charter or Administrative Regulations. (See State of California,
Office of the Attorney General, Guidelines Regarding Attorney General Opinions Under
Government Code Section 12519, at p. 2, https://oag.ca.gov/system/files/media/agopinion-guidelines.pdf (as of Nov. 28, 2023) [“The Attorney General declines requests
for opinions that exclusively call for interpretation of local laws such as charters or
ordinances. Responsibility for interpreting and enforcing local laws rests with local
government lawyers”].)
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.
15

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

Gov. Code, § 1099, subd. (b). Because section 1099 “codifies the common law rule
prohibiting an individual from holding incompatible public offices” (id., § 1099, subd.
(f)), “our construction and application” of the statute are “guided by administrative and
judicial interpretations developed under the common law,” before section 1099’s
enactment in 2005 (93 Ops.Cal.Atty.Gen. 144, 146 (2010)). (See also Stats. 2005,
ch. 254, § 2 [“Nothing in this act is intended to expand or contract the common law rule
prohibiting an individual from holding incompatible public offices. It is intended that
courts interpreting this act shall be guided by judicial and administrative precedent
concerning incompatible public offices developed under the common law”].)
17

See 104 Ops.Cal.Atty.Gen. 66, 68-69 (2021); 102 Ops.Cal.Atty.Gen. 39, 41-47 (2019).
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serving in each pair of government positions. If it would not, then we will consider
whether any other state conflict-of-interest law would apply. 19
Are the positions “public offices” subject to section 1099?
The section 1099 prohibition applies only to “public offices” and not to
“position[s] of employment.” 20 The statute provides that a “public officer” includes “an
appointed or elected member of a governmental board, commission, committee, or other
body,” so long as the body’s powers are not merely “advisory.” 21 We evaluate whether a
government position is a “public office” by applying a three-part test: we ask whether it
is “a position in government (1) which is created or authorized by the Constitution or
some law; (2) the tenure of which is continuing and permanent, not occasional or
temporary; (3) in which the incumbent performs a public function for the public benefit
and exercises some of the sovereign powers of the state.” 22 “Sovereign powers of the
state” include statutorily imposed duties related to the exercise of state police powers;
power to dispose of public property; power to incur financial obligations on the part of
the government; and power to act in business or political dealings between individuals
and the public. 23 A position can qualify as a “public office” even if it is not
compensated. 24
Relevant here, past Attorney General opinions and judicial decisions have
considered whether government positions with auditing and oversight authority are
“public offices.” We have concluded, for example, that the position of county auditor is a
“public office” because it is established by statute, it is filled through regular elections,
Our analysis is based on the facts provided to us and our reading of the state and local
laws that define the authority of the relevant government positions. If the actual powers
or circumstances of those positions were to differ from our understanding, then our
analysis and conclusion may of course differ as well.
19

Gov. Code, § 1099, subds. (a), (c).

Gov. Code, § 1099, subds. (a), (d).

102 Ops.Cal.Atty.Gen., supra, at pp. 42-43; see 95 Ops.Cal.Atty.Gen. 77, 78 (2012);
93 Ops.Cal.Atty.Gen., supra, at p. 148; 93 Ops.Cal.Atty.Gen. 104, 105-106 (2010);
82 Ops.Cal.Atty.Gen. 83, 84 (1999); see also Moore v. Panish (1982) 32 Cal.3d 535, 545.
22

73 Ops.Cal.Atty.Gen. 183, 184-185 (1990); see 104 Ops.Cal.Atty.Gen., supra, at pp.
68-69; 102 Ops.Cal.Atty.Gen., supra, at pp. 43-44.
23

See, e.g., 66 Ops.Cal.Atty.Gen. 176, 180-181 (1983) (even if fire chief waived a salary,
he would remain a public officer subject to the incompatible-offices prohibition);
68 Ops.Cal.Atty.Gen. 7, 10-11 (1984) (same for deputy sheriff).
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and it is vested with sovereign government authority to audit county operations. 25 In
contrast, the Court of Appeal held in Schaefer v. Superior Court that an unelected
employee of the California Department of Employment who served as auditor in charge
of a local district audit office did not hold a “public office.” 26 The court reasoned that the
position was not created by law, it was “subordinate to four other positions” in the
organizational hierarchy, and it possessed limited discretionary authority. 27
With these authorities in mind, we will evaluate whether each of the four
government positions at issue is a “public office” subject to section 1099. We conclude
that all positions are “public offices” except for the MTS Internal Auditor.
Public member of City Audit Committee
The City of San Diego Audit Committee is an “independent body” with “oversight
responsibility regarding the City’s auditing, internal controls, and . . . other financial or
business practices.” 28 The Committee’s five members include two City Council
members and three public members appointed by the City Council. 29 The three public
appointees “must possess the independence, experience, and technical expertise
necessary to carry out the [Committee’s] duties.” 30 The Committee meets at least once
per quarter, conducting its meetings in accordance with the requirements of the Brown
Act. 31
To determine whether a public appointee to the City Audit Committee holds a
“public office,” we apply the three-part test described above. 32 First, the Committee is
created by law, specifically, section 39.1 of the San Diego City Charter. 33 Second,
89 Ops.Cal.Atty.Gen. 152, 154 (2006); see also, e.g., 88 Ops.Cal.Atty.Gen. 130, 130131 (2005) (county auditor-controller is a “public office”); 101 Ops.Cal.Atty.Gen. 56, 60
(2018) (county superintendent of schools is a “public office,” in part due to
superintendent’s “authority to audit the expenditures and internal controls of school
districts”).
25

Schaefer v. Superior Ct. (1952) 113 Cal.App.2d 428, 433-436.

Schaefer v. Superior Ct., supra, 113 Cal.App.2d at pp. 433-436.

San Diego City Charter, art. V, § 39.1.

San Diego City Charter, art. V, § 39.1; see also San Diego Munic. Code, § 26.1702.

San Diego Munic. Code, § 26.1703.

See 102 Ops.Cal.Atty.Gen., supra, at pp. 42-43.

See also San Diego City Charter, art. V, § 39.2 (further describing role of Audit
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membership on the Committee is continuing, with public members serving four-year
terms and until a successor is appointed. 34 Third, the Committee is charged with
performing “important governmental functions requiring the exercise of independent
judgment” related to the City’s auditing function. 35 The Committee’s duties include
directing and reviewing the work of the City Auditor, who reports directly to the
Committee; conducting the City Auditor’s annual performance evaluation; and reviewing
and approving the City’s annual audit plan. 36 The Committee also monitors the
engagement of the City’s outside auditor, and it resolves any disputes that arise between
the outside auditor and City management concerning the City’s annual financial reports. 37
As noted, we have previously concluded that local government positions with similar
auditing authority are “public offices.” 38 We likewise conclude that a public appointee to
the City Audit Committee holds a “public office” as well.
Public member of ITOC
The next two government bodies at issue are committees of SANDAG, the San
Diego Association of Governments. First, the TransNet Independent Taxpayer Oversight
Committee, or ITOC, provides increased accountability for expenditures made under the
TransNet program. 39 As described above, TransNet is a sales tax administered by
SANDAG that funds local transportation projects, including projects carried out by the
Committee); San Diego Munic. Code, §§ 26.1701-26.1711 (describing structure and
duties of Audit Committee).
See San Diego City Charter, art. V, § 39.1; see also 83 Ops.Cal.Atty.Gen. 153, 156
(2000) (membership on commission was “public office” where each “member’s tenure is
not transient, and incumbents succeed one another”).
34

101 Ops.Cal.Atty.Gen., supra, at p. 61.

San Diego Munic. Code, §§ 26.1701, subd. (a), 26.1710, subd. (a); see, e.g.,
82 Ops.Cal.Atty.Gen. 201, 202-203 (1999) (city administrator was “public office” due, in
part, to administrator’s authority to direct and supervise other government actors).
36

San Diego Munic. Code, § 26.1701, subd. (a)(7).

See, e.g., 89 Ops.Cal.Atty.Gen., supra, at p. 154 (county auditor);
88 Ops.Cal.Atty.Gen., supra, at pp. 130-131 (county auditor-controller).
38

TransNet Extension & Ordinance, at p. 14, § 11 (2004) (voter initiative establishing
ITOC), https://www.sandag.org//media/SANDAG/Documents/PDF/funding/transnet/transnet-extension-ordinance-andexpenditure-plan.pdf (as of Nov. 28, 2023); id., Statement of Understanding Regarding
the Implementation of the Independent Taxpayer Oversight Committee For the TransNet
Program, at p. 44 (Statement of Understanding Regarding Implementation of ITOC).
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City of San Diego. 40 A 2004 voter initiative that extended TransNet created the ITOC to
provide increased oversight of program implementation. 41 The ITOC consists of seven
voting members, selected by a committee of public officials to represent different areas of
subject matter expertise. 42 Members serve without compensation except for
reimbursement of expenses. 43
Applying the three-part test, we conclude that a public appointee to the ITOC
holds a “public office.” 44 The ITOC is created by law, specifically, the 2004 voter
initiative that extended TransNet. 45 Membership on the ITOC is continuing, with
members serving four-year terms. 46 And the ITOC performs important “public
function[s] for the public benefit” concerning auditing and oversight. 47 The ITOC is
charged with conducting an annual fiscal and compliance audit of all TransNet-funded
activities through an independent fiscal auditor and preparing a report for the SANDAG
Board. 48 It also conducts triennial performance audits of SANDAG and other agencies to
review delivery, cost control, and schedule adherence of TransNet-funded projects; it
reviews ongoing SANDAG system performance evaluations; and it reviews proposed
debt financings and major congestion relief projects. 49

See SANDAG, SANDAG TransNet Program, https://www.sandag.org/funding/transnet
(as of Nov. 28, 2023); Request for Opinion, at p. 1.
40

See TransNet Extension & Ordinance, at p. 14, § 11; Statement of Understanding
Regarding Implementation of ITOC, at p. 44.
41

See Statement of Understanding Regarding Implementation of ITOC, at pp. 45-46;
SANDAG, TransNet Independent Taxpayer Oversight Committee Bylaws, at pp. 1-2,
§§ A, B, https://www.sandag.org/-/media/SANDAG/Documents/PDF/meetings-andevents/policy-advisory-committees/transnet-ITOC/ITOC-bylaws.pdf (as of Nov. 28,
2023).
42

See Statement of Understanding Regarding Implementation of ITOC, at p. 46.

See 102 Ops.Cal.Atty.Gen., supra, at pp. 42-43; see also 89 Ops.Cal.Atty.Gen., supra,
at p. 154 (county auditor is a “public officer”); 88 Ops.Cal.Atty.Gen., supra, at pp. 130131 (county auditor-controller is a “public officer”).

See TransNet Extension & Ordinance, at p. 14, § 11.

See Statement of Understanding Regarding Implementation of ITOC, at pp. 46-47.

101 Ops.Cal.Atty.Gen., supra, at p. 59.

Statement of Understanding Regarding Implementation of ITOC, at p. 47.

Statement of Understanding Regarding Implementation of ITOC, at pp. 47-48.
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Public member of SANDAG Audit Committee
The second SANDAG committee at issue, the Audit Policy Advisory Committee,
“assist[s] the [SANDAG] Board in fulfilling its oversight responsibilities.” 50 Established
by statute as one of five standing policy advisory committees, the SANDAG Audit
Committee “provide[s] a forum for pursuing . . . opportunities for improvements in
operations, financial reporting and internal controls.” 51 The Committee has five voting
members, including two SANDAG Board members and three members of the public
appointed by the Board. 52 Public members serve without compensation. 53
Applying the three-part test, we conclude that a public appointee to the SANDAG
Audit Committee holds a “public office” as well. The Committee is established by
statute, specifically, section 132351.4 of the Public Utilities Code. 54 Membership on the
Committee is continuing, with public members serving two-year terms. 55 And the
SANDAG Audit Committee, like the ITOC, exercises important government powers
concerning auditing and oversight. 56 The Committee’s duties include recommending an
outside auditing firm to conduct annual financial statement audits and overseeing both the
conduct of such audits and the implementation of corrective action to address audit
deficiencies. 57 In addition, the Committee appoints (subject to approval by the SANDAG
Board) an independent performance auditor who has broad authority to audit all agency
departments, offices, boards, activities, and programs. 58 The independent performance

SANDAG Board Policy No. 39, § 2.5, https://www.sandag.org//media/SANDAG/Documents/PDF/about/about-SANDAG/bylaws-and-policies/boardpolicy-no-039.pdf (as of Nov. 28, 2023).
50

See Pub. Util. Code, § 132351.4, subd. (a)(5); SANDAG Board Policy No. 39, § 2.5.

Pub. Util. Code, § 132351.4, subd. (a)(5).

See Request for Opinion, at p. 8.

See Pub. Util. Code, § 132351.4, subd. (a), (a)(5) (establishing SANDAG Audit
Committee); see also id., § 132354.1, subd. (b)(1) (describing Committee’s duties).
54

See SANDAG Board Policy No. 39, § 4.1.4.

See 101 Ops.Cal.Atty.Gen., supra, at p. 59 (third prong of test for “public office”).

See SANDAG Board Policy No. 39, §§ 3.1.1, 3.1.3.

See Pub. Util. Code, § 132354.1, subd. (b)(1), (2); SANDAG Board Policy No. 39,
§ 3.1.4. The independent performance auditor has the “power to appoint, employ, and
remove assistants, employees, and personnel” and receives “unrestricted access to
employees, information, and records.” (Pub. Util. Code, § 132354.1, subd. (b)(2), (3).)
58

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auditor reports directly to the Audit Committee, which oversees the performance
auditor’s work and conducts the auditor’s annual performance evaluation. 59
We received one comment letter arguing that membership on the SANDAG Audit
Committee is not a “public office” on the ground that the Committee’s powers are purely
advisory. Under Government Code section 1099(d), the incompatible-office prohibition
does “not apply to a governmental body that has only advisory powers.” As we have
previously explained, “[m]embers of advisory boards and commissions do not hold
‘offices’” for these purposes because “they do not exercise any of the sovereign powers
of the state.” 60 For example, we have applied this limitation to conclude that membership
on the California Senior Legislature was not a “public office” because the Senior
Legislature was only an “advisory body” that proposed “model legislation” for
consideration by the Legislature. 61 In contrast, we have concluded that membership on
the Job Training, Development and Placement Services Advisory Board was a “public
office.” 62 We acknowledged that the Board had “Advisory” in its name. But “despite its
title,” we reasoned that the Board had “affirmative duties [taking] it out of the ‘advisory’
category”—including responsibility to consult with other agencies to develop job-training
programs, and authority to approve plans for related government spending. 63

SANDAG Board Policy No. 39, §§ 3.1, 6.1.

83 Ops.Cal.Atty.Gen., supra, at p. 154; see also 83 Ops.Cal.Atty.Gen. 50, 52 (2000);
62 Ops.Cal.Atty.Gen. 325, 328-329 (1979).
60

83 Ops.Cal.Atty.Gen., supra, at p. 157; see also id. at pp. 157-160 (Area Agency on
Aging Advisory Council of California is an advisory body and membership is not a
“public office”); 42 Ops.Cal.Atty.Gen. 93, 95 (1963) (membership on advisory board of
the Joint Legislative Committee for the Revision of the Penal Code not a public office);
57 Ops.Cal.Atty.Gen. 583, 585 (1974) (“Since the function of the Committee of Bar
Examiners is advisory only, neither it nor its members exercise any of the sovereign
powers of the State”); 57 Ops.Cal.Atty.Gen. 303, 306 (1974); Cal.Atty.Gen., Indexed
Letter, No. I.L. 69-226 (Nov. 18, 1969); Cal.Atty.Gen., Indexed Letter, No. I.L. 79-3
(Jan. 5, 1979); see California Coastal Com. v. Quanta Investment Corp. (1980) 113
Cal.App.3d 579, 593, fn. 11 (“An indexed letter is different from a formal opinion of the
Attorney General, which is widely disseminated throughout the state and is ultimately
published in bound volumes. Indexed letters are kept in the Attorney General’s four
libraries and are ordinarily made available to interested members of the public upon
request”).
61

Cal.Atty.Gen., Indexed Letter, No. I.L. 72-143 (Aug. 16, 1972).

Cal.Atty.Gen., Indexed Letter, No. I.L. 72-143, supra, at pp. 2-3.
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Here too, “despite its title”—the SANDAG Audit Policy Advisory Committee—
we conclude that the Committee’s powers “take it out of the ‘advisory’ category.” 64
Although some of the Committee’s duties involve making recommendations subject to
SANDAG Board approval, in other respects the Committee exercises independent
authority and discretion. For example, the Committee oversees and evaluates the work of
the independent performance auditor, who has considerable authority to audit and
investigate the agency’s performance. 65 As part of its oversight role, the Committee is
charged with approving the annual audit plan prepared by the independent performance
auditor. 66 It also monitors the auditor’s implementation of the plan and approves followup audit procedures. 67 And the Committee has veto power over the performance
auditor’s removal: the auditor can be removed only “for cause” by a two-thirds vote of
both “the audit committee and the [SANDAG] board.” 68 Given these important oversight
responsibilities, we conclude that the SANDAG Audit Committee “exercises a portion of
the sovereign powers of the state,” such that Committee membership is a “public
office.” 69
64

Cal.Atty.Gen., Indexed Letter, No. I.L. 72-143, supra, at p. 2.

See SANDAG Board Policy No. 39, § 3.1.6 (SANDAG Audit Committee “[o]versee[s]
the work of the independent performance auditor in preparing and issuing audit and
investigative reports and other audit, review or attest activities”); id., § 3.1.11
(Committee “[c]onduct[s] the independent performance auditor’s annual performance
evaluation against performance measures established and adopted by the Audit
Committee”); id., § 6.1 (“The independent performance auditor shall report to the Audit
Committee and shall be independent of SANDAG’s internal management and
administration”); Pub. Util. Code, § 132354.1, subd. (b)(2)-(4) (describing authority and
responsibility of independent performance auditor); SANDAG Board Policy No. 39, § 6
(same); see also, e.g., 82 Ops.Cal.Atty.Gen., supra, at pp. 202-203 (city administrator
position was “public office” due, in part, to administrator’s authority to oversee and
supervise the work of other government personnel).
65

SANDAG Board Policy No. 39, § 3.1.7; Pub. Util. Code, § 132354.1, subd. (b)(2); see
Cal.Atty.Gen., Indexed Letter, No. I.L. 72-143, supra, at p. 3 (board’s power not advisory
where it was charged with approving course of action).
66

See SANDAG Board Policy No. 39, §§ 3.1.8, 3.1.9 (monitoring implementation of
audit plan and corrective action), 6.9 (approval of follow-up audit procedures).

See Pub. Util. Code, § 132354.1, subd. (b)(1); SANDAG Board Policy No. 39,
§ 3.1.12; see also, e.g., 67 Ops.Cal.Atty.Gen. 409, 413 (1984) (authority to “fire
personnel” is indicia of “public office”).
68

83 Ops.Cal.Atty.Gen., supra, at p. 52. We emphasize that the power to audit can
indicate that a body is not purely “advisory” for purposes of section 1099(d). As
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MTS Internal Auditor
Finally, we consider the Internal Auditor for the Metropolitan Transit System. As
described above, the MTS provides light rail, bus, and freight service in San Diego
County. MTS employs an Internal Auditor, who audits internal controls, program
operations, program outcomes, and financial and other management data quality. 70 The
Internal Auditor executes an annual audit plan that is developed and approved by senior
management and the MTS Board. 71 In the organization’s hierarchy, the Internal Auditor
is three steps removed from the Board—with the Auditor reporting to the General
Counsel, who reports to the Chief Executive Officer, who is appointed by the Board. 72
Applying the three-part test, we conclude that the position of MTS Internal
Auditor is not a “public office.” First, unlike the committee memberships discussed
above, the Internal Auditor position is not created by any law; its “duties and powers
. . . are not specified by statute, charter, or ordinance.” 73 Second, as to the position’s
“tenure,” it is not one where “the office itself is an entity in which incumbents succeed
one another”—for example, with a fixed term and regular succession. 74 Rather, our
understanding is that the position is “transitory” in that it is “subject to being abolished if
[senior decision makers] so choose.” 75 Third, the position’s structure and authority
discussed below, section 1099(a)(1) provides that two offices are legally incompatible if
either office can “audit” the other. Given that auditing authority is a type of government
power that can render two offices incompatible, it would make no sense to conclude that
a government office with significant auditing responsibility is nonetheless an “advisory”
body, exempt from section 1099 entirely.
See Request for Opinion, at p. 4; Audit Committee Agenda, at p. C-1 (eighth page of
PDF document).
70

See Audit Committee Agenda, at p. C-1 (eighth page of PDF document).

See Request for Opinion, at p. 4; MTS Organizational Chart, at pp. 1 (fifth page of
PDF), 6 (tenth page of PDF), https://www.sdmts.com/sites/default/files/attachments/orgchart-021723.pdf (as of Nov. 28, 2023).
72

78 Ops.Cal.Atty.Gen. 362, 367 (1995) (sheriff’s deputy chief not a “public office,” in
part because position not created by law); see also 81 Ops.Cal.Atty.Gen. 274, 276 (1998)
(position of housing authority secretary and executive director “is a creature of a contract
entered into by the authority, which sets the terms of employment. A public officer is not
the offspring of a contract”); 104 Ops.Cal.Atty.Gen., supra, at p. 73.
73

Dibb v. Cnty. of San Diego (1994) 8 Cal.4th 1200, 1212.

81 Ops.Cal.Atty.Gen., supra, at p. 276; see also 78 Ops.Cal.Atty.Gen, supra, at p. 367
(“A [sheriff’s] deputy chief . . . does not hold a policy-making position. Rather, he has an
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further indicate that it is not a “public office.” Unlike the City Audit Committee, for
instance—which approves the City’s annual audit plan—the MTS Internal Auditor
executes an audit plan developed and approved by senior MTS management and the
Board. 76 Where a government position “execut[es] decisions made by” more senior
actors, the position does not typically “exercise [the] independent judgment[,]
discretion,” or policy-making authority that are hallmarks of a “public office.” 77 The
Internal Auditor’s placement in the organizational hierarchy—three steps removed from
the Board—also suggests that the position is one of employment. 78 The circumstances
here are analogous to Schaefer, where the Court of Appeal held that a state employee
with auditing responsibilities did not hold a “public office” because the position was not
created by law, it was four steps removed from the agency director, and it had relatively
limited discretionary authority. 79
Would the dual office holding violate section 1099 or any other state law?
Having determined which positions are “public offices,” we turn to the second
step of the section 1099 analysis: evaluating whether the offices are legally incompatible.
Section 1099 codifies the common-law rule that two offices are incompatible where a
dual office holder could face a “conflict of interest.” 80 Specifically, it provides that two
“public offices” are incompatible if either office exercises a supervisory, auditing, or
removal power over the other; if there is a possibility of a significant clash of duties or
administrative position which could be eliminated by internal reorganization”).
76

See Audit Committee Agenda, at p. C-1 (eighth page of PDF document).

104 Ops.Cal.Atty.Gen., supra, at p. 73; see id. at p. 74 (charter school directors
“typically carry out the directives of their employer rather than exercising sovereign state
authority”); see also 101 Ops.Cal.Atty.Gen., supra, at p. 59 (“The authority to make
policy or to exercise independent judgment and discretion is also the hallmark of an
officer, as opposed to an employee”); 93 Ops.Cal.Atty.Gen., supra, at pp. 148-149.
77

See, e.g., People v. Rosales (2005) 129 Cal.App.4th 81, 86 (superintendent of county
department of parks and recreation not a “public office” where position was subject to
multiple levels of supervision); 80 Ops.Cal.Atty.Gen. 74, 77 (1997) (assistant city
manager was an employee where position’s responsibilities were “as directed by the city
manager”; the “fact that the assistant city manager may from time to time perform some
of the duties of the city manager does not transform . . . the position . . . into a public
office”); 65 Ops.Cal.Atty.Gen. 316, 318-321 (1982).
78

See Schaefer v. Superior Ct., supra, 113 Cal.App.2d at pp. 433-436.

People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636, 642 (legal incompatibility
“does not consist in the physical impossibility to discharge the duties of both offices” but
rather lies “in a conflict of interest”).
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loyalties between the offices; or if the dual office holding would be improper for reasons
of public policy. 81 To find that two offices are incompatible, a conflict need not have
actually occurred; it is enough that a conflict might occur in the regular operation of the
statutory plan. 82 Nor is it necessary for a clash of duties to occur in all or in the greater
part of the official functions. 83 Indeed, “[o]nly one potential significant clash of duties or
loyalties is necessary to make offices incompatible.” 84 When two offices are
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.’” 85
Applying these rules here, we conclude that the offices at issue in questions 1(a)
and 1(b) would be legally incompatible. For question 1(c), we conclude that section 1099
would not apply, so we will also analyze other state conflict-of-interest laws.
Question 1(a): City Audit Committee and ITOC
Question 1(a) asks whether a public member of the City Audit Committee could
serve simultaneously on the SANDAG TransNet Independent Taxpayer Oversight
Committee, or ITOC. Given our conclusion above that both positions are “public
offices” subject to section 1099, we must evaluate whether the two offices are legally
incompatible. Relevant to that inquiry, the two committees could oversee an audit of the
same subject matter. For example, the City receives TransNet funds from SANDAG. 86
Both the City Audit Committee and the ITOC could be charged with performing or
overseeing an audit of the City’s use of those funds. 87
81

Gov. Code, § 1099, subd. (a)(1)-(3); see 101 Ops.Cal.Atty.Gen., supra, at pp. 61-62.

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

People ex rel. Chapman v. Rapsey, supra, 16 Cal.2d at pp. 641-642.

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

67 Ops.Cal.Atty.Gen., supra, at p. 414, quoting 3 McQuillin, Municipal Corporations
(rev. ed. 1973) § 12.67, pp. 295-296.
85

See Request for Opinion, at p. 1; San Diego City Attorney, Memorandum to
Independent Budget Analyst, Oct. 5, 2022, at p. 2.
86

The ITOC conducts “an annual fiscal and compliance audit of all TransNet-funded
activities using the services of an independent fiscal auditor.” (Statement of
Understanding Regarding Implementation of ITOC, at p. 47.) The audit must “cover all
recipients of TransNet funds.” (Ibid.) As to the City Audit Committee, it could also
oversee an audit of the City’s use of TransNet funds given its broad oversight authority.
(See San Diego Munic. Code, §§ 26.1701, subd. (a), 26.1710.)
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Given this overlap in auditing jurisdiction, we conclude that dual committee
membership could create a conflict of interest that compromises independent decisionmaking. In the above scenario, for example, one committee (or its direct reports) might
conclude that the City’s use of TransNet funds complied with all legal requirements. If
the other committee then identified improprieties, its conclusions could reflect poorly on
the first committee and its members, who failed to uncover any issues. To avoid that
outcome, a dual committee member could be influenced to encourage both committees to
reach the same conclusions. 88 The remaining committee members might also be
influenced, “even unconsciously,” to avoid any findings that could impugn their
colleague’s work on the other committee. 89 Where, as here, an official is “in the
untenable position of having to advise . . . on a proposal or stance he or she had already
approved” in another office, the two offices are incompatible. 90
Moreover, a person serving simultaneously on both committees could also face
divided loyalties if the interests of SANDAG and the City diverged. 91 We have
previously concluded, for example, that where a county office and a statewide office
shared overlapping supervisory authority over school districts, it “would inevitably lead
See 85 Ops.Cal.Atty.Gen. 239, 240 (2002) (“If the performance of the duties of either
office could have an adverse effect on the other, the doctrine precludes acceptance of the
second office”); 101 Ops.Cal.Atty.Gen., supra, at pp. 64-65 (two offices incompatible
where one office had “auditing authority” that “could adversely affect” the other office; a
person serving in both roles “might not be able to remain free of bias in deciding whether
or how such [audits] should be undertaken”).
88

63 Ops.Cal.Atty.Gen. 710, 715 (1980) (where one office can audit another, a dual
officeholder can create a conflict “because of the inability of [the officeholder’s
colleagues] to act impartially with respect to [their] co-worker in the office”; “[t]his is
analogous to the concept that law partners should not represent conflicting interests any
more than an individual lawyer should represent them”).
89

101 Ops.Cal.Atty.Gen., supra, at p. 67. One comment letter argued that there is no
conflict in this scenario because the ITOC would be auditing the City’s spending—not
the spending of the City Audit Committee. The commenter argued that incompatibility
under section 1099(a)(1) requires that one “office[] may audit . . . the other office”—not
the other office’s parent organization. (Gov. Code, § 1099, subd. (a)(1).) But whether
section 1099(a)(1) applies or not, we conclude that the dual office holding could
compromise independent decision-making—making the offices incompatible under
section 1099(a)(2) due to the “possibility of a significant clash of duties or loyalties
between the offices.” (Gov. Code, § 1099, subd. (a)(2).)
90

See Gov. Code, § 1099, subd. (a)(2) (offices incompatible where “there is a possibility
of a significant clash of duties or loyalties between the offices”).
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to divided loyalties” for the same person to serve in both offices: the two positions may
need to perform their overlapping supervisory duties from different “perspective[s],” one
“local” and one “statewide.” 92 Similarly, here, the City Audit Committee and the ITOC
may bring different “perspective[s]” to bear in carrying out their overlapping authority,
for example, to oversee an audit of the City’s use of TransNet funds. 93 “What may be in
the best interests” of the City in performing such an audit “may not be in the best
interests of” SANDAG. 94 In these circumstances, “[h]aving the same person performing”
both auditing roles could result in “divided loyalties.” 95
We recognize that the City Audit Committee and the ITOC were created to
provide independent oversight of the City and SANDAG, respectively. For this reason,
one commenter argued that the duties of the two committees’ members—to ensure good
governance and legal compliance—are aligned, not in conflict. But despite the measures
taken to encourage independence, each committee has an ongoing relationship with its
parent entity; for example, the three public members of the City Audit Committee serve
alongside two sitting San Diego City Councilmembers. 96 And, in executing its oversight
functions, each committee may need to make judgment calls informed by its parent
organization’s interests. For example, the ITOC must allocate finite auditing resources
between the City and other TransNet fund recipients. In these circumstances, an
individual serving simultaneously on both committees—charged with overlapping
auditing functions that impact both the City and SANDAG—could face loyalties divided
between the two entities. 97 For these reasons, we conclude that section 1099 would
prohibit a public member of the City Audit Committee from serving concurrently as a
public member of the ITOC. 98
78 Ops.Cal.Atty.Gen. 316, 321-322 (1995) (membership on county board of
supervisors incompatible with membership on California Community Colleges Board of
Governors due to overlapping supervisory authority over community college districts in
the county); see also 74 Ops.Cal.Atty.Gen. 116 (1991) (membership on State Board of
Education incompatible with position of county superintendent of schools given
overlapping authority to supervise schools within the county).
92

78 Ops.Cal.Atty.Gen., supra, at p. 322

78 Ops.Cal.Atty.Gen., supra, at p. 322.

See San Diego City Charter, art. V, § 39.1.

See 78 Ops.Cal.Atty.Gen., supra, at p. 322.

In light of that conclusion, we need not consider whether any other state conflict-ofinterest law would also apply.
98

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Question 1(b): City Audit Committee and SANDAG Audit Committee
For similar reasons, we conclude that section 1099 would also prohibit a public
member of the City Audit Committee from serving simultaneously as a public member of
the SANDAG Audit Committee. Once again, both positions are “public offices” subject
to the section. And dual committee membership could again create a conflict of interest
because the two committees could oversee audits of the same subjects. For example,
both the SANDAG Audit Committee and the City Audit Committee could oversee audits
of a project involving both SANDAG and the City. 99 The two committees could also
have overlapping jurisdiction to audit contracts between SANDAG and the City—with
each committee potentially gaining access to the other contracting party’s records. 100
Given these overlaps in auditing jurisdiction, a dual committee member could face the
same conflicts discussed above. 101
Question 1(c): City Audit Committee and MTS Internal Auditor
As explained above, section 1099 prohibits serving in two government positions
only if they are both “public offices.” 102 We concluded above that the Metropolitan
Transit System’s Internal Auditor does not hold a “public office” for these purposes. We
therefore conclude, in response to question 1(c), that section 1099 would not prohibit the
Internal Auditor from serving concurrently on the City Audit Committee. We will
consider next whether any other state law would apply in these circumstances.
Government Code section 1126. Government Code section 1126 prohibits local
agency personnel from engaging in certain incompatible outside activities. 103
Specifically, it prohibits “a local agency officer or employee” from “engag[ing] in any
employment, activity, or enterprise for compensation which is inconsistent, incompatible,
See SANDAG Board Policy No. 39, §§ 3.1.6-3.1.7, 6; San Diego Munic. Code,
§§ 26.1701, subd. (a), 26.1710; see also San Diego City Attorney, letter to City Audit
Committee member, Apr. 21, 2022, at p. 2.
99

See San Diego City Charter, art. V, § 39.2 (“All City contracts with consultants,
vendors, or agencies will be prepared with an adequate audit clause to allow the City
Auditor access to the entity’s records needed to verify compliance with the terms
specified in the contract”); SANDAG Board Policy No. 39, § 6.16 (describing
SANDAG’s rights of access to the records of contracting parties).
100

101

See 85 Ops.Cal.Atty.Gen., supra, at p. 240; 101 Ops.Cal.Atty.Gen., supra¸ at p. 65.

See Gov. Code, § 1099, subd. (a) (“A public officer . . . shall not simultaneously hold
two public offices that are incompatible,” italics added).
102

A similar prohibition exists for state officers and employees. (See Gov. Code,
§ 19990.)
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in conflict with, or inimical to his or her duties as a local agency officer or employee.” 104
Importantly, however, the section 1126 prohibition is “not self-executing.” 105 Rather, the
statute gives each local agency’s appointing authority discretion to determine which
outside activities, if any, are incompatible. 106 The statute provides a non-exhaustive list
of activities that the agency may draw on in making that determination. 107 An agency
must notify its officers and employees as to which activities are incompatible and provide
notice of any “intended disciplinary action.” 108 If an agency does not determine that a
given outside activity is incompatible and provide appropriate notice, then section 1126
does not apply. 109
There are two government positions at issue here—MTS Internal Auditor and City
Audit Committee member—so we will consider whether section 1126 could apply to
either. First, the position of MTS Internal Auditor is subject to section 1126 because the
Auditor is an “employee” of a “local agency,” the MTS. 110 Section 1126 would not
prohibit the Internal Auditor from also serving on the City Audit Committee, however,
because the prohibition applies only to outside activities that are compensated, and public
members of the City Audit Committee are unpaid. 111
Gov. Code, § 1126, subd. (a). The statute further prohibits engaging in any
compensated outside activities that are inconsistent with “the duties, functions, or
responsibilities of [the local agency officer or employee’s] appointing power or the
agency by which he or she is employed.” (Ibid.)
104

105

81 Ops.Cal.Atty.Gen., supra, at p. 277.

See 81 Ops.Cal.Atty.Gen., supra, at p. 277; Mazzola v. City & Cnty. of San Francisco
(1980) 112 Cal.App.3d 141, 154; Long Beach Police Officers Assn. v. City of Long Beach
(1988) 46 Cal.3d 736.
106

See Gov. Code, § 1126, subd. (b); see also Long Beach Police Officers Assn. v. City of
Long Beach, supra, 46 Cal.3d at p. 746 (local agency is “free to set standards different
from or more rigorous than those suggested in the statute”).
107

Mazzola v. City & Cnty. of San Francisco, supra, 112 Cal.App.3d at p. 154; see ibid.
(notice gives employee or officer “a chance to either appeal the agency’s determination”
or else resolve the conflict by “resign[ing] from either his outside or agency position”).
108

E.g., Mazzola v. City & Cnty. of San Francisco, supra, 112 Cal.App.3d at p. 155
(agency was precluded from alleging section 1126 violation where it knew of employee’s
outside activities at time of appointment and did not notify him they were incompatible).
109

Gov. Code, § 1126, subd. (a); see Gov. Code, § 1125 (defining “local agency” as “a
county, city, city and county, political subdivision, district, or municipal corporation”).
110

111

See Gov. Code, § 1126, subd. (a); Request for Opinion, at p. 7.
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Second, members of the City Audit Committee are also subject to section 1126
because they are “officer[s]” of the City of San Diego, a “local agency.” 112 Because the
MTS Internal Auditor position is compensated, section 1126 could potentially be applied
to prohibit City Audit Committee members from simultaneously serving as the MTS
Internal Auditor. As described above, however, section 1126 would apply only if the
City Council—the appointing authority for the City Audit Committee—lawfully
exercised its “discretion under the statute to determine” that the duties of City Audit
Committee members are “incompatible with [the] duties” of serving as the MTS Internal
Auditor. 113 In the absence of such a determination—and we are not aware of any—
section 1126 would not prohibit a City Audit Committee member from serving
concurrently as the MTS Internal Auditor.
Other state conflict-of-interest laws. Other state laws prohibit personal and
financial conflicts of interest. For example, Government Code section 1090 prohibits city
and county officers and employees from being “financially interested in any contract
made by them in their official capacity, or by any body or board of which they are
members.” 114 And the Political Reform Act generally disqualifies public officials from
participating in government decisions in which they have a prohibited financial
interest. 115 Finally, local officials are also subject to the common-law prohibition on
public officials “placing themselves in a position where their private, personal interests
may conflict with their official duties.” 116
We see no reason that these prohibitions would apply here. These laws generally
regulate conflicts of interest arising from particular transactions or decisions, not statusbased conflicts arising from the concurrent holding of multiple government positions. 117
In any event, the request does not reference any type of financial or personal conflict of
interest, and the positions at issue do not appear to implicate any such conflict.
Gov. Code, § 1126, subd. (a); see Gov. Code, § 1125 (defining “local agency” as “a
county, city, city and county, political subdivision, district, or municipal corporation”).
112

113

81 Ops.Cal.Atty.Gen., supra, at p. 277.

Gov. Code, § 1090, subd. (a); see 67 Ops.Cal.Atty.Gen. 369, 375-377 (1984);
81 Ops.Cal.Atty.Gen., supra, at pp. 277-279.
114

115

Gov. Code, § 87100; see 85 Ops.Cal.Atty.Gen. 115, 119-122 (2002).

Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1171; see also
81 Ops.Cal.Atty.Gen., supra, at pp. 280-281.
116

See 81 Ops.Cal.Atty.Gen., supra, at p. 281 (“[C]onflict of interest principles generally
do not bar a person from holding two different positions, instead requiring only
abstention when a particular matter arises”).
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2. Would the City Council violate state law if its appointment to the City Audit
Committee resulted in the appointee holding incompatible public offices?
The second question presented asks whether the San Diego City Council would
violate state law if its appointment to the City Audit Committee resulted in the appointee
holding legally incompatible offices. We conclude that it would not.
As noted above, Government Code section 1099(b) provides the remedy when a
public officer assumes two incompatible offices: the officer is “deemed to have forfeited
the first office upon acceding to the second.” 118 The statute further provides that the
officer can be removed from the first office through an action in quo warranto. 119 But
neither section 1099, nor any other authority we are aware of, provides that an appointing
authority violates state law by making such an appointment. 120 We therefore conclude
that the City Council would not violate state law by making an appointment to the City
Audit Committee that results in the appointee holding legally incompatible offices.
Rather, under section 1099(b), the appointee would be deemed to forfeit the first office
held.

118

Gov. Code, § 1099, subd. (b).

119

See Gov. Code, § 1099, subd. (b); Code Civ. Proc., § 803.

For example, we are aware of no authority suggesting that the City Council could
violate Government Code section 1126 through an Audit Committee appointment. (See
Gov. Code, § 1126, subd. (a) [prohibiting local agency personnel from engaging in
certain incompatible outside activities].) Rather, as discussed above, section 1126 gives
local agencies discretion to determine which outside activities, if any, are inconsistent
with an agency position. (See 81 Ops.Cal.Atty.Gen., supra, at p. 277.)
120

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