Can Kathleen Garcia simultaneously sit on a community college district board and a fire protection district board whose territories overlap, or does Government Code § 1099 force her to forfeit one of the seats?
Question
Should the AG grant the San Joaquin Delta Community College District leave to sue Kathleen Garcia in quo warranto to remove her from the College District Board, on the theory that she forfeited that seat under Government Code § 1099 when she also took a seat on the overlapping Eastside Rural Fire Protection District Board?
Conclusion
Yes. Substantial legal issues exist about whether the two offices are incompatible under § 1099. The public interest favors letting a court decide. Leave to sue is GRANTED.
Official Citation: 106 Ops.Cal.Atty.Gen. 112
Plain-English summary
Kathleen Garcia was elected to the San Joaquin Delta Community College District Board of Trustees in 2020. In November 2022, while still serving on that board, she was also appointed to the Eastside Rural Fire Protection District Board of Trustees. The fire district sits in unincorporated areas east of Stockton, partly within the territory of the community college district.
Government Code § 1099 prohibits holding two "incompatible" public offices at once. If a person takes a second incompatible office, they automatically forfeit the first. The remedy to formally oust them from the first seat is a quo warranto action in superior court, brought either by the AG directly or by a private party with the AG's leave.
The College District applied to the AG for leave to sue Garcia. Garcia did not file a response. The AG looked at the structural overlap (the fire district is geographically inside the college district), the kinds of decisions each board makes, and the established three-prong incompatibility test (overlapping responsibilities, potential clash of duties, public-interest divergence) and concluded there was a substantial legal issue worth a court's time.
The AG granted leave to sue. The merits will be decided by the superior court. Garcia may end up forfeiting her college board seat, may be allowed to keep both, or may have the case mooted if she resigns one. The AG did not decide any of that.
What this means for you
If you serve, or are running, for two local boards
California's incompatibility doctrine is structural, not personal. It is not about whether you, individually, can fairly serve both boards. It is about whether the two offices have responsibilities that could collide, whether their territories overlap, and whether one body could regulate, contract with, or sit in judgment over the other. If the answer is yes for any of those, § 1099 likely makes the offices incompatible. Taking the second one means you have already forfeited the first by operation of law.
If you are a special-district board considering a candidate
Before seating someone, check whether they hold another local office whose territory overlaps yours. If it does, surface § 1099 to the candidate. The candidate may need to resign the other office to avoid forfeiture by the seating itself.
If you are a school district, college district, or fire district board considering a forfeiture challenge
You can file the quo warranto application with the AG. The bar at the leave stage is "substantial legal issue" plus public interest, which the AG construes liberally. A quiet record (no opposition from the challenged officer, as here) helps. A party that files in superior court without first getting AG leave will be dismissed; the AG's leave is jurisdictional.
If you are a member of the public concerned about dual office-holding
Section 1099 is enforceable in court, but the remedy runs through the AG. A private resident probably lacks standing to sue directly. Ask the local agency to bring the application, or contact the AG's office. The two-prong AG test (substantial issue, public interest) is permissive when the structural overlap is clear.
Common questions
Q: What makes two offices "incompatible" under § 1099?
The codified test, drawn from the prior judicial doctrine, treats offices as incompatible when (1) one office could exercise a supervisory, auditing, or removal power over the other; (2) there is a potential significant clash of duties; or (3) public policy considerations make simultaneous service inappropriate. Geographic overlap, contracting relationships, and shared regulatory or fiscal authority are the most common triggers.
Q: Why does the second-office appointment forfeit the first office automatically?
That is the core rule of § 1099. Taking the second incompatible office means the law treats you as having vacated the first. Quo warranto is just the remedy that formalizes the vacancy, prevents the officeholder from continuing to act, and clears the way for a successor.
Q: Could Garcia have avoided this by resigning the college seat first?
Yes. If Garcia had resigned the college seat before being seated on the fire district board, § 1099's forfeiture provision would not have triggered. Sequencing matters.
Q: Does this opinion say Garcia in fact forfeited her college seat?
No. The AG explicitly does not decide the merits at the leave stage. The opinion only confirms that the College District has presented a substantial legal issue worth a court's time and that the public interest is served by letting the case proceed.
Q: What if the College District drops the suit after getting leave?
Leave to sue is permissive, not compulsory. The relator can settle, withdraw, or amend. But the substantive § 1099 issue (whether Garcia in fact forfeited the seat) does not go away, even if the College District backs off; another plaintiff could re-apply for leave on the same facts.
Background and statutory framework
Cal. Gov. Code § 1099. Codifies California's common-law incompatibility-of-offices doctrine. Two offices held by the same person are incompatible when there is a clash of duties, a power of one to oversee or affect the other, or public-policy reasons to prefer separation. Assumption of an incompatible second office "results in forfeiture of the first office," enforceable by quo warranto.
Cal. Code Civ. Proc. § 803. Authorizes the quo warranto action; only the AG may bring it directly, but a private party can apply for leave to sue in the AG's name on relation of the relator.
The two-prong AG leave-to-sue test. Substantial issue of fact or law, plus public interest in allowing court adjudication. The AG does not decide the merits at the leave stage.
Citations
- Cal. Gov. Code § 1099 (incompatible offices)
- Cal. Code Civ. Proc. § 803 (quo warranto)
- Cal. Educ. Code § 70902(a)(1) (community college district powers)
- Cal. Health & Saf. Code §§ 13861, 13862, 13875, 13969 (fire protection districts)
Source
- Landing page: https://oag.ca.gov/opinions/yearly-index
- Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/23-602.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
CATHERINE BIDART
Deputy Attorney General
No. 23-602
November 30, 2023
The San Joaquin Delta Community College District has applied to this office for leave to sue KATHLEEN GARCIA in quo warranto to remove her from serving as a member of the San Joaquin Delta Community College District Board of Trustees. The application asserts that Garcia, while serving on that board, assumed a second and incompatible office as a member of the Eastside Rural Fire Protection District Board of Trustees in violation of Government Code section 1099, and by doing so forfeited her seat on the College District board.
We conclude that there is a substantial legal issue as to whether Garcia is simultaneously holding incompatible offices. 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.
BACKGROUND
Kathleen Garcia was elected in 2020 to serve a four-year term on the San Joaquin Delta Community College District Board of Trustees, which governs, maintains, and operates the San Joaquin Delta College. While serving on that board, Garcia was appointed in November of 2022 to the Eastside Rural Fire Protection District Board of Trustees, whose powers include providing fire protection, emergency medical services, and related education and training programs. The fire protection district is located in unincorporated areas that are east of and adjacent to the City of Stockton, and it falls within a portion of the community college district's territory in San Joaquin County. The community college district also reaches portions of the counties of Alameda, Sacramento, Solano, and Calaveras.
The San Joaquin Delta Community College District (College District) contends that Garcia's simultaneous office-holding violates Government Code section 1099. That statute prohibits holding incompatible public offices and provides that assumption of a second office that is incompatible with the first results in forfeiture of the first office, which is enforceable by a superior court action in quo warranto. Based on the alleged incompatibility, the College District requests our permission to file a quo warranto action seeking Garcia's removal from its board, on the ground that she forfeited that position when she took office on the Eastside Rural Fire Protection District Board of Trustees. Garcia did not provide any response to the application. Having received no opposition, we proceed based on the application papers alone.
ANALYSIS
Quo warranto is a civil action that is used, among other purposes, to challenge an incumbent public official's right or eligibility to hold a given public office. Code of Civil Procedure section 803 authorizes this form of action. When a party seeks to pursue a quo warranto action, it must first obtain the Attorney General's consent to do so. In determining whether to grant consent, we consider (1) whether the application presents a substantial issue of fact or law warranting judicial resolution, and (2) whether the public interest is served by allowing the proceeding to be filed.
Full opinion text continues in the linked PDF.