Can the same person serve simultaneously on the boards of two California water districts that have overlapping boundaries and are adverse parties in litigation over Kings River water?
Plain-English summary
Michael Sullivan joined the Tulare Lake Reclamation District No. 761 board as a trustee in 2019. In 2021, he also joined the Tulare Lake Basin Water Storage District board as a director. The two districts have overlapping boundaries in the Central Valley, both draw water from the Kings River, and have been adverse parties in litigation against each other since 2018. While serving on both boards, Sullivan cast the deciding vote on the Reclamation District side to accept a litigation settlement that another district landowner (Sandridge Partners, L.P.) characterized as a total victory for the Water District and a total defeat for the Reclamation District, despite advice from the Reclamation District's general counsel that he was conflicted and should recuse.
Sandridge applied to the AG for permission to bring a quo warranto lawsuit under Government Code section 1099 to remove Sullivan from the Reclamation District board. Section 1099 says a public officer who accepts an incompatible second office automatically forfeits the first. Sullivan responded that the offices weren't legally incompatible, and that even if they were, the issue was moot because he had since resigned from the Water District board.
The AG granted leave to sue. The quo warranto remedy is available and appropriate. There are substantial legal questions on whether the two offices are incompatible (the AG had previously held that mere possibility of litigation between two entities renders simultaneous board service incompatible, and here litigation actually exists). And there is a substantial question whether Sullivan's resignation from the Water District board cures the issue, because under section 1099(b), the first office is automatically forfeited the moment the second is accepted, regardless of what happens later. The public interest favors letting a court resolve those questions.
What this means for you
If you are a director or trustee of a California special district
Don't take a second seat on a board whose entity could conceivably be in conflict with your current entity. The "possibility of a significant clash of duties or loyalties" standard is broad. Active litigation isn't required. Two entities that share a watershed, a contract, or any meaningful regulatory or financial relationship can be incompatible. The penalty for getting it wrong is forfeiture of your first office, not your choice of which to keep, plus the possibility of a quo warranto suit you'd have to defend.
If you are already in dual service and are now reading this, consult counsel before doing anything. Resigning from the second office may not undo the forfeiture of the first. Your first office may have legally vacated the moment you accepted the second.
If you are a landowner, ratepayer, or stakeholder challenging a special-district trustee
Quo warranto is the procedural vehicle. You apply to the AG (this opinion describes the standard) and ask for leave to sue. The AG considers (1) whether quo warranto is available and appropriate, (2) whether you've raised a substantial issue of law or fact warranting judicial resolution, and (3) whether the public interest favors authorizing the suit. The AG doesn't decide the merits, just whether the case should be heard.
Document the conflict. Ongoing litigation between the two entities, contracts between them, settlement votes, and any record of recusal advice from counsel are all probative. The AG cited Sandridge's evidence directly: the litigation, the deciding vote on settlement, and the disclosed counsel advice that recusal was warranted.
If you are general counsel to a special district
If a board member is also serving on a sister board, raise it with them and the full board immediately. Recusal does not cure a section 1099 incompatibility. The doctrine "was designed to avoid the necessity for that choice." Counseling recusal as a fix is not enough; the dual officeholding itself is the violation.
If you are an applicant considering filing a quo warranto application
The AG won't resolve the merits of incompatibility, but will grant leave when there's a substantial question. Build your application around the three-part test. Address potential mootness up front: if your target has already resigned from one of the offices, explain why the case isn't moot under section 1099(b)'s automatic-forfeiture rule.
If you serve on multiple boards because state law authorizes it
There's an exception for dual officeholding "compelled or expressly authorized by law." The opinion analyzed two arguments here: that the Water Code's landowner-eligibility requirements compelled the dual service (rejected, because designees can serve on either board), and that historical practice in the same valley evidenced legislative intent to allow it (rejected, without underlying legislation enacted during the period of practice). If you're relying on a statutory authorization for dual service, make sure the statute actually authorizes it, not just permits the configuration.
Background and statutory framework
Government Code section 1099(a) prohibits a public officer from simultaneously holding two public offices that are incompatible. Offices are incompatible when (1) one may audit, overrule, remove members, dismiss employees, or exercise supervisory powers over the other; (2) based on the powers and jurisdiction, there is a possibility of a significant clash of duties or loyalties; or (3) public policy considerations make it improper. Subdivision (b) provides that "a public officer shall be deemed to have forfeited the first office upon acceding to the second" and that the forfeiture is enforceable through quo warranto under Code of Civil Procedure section 803.
The Tulare Lake Reclamation District No. 761 was organized under Water Code section 50000 et seq. It is governed by a five-member Board of Trustees and has authority to construct and operate public works for reclamation and irrigation. The Tulare Lake Basin Water Storage District was established under Water Code section 39000 et seq. It is governed by an 11-member Board of Directors and can execute approved projects for water acquisition, diversion, storage, conservation, and distribution. The two districts' boundaries overlap.
Both districts are members of the Kings River Water Association and receive water under the same contract. In 2018, the Association and some of its members (including the Water District) sued the Reclamation District and Sandridge Partners, alleging improper use of Kings River water outside the Association's service area. Sullivan joined the Reclamation District in 2019 and the Water District in 2021. While dual-serving, he cast the deciding Reclamation District vote to accept a settlement offer.
The quo warranto framework, codified at Code of Civil Procedure section 803, requires a private party (the proposed relator) to obtain the Attorney General's consent before filing. The AG considers (1) availability and appropriateness of quo warranto, (2) whether the relator raises a substantial issue of law or fact, and (3) whether the public interest favors authorizing the suit. The AG does not resolve the merits.
The "possibility of a significant clash of duties or loyalties" test is satisfied by even one potential conflict. Prior AG opinions have held that mere possibility of litigation between two entities renders simultaneous board service incompatible. Recusal does not cure incompatibility under section 1099. The Legislature can abrogate the prohibition for specific offices, but only through express or impliedly clear authorization.
Common questions
Why did the AG grant leave to sue if the trustee already resigned from the second board?
Because under section 1099(b), the first office is forfeited the moment the second is accepted. If Sullivan forfeited his Reclamation District seat in 2021 when he joined the Water District board, his subsequent resignation from the Water District in 2024 doesn't restore his Reclamation District seat. There's a substantial question whether he's been illegally occupying the Reclamation District seat for years.
What's the practical remedy if the court agrees with Sandridge?
Removal from the Reclamation District board, with the seat treated as having been vacant since 2021. That could affect the validity of decisions Sullivan participated in, including the settlement vote.
Could Sullivan have just recused himself from conflicted Reclamation District votes instead of resigning from one board?
No. The AG explicitly says recusal does not cure section 1099 incompatibility. The doctrine forbids holding both offices, not just acting on conflicted matters.
Why isn't the dual service authorized by the Water Code's landowner-eligibility rules?
The Water Code requires both boards' members to be area landowners (or designees of landowners). Sullivan argued that since the Reclamation District's boundaries are entirely within the Water District's, dual service is statutorily compelled. The AG rejected this. Landowners can designate representatives, so the same individual is not required to serve on both boards. There's no express legislative authorization for dual service.
Does this rule apply only to water districts?
No. Section 1099 applies to all public officeholders. The same analysis governs school boards and city councils, planning commissions and county boards, and any other dual-public-office configuration.
How long does the quo warranto process take?
Variable. The AG's leave-to-sue decision is one step. The actual quo warranto suit then proceeds in superior court. Statute of limitations issues, evidentiary disputes, and appellate review can stretch the case over years.
Citations
- Government Code section 1099 (incompatible offices, forfeiture, quo warranto enforcement)
- Code of Civil Procedure section 803 (quo warranto)
- Water Code section 50000 et seq. (reclamation districts)
- Water Code section 39000 et seq. (water storage districts)
- Water Code section 40307 (water storage director eligibility)
- Water Code sections 50601, 50014 (reclamation trustee eligibility)
- People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636 (incompatible offices doctrine)
- American Canyon Fire Prot. Dist v. County of Napa (1983) 141 Cal.App.3d 100 (legislative authorization exception)
- Salyer Land Co. v. Tulare Lake Basin Water Storage Dist. (1973) 410 U.S. 719 (background on the district)
Source
- Landing page: https://oag.ca.gov/opinions/yearly-index
- Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/24-701.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
KARIM J. KENTFIELD
Deputy Attorney General
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No. 24-701
October 31, 2024
SANDRIDGE PARTNERS, L.P., has applied for leave to sue MICHAEL
SULLIVAN in quo warranto to remove him from public office on the Board of Trustees
of the Tulare Lake Reclamation District No. 761 (Reclamation District). The application
asserts that Sullivan, while serving as a Reclamation District Trustee, assumed a second
and incompatible public office on the Board of Directors of the Tulare Lake Basin Water
Storage District (Water District), in violation of Government Code section 1099, and by
doing so forfeited his seat on the Reclamation District Board.
We conclude that there are substantial legal issues as to whether Sullivan's two
Board seats are legally incompatible, and as to whether he can be removed from the
Reclamation District Board even though he recently resigned from the Water District
Board. We further conclude that the public interest will be served by allowing the
proposed quo warranto action to proceed. Consequently, the application for leave to sue
is GRANTED.
BACKGROUND
This opinion concerns two public entities that manage water resources in the
Central Valley. First, the Tulare Lake Reclamation District No. 761 was organized under
Water Code section 50000 et seq. Like other reclamation districts, it has statutory
authority to construct and operate public works relating to reclamation and irrigation.
The Reclamation District is governed by a five-member Board of Trustees.
Second, the Tulare Lake Basin Water Storage District was established under
Water Code section 39000 et seq. The Water District consists of thousands of acres of
"highly fertile farm land located in the Tulare Lake Basin." Its boundaries overlap with
the Reclamation District's. Like other water storage districts, the Water District can
"execute approved projects 'for the acquisition, appropriation, diversion, storage,
conservation, and distribution of water.'" It is governed by an 11-member Board of
Directors.
Michael Sullivan has served simultaneously as a Reclamation District Trustee and
a Water District Director. We are told that he joined the Reclamation District Board in
2019. He then assumed office on the Water District Board in 2021.
Sandridge Partners, L.P., a landowner within the Reclamation District, argues that
Sullivan's two Board seats are legally incompatible public offices under Government
Code section 1099. Section 1099(b) provides that a 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 the alleged
incompatibility, Sandridge requests our permission to file a quo warranto lawsuit in
superior court seeking Sullivan's removal from the Reclamation District Board. In
opposition, Sullivan argues that the Legislature has authorized the dual officeholding
here, and that any conflict is moot because he recently resigned from the Water District
Board. Sandridge replies that the Legislature has not authorized the dual officeholding,
and that the issue is not moot because Sullivan forfeited his seat on the Board of the
Reclamation District, not the Water District, and he continues to serve on the
Reclamation District Board.
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. Where, as
here, a private party seeks to pursue a quo warranto action in superior court, that party
(known as a relator, or proposed relator) must first apply for and obtain the Attorney
General's consent. 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." We therefore grant leave to sue.
- Availability of Quo Warranto Remedy
Under Government Code section 1099(b), the forfeiture of an incompatible public
office is "enforceable pursuant to Section 803 of the Code of Civil Procedure." That
section authorizes an action in the nature of quo warranto to remove a person who
unlawfully holds any public office. A public office includes membership on a
government board or body, such as a reclamation district or water storage district board.
Sandridge argues that Sullivan forfeited his public office on the Reclamation
District Board by assuming a second, incompatible office. On that basis, Sandridge seeks
to remove Sullivan as a Reclamation District Trustee. Quo warranto is therefore an
available and appropriate remedy.
- Substantial Issue Regarding Incompatibility
We next examine whether there is a substantial issue of law or fact as to the
incompatibility of the two public offices in question. Section 1099(a) provides that "[a]
public officer, including, but not limited to, an appointed or elected member of a
governmental board, commission, committee, or other body, shall not simultaneously
hold two public offices that are incompatible." That prohibition "springs from
considerations of public policy which demand that a public officer discharge his or her
duties with undivided loyalty." 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."
Relevant here, two offices are incompatible if "there is a possibility of a
significant clash of duties or loyalties between the offices." It is not necessary that a
conflict has actually occurred; it is enough that a conflict might occur in the regular
operation of the statutory plan. Nor is it necessary for a clash of duties or loyalties to
occur in all or in the greater part of the official functions. Rather, "[o]nly one potential
significant clash of duties or loyalties is necessary to make offices incompatible."
There is at least a substantial issue here as to whether the offices of Reclamation
District Trustee and Water District Director are legally incompatible; indeed, Sullivan
does not dispute that a person holding both these offices could encounter a conflict of
interest. For more than five years, the two Districts have been adverse parties in
litigation. Both Districts receive water from the Kings River as members of the Kings
River Water Association. In 2018, the Association and some of its members, including
the Water District, sued the Reclamation District and Sandridge. The lawsuit alleges that
the Reclamation District and Sandridge are improperly using Kings River water outside
the Association's service area, resulting in less water for other Association members such
as the Water District.
We have previously concluded that the mere possibility of litigation between two
entities renders simultaneous board service legally incompatible. A dual board
member, we explained, could face "substantial conflicts" in deciding whether one entity
should sue the other, or in making litigation decisions that could adversely affect the
other entity's interests. Here, litigation between the Reclamation District and the Water
District is not only possible, it has actually arisen. Given the "substantial conflicts" a
dual Board member could face in deciding whether and how to litigate such a suit, there
is at least a substantial issue as to whether the positions are incompatible.
As just one example, some of the plaintiffs in the ongoing litigation made a
settlement offer that would require the Reclamation District to stop delivering Kings
River water to Sandridge for use outside the Association's service area (a settlement
Sandridge characterizes as a "total victory" for the Water District and a "total defeat" for
the Reclamation District). In his role as a Reclamation District Trustee, Sullivan recently
cast the deciding vote to accept the settlement, despite advice from the Reclamation
District's general counsel that he was conflicted and should recuse. In voting on an
agreement that could affect both Districts' interests, Sullivan may have "face[d] divided
loyalties."
Beyond the litigation itself, Sandridge alleges a conflict because both Districts
receive water from the Kings River pursuant to the same contract. As we have previously
explained, where two entities "may make contracts with" each other, a person serving
concurrently on both entities' Boards may "have to serve two masters" in contract
negotiations. The potential for a conflict may be particularly high where, as here, the
two entities are competing for a limited resource: Kings River water. Indeed, where two
entities can "contract for the purchase . . . of water with third parties, or with each other,"
we have previously concluded that "conflict may be unavoidable." In our view, these
potentially "significant clash[es] of duties [and] loyalties" give rise to a substantial issue
as to whether the two offices are incompatible.
As noted, Sullivan does not dispute that the test for incompatibility is satisfied
here. Instead, he argues that the Legislature has abrogated the incompatible-office
prohibition in this context. Under Government Code section 1099(a), a public officer
may simultaneously hold otherwise-incompatible public offices if "simultaneous holding
of the particular offices is compelled or expressly authorized by law." For example,
where a state statute provided that a local transportation commission "may include
members of the board of supervisors," we concluded that a supervisor could serve on the
commission. Even if those two offices were incompatible under general principles,
dual officeholding was "expressly authorized by law."
But Sullivan has not identified any law expressly authorizing Reclamation District
Trustees to serve as Water District Directors, or vice versa. Instead, he argues that dual
officeholding is highly likely because the Water Code requires Board members for both
Districts to be area landowners. Given that the Reclamation District's boundaries lie
entirely within the Water District's, he contends that the statute's eligibility requirements
compel simultaneous Board service.
As Sandridge notes, however, this argument appears to depend on there being so
few area landowners that both Boards cannot be filled without overlapping members.
Yet Sullivan has not provided any information about the number of landowners in either
District. Moreover, the Water Code allows a reclamation district landowner to designate
a representative to serve as a trustee on the landowner's behalf. Given that option,
Sullivan has not explained why the same individual landowner would be required to
serve on both Boards. For these reasons, there is at least a substantial question as to
whether dual officeholding is "compelled" by the board eligibility requirements.
Sullivan also cites a 1984 Attorney General opinion where we concluded that the
director of a water district could serve simultaneously on the board of a county water
agency. The opinion analyzed a legislative amendment requiring two agency board
members to be appointed from the agency's advisory council. At the time of the
amendment, the advisory council typically included water district directors. Because
"the Legislature could not have been blind to the historical practice," we determined that
the Legislature intended to allow water district directors to serve on the agency's board.
Sullivan argues that there is also a relevant historical practice here: in recent
years, he reports, three other individuals have served simultaneously on the Reclamation
District and Water District Boards. But Sullivan has not explained why such a practice
would demonstrate the Legislature's intent to sanction dual Board service. For example,
he has not cited any relevant legislation enacted during this period. As a result, our
prior opinion's reasoning does not appear to apply. Nor has Sullivan cited any other
authority suggesting that past violations of section 1099 can excuse current ones.
Next, Sullivan argues that, even if his dual officeholding created a conflict, he
appropriately managed it by recusing from Water District decision making. But
although some state laws allow conflicts to be managed through recusal, section 1099
does not. Rather, when two public 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."
Finally, Sullivan contends that any conflict is now moot because he resigned from
the Water District Board (his second assumed office) after this quo warranto application
was filed. Sandridge replies that the dispute is not moot because, under section 1099(b),
Sullivan was deemed to have forfeited his first assumed office on the Reclamation
District Board, and should therefore have vacated that office instead of his seat on the
Water District Board. Under section 1099(b), when "two public offices are incompatible,
a public officer shall be deemed to have forfeited the first office upon acceding to the
second." Construing that language, we have explained that "a person who unlawfully
holds two incompatible offices is not generally considered free to choose which office to
retain; rather, the first office is ordinarily considered forfeited as a result of the person
having accepted the second office." "We frequently refer to this forfeiture as an
'automatic resignation.'"
We are told that Sullivan first assumed office on the Reclamation District Board in
2019. There is therefore a substantial question as to whether he automatically forfeited
that position the moment he assumed office as a Water District Director in 2021,
regardless of whether he later resigned from the Water District Board. We have
previously granted a quo warranto application where an officeholder had resigned from
the second office, but the application sought to remove him from the first. We see no
reason to reach a different conclusion here.
- Public Interest in Favor of Authorizing Suit
Finally, we conclude that granting leave to sue will serve the public interest.
Generally, the existence of a substantial question of law or fact presents a sufficient
"public purpose" to permit an action in quo warranto, absent countervailing
circumstances. Sullivan posits several such circumstances, but we are not persuaded.
First, Sullivan contends that his resignation from the Water District Board has
eliminated any ongoing conflict, so litigation would serve no purpose. But as explained
above, the question whether Sullivan forfeited his position as a Reclamation District
Trustee in 2021, notwithstanding his resignation from the Water District Board years
later, is a substantial legal issue. Judicial resolution of the dispute will therefore serve
the public interest.
Next, Sullivan argues that removing him from the Reclamation District Board
could jeopardize the litigation settlement, a settlement he maintains will promote
sustainable water management. Sandridge strongly disputes the settlement's benefits. It
is not our role to evaluate the settlement's merits. Rather, "we are concerned with
ensuring that all public officials have undivided loyalties when performing their
responsibilities." Where there is a substantial question as to incompatible
officeholding, as there is here, the public interest is ordinarily served by allowing quo
warranto litigation to proceed.
Finally, Sullivan argues that Sandridge is motivated by self-interest. According to
Sullivan, Sandridge seeks to remove him from the Reclamation District Board to enhance
the influence of other Board members whom Sandridge prefers. But we "normally do not
attempt to assess the motivation of individual relators." Whether Sandridge "stands to
benefit from [Sullivan's] removal or not, the public interest will be served by resolving
whether [Sullivan is] validly holding office."
Accordingly, the application for leave to sue in quo warranto is GRANTED.