Office of the Attorney General
State of California
THE HONORABLE MARK L. NATIONS, KERN COUNTY COUNSEL, has requested an opinion on the following question:
Does Elections Code section 10515, subdivision (a), require a board of supervisors to appoint a director to a water district if to do so would result in the appointee holding incompatible public offices under Government Code section 1099?
CONCLUSION
Elections Code section 10515, subdivision (a), requires a board of supervisors to appoint a director to a water district without regard to whether the appointment might result in the holding of incompatible offices under Government Code section 1099. Nonetheless, an individual so appointed may not lawfully hold incompatible public offices; thus, if the particular offices are incompatible, the appointee and would-be dual officeholder will be deemed to have forfeited the first-held office upon accepting appointment to the second.
ANALYSIS
We are informed that two adjoining water districts located in Kern County (County) scheduled at-large general elections for their respective boards of directors. A director on each water district board filed a declaration of candidacy for election to the other district. No other declarations of candidacy were filed in either district within the time for filing. Elections Code section 10515 governs water district elections,1?and provides that, in such a circumstance?and where a sufficient number of voters do not petition for an election be conducted anyway?an unopposed candidate may request that, in lieu of holding a pro forma election, the ?supervising authority? (here, the County’s board of supervisors) appoint him or her to the seat for which he or she declared candidacy.2
Both unopposed candidates sought appointment under Elections Code section 10515, but the County Registrar of Voters raised concerns about whether the appointments would create incompatibility-of-office issues under Government Code section 1099, subdivision (a),3?and we are informed that, because of the Registrar’s concerns, the County’s board of supervisors did not make the appointments.
Here we are asked whether the board of supervisors may properly decline to make appointments to the director positions based on a concern over incompatibility of offices? i.e., despite the facially mandatory language of Elections Code section 10501, subdivision (a), which states that the ?supervising authority shall make these appointments.? We conclude that the board may not decline to make the appointments based on this concern, but hasten to add that incompatible dual office-holding?if that is indeed the result of such appointments?is nonetheless impermissible and carries specified legal consequences. Our analysis follows.
First, we think it important to clarify what is?not?at issue here. County Counsel has not asked?whether?the simultaneous occupancy of both director positions would amount to a holding of incompatible offices. The question of incompatibility requires consideration of the facts and circumstances of the individual case.4??The doctrine springs from considerations of public policy which demand that a public officer discharge his or her duties with undivided loyalty.?5?We have not been informed of the relationship between the two water districts, or of how the two districts might interact, or of how the duties of a director in respect to one district might be incompatible with his or her duty of loyalty to the other district.?For purposes of analysis, however, we will assume that the board of supervisors could entertain a reasonable concern that the simultaneous occupancy of the two offices would run afoul of Government Code section 1099, subdivision (a).
In construing section Elections Code 10515, subdivision (a) (hereafter ?section 10515(a)?), we apply settled principles of statutory construction. Our task ?is to ascertain the intent of the Legislature so as to effectuate the purpose of the law.?6?We start with the words of the statute themselves, ?giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose.?7?Where the plain meaning does not resolve a question of interpretation, we may consider legislative history and, if ambiguity persists, we may consider the consequences that will flow from a particular interpretation.8
Generally speaking, the rule with California codes is that ?shall? is mandatory and ?may? is permissive. The general rule applies unless otherwise apparent from context; or unless a mandatory construction would be inconsistent with the statute’s legislative purpose or would imply an unreasonable legislative purpose; unless legislative history shows otherwise;9?or unless other factors compel a different construction.10
Section 10515(a) is not unique. Similar provisions, providing for appointments to office in the event of a lack of nominees, exist elsewhere in the codes.11?Indeed, similar statutes are common throughout the nation.12?The manifest purpose of these statutes is to fill a vacancy in an elective office expeditiously when election is not a practical or efficient option, either because of a lack of candidates or because the candidates would run uncontested.13
We can find no reason to depart from the general rule calling for a mandatory construction where, as in the circumstances presented to us, an eligible candidate for the vacant seat has properly filed for election.14?Legislative history is silent on the matter and, accordingly, offers no basis for departing from the general rule. Appointment of the sole declared candidate as a ministerial function appears consistent with the intent of the Legislature.15
Notably, the only instance in which section 15105 authorizes the board of supervisors to exercise discretion in the choice of appointee is in the circumstance where?no candidate?has declared for election to the post. In that circumstance, the board of supervisors is given discretion to appoint ?any?person to the office who is qualified?on the date when the election would have been held.?16?The Legislature could have allowed the supervisors similarly broad discretion to select any qualified appointee in any circumstance where an election would not test voter support for a candidate?as where the candidate would run unopposed.17?But the Legislature did not do so. Instead, in such a circumstance, and in the absence of evident desire among the voters to have an election anyway, the Legislature mandated appointment of the only eligible candidate. In that circumstance, then, we may not read into the statute any qualification for appointment other than eligibility for candidacy.18
?Our analysis cannot end there, however. Although the board of supervisors is statutorily required to appoint the unopposed candidates under the circumstances contemplated here, it is nonetheless unlawful for an individual to simultaneously hold two incompatible public offices.19?Thus, although we are not asked to resolve the incompatibility issue itself, we find it appropriate to advise that?if?the offices in question are legally incompatible, the appointed officials must either decline appointment to the second offices to which they would be appointed, or, if they choose to accept that appointment, they will forfeit their right to hold their original offices.20?The parties involved should carefully consider whether service on both boards would present a legal incompatibility, what options are available, and the potential consequences.
If there is doubt about whether the offices in question are legally incompatible, there is an established post-appointment judicial remedy available to test the compatibility of the offices.21?Subdivision (b) of Government Code section 1099 expressly provides that the statutory proscription against holding incompatible offices is enforceable pursuant to section 803 of the Code of Civil Procedure. This procedure, commonly known as quo warranto,22?is ordinarily brought by a private person or a local agency in the name of the Attorney General to test title to public office.23
Quo warranto is a remedy commonly used to test incompatible holding of district offices.24?Again, in the event that two offices are adjudged to be incompatible, the would-be dual office holder is deemed to have forfeited the first office upon accepting the second.25?Accordingly, an interested member of the public or a local agency may seek leave to initiate a quo warranto proceeding to declare the first office vacant. A proceeding in quo warranto must be supported by factual allegations demonstrating the disabling incompatibility.26?The challenged office holder is permitted to file a response and contest the alleged facts.27
Section 10515(a) is mandatory by its terms, and no justification appears in either the statutory context or in the legislative history for construing the statute to be other than mandatory. We therefore conclude that the statute requires the board of supervisors to appoint a director to a water district without regard to whether the appointment might subsequently result in the holding of incompatible public offices under Government Code section 1099. Nonetheless, an individual so appointed may not lawfully hold incompatible public offices; thus, if the particular offices are incompatible, the appointee and would-be dual officeholder will be deemed to have forfeited the first-held office upon accepting appointment to the second.