THE HONORABLE TIMOTHY S. GRAYSON, MEMBER OF THE STATE ASSEMBLY, has requested an opinion on the following question:
May a person simultaneously serve as a member of the Concord City Council and as the Contra Costa County Superintendent of Schools?
CONCLUSION
A person may not simultaneously serve as a member of the Concord City Council and as the Contra Costa County Superintendent of Schools.
ANALYSIS
The City of Concord (?Concord?) is wholly located within Contra Costa County. Concord is a general law city that is governed by a city council comprising five elected members, each of whom serves a four-year term.1?The city council has appointed a city manager who is responsible for management functions of the city.2?Concord lies entirely within the boundaries of the Mt. Diablo Unified School District (?Mt. Diablo School District?), which also includes certain other cities, as well as unincorporated areas, in Contra Costa County.3
The California Constitution calls for the election or appointment of a superintendent of schools and a board of education for each county.4The Contra Costa County Superintendent of Schools is elected, as is the county’s five-member Board of Education.5?Together, the superintendent and board lead the Contra Costa County Office of Education.6?In addition to the Mt. Diablo School District, there are 17 other kindergarten-through-12th grade public school districts in Contra Costa County under the jurisdiction of the county office of education.7
We are asked to determine whether a member of the Concord City Council may simultaneously serve as the Contra Costa County Superintendent of Schools. We conduct this inquiry with reference to the doctrine of incompatible offices, which prohibits a person from concurrently holding two public offices if the performance of the duties of either office could have a significant adverse effect on the other.8?The doctrine springs from considerations of public policy which demand that a public officer discharge his or her duties with undivided loyalty.?9
We find that simultaneously holding the positions of city council member and county superintendent of schools of the county in which the city is located would indeed run afoul of the incompatible offices prohibition. Accordingly, we conclude that a member of the Concord City Council may not also serve, at the same time, as the Contra Costa County Superintendent of Schools. We explain our reasoning and conclusion in greater detail below.
Government Code Section 1099
For many years, the doctrine of incompatible offices was developed and expressed only in common law. In 2005, the Legislature codified the common law rule by enacting?Government Code section 1099.10?Subdivision (a) of that section provides:
?(a) 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. Offices are incompatible when any of the following circumstances are present, unless simultaneous holding of the particular offices is compelled or expressly authorized by law:
(1) Either of the offices may audit, overrule, remove members of, dismiss employees of, or exercise supervisory powers over the other office or body.
(2) Based on the powers and jurisdiction of the offices, there is a possibility of a significant clash of duties or loyalties between the offices.
(3) Public policy considerations make it improper for one person to hold both offices.11
In an uncodified section of the bill that enacted?Government Code section 1099, the Legislature declared that the act was not intended to expand or contract the common law prohibition against holding incompatible public office, and that interpretation of the act ?shall be guided by judicial and administrative precedent concerning incompatible public offices developed under the common law.?12?Thus, we look both to?Government Code section 1099?and to precedent established under the common law in conducting our analysis.
Public Offices
We observe initially that the doctrine of incompatible offices applies only to public offices, and not to positions of employment.13?We have previously characterized a public office, for purposes of the doctrine, as ?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;14?(3) in which the incumbent performs a public function for the public benefit and exercises some of the sovereign powers of the state.?15?The authority to make policy or to exercise independent judgment and discretion is also the hallmark of an officer, as opposed to an employee.16?Under?Government Code section 1099, subdivision (a), ??public office? expressly includes membership on a governmental board or body.17
The position of city council member is established by law18?and is continuing,19?and a city council member is a trustee of the public welfare.20?A city council is a governmental body with sovereign powers, including the authority to enact ordinances; levy taxes; license businesses; contract for services; purchase, control, and dispose of real and personal property; acquire property by eminent domain; erect buildings for municipal purposes; regulate buildings and construction; and provide for water, public utilities, and public works.21?A council member thus holds a public office, as we have concluded on numerous prior occasions.22?Accordingly, a Concord City Council member is a public officer.23
?We have also previously concluded that the position of county superintendent of schools is a public office,24?and we do not depart from that conclusion here. The superintendent position is provided for by constitutional provision and statute,25?and is continuing and permanent, with incumbents succeeding each other. County superintendents of schools are designated by law both as ?civil executive officers? and as ?county officers,?26?and have many statutorily prescribed duties and powers that ?are for the public benefit and clearly constitute an exercise of the sovereign power of the state.?27?For example, a county superintendent must generally oversee the schools of the county, maintain fiscal oversight of each school district in the county, and enforce the course of study.28?In addition, a county superintendent has the authority to audit the expenditures and internal controls of school districts and charter schools, conduct studies related to future school conditions and needs, enter into specified contracts, and employ certificated and classified county school personnel.29?The county superintendent must open and maintain a school if a school district under the superintendent’s jurisdiction has sufficient funds to operate the school but fails to do so.30
The county superintendent of schools is also ex officio secretary and executive officer of the county board of education.31?Although a county board of education directs or must approve some of the county superintendent’s activities,32?we find it indisputable that a county superintendent of schools performs important governmental functions requiring the exercise of independent judgment and discretion. A county superintendent is vested with broad authority to carry on, and expend funds for, activities and programs that he or she determines to be necessary or desirable to meet the needs of the community, so long as the activities or programs are not in conflict with or inconsistent with law.33
Having affirmed that the positions of city council member and county superintendent of schools are both public offices for purposes of?Government Code section 1099, we must determine whether holding the two offices simultaneously would be prohibited under the statute.34
Incompatibility
Pursuant to?section 1099?and established precedent, a person may not simultaneously hold two public offices if either office exercises a supervisory, auditing, or removal power over the other, if there is any significant clash of duties or loyalties between the offices, or if the dual office holding would be improper for reasons of public policy.35?It is well established that a ?past or present conflict in the performance of the duties of either office is not required for a finding of incompatibility; rather, it is sufficient that a conflict may occur ?in the regular operation of the statutory plan.?36?Nor is it necessary that the clash of duty exist in all or in the greater part of the official functions; it is enough when the holder of the two offices cannot in every instance discharge the duties of each.37?Thus, only ?one potential significant clash of duties or loyalties is necessary to make offices incompatible.?38?Abstention when a conflict arises does not cure the incompatibility or obviate the effects of the doctrine.39
?The Legislature may abrogate the rule against holding incompatible public offices for any offices that it chooses.40?However, we have found no express or implied abrogation of the rule with respect to the offices at issue here. Therefore, we must further examine the functions and duties of these offices to see if dual office holding would be prohibited.41
Neither a city council nor a county superintendent of schools exercises supervisory or removal power over the other. However, we perceive a number of areas in which one or more significant clash of duties or loyalties between the offices of city council member and county superintendent could arise: direct interactions between a city council and a county superintendent of schools; a county superintendent’s supervisory and auditing authority over a school district, or districts, that serve the city; and relationships between a county board of education and a city council that may be attributed to the county superintendent of schools. We will examine each of these areas in turn.
?Direct Interactions
First, there are various situations in which the parties may engage in direct transactions or contracts with each other. For example, a city council may contract with the county superintendent of schools for the performance by local health agency personnel of duties relating to the health supervision of school buildings and pupils.42?As another example, the county superintendent is authorized to enter into agreements to provide audiovisual services and equipment, and to license certain non-educational software, to a variety of entities, including a city.43?It is also possible that the city might wish to buy certain items of personal property belonging to the county office of education that the county superintendent is authorized to sell.44?A city council member who is also the county superintendent of schools would be subject to conflicting loyalties regarding the terms of such transactions.45
In addition, a county superintendent of schools and a city are authorized to enter into agreements with each other under the Joint Exercise of Powers Act, in order to jointly exercise a power they have in common.46?Negotiating any such agreement, even if for the purpose of collaboration, would also entail a division of loyalties for a dual office holder.47
?County Superintendent’s Authority Over Schools Within the City
The potential for even more frequent and pervasive conflict flows from a county superintendent’s jurisdiction over schools and school districts that serve a city’s residents. The condition, resources, and reputation of a city’s schools and school districts are typically of great concern to the city council, and are directly related to matters within the council’s purview, such as economic development, infrastructure, traffic, recreation, and cultural affairs.48?While school districts have their own governing boards,49??county school superintendents also have an integral role in the operation of local districts.?50
In this connection, as alluded to above, the county superintendent of schools has significant authority ?to act as watchdog for each school district’s fiscal affairs.?51?The county superintendent must analyze, and approve or disapprove, the budget adopted by each school district,52?and must also approve all expenditures.53?The superintendent has auditing authority over school districts, and may audit the expenditures and internal controls of any school district in the county if there is reason to believe that fraud, misappropriation of funds, or other illegal fiscal practices have occurred.54?The county superintendent also investigates evidence that a school district is in financial distress, and may determine that a district should receive a negative interim financial certification.55
In a similar vein, the county superintendent of schools plays an important role in ensuring the accountability of instructional programs. Every school district must adopt, and then annually update, a ?local control and accountability plan? that includes goals and specific measures the district will implement in order to advance an array of state educational priorities for student achievement.56?The county superintendent of schools must review, and either approve or disapprove, the plan for each district under his or her jurisdiction.57
Some of the actions described above, such as investigating a school district’s finances for fraud and mismanagement, or failing to approve a district’s accountability plan, could adversely affect a city’s reputation and have other negative consequences for the city if schools within the city were involved. A county superintendent who is also an advocate for the city might not be able to remain free of bias in deciding whether or how such actions should be undertaken. We are mindful that the incompatible offices doctrine does not turn upon the integrity of the person concerned or his or her individual capacity to achieve impartiality, but rather ??applies inexorably if the offices come within it, no matter how worthy the officer’s purpose ….??58
A county superintendent’s responsibility for the allocation of certain funds may also engender a clash of loyalties.?Each county has a county school service fund,59?which the county superintendent of schools uses to provide professional services for the coordination, among school districts, of educational program components such as courses of study, guidance services, health services, and school library services, and to provide those services and other financial assistance to districts that, because of size or location, cannot furnish satisfactory programs.60The county superintendent of schools may also utilize the county school service fund to provide temporary fund transfers, or additional apportionments, to any county school district or community college district under specified circumstances.61?Separate from the county school service fund, each county superintendent is responsible for the allocation of property tax revenues dedicated to support special education programs,62?and it appears that he or she has some discretion in the performance of that duty.63?With respect to both the county school service funds and special education funds, a county superintendent of schools is required to maintain a county-wide perspective,64?whereas, were a city council member in charge of these funds, that person might give greater attention to the needs of the city’s residents and schools.
?Relationships Through the County Board of Education
?Significant clashes of duties and loyalties with respect to the positions in question could also derive from actions taken by the county board of education65?in which the county superintendent of schools, as the board’s executive officer, is substantially involved. We have previously characterized the offices of county board of education member and county superintendent of schools as analogous offices in relation to the office of member of the State Board of Education.66?In other situations, too, we have ascribed the interests and actions of a governing body to the officer or manager who carries out that body’s policies.67
A county board of education may act as the county committee on school district organization,68?and the Contra Costa County Board of Education acts in that capacity.69?A county committee also plays a significant role in the reorganization of school districts, which includes the formation and dissolution of districts, and the transfer of territory among districts.70?In addition to reorganizations initiated by the county committee itself, a reorganization may be initiated by a petition submitted by electors, or a resolution submitted by certain governing bodies, including a city council.71?A county committee must hold a hearing on the petition or resolution, and adopt a final recommendation to transmit to the State Board of Education.72?A county superintendent of schools has specific responsibilities in connection with school district reorganizations,73?and also would be expected, as the board of education’s executive officer, to advise the board sitting as the committee on school district organization.74?Hence, a county superintendent of schools who is also a city council member could find himself or herself in the untenable position of having to advise the county board of education on a proposal or stance he or she had already approved in his or her city council capacity.75?A dual office holder in this situation cannot maintain the loyalty owed to the board on the one hand and the city on the other.
A city council and a county board of education, along with its county superintendent, may also have different perspectives on the location of school sites.?A city’s general plan, which must be adopted by the city council, incudes the location of educational facilities.76?The city’s general plan may be at odds with the purposes of the county board of education and county superintendent. Conversely, the county board of education, when establishing and locating community schools, may supersede city zoning ordinances.77?The county superintendent of schools, who is tasked with operating community schools,78?would have an obvious interest in the site selection of such schools. This interest could clash with a city council member’s interest in the preservation of the city’s zoning regulations, so as to disqualify a person from concurrently holding both offices.79
?Finally, a county board of education may, under certain circumstances, exercise some of the same powers that a city council does.?Education Code section 1080?permits a county board of supervisors to transfer certain functions and powers to that county’s board of education,80?including the power of eminent domain and the power to enter into agreements.81?Where a county board of education is authorized to exercise such powers, the board and the city could each condemn property of the other,82?or both might wish to condemn the same property. As we have previously determined, the common ability to use eminent domain within a given territory results in a potential conflict for the officials invested with the power.83?A county board of education would also have the express authority, as does a city, to organize, promote, and conduct programs of community recreation.84?A board of education and a city having jurisdiction over the same territory, as is the case here, or contiguous territories, may jointly provide recreation,85?or may compete with each other to do so. Either way, the interests of a county superintendent of schools and a city council member could diverge.86?What is best for the county schools and the county as a whole may not be what is best for the city.
The examples above do not exhaust the possibilities for conflict, but they demonstrate that the concurrent holding of the offices at issue here would give rise to a multitude of actual and potential clashes of duties and loyalties ?in the regular operation of the statutory plan.?87As noted at the outset, ?only one significant clash of duties and loyalties is required to render offices incompatible.?88?As a matter of public policy, too, ?when the duties of two offices are repugnant or overlap so that their exercise may require contradictory or inconsistent action, to the detriment of the public interest, their discharge by one person is incompatible with that interest.?89
In light of the foregoing, we conclude that a person may not simultaneously serve as a member of the Concord City Council and as the Contra Costa County Superintendent of Schools.