LEGAL ARGUMENT FOR
INCOMPATIBLE OFFICES
The County is
Ineligible for Membership in the Authority
Next, even under the best of intentions, the County is not
eligible to join the Authority under the JPA. Supervisor Potter, himself, is
specifically ineligible to serve on the Authority board as a representative of the
County on independent grounds. These findings are based upon Government Code §1099, related conflict of
interest considerations and the MPWMD Law.
The JPA envisions a future water regime that would include
the Authority working with agencies such as MPWMD, the Monterey County Water Resources
Agency (MCWRA), the County and others, under a comprehensive water management
plan. Ultimately such an integrated county-wide water management system
represents the only conceivable solution to the water crisis. But the Authority
must establish itself first under the terms of its own Agreement. Its members
must make several fundamental decisions specifically requiring only their own
consensus. It is not until then that the Authority can effectively engage with
outside agencies and private interests.
Consequently, no member of the Board of Supervisors may
serve on the Authority. Again, Government Code § 1099 applies. However, more
specifically, the County is conflicted out of Authority membership based upon
the Board of Supervisor's role as a supernumerary to MCWRA under the Monterey
County Water Resources Agency Act, Water Code Appendix, Chapter 52 (the Agency
Act). In particular, Agency Act §52-71, provides:
Sec. 71. Duties of Supervisors concerning
litigation.
(a) The Board of Supervisors are [sic]
responsible for the initiation and the conduct of any
litigation by the Agency and for the settlement of any litigation.
Consequently, the Board of Supervisors would be directly
involved in litigation and settlement activities if any action were to arise between
the Authority and MCWRA' In anyone's reasonable estimation, such an action must
be considered fairly likely. This, under an Attorney General Opinion 10-903
analysis and general conflict of interest principles, clearly precludes the County's
direct participation in Authority activities.
The JPA foresees the County as ultimately an essential ally.
By its terms it provides a very effective alternative to direct County
membership. Paragraph 4.20 of Article 4 states that the Authority has the
power:
To organize and/or participate with local
agencies to form a water management group to develop and
implement an Integrated Water Management Plan pursuant
to Water Code sections 10530 et seq.
This is the basis for future county-wide cooperation, which
is not only desirable, but ultimately essential, to resolution of the water
crisis. The JPA provides a strong basis for the success of such a program, with
the mayors taking the initiative on behalf of municipal water users.
Specific
Disqualification of Supervisor Potter
On narrower grounds, Supervisor Potter is prima facie
ineligible to serve on the Authority board. This is because, unlike Mayor Pendergrass, Mr. Potter
may not forfeit his MPWMD seat. His
unique role under the MPWMD Law is that he, or his successor, is the only
supervisor eligible to serve on the MPWMD board. [MPWMD Act, § 118-203] It is
impossible for him to leave the MPWMD board without removal from office as a
member of the Board of Supervisors.
Source: Letter to Donald G. Freeman from THE THOMPSON LAW
OFFICE, Richard Glenn, Re: Monterey
Peninsula
GOVERNMENT CODE SECTION 1099
1099. (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.
(b) When two public
offices are incompatible, a public officer shall be deemed to have forfeited
the first office upon acceding to the second. This provision is enforceable
pursuant to Section 803 of the Code of Civil Procedure.
(c) This section
does not apply to a position of employment, including a civil service position.
(d) This section
shall not apply to a governmental body that has only advisory powers.
(e) For purposes of
paragraph (1) of subdivision (a), a member of a multimember body holds an
office that may audit, overrule, remove members of, dismiss employees of, or
exercise supervisory powers over another office when the body has any of these
powers over the other office or over a multimember body that includes that
other office.
(f) This section
codifies the common law rule prohibiting an individual from holding
incompatible public offices.
AGENCY ACT
Monterey County Water Resources Agency Act, Water Code
Appendix, Chapter 52 (the Agency Act) (Agency Act §52-71)
Sec. 71. Duties of
Supervisors concerning litigation.
(a) The Board of
Supervisors are responsible for the initiation and the conduct of any
litigation by the Agency and for the settlement of any
litigation.
(b) The Directors
or general manager shall refer all matters with respect to which litigation
is likely to the Board of Supervisors.
(c) The
chairperson of the Directors, or his or her designee, may be present during a
closed session held by the Board of
Supervisors to consider matters pertaining to litigation affecting the Agency.
ATTORNEY GENERAL OPINION NO. 10-903
Attorney General Opinion No. 10-903
West's ANNOTATED CALIFORNIA CODES WATER CODE-APPENDIX Sections
108-1 to End (MPWMD Act, § 118-203)
ADDENDUM:
State of California
Office of the Attorney General
No comments:
Post a Comment