Tuesday, December 01, 2015

‘Incompatible Public Offices:’ Police Chief & City Administrator

ABSTRACT: Yesterday, the City Council voted unanimously to adopt a Resolution authorizing the Mayor to execute an employment agreement between the City of Carmel-by-the-Sea and Mike Calhoun, Public Safety Director, Chief of Police, and Interim City Administrator, as part of the Consent Calendar.   However, according to Attorney General Opinion Office of the Attorney General, State of California, Opinion No. 98-707 (September 30, 1998), the positions of police chief and city manager/city administrator are incompatible. To wit, “the city manager, if allowed to serve simultaneously as chief of police, would be authorized to control, order and give directions to himself, appoint and remove himself, prepare and submit his own budget to the city council, conduct investigations into the affairs of his own office, and investigate complaints in relation to matters concerning the administration of his own department. As noted at the outset, offices are incompatible "where one is subordinate to the other and subject in some degree to the supervisory power of its incumbent." (People ex rel. Deputy Sheriffs' Assn. v. County of Santa Clara (1996) 49 Cal.App.4th 1471, 1481; 80 Ops.Cal.Atty.Gen., supra, at 75.)” Therefore, “Acceptance of the city manager office automatically causes the police chief office to be vacated," according to Richard M. Kreisler, L.A. County Police Chief Update, October 01, 1998. And importantly, “It is this office's opinion that the Attorney General would be likely to find that holding an acting city manager position is likewise incompatible with maintaining your permanent appointment as chief of police. Given that the apparent purpose or intent of the “incompatible public office” doctrine is to prevent a person from simultaneously holding two public offices where the performance of the duties of either office could have an adverse effect on the other, it is arguably of little import that your exercise of duties as a city manager is occurring while you are temporarily the city manager. In such case, the city manager can still impact the operations of the two public offices inasmuch as an acting city manager is typically invested with all of the powers, duties and obligations of the office of the city manager, and is therefore called upon to in essence supervise the chief of police.”  Moreover, according to Robert Wechsler, Director of Research for City Ethics, "The California statute has an interesting penalty provision. The public officer is "deemed to have forfeited the first office upon acceding to the second." Thus, a mayor who successfully runs for or accepts an incompatible office is no longer mayor. If the mayor won't budge, this penalty may be enforced in an action by the AG, or by a private party with the AG's consent."
Attorney General Opinion Office of the Attorney General, State of California, Opinion No. 98-707 (September 30, 1998)

OPINION :: No. 98-707 of : September 30, 1998 DANIEL E. LUNGREN :Attorney General : :ANTHONY S. Da VIGO : Deputy Attorney General
CONCLUSION The positions of police chief and city manager of the City of San Jacinto are incompatible public offices

State Attorney General Offers Opinion That the Chief of Police of a General Law City May Not Serve Simultaneously as City Manager - Acceptance of the City Manager Office Automatically Vacates the Police Chief Office
By: Richard M. Kreisler L.A. County Police Chief Update, October 01, 1998

Incompatible Offices in Perspective
Monday, March 28th, 2011
Robert Wechsler Cityethics.org

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