‘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."

Opinion 98-707

Attorney General Opinion Office of the Attorney General, State of California, Opinion No. 98-707 (September 30, 1998)

REFERENCES:

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
LIEBERT CASSIDY WHITMORE

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

MONTEREY PENINSULA REGIONAL WATER AUTHORITY (MPRWA): Legal Argument that The County is Ineligible for Membership in the Authority According to California Government Code §1099, Agency Act, Attorney General Opinion 10-903 & MPWMD Act, § 118-203

ABSTRACT:  In the context of an anticipated California Attorney General Opinion in about one year regarding the legal issue of Incompatible Offices and the Monterey Peninsula Regional Water Authority’s appointment of Supervisor Dave Potter to the Mayor’s Water Authority Board of Directors and Governance Committee, a legal argument is presented arguing that The County is Ineligible for Membership in the Authority and Specific Disqualification of Supervisor Potter.  Supporting documents, namely Government Code §1099 is reproduced, the Monterey County Water Resources Agency Act, Water Code Appendix, Chapter 52 (the Agency Act) (Agency Act §52-71), Attorney General Opinion 10-903 and West's ANNOTATED CALIFORNIA CODES WATER CODE-APPENDIX Sections 108-1 to End (MPWMD Act, § 118-203) documents, are embedded. 

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 Regional Water Authority (Authority) Issues, October 11, 2012.

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)

 52-71 Duties of Supervisors concerning litigation

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

 

West's ANNOTATED CALIFORNIA CODES WATER CODE-APPENDIX Sections 108-1 to End (MPWMD Act, § 118-203)

ADDENDUM:

Doctrine of Incompatible Offices

State of California Department of Justice

Office of the Attorney General

County Counsel Letter to Supervising Deputy Attorney General Request for a Legal Opinion from the Attorney General on the Issue of Incompatibility of Offices & Attorney Richard G. Glenn, THE THOMPSON LAW OFFICE, Letter to MPRWA attorney Don Freeman Re: Monterey Peninsula Regional Water Authority Issues

Monterey County Counsel letter to Supervising Deputy Attorney General Request for a Legal Opinion from the Attorney General on the Issue of Incompatibility of Offices

ABSTRACT: A letter from County Counsel Charles J. McKee to Susan Duncan Lee, Supervising Deputy Attorney General, California Attorney General's Office, Opinion Unit, dated October 30,2012, Re: Request for a Legal Opinion from the Attorney General on the Issue of Incompatibility of Offices is embedded. Highlights from the five-page letter are presented.

County Counsel Request for Legal Opinion from Attorney General on Issue of Incompatibility of Offices 10-31-12 OCR Document

MONTEREY COUNTY

OFFICE OF THE COUNTY COUNSEL

CHARLES J. McKEE

COUNTY COUNSEL

Susan Duncan Lee

Supervising Deputy Attorney General

California Attorney General's Office

Opinion Unit

455 Golden Gate Ave, Ste. 11000

San Francisco, CA 94102

October 30, 2012

Re: Request for a Legal Opinion from the Attorney General on the Issue of Incompatibility of Offices

HIGHLIGHTS

As County Counsel for the County of Monterey I am requesting an expedited legal opinion from the Attorney General under California Government Code section 12519

QUESTION:

1. Are the offices of Supervisor of Monterey County (County), Supervisor of Monterey County Water Resources Agency (MCWRA), and Director of Monterey Peninsula Water Management District (MPWMD) incompatible with the office of Director of the Monterey Peninsula Regional Water Authority (MPRWA) joint powers agency?

DISCUSSION:

We understand the analysis for incompatible offices considers the following:

1. Are the offices in question public?
2. Would sitting in these offices create divided loyalties for the member? Is there a likelihood the member would need to recuse him or herself?
3. Does one seat have supervisory, auditory or removal powers over the other?
4. Do exceptions exist to the rule?
a. Exceptions include seats held by a public employee, advisory bodies and when holding the office is compelled or authorized by law.

It is our opinion that the exception for member agencies and these statutory mandates are legal authorizations for a Monterey County Supervisor to sit as a Director of the MPRWA.

Attorney Richard G. Glenn, THE THOMPSON LAW OFFICE, Letter to MPRWA Attorney Don Freeman Re: Monterey Peninsula Regional Water Authority Issues 

ABSTRACT: On October 11, 2012, attorney Richard Glenn, The Thompson Law Office, wrote a letter to attorney Don Freeman, Monterey Peninsula Regional Water Authority (MPRWA) attorney Re: Monterey Peninsula Regional Water Authority (Authority) Issues. Attorney Glenn identified “a few legal issues I believe require the Authority's immediate attention,” including Mayor Pendergrass' Forfeiture of his MPWMD Ex Officio Seat, The County is Ineligible for Membership in the Authority, Invalid Chairmanship of TAC and Substantial Identity of Purpose. Recommendations:
1. Advise the Authority board and Mayor Pendergrass that he has forfeited his seat on the MPWMD board. He may now begin effectively working with his fellow mayors, without any conflict concern, in a focused effort aimed at resolving the Peninsula's water crisis.
2. Advise the Authority that it is not legally possible to admit the County as a member of the Authority. This means that neither Supervisor Potter, nor his successor, may serve as a director on the Authority board. The Authority/County relationship under an Integrated Water Management Plan pursuant to Water Code §10530 et seq., is specifically intended to be determined in due course under the JPA.
3. Advise the Authority board and David Stoldt that he may no longer serve as chairman of the TAC. Request that the board select an Authority director as chairman of the TAC, as soon as possible.
4. Advise the Authority board that it has assumed the responsibility on behalf of its municipalities for securing adequate future water supplies in a manner accountable only to its Cities' users. It may thus fully replace MPWMD in that role within the Cities. In this regard, MPWMD may not impair the Authority or its member Cities in securing adequate water supplies. Consequently, all discussions with MPWMD and other regional water entities and interests must be maintained at "arms length."
Attorney Glenn states “These recommendations are offered to assist you and the Authority in initially avoiding a Government Code § 1 099 quo warranto action under the auspices of the California Attorney General. They are also intended to eliminate related complications in any future litigation involving the Authority and MPWMD, MCWRA or others.” Attorney Glenn’s letter is embedded.

Thompson Law Office Re MPRWA Issues 10-11-12

THE THOMPSON LAW OFFICE
Attorney Richard G. Glenn Letter to MPRWA Attorney Don Freeman
Re: Monterey Peninsula Regional Water Authority (Authority) Issues

ADDENDUM:

LIQUID BORDERS 
Lawyers tussle over the role of the Peninsula mayors’ authority in the desal mess.

By Kera Abraham

Thursday, November 1, 2012