BOARD MEETING DATE: June 14, 2010
AGENDA NO. 1

PROPOSAL:

Approve Position on Assembly Bill 1955 (De La Torre) Concerning Public Officers and the Doctrine of Incompatible Offices

SYNOPSIS:

Existing law prohibits a public officer from simultaneously holding two incompatible public offices. Assembly Bill 1955 defines additional circumstances where two public offices would be incompatible. Due to a lack of a quorum, the Legislative Committee was unable to provide interim guidance to staff, and Board action is needed due to reasons of urgency.

COMMITTEE:

Legislative, June 14, 2010

RECOMMENDED ACTIONS:

Assembly Bill 1955 (De La Torre): Oppose Unless Amended to include proposed amendments specified in this Board Letter.
 

Barry R. Wallerstein, D.Env.
Executive Officer

Background

California Government Code Section 1099 codifies the common law on incompatible offices. This law states that offices are incompatible if any of the following provisions apply:

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.

AB 1955 is adding three additional provisions to the law on incompatible offices:

1. Both public entities in which the offices exist have the power of eminent domain in an area in which the geographic jurisdictions of each office or body overlap.
2. Either public entity in which an office exists has the power to set a fee or a rate or to impose a tax or a levy that may directly or indirectly affect the other office or body.
3. Either public entity in which an office exists has the authority to investigate, monitor, or sue the other office or body.

Discussion

The author’s intent is to ensure that common law doctrine on “incompatible offices” is more precisely codified to aid prosecutors who are enforcing California Government Code Section 1099 – the state statute on incompatible offices. Unfortunately, although well intentioned, the bill is drafted so broadly that it will have far-reaching consequences to potentially all local elected and appointed officials, including Members of the AQMD Governing Board. Assembly Bill 1955 is scheduled to be heard in Senate Local Government Committee on June 16, 2010. 

Recommendation

AQMD staff recommends that the bill be opposed unless amended with the language below. These amendments are consistent with the incompatible offices doctrine but also better reflect the day-to-day reality of elected and appointed officials serving on multiple boards. Sometimes this is required by statute, other times because the best candidate is the one with the most comprehensive experience gained from serving on different boards.  

Proposed Amendments

Government Code Section 1099, subdivision (g), is added to read as follows:

(g) Notwithstanding subdivision (a), offices are not incompatible if simultaneous holding of two offices is compelled or expressly authorized by law, and simultaneous holding of either of those offices and a different office is compelled or expressly authorized by law. This subdivision is declaratory of existing law.

Government Code Section 1099, subdivision (h), is added to read as follows:

(h) Notwithstanding subdivision (a), a member of the governing board of a public entity that includes all or parts of more than one county may serve as an officer of a second public entity located within the geographical boundaries of that multi-county entity, provided that the member disqualifies himself or herself from participating in any decision which materially affects the second public entity in a manner that is different from its effect on the public generally. 

Attachments (EXE, 159k)

Assembly Bill 1955 and AQMD Bill Analysis