Thursday, May 29, 2008
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Brown Authorizes Removal Action Against Maywood Councilman
By STEVEN M. ELLIS, Staff Writer
Attorney General Jerry Brown yesterday authorized Los Angeles County District Attorney Steve Cooley to move forward with an action to remove a member of the Maywood City Council for allegedly holding two public offices, in violation of state law.
In an opinion prepared by Deputy Attorney General Taylor S. Carey, Brown opined that Maywood City Councilman Sergio Calderon may be violating state law against holding incompatible offices by simultaneously sitting on the Board of Directors of the Water Replenishment District of Southern California, and granted Cooley’s request for leave to bring a quo warranto action to remove Calderon from the council.
Cooley alleges that Calderon, who was elected to the city council on Nov. 8, 2005, and then to the replenishment district’s board of directors on Nov. 7, 2006, is violating Government Code Sec. 1099 by holding both offices at the same time. The district supplies groundwater to 43 cities, including Maywood, and Calderon, as a member of the board, represents his city, as well as the cities of Bell, Bell Gardens, Commerce, Cudahy, Downey, Huntington Park, Lynwood, Montebello, Monterey Park, South Gate, and Vernon..
Sec. 1099 provides that public officers “shall not simultaneously hold two public offices that are incompatible.” The law does not apply to a position of employment, such as a civil service position, and states that—unless state law expressly compels or authorizes the contrary—two offices are incompatible if either one can exercise supervisory powers over the other, if there is a possibility of a significant clash of duties or loyalties between the two, or if public policy considerations make it improper for one person to hold both.
If two public offices are incompatible, the public officer is deemed to have forfeited the first, and the state attorney general or a private party—with the attorney general’s permission—may bring a “quo warranto” action seeking the removal of “any person who usurps, intrudes into, or unlawfully holds or exercises any public office…within this state.” From the Medieval Latin meaning “by what warrant,” such actions usually arise in civil cases where plaintiffs claim that a government or corporate official was not validly elected to office, or is wrongfully exercising powers beyond those authorized.
Concluding that judicial resolution was appropriate because the question of the two offices’ compatibility presented a possibility of a significant clash of duties or loyalties between them based on the offices’ powers and jurisdictions, Brown granted Cooley’s application for leave to sue “because the public is entitled to the exercise of utmost loyalty from each of its public offices.”
Noting the fact that the city lies completely within the district’s boundaries, while the district’s main office is located in the city; that the city could acquire water supplies and sell them at rates and charges it determined to be reasonable; and that the district’s principal purpose is to replenish groundwater supplies within its boundaries, and was a major purchaser of water for this purpose, Brown wrote that judicial resolution was necessary because “the interests of the City and of the District may differ, depending in particular upon the availability of groundwater supplies within the District.”
As examples, Brown cited a possible conflict if the district decided to raise the price for pumping groundwater in a manner that caused the price increase to be passed on to the city, or if the city’s water use practices and land use regulatory activities degraded the supply and quality of the groundwater that the district is charged with supplying and conserving.
Neither Calderon nor spokespersons for Cooley could ssbe reached for comment.
The opinion is No. 07-903.
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