Tuesday, December 21, 2010
City Clerk May Also Serve on School Board, A.G. Opines
By KENNETH OFGANG, Staff Writer
State law does not bar an elected city clerk from also serving as a school board member in the same city, Attorney General Jerry Brown has opined.
Brown Friday released a published opinion on the issue at the request of San Mateo County Counsel Michael P. Murphy. Murphy asked for the opinion following the election of Annette Hipona as Daly City clerk in November 2008.
Hipona was elected to the Jefferson Elementary School District board—the district enrolls kindergarten through 8th grade students in Daly City, Colma, Broadmoor Village, and part of Pacifica—in 2003 and reelected in 2007. She was president of the board when elected to the Daly City post, and was sworn in to the latter office in January of last year.
She resigned from the board two months later, but Brown issued the opinion anyway, saying the issue might recur, and noting that his office has not, since 1953, considered whether service in a city administrative office—in that instance clerk-assessor—is incompatible with serving on a school board.
The attorney general said the legal framework for determining incompatibility has changed since the prior opinion. But the conclusion is the same, he concluded—the offices are compatible under Government Code Sec. 1099 because neither exercises any authority over the other.
The statute provides that public officers “shall not simultaneously hold two public offices that are incompatible.” The law 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.
Brown contrasted the clerk’s duties with those of a city council member, distinguishing a 1982 opinion in which one of his predecessors concluded that one could not serve simultaneously on a city council and a school board.
Those two bodies, the earlier opinion noted, “may engage in relationships or contracts with each other, such as arrangements for child care centers, community recreation, health supervision, library facilities, sewage facilities, or the sale or lease of real property.” They can also condemn each other’s property, and cities have some regulatory powers over schools, the opinion noted.
For similar reasons, Brown explained, a 1997 opinion held that a city manager could not serve on the local school board.
A city clerk, on the other hand, has limited duties involving recordkeeping, administering oaths, and financial accounting if the city does not have a finance director, the attorney general noted.
A situation might arise, Brown acknowledged, in which an individual serving in both positions would have a duty to file a document, such as a financial disclosure, in one capacity and to receive and serve as custodian of the same document in the other. But this does not make the offices incompatible, he said, because “the clerk’s duties as a filing officer for a school district trustee’s statements do not include any power to audit, overrule, supervise, or remove the trustee.”
In a footnote, the attorney general noted that by ordinance, the Daly City clerk must “devote his entire time and attention during business hours” to the duties of the office. But whether dual office-holding would violate the ordinance or any other local policy “is beyond the scope of this opinion,” he said.
The opinion, prepared by Deputy Attorney General Taylor S. Carey, is No. 09-403.
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