Tuesday, October 14, 2014
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A.G.: County May Sue to Oust Officials Over Conflict of Interest
By KENNETH OFGANG, Staff Writer
Siskiyou County may sue to prevent two residents from serving simultaneously on boards that regulate fire and water services, Attorney General Kamala Harris has concluded.
The Attorney General’s Office Friday released an opinion granting the county, located along the Oregon border, leave to bring a quo warranto action seeking removal of Roger Gifford and Kimberly Olson from the governing board of the Hornbrook Fire Protection District.
County Counsel Brian L. Morris made the request after Gifford and Olson accepted appointment, on Jan. 14 of this year, to fill two vacancies on the board of the Hornbrook Community Services District. That district currently functions solely as a water district, although it was originally authorized to act as a sewer district as well.
The community in which the districts are located, Hornbrook, has fewer than 300 residents according to the 2010 census.
Board Appointments
Olson had been appointed to the fire board eight days before being named to the water board, and Gifford was named to the fire board a month before that. The attorney general agreed with the county counsel that membership on both boards creates a potential conflict of interest, for which a court may grant relief under the incompatible offices doctrine.
The doctrine existed at common law and was codified in 2005 as Government Code §1099, providing 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. If the person will not step aside, the attorney general may bring, or grant leave to bring, a quo warranto action, which by law is available to remove “any person who usurps, intrudes into, or unlawfully holds or exercises any public office…within this state.”
Clashes of Duty
In an opinion prepared by Deputy Attorney General Lawrence M. Daniels, the attorney general cited three potential clashes of duty—the fire district could decide to purchase water in the future from the water district, which would then have to decide how much to charge, and would be able to control the amount of water available to the fire district in times of shortage; the districts, both of which have powers of eminent domain, could find themselves in competition to acquire facilities; and the fire district would have the power to cite the water district for fire hazards on the water district’s property, with the possibility that the water board would vote to contest the citation before the fire board.
“As one potential clash of duties or interests is sufficient for a finding of incompatible offices, we find that the question whether Defendants are unlawfully holding the office of director of the Fire District (i.e., because of their incompatible presence on the Water District’s board of directors) presents substantial issues of fact and law that warrant a judicial resolution,” the attorney general said.
Gifford and Olson, the attorney general added, offered no countervailing considerations that would militate against the granting of leave to sue.
No Conflict Seen
In a footnote, Harris rejected Olson’s claim that Morris has a conflict of interest, because he serves as counsel for both districts, as well as for the county, and because he at one time allegedly told her she could serve on both boards. The attorney general explained that there was no indication that Morris could or would represent both sides in the quo warranto proceeding, nor would any prior inconsistent advice she may have received permit Olson to remain on both boards if they are legally incompatible.
The attorney general also rejected the claim that the county lacks standing, citing past court and attorney general opinions allowing public officials or public agencies to bring quo warranto actions.
The opinion is No. 14-401.
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