INCOMPATIBLE ACTIVITIES OF STATE
OFFICERS AND EMPLOYEES
Government Code Section 19990*
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The prohibitions applicable to state officers and employees as contained in GovernmentCode section 19990 footnote No. 14 are similar to those applicable to local officials under section 1126(see chapter IX of this pamphlet). Like section 1126, section 19990 creates a generalprohibition followed by specific areas of conduct which should be covered in anincompatible activities statement adopted by an employee's appointing power.
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Initially, section 19990 prohibits state officers and employees from engaging in anyactivity or enterprise which is clearly inconsistent, incompatible, in conflict with, orinimical to their duties as state officers or employees. Each state agency is required todevelop, subject to the approval of the Department of Personnel Administration, astatement of incompatible activities for its officers and employees. As discussed below,the statute sets forth several activities that are deemed to be inconsistent, incompatible orin conflict with the duties of a state officer or employee.
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In construing section 1126, which is applicable to local officers and employees, the courtin Mazzola v. City & County of San Francisco, supra, 112 Cal.App.3d 141, concluded that the general prohibition was not self-executing. There, the City and County of San Francisco had appointed and reappointed a plumbers' union official to the position ofairport commissioner. At the time of the appointments, the city had full knowledge thatthe commissioner was a union official. After several unions, including the plumbers'union, engaged in a lengthy strike against the city, the Board of Supervisors removed the commissioner from office based on "official misconduct." The court set aside thatdecision, stating that the prohibition against incompatible activities could be exercisedonly through the agency's adoption of an incompatible activities statement whichspecifically notified employees of the prohibited activities. The court took the positionthat a general ban on activities which were inconsistent, incompatible, in conflict with orinimical to one's public duties was too vague to have any effect without the adoption ofspecific guidelines by the employee's agency. The same argument could be made withrespect to section 19990.
*A copy of this statute appears in appendix J.
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There is some question as to whether section 19990 covers state officers who are outsidethe state civil service. The provision concerning the incompatible activities statementprovides:
"Each appointing power shall determine, subject to approval of the department, those activities which, for employees under its jurisdiction, are inconsistent, incompatible or in conflict with their duties as state officers or employees. . . ." (§ 19990; emphases added.)
In the past, section 19251, predecessor to section 19990, was interpreted by this office to apply to civil service employees only. (53 Ops.Cal.Atty.Gen. 163 (1970).) This conclusion, in part, was based upon the fact that the prohibition and the remedies were placed in the civil service portions of the Government Code. However, in 1981, section 19251 was repealed and replaced with section 19990, which is contained in the portion of the Government Code applicable to the Department of Personnel Administration. These provisions are applicable to both civil service and noncivil service employees and officers of state government. (§ 19815 et seq.) For the purposes of the Government Code sections under the jurisdiction of the Department of Personnel Administration, section 19815(d) defines the term "employee" to include ". . . all employees of the executive branch of government who are not elected to office."
Thus, there are strong indications that section 19990 covers all nonelected, executive branch officers and employees, not just those who are members of the civil service. However, the only remedy for violating an incompatible activities statement continues to appear in section 19572(r) as a reason for imposing discipline on a civil service employee. In addition, the term "appointing power" is defined in section 18524 as the entity authorized to appoint civil service personnel. Nevertheless, these factors do not conclusively bar the application of section 19990 to noncivil service personnel. For example, non-civil service employees could be subject to disciplinary action or removal under the terms of their appointment.
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Only those outside activities that are clearly incompatible, inconsistent or in conflict with the employee's public duties may be restricted. (73 Ops.Cal.Atty.Gen. 239 (1990); see also Keeley v. State Personnel Board (1975) 53 Cal.App.3d 88 (prison guard terminated because of his ownership and operation of a liquor store).) The types of activities specifically enumerated for coverage by incompatible activities statements include: using the prestige or influence of the state for private gain; using state facilities, time, equipment, or supplies for private gain; using confidential information for private gain footnote No. 15; receiving compensation from other than the state for the performance of state duties; performing private activities which later may be subject to the control, review, inspection, audit, or enforcement by the officer or employee; and receiving anything of value from a person seeking to do business with the official's agency where the item of value could be reasonably interpreted as having been intended to influence the official. Section 19990 specifically states that incompatible activities shall include, but are not limited to, the enumerated areas of conduct specified in the statute.
Further, in Long Beach Police Officers Assn. v. City of Long Beach, supra, 46 Cal.3d 736, the Supreme Court held that local governments have broad discretion to regulate conflicts of interests. Thus, the statutory language combined with the Long Beach Police Officers Assn. holding make it clear that state agencies also have broad authority to regulate conflicts of interests.
There is, however, less discretion afforded with respect to regulating the political activities of state officers or employees. Pursuant to section 3208, except as otherwiseprovided in section 19990, the limitations contained in sections 3201-3209 are the onlypermissible restrictions on the political activities of state employees. footnote No. 16 In addition to these provisions, employees should be aware of section 8314 and Penal Code section 424, which prohibits the misuse of public funds and property for political or personal use. (See also Stanson v. Mott, supra, 17 Cal.3d 206; League of Women Voters v.Countywide Crim. Justice Coordinating Com., supra, 203 Cal.App.3d 529.)
It should also be noted that the private use of expertise acquired during the performanceof one's official duties is not necessarily prohibited. (See, 73 Ops.Cal.Atty.Gen. 239,supra, (under specified circumstances, a State Franchise Tax Board employee can teachcourses on tax law).)
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With respect to civil servants, prior to any determination that an employee has engagedin proscribed activities, the employee must be given notice and subsequently must beafforded appeal rights to contest any finding. (See, Mazzola, supra, 112 Cal.App.3d at pp. 154-155.) Since violations of the statement of incompatible activities are a matter ofcivil service employee discipline pursuant to section 19572(r), all of the safeguardsprovided by the Government Code and the State Personnel Board in connection withemployee disciplinary hearings are applicable. If the provisions of this section are inconflict with the provisions of a memorandum of understanding reached pursuant tosection 3517.5, the memorandum of understanding shall be controlling without furtherlegislative action, unless the expenditure of funds is involved, in which case suchexpenditures must be approved by the Legislature in the budget act.
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Section 19990 does not set forth any penalties or remedies for its violation. However,several enforcement vehicles are available. First, with respect to state governmentemployees, disciplinary action such as reprimand, suspension, or termination ofemployment is available depending upon the gravity of the violation. (§ 19572(r).) With respect to an appointed officer, a complaint could be filed with the appointingauthority which may have the power to punish the officer or even terminate the officer'sappointment in the case of a particularly serious violation. In addition, a taxpayer ormember of the public may have the right to seek relief through injunction or mandamus. In addition, members of the public may file a complaint with the State Personnel Board pursuant to section 19583.5 requesting that disciplinary action be taken against the state employee.
If you have a question about an officer or employee's outside activities, you should contact the appointing authority or employing agency for a copy of the applicable statement of incompatible activities or memorandum of understanding. A member of the public is entitled to a copy of the statement or memorandum through the Public Records Act as set forth in Government Code section 6250 et seq.
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The doctrine of incompatibility of office concerns a potential clash of two public offices held by a single official. Thus, the doctrine concerns a conflict between potentially overlapping public duties. (People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636; see also Mott v. Hortsmann (1950) 36 Cal.2d 388, and 56 Ops.Cal.Atty.Gen. 488 (1973).) This is distinguishable from the concept of conflicts of interests which involves a potential clash between an official's private interests and his or her public duties. Confusion of these concepts sometimes results from the use of the term "incompatibility" in connection with the doctrine of incompatibility of offices on the one hand and the conflict of interests notion of incompatible activities on the other. (55 Ops.Cal.Atty.Gen. 36, 39 (1972).)
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To fall within the common law doctrine of incompatibility of office, two elements must be present. (68 Ops.Cal.Atty.Gen. 337 (1985).) First, the official in question must hold two public offices simultaneously. Second, there must be a potential conflict or overlap in the functions or responsibilities of the two offices.
The doctrine of incompatibility of offices was announced in the landmark case of People ex rel. Chapman v. Rapsey, supra, 16 Cal.2d at pp. 636, 641-642 (hereinafter "Rapsey"). In that case the court outlined issues which must be addressed in evaluating incompatibility of office problems: whether there is any significant clash of duties or loyalties between the offices; whether considerations of public policy make it improper for one person to hold both offices; and whether either officer exercises a supervisory, auditory, appointive, or removal power over the other.
In Rapsey, a city judge accepted an appointment as city attorney. The court concluded that the two positions in question were public offices and that there was a significant clash in their respective duties and functions.
(For special rules governing attorneys, see Government Code § 1128, 66 Ops.Cal.Atty.Gen. 382 (1983), and the discussion in section F of this chapter.)
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At the outset, it should be noted that a common law doctrine can be superseded by legislative enactment. Thus, the Legislature may choose to expressly authorize the dual holding of offices notwithstanding the fact that the dual holding would otherwise be prohibited by the common law doctrine. In 78 Ops.Cal.Atty.Gen. 60 (1995), this office concluded that section 6508 was intended to insure that the common law rule does not apply to joint powers agencies or their governing boards. Accordingly, a member of a city council may serve as a member of an airport commission which is a joint powers agency comprised of the city and other governmental agencies. After concluding that the offices of city and county planning commissioners were incompatible, this office in 66 Ops.Cal.Atty.Gen. 293, 302 (1983) stated: "It is concluded, therefore, that the county and city may provide by coordinate legislation for the simultaneous holding of the offices in question notwithstanding the common law rule."
In Rapsey, supra, 16 Cal.2d 636, 640, the court defined the elements of a public "office" as including "the right, authority, and duty, created and conferred by law -- the tenure of which is not transient, occasional, or incidental -- by which for a given period an individual is invested with power to perform a public function for public benefit." In 68 Ops.Cal.Atty.Gen. 337, supra, this office summarized the court's conclusions as follows:
"For the purpose of the doctrine of incompatible public offices, a public office is a position in government (1) which is created or authorized by the Constitution or some law; (2) the tenure of which is continuing and permanent, not occasional or temporary; (3) in which the incumbent performs a public function for the public benefit and exercises some of the sovereign powers of the state."
Since an "employment" is not an "office," the doctrine of incompatibility of office does not preclude an official from simultaneously holding an office and an employment. (58 Ops.Cal.Atty.Gen. 109, 111 (1975).)
A deputy to a principal is not necessarily deemed to be holding the same office as the principal for purposes of the incompatible offices doctrine; only where the deputy stands in the principal's shoes with respect to policy making decisions will the deputy be deemed to be holding the same office as the principal for purposes of the doctrine. (See 78 Ops.Cal.Atty.Gen. 362 , supra, modifying 63 Ops.Cal.Atty.Gen. 710 (1980).)
Employment with a public agency which is governed by contract, rather than by law, generally is not an office under the Incompatible Offices Doctrine. (76 Ops.Cal.Atty.Gen. 244 (1993).)
For examples of situations in which the doctrine has been applied to the holding of two offices, see the following:
76 Ops.Cal.Atty.Gen. 38 (1993) (full time position as fire chief incompatible with office of city council where fire chief is responsible to fire district and council members serve as directors of fire protection district); 73 Ops.Cal.Atty.Gen. 354 (1990) (offices of school district trustee and city councilmember incompatible where district and city have common territory; 68 Ops.Cal.Atty.Gen. 337, supra, (offices of a hospital district general manager and a superintendent of schools were incompatible with the office of community services' district director); 68 Ops.Cal.Atty.Gen. 171 (1985) (offices of school trustee for high school and elementary school districts are incompatible); see also 68 Ops.Cal.Atty.Gen. 240 (1985); 68 Ops.Cal.Atty.Gen. 7 (1985) (offices of deputy sheriff and county supervisor were incompatible even if the salary for one of the positions were waived); 66 Ops.Cal.Atty.Gen. 293 (1983) (offices of county planning commissioner and city planning commissioner are incompatible); 66 Ops.Cal.Atty.Gen. 176 (1983) (offices of fire chief of a county fire protection district and member of the board of supervisors of the same county are incompatible offices); 65 Ops.Cal.Atty.Gen. 606 (1982) (offices of school board member and city councilmember are incompatible where both have territory in common); 64 Ops.Cal.Atty.Gen. 288 (1981) (offices of county planning commissioner and county water district director are incompatible offices); 64 Ops.Cal.Atty.Gen. 137 (1981) (member of the board of directors of a public utility district and a member of the board of county supervisors for the county in which the district is located are incompatible); 63 Ops.Cal.Atty.Gen. 607 (1980) (offices of county planning commissioner and city councilmember are incompatible offices).
For an example of situations in which the doctrine has not been applied because one of the positions was an employment, see the following:
74 Ops.Cal.Atty.Gen. 82 (1991) (position of city fire division chief is employment and therefore not incompatible with office of city councilmember); 65 Ops.Cal.Atty.Gen. 316 (1982) (a member of the State Board of Architectural Examiners may serve simultaneously as assistant to the Director of the Department of Consumer Affairs); 62 Ops.Cal.Atty.Gen. 615 (1979) (a person who is employed as a superintendent of a school district may serve as a member of the State Board of Education); 61 Ops.Cal.Atty.Gen. 88 (1978) (county employees may serve simultaneously as members of a county grand jury).
In Eldridge v. Sierra View Local Hospital Dist., supra, 224 Cal.App.3d 311, the court determined that the doctrine did not bar a nurse from holding office as a member of the board of directors of the hospital district which employed her because the position of nurse is an employment rather than an office. (Id. at 319.) (However, in response to the Eldridge decision and 73 Ops.Cal.Atty.Gen. 191 (1990), the Legislature enacted Education Code section 35107(b), which supersedes the common law doctrine, and specifically prohibits school district employees from simultaneously holding office as a member of a school district's governing board.)
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With respect to a conflict between the duties or functions of two offices, a clash between the two offices in the context of a particular decision need not be proved, in order to activate the doctrine of incompatibility of office. It is enough that there is a potential for a significant clash between the two offices at some point in the future. (See 78 Ops.Cal.Atty.Gen. 316 (1995) and 64 Ops.Cal.Atty.Gen. 288, supra, at p. 289.)
The Rapsey court, 16 Cal.2d, supra, at pp. 641-642, discussed the conflict between offices in the following passage:
"Two offices are said to be incompatible when the holder cannot in every instance discharge the duties of each. Incompatibility arises, therefore, from the nature of the duties of the offices, when there is an inconsistency in the functions of the two, where the functions of the two are inherently inconsistent or repugnant, as where antagonism would result in the attempt by one person to discharge the duties of both offices, or where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both."
In 78 Ops.Cal.Atty.Gen. 316, supra, this office concluded that a member of a county board of supervisors could not simultaneously serve as a member of the Board of Governors of the California Community Colleges. There, we concluded that there was an inconsistency in the duties because a supervisor and a member of the Board of Governors could have divided loyalties over matters concerning the use of college district property, the issuance of district bonds, as well as matters pertaining to funding and fees. Likewise, in 65 Ops.Cal.Atty.Gen. 606, supra, this office opined that there was significant potential for a conflict between a city councilmember and a school board member. The opinion discussed six areas of potentially overlapping jurisdiction which could lead to a clash in official loyalties for an individual holding both positions. (Id., at 607.) The areas of potential conflict ranged from financial and budgetary matters to zoning and development issues.
In 64 Ops.Cal.Atty.Gen. 288, supra, at p. 291, this office discussed potential conflicts in several factual contexts. With respect to a conflict between the offices of city planning commissioner and state highway commissioner, the opinion stated:
"`What is best for the state in highway location may differ significantly as to what . . . is best for the . . . city itself.'" (Ibid.)
With respect to a conflict between the offices of county planning commissioner and a member of the county water district, the opinion stated: "Likewise, what is best for the county in its planning activities may differ significantly from what is best for the county water district and the exercise of its independent powers."
For similar reasons, we opined that the simultaneous holding of office as a member of the boards of directors of two water districts was incompatible because the actions of one district could have an effect on the actions of the other. (76 Ops.Cal.Atty.Gen. 81 (1993).) Likewise, we have concluded that an individual may not simultaneously hold the office of county superintendent of schools and member of the State Board of Education. (74 Ops.Cal.Atty.Gen. 116 (1991).)
However in 71 Ops.Cal.Atty.Gen. 39, at 42 (1988), this office concluded that an individual could be a member simultaneously of the State Industrial Welfare Commission and the Personnel Commission of the Los Angeles County Superintendent of Schools. This conclusion was based on the absence of any incompatibility between the two offices:
"While we entertain no doubt that both of the positions in question are public offices, we predicate our conclusion herein exclusively upon the absence of incompatibility between them. The commission is concerned solely with public employees, i.e., the classified employees of the County Superintendent of Schools. As we shall see, I.W.C. is concerned solely with employees in the private sector. Neither agency has any official interest in or jurisdiction over the province of the other."
When two offices are consolidated, the common law rule of incompatible offices may be violated if one office is made subordinate to the other. (The People ex rel. Deputy Sheriffs' Assn. v. County of Santa Clara (1996) 49 Cal.App.4th 1471.)
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Where a public official is found to have accepted two public offices, common law doctrine provides for an automatic vacating of the first office. (See 66 Ops.Cal.Atty.Gen. 293, supra, at p. 295;66 Ops.Cal.Atty.Gen. 176, supra, at p. 178; 65 Ops.Cal.Atty.Gen. 606, supra, at p. 608.) The appropriate mechanism for enforcing the departure from office is a suit in quo warranto under section 803 of the Code of Civil Procedure. (See chapter VIII, section F regarding the quo warranto remedy.) (Rapsey, supra, 16 Cal.2d 636.) Disqualification or abstention from those decisions where an actual clash of the two offices is found to occur, is not an available remedy under the common law doctrine. (See 66 Ops.Cal.Atty.Gen. 176, supra, at pp. 177-178; 63 Ops.Cal.Atty.Gen. 710, supra, at pp. 715-717.) However, notwithstanding the legal forfeiture, the person remains in the prior position as a de facto member until he or she actually resigns or is removed from office by a quo warranto action or other lawsuit. (74 Ops.Cal.Atty.Gen. 116 (1991).)
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In 1981, the Legislature added section 1128 to the Government Code concerning the right of public attorneys to hold other elective or appointive office. In 63 Ops.Cal.Atty.Gen. 170, supra, this office concluded that the incompatibility of office doctrine applied to a deputy if his or her principal would be prohibited from holding the other office in question. The opinion also concluded that the doctrine of incompatibility of offices may not be avoided by use of abstention or by realigning or by limiting the deputy's duties.
In 66 Ops.Cal.Atty.Gen. 382, supra, this office interpreted Government Code section 1128. The opinion concluded that the statutory provision modified the common law in several respects. First, the statute does not prohibit a public attorney from holding an appointive or elective office merely because a potential conflict may arise. Second, in the case of an actual conflict, transactional disqualification rather than forfeiture is required. Third, the statute not only applies to a deputy who stands in the shoes of his or her principal but to the principal himself or herself. (See, 74 Ops.Cal.Atty.Gen. 86 (1991) (deputy district attorney may serve on city council); 67 Ops.Cal.Atty.Gen. 347 (1984) (appointed city attorney may serve on airport commission).)
This office has opined that, when an actual conflict arises between the duties or responsibilities of a non-elective public attorney's two offices, section 1128 does not result in the automatic forfeiture of either office assumed by the public attorney under any circumstances. In the event of such a conflict, the public attorney could be held accountable for misconduct in office or a violation of the rules of professional conduct, or could be subject to recall from elective office or subject to disciplinary action by his or her appointing authority. (66 Ops.Cal.Atty.Gen. 382, supra.)
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XII.
THE COMMON LAW DOCTRINE AGAINST CONFLICTS OF INTERESTS
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Courts and this office have, in the past, found conflicts of interests by public officials to be violative of both the common law footnote No. 17 and statutory prohibitions. (See the discussion in Kaufmann, The California Conflict of Interest Laws, (1963) 36 So. Cal.L.Rev. 186.)
Although this office continues, for the sake of completeness, to refer to the common law doctrine in our opinions (see, e.g., 67 Ops.Cal.Atty.Gen. 369, 381 (1984) and citations therein) it could be argued that its application has been severely limited by the passage of the Political Reform Act of 1974. In this regard I.L. 76-69 stated:
"Though one might urge . . . the Political Reform Act of 1974 has now preempted the common law doctrine against conflict of interests, and therefore that which is not specifically prohibited is now permitted, we would caution against such a conclusion for the reasons (1) that the courts have traditionally predicated their decisions on the dual basis of the statutes and the common law rule, see 58 Ops.Cal.Atty.Gen. 345, supra, at pp. 354-56, and (2) were a violation of the common law rule found to exist, such could form the basis of an allegation of willful misconduct in office within the meaning of section 3060 et seq." (See also 59 Ops.Cal.Atty.Gen. 604 (1976).)
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A good expression of the common law doctrine is found in Noble v. City of Palo Alto (1928) 89 Cal.App. 47, 51: "A public officer is impliedly bound to exercise the powers conferred on him with disinterested skill, zeal, and diligence and primarily for the benefit of the public. [Citations.]"
This office has cautioned that where no conflict is found according to statutory prohibitions, special situations could still constitute a conflict under the longstanding common law doctrine. (53 Ops.Cal.Atty.Gen. 163 (1970).) That opinion advised that the inquiry to be made was into the possibility that an official's private interests might be enhanced through his or her official action. Another judicial explication of the common law doctrine was in Terry v. Bender (1956) 143 Cal.App.2d 198. In that case the court stated: "Public officers are obligated, . . . [by virtue of their office], to discharge their responsibilities with integrity and fidelity." (Id., at 206.)
In 26 Ops.Cal.Atty.Gen. 5, 7 (1955), this office advised that if a situation arises where a common law conflict of interests exists as to a particular transaction, the official "is disqualified from taking any part in the discussion and vote regarding" the particular matter.
In Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, the court concluded that in an adjudicatory hearing, the common law is violated if a decision maker is tempted by his or her personal or pecuniary interests. In addition, the doctrine applies to situations involving a nonfinancial personal interest. (Id. at p. 1171, fn. 18.)
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CONFLICT OF INTERESTS STATUTES APPLICABLE TO PARTICULAR OFFICERS OR AGENCIES
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In addition to statutes of general applicability (e.g., Political Reform Act of 1974 ("PRA") or act; Gov. Code, § 1090), there are a multitude of conflict of interests statutes which are applicable only to particular officers or agencies. The statutes may go beyond and be more sweeping than the general statutes discussed above. Some may be directed to conflicts which may arise on a transactional basis and will permit abstention. Others may be so broad as to constitute a qualification for holding office (i.e., one may not possess specified financial interests and hold office simultaneously). It is beyond the scope of this pamphlet to attempt to set forth all such statutes. However, anyone who is attempting to determine if a conflict of interests exists in a particular instance, must be aware of the fact that these special statutes may exist and must, therefore, determine from the law establishing a particular office or agency, whether any special conflict of interests statutes have been enacted. footnote No. 18
It must also be emphasized that these special statutes will, in all probability, have had their origin in legislation which was enacted prior to the PRA. Consequently, the normal rule that a special statute controls a more general statute may have been modified by the provisions of section 81013 of that act. As has been noted numerous times throughout this pamphlet, the PRA prevails over any other act of the Legislature in cases of direct conflict. It is beyond the scope of this discussion to attempt to define or point out areas of conflict between the PRA and special statutes. Each situation must be analyzed on its particular facts to determine the viability of the special statutory provision.
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