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Why Are Council and School Board Seats Incompatible?
Friday, March 29th, 2013
Robert Wechsler
“Incompatible offices” is a form of
conflict that is usually left out of ethics codes. One reason is
that there is
a common law prohibition against officials holding incompatible
offices. But
whether or not the conflict is common law or in an ethics code, this
is an
important kind of conflict that should be included in ethics
training so that
it is understood. It should also be a topic for which officials may
seek ethics
advice.
There are many offices that one individual should not hold, and multiple reasons why one individual should not hold them, but the term “incompatible offices” refers to only a subsection of these offices and a subsection of the reasons they may be seen as incompatible. It also does not refer to offices held by couples, business partners, or boss and employee that might well be considered highly incompatible.
An incompatible offices matter has arisen in Salinas, California. A school board member successfully ran for the Salinas council. The school district is within Salinas.
California Law
California happens to have the most developed law on incompatible offices. The relevant statute, which applies to local officials, lists three considerations, based on common law principles. Any one of these makes two offices incompatible:
A 1990 AG opinion does apply to the Salinas situation. Here is the AG's reasoning in finding that the two offices are incompatible:
The school board/council member appears to be practicing an odd form of civil disobedience. Usually, civil disobedience is something that citizens practice against the government. Sometimes, government officials do refuse to enforce a law they consider unfair, but the unfairness is to other people, not to themselves.
Enforcement
The problem here is that there is only one way to enforce the law, and it's not a good one, especially in this situation. A citizen must sue the school board member, calling for him to resign, and the state attorney general must approve the suit. In the 1990 case, it was the school board president who sued. In the current case, the school board president has been quoted as saying, "We decided we were not going to get involved with it and that he would take care of this on his own, on his personal time, as a citizen, because we were just wanting to focus on education of our students." According to another KION-TV article, from last week, she also questioned whether there is a conflict of interest, and said that the school board member's resignation would be a great loss. In other words, she supports the school board member and she does not appear to have any understanding of the incompatible offices prohibition.
This is an example where a weakness in the enforcement process allows an ethics law to be ignored. Ethics enforcement should not be dependent on a citizen suit, or even a citizen complaint. An ethics commission should be able to enforce ethics laws on its own, without the involvement of an attorney general or city attorney, and without the involvement of courts.
A Public Waiver Process
What if the school board member is right and, after a clear explanation of the reasons for the state law, his constituents in both the school district and the council voted in a referendum to let him hold both positions? Should he be able to hold them? In other words, should the public be able to give an official a waiver with respect to the incompatible offices prohibition?
This is a fascinating question. After all, it is the public interest that the incompatible offices prohibition is supposed to protect. But there are problems with the public directly providing a waiver. One issue is cost. This is a very slow and expensive way to provide ethics waivers. Another issue is understanding. How likely is it that those who vote would understand the concepts behind the AG's interpretation of the incompatible offices prohibition, and how likely is it that this would be the actual reason for their vote? In other words, would it be seen simply as the opposite of a recall referendum, where it was about the official and, possibly, the party, not about a waiver? Three, how likely is it that a substantial percentage of his constituents would actually vote? Would a 20% turnout truly show that constituents were in favor of a waiver?
For more on the topic of incompatible offices, see the section on the topic in my book Local Government Ethics Programs.
Robert Wechsler
Director of Research-Retired, City Ethics
---
There are many offices that one individual should not hold, and multiple reasons why one individual should not hold them, but the term “incompatible offices” refers to only a subsection of these offices and a subsection of the reasons they may be seen as incompatible. It also does not refer to offices held by couples, business partners, or boss and employee that might well be considered highly incompatible.
An incompatible offices matter has arisen in Salinas, California. A school board member successfully ran for the Salinas council. The school district is within Salinas.
California Law
California happens to have the most developed law on incompatible offices. The relevant statute, which applies to local officials, lists three considerations, based on common law principles. Any one of these makes two offices incompatible:
(1) Either of the offices may audit, overrule, remove members of, dismiss employees of, or exercise supervisory powers over the other office or body.These considerations are interpreted by the state's attorney general. If it is not clear whether two offices are incompatible, an official should either not seek or accept a second public office, should resign from the first office, should look at past AG opinions to see if there is one that applies clearly to his situation or, if not, should first ask the attorney general for an opinion.
(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.
A 1990 AG opinion does apply to the Salinas situation. Here is the AG's reasoning in finding that the two offices are incompatible:
1. Under the Education Code, contracts between the district and the city are authorized for purposes including community recreation, library services, the sale, lease, or dedication of real property, and the installation of water, sewerage, or other public utilitiesThe superintendent of schools sent the school board member a copy of this opinion to alert him about the incompatible office issue. According to an article on the KION-TV website, the school board member refused to resign from the school board, as required by state law. He said, "My constituents support me in doing this. So the dilemma happens to be some public opinion and political powers that have been there that I happened to have taken head on. ... I don't have any personal gain whatsoever in these offices."
2. In eminent domain proceedings, either public body may condemn property of the other where a superior use can be shown.
3. School districts may dedicate real property to cities for certain public purposes.
4. In the establishment of a city master plan, the city may chart the location of future schools.
5. City officials are charged with the enforcement of health and safety regulations within the schools.
The public, school district, and the city have an interest in the undivided loyalty of their elected officers.
The school board/council member appears to be practicing an odd form of civil disobedience. Usually, civil disobedience is something that citizens practice against the government. Sometimes, government officials do refuse to enforce a law they consider unfair, but the unfairness is to other people, not to themselves.
Enforcement
The problem here is that there is only one way to enforce the law, and it's not a good one, especially in this situation. A citizen must sue the school board member, calling for him to resign, and the state attorney general must approve the suit. In the 1990 case, it was the school board president who sued. In the current case, the school board president has been quoted as saying, "We decided we were not going to get involved with it and that he would take care of this on his own, on his personal time, as a citizen, because we were just wanting to focus on education of our students." According to another KION-TV article, from last week, she also questioned whether there is a conflict of interest, and said that the school board member's resignation would be a great loss. In other words, she supports the school board member and she does not appear to have any understanding of the incompatible offices prohibition.
This is an example where a weakness in the enforcement process allows an ethics law to be ignored. Ethics enforcement should not be dependent on a citizen suit, or even a citizen complaint. An ethics commission should be able to enforce ethics laws on its own, without the involvement of an attorney general or city attorney, and without the involvement of courts.
A Public Waiver Process
What if the school board member is right and, after a clear explanation of the reasons for the state law, his constituents in both the school district and the council voted in a referendum to let him hold both positions? Should he be able to hold them? In other words, should the public be able to give an official a waiver with respect to the incompatible offices prohibition?
This is a fascinating question. After all, it is the public interest that the incompatible offices prohibition is supposed to protect. But there are problems with the public directly providing a waiver. One issue is cost. This is a very slow and expensive way to provide ethics waivers. Another issue is understanding. How likely is it that those who vote would understand the concepts behind the AG's interpretation of the incompatible offices prohibition, and how likely is it that this would be the actual reason for their vote? In other words, would it be seen simply as the opposite of a recall referendum, where it was about the official and, possibly, the party, not about a waiver? Three, how likely is it that a substantial percentage of his constituents would actually vote? Would a 20% turnout truly show that constituents were in favor of a waiver?
For more on the topic of incompatible offices, see the section on the topic in my book Local Government Ethics Programs.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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