Why Are Council and School Board Seats Incompatible?
“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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
<b>California Law</b><br>
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:<blockquote>
(1) Either of the offices may audit, overrule, remove members of,
dismiss employees of, or exercise supervisory powers over the other
office or
body.
<br>
<br>
(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.
<br>
<br>
(3) Public policy considerations make it improper for one person
to hold both offices.
</blockquote>
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.<br>
<a href="http://search.doj.ca.gov/AGSearch/isysquery/b23c69ff-4061-4f49-9edf-d97…; target="”_blank”"><br>
A 1990 AG opinion</a> does apply to the Salinas situation. Here is
the AG's reasoning in finding that the two offices are incompatible:<blockquote>
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 utilities <br>
<br>
2. In eminent domain proceedings, either public body may condemn
property of the other where a superior use can be shown.<br>
<br>
3. School districts may dedicate real property to cities for certain
public purposes. <br>
<br>
4. In the establishment of a city master plan, the city may chart
the location of future schools.<br>
<br>
5. City officials are charged with the enforcement of health and
safety regulations within the schools. <br>
<br>
The public, school district, and the city have an interest in the
undivided loyalty of their elected officers.</blockquote>
The superintendent of schools sent the school board member a copy of
this opinion to alert him about the incompatible office issue.
According to <a href="http://www.kionrightnow.com/story/20665189/casteneda-responds-to-allega…; target="”_blank”">an
article on the KION-TV website</a>, 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."<br>
<br>
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.<br>
<br>
<b>Enforcement</b><br>
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 <a href="http://www.kionrightnow.com/story/21751912/alisal-board-stays-out-of-al…; target="”_blank”">another
KION-TV article</a>, 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.<br>
<br>
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.<br>
<br>
<b>A Public Waiver Process</b><br>
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?<br>
<br>
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?<br>
<br>
For more on the topic of incompatible offices, see <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Inc…; target="”_blank”">the
section on the topic in my book</a> <i>Local Government Ethics
Programs.</i><br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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