Incompatible Offices in Perspective

Anonymous

Mon, 03/28/2011 - 09:05

Advisory Opinions

Incompatible offices is a form of conflict I have not dealt with in
this blog. A good occasion to do this is <a href="http://www.latimes.com/media/acrobat/2010-12/58022849.pdf" target="”_blank”">a
recent California attorney general's opinion</a> interpreting the
state's 2005 incompatible offices statute, which applies to local and state
"public officers." The opinion provides valuable definitions, as well as useful perspectives on the idea of office incompatibility.

Defining "Public Office" 
There has long been a common law prohibition against holding
"incompatible offices," a prohibition that has been codified in some local
government ethics codes as it was in the California code. Although there are many offices that one
individual should not hold, the term "incompatible offices" refers to
only a subsection of these offices. 
 
Here is the AG's definition of "public office":<ul>

An office (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; and (3) in which the incumbent performs a
public function for the public benefit and exercises some of the
sovereign powers of the state.</ul>

The most important difference between a public officer and a government
employee is that a public officer is not an employee, but an official
who exercises power directly, usually as an member of a legislative
body, board, or commission, or in an executive role. 
 
The statute also defines "public office" the other way around, by expressly excluding from an office that can be incompatible
any "position of employment,
including a civil service position," as well as membership in a
governmental body that has "only advisory powers." 
 
Defining Incompatibility 
When are two public offices incompatible? California law (<a href="http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=01001-0…; target="”_blank”">§1099</a>),
which essentially codifies the common law, says that offices are
incompatible when any of the following circumstances are present:<ul>

(1) Either of the offices may audit, overrule, remove members of,
dismiss employees of, or exercise supervisory powers over the other
office or body. 
(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.</ul>

The second and third subsections here certainly require interpretation. The AG opinion carefully interprets subsection 2, but leaves the more wide-open subsection 3 alone. It would appear that any California official seeking a second government office should seek the AG's approval before running for or accepting that office. 
 
This AG opinion was sought with respect to the state's High-Speed Rail
Authority. The possibly incompatible offices to be considered
included the mayor of Anaheim, members of the board of the Orange
County Transportation Authority, and members of the board of the Los
Angeles County Metropolitan Transportation Authority. 
 
The state senator who asked for the opinion apparently suggested that
the incompatible offices doctrine be construed narrowly, so that it
would only apply to situations in which one office has the authority to
approve, disapprove, or otherwise control the decisions of the other
office or, at a minimum, that the two offices are statutorily obligated
to interact with each other. This would limit the concept of
incompatible offices to those where any exercise of the duties of one
office might conflict with the exercise of duties of the other office,
that is, where the offices are structurally incompatible. 
 
The AG chose not to limit the doctrine in this manner. As long as there
is a possibility of any significant clash of duties or loyalties, then
offices are incompatible. It does not matter that the official could
withdraw from participation in one or more particular matters. Nor
does there have to be an ongoing, structural conflict. As the AG puts it,
offices are incompatible "when the chances of each agency dealing with
each other are substantial." 
 
Useful Perspectives on Incompatibility of Offices 
The opinion cites an earlier opinion that provides another useful
perspective on incompatible offices: "a county supervisor may have an
entirely different responsibility in reviewing a county project on
behalf of the county than in acting upon that project as a member of a
regional coastal commission." 
 
And here is yet another useful perspective:<ul>

One person may not serve two masters. The duties of loyalty and
fidelity to the public interest—the soul of public service—cannot
survive in an atmosphere in which the holder of multiple offices must
disregard the interests of one constituency in order to serve the
interests of another.</ul>

These considerations are useful for officials who are considering any
other position, inside or outside government. Must they disregard the
interests of their constituency when they make decisions in another
position? Would their responsibility as an official in their current
position be any different from their responsibility in the other
position? Would such an official ever effectively be serving two
masters or, perhaps even worse, reporting to or overseeing himself? 
 
An Incompatible Office Situation in My Town 
I raised this question in my own town, where the first selectman
(effectively the mayor) also has a seat on the board of finance, the
city's financial oversight board, which must approve or make changes to
the first selectman's budget proposal. I felt that there was a conflict
here, because the first selectman was overseeing himself, and it made
it hard for other members of the board to openly and effectively
criticize their fellow member. 
 
But neither the first selectman nor the board of finance would publicly
consider the possible conflict in these two positions. A principal
reason was that the town charter provides for the first selectman to
sit on the board of finance. Even though, as far as I can tell, no
other Connecticut charter provides for this combination of offices, it is
the law in my town. 
 
The California statute provides an exception from the incompatible
offices prohibition when holding the offices is expressly authorized or
compelled by
law. This is an important exception, because there are many occasions
when a mayor,
say, is required by law to sit on a town development board, or to sit
on a regional utility board, for example, as the city's representative. 
 
But just because a charter provides for the holding of dual positions,
or the law makes an exception, as in California, that does not mean
that an official is compelled to hold both positions. Each first
selectman in my town may make an individual decision to relinquish the
seat on the board of finance due to the conflict that exists.
Government ethics is not law. And sometimes dealing responsibly with a conflict, even one that appears in the town charter, requires sacrifice, in this case a vote to give the governing party a larger majority on the board. 
 
The California Penalty Provision 
The California statute has an interesting penalty provision. The public
officer is "deemed to have forfeited the first office upon acceding to
the second." Thus, a mayor who successfully runs for or accepts an
incompatible office is no longer mayor. If the mayor won't budge, this penalty may be enforced in an
action by the AG, or by a private party with the AG's consent. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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