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2010 CA AG Conflict of Interest Guide

2010 CA AG Conflict of Interest Guide

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Published by Mark Dierolf

"Conflict-of-interest laws are grounded on the notion that government officials owe paramount loyalty to the public, and that personal or private financial considerations on the part of government officials should not be allowed to enter the decision-making process."

"Conflicts Of Interest," published by Office of the Attorney General, Edmund G. Brown Jr., Attorney General. Prepared by the Civil Division, Government Law Section; David S. Chaney, Chief Assistant Attorney General; Jonathan K. Renner, Senior Assistant Attorney; General Zackery P. Morazzini, Supervising Deputy Attorney General; Ted Prim, Editor, Deputy Attorney General; and Erin V. Peth, Editor, Deputy Attorney General.

"Conflict-of-interest laws are grounded on the notion that government officials owe paramount loyalty to the public, and that personal or private financial considerations on the part of government officials should not be allowed to enter the decision-making process."

"Conflicts Of Interest," published by Office of the Attorney General, Edmund G. Brown Jr., Attorney General. Prepared by the Civil Division, Government Law Section; David S. Chaney, Chief Assistant Attorney General; Jonathan K. Renner, Senior Assistant Attorney; General Zackery P. Morazzini, Supervising Deputy Attorney General; Ted Prim, Editor, Deputy Attorney General; and Erin V. Peth, Editor, Deputy Attorney General.

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Published by: Mark Dierolf on Feb 19, 2013
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02/09/2014

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The prohibition does not apply to an incompatibility between an office and a position of
employment, including a civil service position. (§ 1099, subd. (c).) Therefore, to analyze
whether the prohibition applies, it is necessary to determine the difference between an “office”
and “a position of employment.”

Public Office Versus Employment

A public “office” includes “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.” (People ex
rel. Chapman v. Rapsey
(1940) 16 Cal.2d 636, 640.) Further, this office has summarized the
nature of a public office as: (1) a position in government; (2) that is created or authorized by the
Constitution or by law; (3) the tenure of which is continuing and permanent, not occasional or
temporary; and, (4) in which the incumbent performs a public function for the public benefit and
exercises some of the sovereign powers of the state. (82 Ops.Cal.Atty.Gen. 83, 84 (1999).)

Therefore, persons holding civil service and other non-officer positions are employees
and are not subject to the doctrine. Following is a brief listing of several positions that have been
determined to be employment positions rather than offices.

XII. The Prohibition Against Holding Incompatible Offices

Page 97

Assistant city manager was not an officer because neither the position nor the
duties were referred to in the city charter or statute. The fact that the assistant city
manager performed some of the duties of the city manager did not make the
position an office. (80 Ops.Cal.Atty.Gen. 74 (1997).)

A line officer with the police department does not hold an office. (Neigel v.
Superior Court
(1977) 72 Cal.App.3d 373.)

A sheriff’s deputy chief does not hold an office. (78 Ops.Cal.Atty.Gen. 362

(1995).)

Fire captain and fire division chief are not offices. (68 Ops.Cal.Atty.Gen. 337
(1985); 74 Ops.Cal.Atty.Gen. 82 (1991).)

County Veterans Service Officer is a position of employment rather than an
office. (87 Ops.Cal.Atty.Gen. 142 (2004).)

Community development director is not an office. (82 Ops.Cal.Atty.Gen. 83

(1999).)

A deputy to a principal is not necessarily deemed to be holding the same office as
the principal for purposes of the incompatible offices prohibition. 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 prohibition. (See 78 Ops.Cal.Atty.Gen. 362 (1995), modifying
63 Ops.Cal.Atty.Gen. 710 (1980).)

Additionally, employment with a public agency that 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).) However, where the powers and duties to be exercised
under the contract are those of an office and are governed by statute, rather than by contract, the
contractor may be an officer subject to the incompatible offices prohibition.
(68 Ops.Cal.Atty.Gen. 337 (1985).)

Employee May Not Hold Office on His or Her Governing Board

Despite the general rule that the doctrine does not apply to employees, specific statutes
may limit certain employees’ ability to hold an office. InEldridge v. Sierra View Local Hospital
Dist.
(1990) 224 Cal.App.3d 311, the court determined that the incompatible offices doctrine did
not bar a nurse from holding office as a member of the board of directors of the hospital district
that employed her because the position of nurse is employment rather than an office. (Id. at
p. 319.) However, in response to theEldridge decision and 73 Ops.Cal.Atty.Gen. 191 (1990),
the Legislature enacted section 53227 and Education Code section 35107, subdivision (b), which
prohibit certain employees from simultaneously holding office as a member of the governing
board that employs them.

XII. The Prohibition Against Holding Incompatible Offices

Page 98

Members of Advisory Bodies

The prohibition is not applicable to a body that possesses only advisory powers. (§ 1099,
subd. (d).) Under the common law, this office opined on several occasions that members of
advisory boards and commissions did not hold “offices” for purposes of this doctrine since they
do not exercise any of the sovereign powers of the State. (See 83 Ops.Cal.Atty.Gen. 153 (2000);
83 Ops.Cal.Atty.Gen. 50 (2000); 62 Ops.Cal.Atty.Gen. 325, 331 (1979);
57 Ops.Cal.Atty.Gen. 583, 585 (1974); 42 Ops.Cal.Atty.Gen. 93, 94-97 (1963).)

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