TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 95-411
of :
: December 29, 1995
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. Da VIGO :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE FRED AGUIAR, MEMBER OF THE CALIFORNIA STATE
ASSEMBLY, has requested an opinion on the following questions:
1. May an individual simultaneously serve as a San Bernardino County Sheriff's
Deputy Chief and Yucaipa City Councilman?
2. If so, may the city council enter into a contract with the sheriff to provide law
enforcement services to the city?
3. If so, may the deputy chief who is a city councilman be assigned to perform law
enforcement duties within the city?
CONCLUSIONS
1. An individual may simultaneously serve as a San Bernardino County Sheriff's
Deputy Chief and Yucaipa City Councilman.
2. Where a sheriff's deputy chief is a city councilman, the city council may be able to
enter into a contract with the sheriff to provide law enforcement services to the city.
3. A sheriff's deputy chief who is a city councilman may be assigned to perform law
enforcement duties within the city.
1. 95-411
ANALYSIS
The three questions presented for resolution concern a San Bernardino County Sheriff's
Deputy Chief who is seeking election to the Yucaipa City Council. May he do so without forfeiting his
position as a deputy chief? If so, may the city continue to contract with the sheriff for law enforcement
services, and if so, may the deputy chief continue to perform such services?
1. The Incompatible Offices Doctrine
The first inquiry concerns the application of the common law doctrine of "incompatible
1
offices." The doctrine prohibits a person from holding simultaneously two public offices if the
performance of the duties of either could have an adverse effect on the other. (People ex rel. Chapman
v. Rapsey (1940) 16 Cal.2d 636, 641-642; 76 Ops.Cal.Atty.Gen. 81, 82-83 (1993).) If the two
positions are offices, and if they are incompatible, the acceptance of the second office automatically
terminates the holding of the first. (People ex rel. Chapman v. Rapsey, supra, 16 Cal.2d at 644; 76
Ops.Cal.Atty.Gen., supra, at 83.) Significantly, if one of the positions is an "employment" as
distinguished from an "office," the doctrine does not apply. (74 Ops.Cal.Atty.Gen. 82, 83 (1991); 73
Ops.Cal.Atty.Gen. 183, 184 (1990).)
We have previously determined that a member of a city council holds a public office
for purposes of the incompatible offices doctrine. (75 Ops.Cal.Atty.Gen. 10, 13 (1992); 74
Ops.Cal.Atty.Gen., supra, at 83-86; 73 Ops.Cal.Atty.Gen. 354, 356 (1990).) Whether the same is true
of a sheriff's deputy chief is not so easily answered. In 68 Ops.Cal.Atty.Gen. 7, 8 (1985), we stated
that a deputy sheriff holds a public office for purposes of the doctrine:
". . . A deputy sheriff also holds a public office, both in his capacity as a deputy
to a county officer and as a peace officer. (See Gov. Code, '' 24000, subd. (b),
24100-24104, 7, 1194; People v. Woods (1970) 7 Cal.App.3d 382, 387 (deputy sheriff
has `all powers possessed by the sheriff'); Neigel v. Superior Court (1977) 72
Cal.App.3d 373, 378, and cases cited, (policeman held to be public officer).)"
Our 1985 conclusion requires reexamination in light of recent court decisions and opinions of this
office.
In Dibb v. County of San Diego (1994) 8 Cal.4th 1200, the Supreme Court construed
the term "county officers" for purposes of section 4(e) of article XI of the Constitution (county charters
shall provide for the "powers and duties of governing bodies and all other county officers . . . ."). It
stated:
1
"The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States,
or the Constitution or laws of this State, is the rule of decision in all courts of this State." (Civ. Code, ' 22.2.)
2. 95-411
"`A public office is ordinarily and generally defined to be 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 the benefit of the public. [Citation.] . . . . The most
general characteristic of a public officer, which distinguishes him from a mere
employee, is that a public duty is delegated and entrusted to him, as agent, the
performance of which is an exercise of a part of the governmental functions of the
particular political unit for which he, as agent, is acting. . . . [Citations.] As a matter
of course, in keeping with these definitions, a county office is a public officer and may
be specifically defined to be one who fills a position usually provided for in the
organization of counties and county governments and is selected by the political
subdivision of the state called the "county" to represent that governmental unit,
continuously and as part of the regular and permanent administration of public power,
in carrying out certain acts with the performance of which it is charged in behalf of the
public. [Citations.]' (Coulter v. Pool, supra, 187 Cal. at pp. 186-187, italics added
and deleted.)
". . . [I]n Sprekels v. Graham (1924) 194 Cal. 516 we reaffirmed our holding in
Coulter v. Pool, supra, 187 Cal. 181. In doing so, we explained that `two elements
now seem to be almost universally regarded as essential' to a determination of whether
one is a `public officer': `First, a tenure of office "which is not transient, occasional of
incidental," but is of such a nature that the office itself is an entity in which incumbents
succeed one another . . . , and, second, the delegation to the officer of some portion of
the sovereign functions of government, either legislative, executive, or judicial.'
(Sprekels v. Graham, supra, 194 Cal. at p. 530, italics added.)
"It seems clear that the italicized phrase quoted above from Sprekels v.
Graham, supra, 194 Cal. at page 530, and repeated in City Council v. McKinley, supra,
80 Cal.App.3d at page 210, is in fact, and was intended to be, consistent with the
similar language employed in our leading case on the issue, Coulter v. Pool, supra, 187
Cal. at page 187. In other words, a public officer (or a county officer) is one who, inter
alia, is delegated a public duty to exercise a part of the governmental functions of the
political unit for which he, as agent, is acting. . . ." (Id., at p. 1212.)
We have no doubt that a sheriff's deputy chief may be considered an "officer" for some
purposes. (See 76 Ops.Cal.Atty.Gen. 157, 161 (1993); 63 Ops.Cal.Atty.Gen. 710, supra.) However,
holding public office for purposes of the incompatible offices doctrine requires further analysis as set
forth in Neigel v. Superior Court (1977) 72 Cal.App.3d 373. In Neigel, the court examined the
incompatible offices doctrine as incorporated into a city's charter. The court concluded that even
though policemen perform "sovereign governmental powers" and are "public officers" for some
purposes, they were not officers for purposes of the city's incompatible offices charter provision. The
court explained:
"The city relies on cases holding that a policeman falls within the category of a
public officer because he is entrusted with the duty and power to exercise a part of the
3. 95-411
sovereign governmental powers of the entity for which he is acting. [Citations.]
However, the fact that policemen have been held to be public officers for certain
purposes does not lead inevitably to the conclusion that they are `officers' for all
purposes. [Citation.] The meaning of the words `officer' or `official' varies with the
conditions and circumstances in which they are used. [Citations.]
"Section 225 provides that no `person holding a salaried office of this City,
whether by election or appointment,' shall hold any other governmental office described
and declares that any such person who, `during his term of such office,' shall accept
such other governmental office `shall be deemed thereby to have vacated the office held
by him under this City Government, and the same shall immediately become vacant.'
Although the charter does not define the word `office,' it does provide for various
elective and appointive officers such as mayor, councilmen, city attorney, city assessor,
treasurer, city engineer, superintendent of streets, chief of police, chief engineer of the
fire department, and members of various boards and commissions established by the
charter. Those persons occupy policy-making positions; they are elected or appointed
for either a prescribed term or serve at the pleasure of the appointing authority; and
their duties and powers are prescribed by the charter. Section 225 was manifestly
intended to apply to such persons.
"Policemen, however, are employed pursuant to open competitive civil service
examinations and are referred to in the charter as classified employees. They do not
serve either for a definite `term' or at the pleasure of the appointing authority; their
duties are not prescribed by the charter; nor are they clothed with policy-making
authority. In these circumstances, we do not deem a policeman to be a `person holding
a salaried office of this City' in the context of section 225.
"Section 225 expresses the common law principle that acceptance by a public
officer of another office which is incompatible with the first automatically vacates the
first office. [Citations.] By prescribing that acceptance of any other defined
governmental office will result in automatic vacation of a city office, the section avoids
the problem of determining incompatibility on a case by case method. The doctrine of
incompatibility, however, remains a relevant consideration in determining whether the
section was intended to apply to a policeman. The doctrine rests on the rationale that
public policy demands that an office holder discharge his duties with undivided loyalty
and that two offices cannot be held by one person where, from the potential
antagonistic character of the offices, the public interest may suffer. [Citation.] We
see nothing in the nature of the duties and powers of a policeman which would be
inherently inconsistent or incompatible with the duties of a school board member.
[Citation.]" (Id., at pp. 378-379, fn. omitted.)
As indicated in Neigel, an important factor to consider in applying the incompatible offices doctrine is
whether both positions require the exercise of policy-making authority that would produce divided
loyalties.
4. 95-411
Here we find that the individual in question is one of six deputy chiefs serving under
two assistant sheriffs, who in turn are accountable to the undersheriff, who answers directly to the
sheriff. The duty specifications for a deputy chief require him to manage a major operational segment
or bureau within the sheriff's department. The position of deputy chief is filled by an open competitive
civil service examination.
The position of sheriff's deputy chief is not described by statute or ordinance as
constituting a public office. Subdivision (b) of section 24000 lists the sheriff as being a county
"officer"; no other position in the sheriff's department is so listed. Those serving below the sheriff are
described in section 24105 as having "positions" rather than "offices":
"If the office of any of the county officers enumerated in Section 24000 of this
code is vacant, the duties of such office may be temporarily discharged by a chief
deputy, assistant or deputy of such officer, as the case may be, next in authority to such
county officer in office at the time the vacancy occurs, with like authority and subject to
the same obligations and penalties as such county officer, until the vacancy in the office
is filled in the manner provided by law; provided that if the vacancy occurs in the office
of sheriff, the duties of such office shall be discharged by the undersheriff, or if that
position is vacant, by the assistant sheriff, or if that position is also vacant, by the chief
deputy next in line of authority." (Italics added.)
The duties and powers of a sheriff's deputy chief are not specified by statute, charter, or
ordinance. A deputy chief, while performing sovereign duties as in Neigel, does not hold a
policy-making position. Rather, he has an administrative position which could be eliminated by
internal reorganization. Thus the position does not appear to meet the criterion of "an office which is
not transient, occasional or incidental but is in itself an entity in which incumbents succeed one
another." (Moore v. Parrish (1982) 32 Cal.3d 535, 536; see Cerini v. City of Cloverdale (1987) 191
Cal.App.3d 1471, 1478; City Council of San Diego v. McKinley (1978) 80 Cal.App.3d 204, 210.)
Besides Neigel, the case that appears most similar to the present situation is Shaeffer v.
Superior Court (1952) 113 Cal.App.2d 428. In Shaeffer, the court considered whether the manager of
the Santa Barbara district audit office of the Department of Employment came under the terms of Penal
Code section 1203 as a "public official." The position was four steps removed from the director of the
department, and the "duties consisted principally of routine investigations, audits, reports, ordinary
clerical work, and making recommendations to the supervising and central offices." (Id., at p. 435.)
The court concluded that such administrative duties were insufficient to support a finding that the
position was a public office. (Id., at p. 437.)
Finally, we note that at common law, a "deputy" was authorized to perform only
limited, ministerial duties on behalf of his principal. (52 Ops.Cal.Atty.Gen. 75, 76-78 (1969).) The
Legislature changed this rule by statute, generally allowing a deputy to perform any of the duties of his
principal unless otherwise prohibited. (Ibid.; see Gov. Code, '' 7, 1194, 24100.)2 Currently, then, a
2
Unidentified section references hereafter are to the Government Code.
5. 95-411
deputy may perform any of the duties of his principal unless restricted by statute, charter, ordinance,
regulation, or by the principal. (See 70 Ops.Cal.Atty.Gen. 250, 253, fn. 6 (1987); 63
Ops.Cal.Atty.Gen. 710, 715, 718-719 (1980); 31 Ops.Cal.Atty.Gen. 121, 124-126 (1958); see also 73
Ops.Cal.Atty.Gen. 357, 360-361 (1990); 66 Ops.Cal.Atty.Gen. 293, 295-302 (1983).) Based upon
Neigel and Shaeffer, however, we do not believe that a sheriff's deputy chief holds an office for
purposes of the incompatible offices doctrine merely because he is a deputy. Numerous other indicia,
as described above, support the conclusion that he holds a county "position" as the "manager" of a
sheriff's bureau for purposes of the common law rule prohibiting persons from holding simultaneously
two incompatible offices.
Accordingly, the position of sheriff's deputy chief in San Bernardino County is not a
public office to which the common law doctrine attaches. (See 74 Ops.Cal.Atty.
Gen., supra, at 83-85 [fire division chief]; 68 Ops.Cal.Atty.Gen., 337, 346-347 (1985) [fire captain II];
56 Ops.Cal.Atty.Gen. 556, 559-563 (1973) [assistant superintendent of public instruction]; 46
Ops.Cal.Atty.Gen. 74, 85-86 (1965) [community services district engineer]; 40 Ops.Cal.Atty.Gen. 238,
239-240 (1962) [manager of district agricultural association]; 19 Ops.Cal.Atty.Gen. 119, 126-127
(1952) [manager of joint powers agency water project].) It is concluded that an individual may
simultaneously serve as a San Bernardino Sheriff's Deputy Chief and Yucaipa City Councilman.3
2. Contracting For Law Enforcement Services
The second inquiry concerns the ability of a city council to continue to contract with the
sheriff for law enforcement services, where one of the council members is employed as a sheriff's
deputy chief. Section 1090 provides in part that ". . . city officers or employees shall not be financially
interested in any contract made by them in their official capacity, or by any body or board of which they
are members." The prohibition is directed at the governing board as well as the member having the
prohibited interest, so abstention by such member does not remove the prohibition. (76
Ops.Cal.Atty.Gen. 118, 119 (1993); 68 Ops.Cal.Atty.Gen., supra, at 351-352.)
If the prospective Yucaipa councilman were employed by a private entity, an agreement
with such entity by the city would be prohibited under the general terms of section 1090. (See, e.g.,
Fraser-Yamor Agency, Inc. v. County of Del Norte (1977) 68 Cal.App.3d 201, 214-215; Stockton P. &
S. Co. v. Wheeler (1924) 68 Cal.App. 592, 602-603.) Also, it is conceivable that a public officer or
employee may have a personal as well as official interest in a public contract. (See People v. Vallerga
(1977) 67 Cal.App.3d 847, 870; 67 Ops.Cal.Atty.Gen., 369, 380-381 (1984).)4
Section 1091.5 sets forth what are considered to be "noninterests" for purposes of
section 1090. Subdivision (a)(9) of section 1091.5 deals expressly with contracts between two public
agencies:
3
To the extent 68 Ops.Cal.Atty.Gen. 7, supra, is inconsistent with our conclusion, it is disapproved.
4
We assume for purposes of this analysis that the deputy chief would remain in such position regardless of whether the
city contracts with the sheriff for law enforcement services.
6. 95-411
"(a) An officer or employee shall not be deemed to be interested in a contract
if his or her interest is any of the following:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(9) That of compensation for employment with a governmental agency, other
than the governmental agency that employs the officer or employee, provided that the
interest is disclosed to the body or board at the time of consideration of the contract,
and provided further that the interest is noted in its official record."
The scope of subdivision (a)(9) is not readily apparent. In analyzing this language, however, we may
rely upon well established principles of statutory interpretation. "When interpreting a statute our
primary aim is to determine the Legislature's intent." (Freedom Newspapers, Inc. v. Orange County
Employees Retirement System (1993) 6 Cal.4th 821, 826.) "In determining intent, we look to the
language of the statute, giving effect to its `plain meaning.'" (Kimmel v. Goland (1990) 51 Cal.3d 202,
208-209.) "`Where uncertainty exists consideration should be given to the consequences that will
flow from a particular interpretation.'" (Walnut Creek Manor v. Fair Employment & Housing Com.
(1991) 54 Cal.3d 245, 268.) "Both the legislative history of the statute and the wider historical
circumstances of its enactment may be considered in ascertaining the legislative intent." (Dyna-Med,
Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) "`Statements in legislative
committee reports concerning the statutory purposes which are in accordance with a reasonable
interpretation of the statute will be followed by the courts.'" (O'Brien v. Dudenhoeffer (1993) 16
Cal.App.4th 327, 334.)
Here the legislative history of the 1991 amendment of section 1091.5 (Stats. 1991, ch.
382, ' 1), which added subdivision (a)(9), is helpful in construing the amendment's language. In the
report of the Assembly Committee on Elections, Reapportionment and Constitutional Amendments
dated May 9, 1991, the background information supplied for the proposed legislation was as follows:
"According to the author, government employees who also serve as local
elected officials are often prohibited from voting on a broad range of issues, rather than
just those bills that affect their employers. For example, a peace officer who is also an
elected official may be prohibited from voting on contracts dealing with any city
agency, rather than only those contracts affecting the police department."
This background information was also contained in the report of the Senate Committee on
Governmental Organization for its hearing on June 25, 1991, and in the report of the Senate Rules
Committee dated July 17, 1991.
Consequently, subdivision (a)(9) of section 1091.5 may be construed as allowing a
government employee who serves on the board of another public agency to vote on a contract between
the agency and his government employer except when the contract involves his particular employing
unit. Under this interpretation, the prospective councilman here could not participate in the decision to
7. 95-411
contract for law enforcement services, since the contract would specifically affect his own employing
unit.
As quoted above, the legislative history of the statute's 1991 amendment indicates that a
contract between two government agencies may be executed even though a board member of the one is
financially interested in the contract by being an employee of the other, as long as he does not
participate in the decision. Normally, this would be possible only when the financial interest is found
to constitute a "remote interest" under the terms of section 1091, which provide specific exceptions to
the prohibition of section 1090. Section 1091 states:
"(a) An officer shall not be deemed to be interested in a contract entered into by
a body or board of which the officer is a member within the meaning of this article if
the officer has only a remote interest in the contract and if the fact of that interest is
disclosed to the body of the board of which the officer is a member and noted in its
official records, and thereafter the body or board authorizes, approves, or ratifies the
contract in good faith by a vote of its membership sufficient for the purpose without
counting the vote or votes of the officer or member with the remote interest.
"(b) As used in this article, `remote interest' means any of the following:
"(1) That of an officer or employee of a nonprofit corporation, except as
provided in paragraph (8) of subdivision (a) of Section 1091.5.
"(2) That of an employee or agent of the contracting party, if the contracting
party has 10 or more other employees and if the officer was an employee or agent of
that contracting party for at least three years prior to the officer initially accepting his or
her office.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(c) This section is not applicable to any officer interested in a contract who
influences or attempts to influence another member of the body or board of which he or
she is a member to enter into the contract.
"(d) The willful failure of an officer to disclose the fact of his or her interest in a
contract pursuant to this section is punishable as provided in Section 1097. That
violation does not void the contract unless the contracting party had knowledge of the
fact of the remote interest of the officer at the time the contract was executed."
While section 1091 contains exemptions that might be applicable when two government agencies
contract, the two most general exceptions appear to be contained in subdivisions (b)(1) and (b)(2). The
latter, however, first requires three years of employment with the "contracting party," in this case the
8. 95-411
sheriff's department. Subdivision (b)(1) contains no such qualifications,5 but is a government agency a
"nonprofit corporation"?
We may assume that for some purposes, cities (see Friends of the Library of Monterey
Park v. City of Monterey Park (1989) 211 Cal.App.3d 358, 367-369), counties (see Pitchess v. Superior
Court (1969) 2 Cal.App.3d 653, 656), special districts (see Hewitt v. Rincon del Diablo Municipal
Water Dist. (1980) 107 Cal.App.3d 78, 84), and other public agencies (see Torres v. Board of
Commissioners (1979) 89 Cal.App.3d 545, 549-550) may be considered to be corporations not
conducted for making a profit. (See Webster's Third New Internat. Dict. (1971) pp. 510, 1538.) Such
a conclusion here would appear to effectuate the Legislature's intent regarding contracts between two
public agencies. On the other hand, did the Legislature use the term "nonprofit corporation" to cover
public agencies in section 1091, when it used much more specific language elsewhere (e.g., ' 1091.5,
subd. (a)(9)) in referring to government agencies? The legislative history of the amendment of section
1091 which added the phrase "officer or employee of a nonprofit corporation" (Stats. 1984, ch. 112, '
1) does not contain any indication that the Legislature intended to cover public agencies by such
language. A request for clarification of these ambiguities in the language of sections 1091 and 1091.5
would appear best directed to the Legislature, not the Attorney General.
If the prospective councilman's financial interest in the contract fails the test of being a
"remote interest," the council could nonetheless execute the agreement if the "rule of necessity" were
applicable. (See 76 Ops.Cal.Atty.Gen., supra, at 121-123.) In Eldridge v. Sierra View Local Hospital
District (1990) 224 Cal.App.3d 311, 321, the Court of Appeal summarized the rule as follows:
"The rule of necessity provides that a governmental agency may acquire
essential goods or services despite a conflict of interest, and in nonprocurement
situations it permits a public officer to carry out the essential duties of his/her office
despite a conflict of interest where he/she is the only one who may legally act. The
rule ensures that essential government functions are performed even where a conflict of
interest exists. [Citations.]"
As mentioned in Eldridge, there are two different situations in which the rule of necessity has been
applied. The first facet of the rule was examined in greater detail in our opinion in 59
Ops.Cal.Atty.Gen. 604 (1976), where we stated:
"We do not attempt to determine all the ramifications of the doctrine of
necessity in the case of a contractual transaction. This office has assumed its existence
in extreme cases of emergency, or where no alternative source of supply of goods or
services existed. [Citations.]
"Interestingly, in the above types of situations, the necessity is caused by the
need to obtain something for the governmental unit, not by the mere fact that only a
5
The exception "in paragraph (8) of subdivision (a) of Section 1091.5" (' 1091, subd. (b)(1)) allows execution of the
contract, with the official in question participating in the decision if certain requirements are met.
9. 95-411
particular person or body may act with regard to the transaction." (Id., at p. 619, fn.
18.)
The lack of an alternative source of required services was examined in 42 Ops.Cal.Atty.Gen. 151, 156
(1963):
". . . In a few counties of small population there is only one mortuary and the
funeral director is the coroner. Coroner cases in these counties are handled by the
coroner's private mortuary and generally the accompanying funeral business is handled
by that mortuary also. Since the coroner has no real choice about where to have the
body held, it is not an abuse of his office to assign the body to his mortuary. Cf.
Capital Gas Co. v. Young, 109 Cal. 140 (1895) (public utility required to furnish gas to
city can collect on bill despite otherwise prohibited interest of mayor); Hotchkiss v.
Moran, 109 Cal.App. 321, 323-324 (1930) (electric company) . . . ."
In 60 Ops.Cal.Atty.Gen., supra, 102, we noted that "the `rule of necessity' is to reflect actual necessity
after all possible alternatives have been explored." (Id., at p. 109, fn. 6.)
It is conceivable that this facet of the rule of necessity may be applied in the present
circumstances. Resolution of this issue would require examination of the individual facts to determine
whether Yucaipa must "of necessity" contract with the sheriff for law enforcement services, even
though cities typically have their own police departments. A court might apply the rule differently for
a contract between two public agencies.
Section 1090 is not the only statute that may affect the renewal of the contract in
question. We also note that the Political Reform Act of 1974 ('' 81000-91015; "Act") generally
prohibits a public official from participating in the making of a governmental decision in which he has
a financial interest. (See 74 Ops.Cal.Atty.Gen., supra, at 86; 70 Ops.Cal.Atty.Gen. 45, 46 (1987).)
Potentially applicable here are sections 87100 and 87103. Section 87100 provides:
"No public official at any level of state or local government shall make,
participate in making or in any way attempt to use his official position to influence a
government decision in which he knows or has reason to believe he has a financial
interest."
Section 87103 sets forth five possible "financial interests," one of which would appear to be germane to
our facts. Section 87103 provides in part:
"An official has a financial interest in a decision within the meaning of section
87100 if it is reasonably foreseeable that the decision will have a material financial
effect, distinguishable from its effect on the public generally, on the official or a
member of his or her immediate family or on:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10. 95-411
"(c) Any source of income, other than gifts and other than loans by a
commercial lending institution in the regular course of business on terms available to
the public without regard to official status, aggregating two hundred fifty dollars ($250)
or more in value provided to, received by or promised to the public official within 12
months prior to the time when the decision is made."
The facts presented indicate that the prospective councilman's decision regarding the
law enforcement agreement would have no effect, direct or indirect, upon his salary from the county.
However, even if it conceivably would affect his income, "income" is defined for purposes of the Act as
not including "salary . . . received from a state, local or federal government agency . . . ." (' 82030,
subd. (b)(2).) Hence, for purposes of the Act, the prospective councilman would have no financial
interest in the law enforcement agreement based upon his income from the county.6
Finally, under general common law principles, public officers are strictly required to
avoid placing themselves in positions in which personal interests may come into conflict with their
duties to the public. (Noble v. City of Palo Alto (1928) 89 Cal.App. 47, 51-52; 74 Ops.Cal.Atty.Gen.,
supra, at 84, fn. 3; 70 Ops.Cal.Atty.Gen., supra, at 47.) California courts have traditionally predicated
conflict of interest decisions on the dual basis of statutory restrictions and public policy constraints
evolved from the common law. (46 Ops.Cal.Atty.Gen., supra, at 77.) Even assuming the existence of
a disqualifying financial interest, however, all that would be necessary under the common law and
applicable statutes (except section 1090) would be for the person to abstain on a transactional basis.
(73 Ops.Cal.Atty.Gen., 191, 196 (1990); 70 Ops.Cal.Atty.Gen. 157, 162 (1987).)
It is concluded that the Yucaipa City Council may be able to enter into a contract with
the sheriff to provide law enforcement services to the city, even though a councilmember holds the
position of San Bernardino County Sheriff's Deputy Chief.
3. Performance Of Law Enforcement Services
The third inquiry concerns the possible assignment of a sheriff's deputy chief to perform
law enforcement duties within a city where he is a city councilman. Section 1126 provides in part that
"a local agency officer or employee shall not engage in any employment, activity, or enterprise for
compensation which is inconsistent, incompatible, in conflict with, or inimical to his or her duties as a
local agency officer or employee. . . ."
With respect to a person serving as a city councilman, we have previously concluded
that section 1126 does not authorize any control over the outside activities of elected officials, and thus
would not apply to city councilmembers. (74 Ops.Cal.Atty.Gen., supra, at 85, fn. 2; 64
Ops.Cal.Atty.Gen. 795, 800 (1981).)
6
The Fair Political Practices Commission provides advice to local officials concerning the requirements of the Act, and its
opinions may be relied upon as a complete defense to civil or criminal penalties assessed under the Act when it has been given
all material facts. (See ' 83114; 67 Ops.Cal.Atty.Gen., supra, at 374.)
11. 95-411
With respect to a person's employment as a sheriff's deputy chief, section 1126 allows a
public agency to adopt and enforce an incompatible activities policy covering its employees.
Subdivision (b) of section 1126 provides:
"Each appointing power may determine, subject to approval of the local
agency, and consistent with the provisions of Section 1128 where applicable, those
outside activities which, for employees under its jurisdiction, are inconsistent with,
incompatible to, or in conflict with their duties as local agency officers or employees.
An employee's outside employment, activity, or enterprise may be prohibited if it: (1)
involves the use for private gain or advantage of his or her local agency time, facilities,
equipment and supplies; or the badge, uniform, prestige, or influence of his or her local
agency office or employment or, (2) involves receipt or acceptance by the officer or
employee of any money or other consideration from anyone other than his or her local
agency for the performance of an act which the officer or employee, if not performing
such act, would be required or expected to render in the regular course or hours of his
or her local agency employment or as a part of his or her duties as a local agency officer
or employee or, (3) involves the performance of an act in other than his or her capacity
as a local agency officer or employee which act may later be subject directly or
indirectly to the control, inspection, review, audit, or enforcement of any other officer
or employee or the agency by which he or she is employed, or (4) involves the time
demands as would render performance of his or her duties as a local agency officer or
employee less efficient.
"The local agency may adopt rules governing the application of this section.
The rules shall include provision for notice to employees of the determination of
prohibited activities, of disciplinary action to be taken against employees for engaging
in prohibited activities, and for appeal by employees from such a determination and
from its application to an employee. . . ."
Local governments have broad discretion under section 1126 in limiting incompatible activities of their
employees. (Long Beach Police Officers Assn v. City of Long Beach (1988) 46 Cal.3d 736, 748.)7
7
The legislative history of the 1991 amendment of section 1091.5, which added subdivision (a)(9), indicates that the
genesis for the legislative proposal was a letter to the author of the amendment from a deputy sheriff serving on a city council.
The deputy mentioned that the sheriff allowed him to hold office as a councilman but prohibited him from performing any
law enforcement duties in the city where elected:
". . . Sheriff's Department guidelines . . . prevent any deputy elected to political office from
assignment to a station or project within the political boundaries in which he or she holds office. The
Sheriff promulgated this policy to specifically eliminate the appearance of, or opportunity for, a deputy to
personally benefit from working as a Sheriff's deputy in the same area in which the deputy is also an
elected official."
Such administrative action in eliminating the "incompatibility" aspects of the two positions presents an alternative to
prohibiting the holding of a public office by a deputy sheriff.
12. 95-411
We have previously indicated that an incompatible activities policy adopted by a local
agency 8 under the terms of section 1126 may solve the "difficult legal and practical problem" of
applying the office forfeiture remedy of the common law incompatible offices doctrine. In 63
Ops.Cal.Atty.Gen., supra, at 719, footnote 6, we observed:
"Section 1126 of the Government Code prohibits local agency officers and
employees from engaging in outside activities for compensation which are
incompatible with, or in conflict with their duties to their public agency or with the
functions of their public agency.
"However, pursuant to subdivision (b) of section 1126 the appointing power,
with the concurrence of the local governing body, may define the outside activities
which are to be prohibited under the section.
"Section 1126 may provide the solution for a difficult legal and practical
problem in local public offices . . . . (Cf. Neigel v. Superior Court (1977) 72
Cal.App.3d 373.)"9
It is concluded that if the Yucaipa City Council contracts with the sheriff for law
enforcement services, the sheriff's deputy chief who is a councilman may be assigned to perform law
enforcement duties within the city.
*****
8
Here the sheriff would be the "appointing power" and the county board of supervisors would be the "local agency" (see '
1125) for purposes of section 1126. (See 77 Ops.Cal.Atty.Gen. 82, 84-89 (1994).)
9
In our 1980 opinion, we concluded that the incompatible offices doctrine applied to a deputy district attorney. (Id., at p.
718.) In response to our conclusion, the Legislature enacted section 1128, allowing public attorneys to hold elective or
appointive office. (See 66 Ops.Cal.Atty.Gen. 382, 385-389 (1983).) Legislation would of course be another alternative to
the "difficult legal and practical problem" of applying the incompatible offices doctrine in particular situations.
13. 95-411