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Incompatible Offices in Perspective
Monday, March 28th, 2011
Robert Wechsler
Incompatible offices is a form of conflict I have not dealt with in
this blog. A good occasion to do this is a
recent California attorney general's opinion 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":
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 (§1099), which essentially codifies the common law, says that offices are incompatible when any of the following circumstances are present:
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:
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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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":
-
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.
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 (§1099), which essentially codifies the common law, says that offices are incompatible when any of the following circumstances are present:
-
(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.
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:
-
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.
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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