In the opinion, the Attorney General denied leave to a private party, David Kenney, to bring a quo warranto action to remove Mark Skvarna, the Montebello Unified School District (MUSD) superintendent, from office. Kenney alleged that Skvarna was ineligible to hold the position of superintendent due to his lack of credentials required under Education Code Section 35028, regardless of the MUSD board’s waiver of those credential requirements pursuant to Education Code Section 35029. The Attorney General concluded that for an officeholder to be removed, the officeholder must be ineligible for the office as a matter of law, and that while such ineligibility may result from the officeholder’s lack of a required credential or the existence of circumstances that may render a credential waiver void, it cannot be based on allegations involving an officeholder’s personal background. The Attorney General also found that the MUSD board properly waived the credential requirement for Skvarna and denied Kenney’s request.
This opinion is important in that it confirms that a governing board may waive the credential requirement for the superintendent of a school district under Education Code Section 35029.
Under Code of Civil Procedure Section 803, the attorney general has discretion, on behalf of the state, to file a quo warranto action challenging an individual’s right to hold a public office or exercise a certain governmental power. Alternatively, the attorney general may, upon request of a private party, permit the private party to file such an action. Quo warranto is an action that may be brought “against any person who usurps, intrudes into, or unlawfully holds or exercises any public office.” To grant leave to a private party to sue in quo warranto, the attorney general typically considers whether quo warranto is the proper remedy to resolve the issues presented, whether any substantial question of law or fact is raised by the private party, and whether public interest will be served by judicial resolution of that question. After considering the application for leave to sue and Skvarna’s answers, the Attorney General denied leave, concluding that the application raised no substantial question of law or fact on which a quo warranto action could be validly based.
When considering the threshold question of whether a district superintendent is a “public officer,” the Attorney General agreed with Kenney’s assertion that he is. The Attorney General reasoned that since a previous attorney general opinion had established that a district superintendent is a public officer under the incompatibility of public office doctrine, it follows that a district superintendent is also a public officer for quo warranto purposes.
The Attorney General then determined whether the reasons Kenney proffered were legally sufficient for Skvarna’s removal from office by means of a quo warranto action. Kenney claimed that Education Code Section 35029 does not allow the governing board of a local school district to waive the credential requirements for a district superintendent, that the MUSD board did not follow the proper procedures when it granted Skvarna the credential waiver, and that the board’s decision was based on certain misrepresentations by Skvarna about his academic degrees and employment history. The Attorney General determined that the first two reasons could ground a quo warranto action for removal of a district superintendent, but that misinforming of the MUSD board of Skvarna’s personal background would not. According to the Attorney General, that claim, if true, would amount to a material misrepresentation of fact, the remedy for which would be for the MUSD board to consider terminating Skvarna’s contract for cause, not a quo warranto action.
On Kenney’s claim that the authority of a school district governing board to waive credential requirements for a “chief administrative officer” based on Education Code Section 35029 does not extend to a district superintendent, the Attorney General determined that, based on an analysis of the statutory text and legislative history of that section, it does. The Attorney General stated that “The history of Education Code Section 35029 reinforces the conclusion that the governing board of a public school district may hire a district superintendent who lacks the credentials mentioned in section 35028, after waiving the credentials requirement,” and consequently determined that Kenney had not raised any substantial question of law or fact regarding “the longstanding view that Education Code Section 35029 allows the governing board to waive credential requirements that would otherwise apply to the position of district superintendent.”
Kenney made two arguments in relation to the procedures used by the MUSD board. He argued that, in waiving the credential requirement for Skvarna, the board did not exercise its discretion in a sufficiently open and collaborative manner and that it did not follow the district’s merit system for creating and filling positions that are not subject to credential requirements. The Attorney General dismissed both arguments as not raising any substantial question of law or fact. The Attorney General, after cataloguing the Brown Act requirements that would be applicable when the board is exercising its discretion to waive the credential requirements, noted that Kenney did not allege a violation of any of those rules. The Attorney General also noted that “Education Code Section 35029 expressly states that the recipient of a credential waiver under that statute shall not be subject to the merit system.”
Finally, the Attorney General considered whether public interest will be served by a judicial resolution of the questions presented by Kenney if leave was granted to sue in quo warranto. The Attorney General concluded that since none of Kenney’s claims raised any substantial question of law or fact, granting a leave would not serve the public interest. For these reasons, the Attorney General denied Kenney’s application for leave to sue in quo warranto.