Portrait headshot close-up photograph view of Kristin Lindgren-Bruzzone smiling

legal insights

by Kristin Lindgren-Bruzzone

Board members and incompatible offices

W

hile many school board members find that their responsibilities in that elected office are more than enough to keep them busy, some seek to hold additional elected or appointed public offices.

vector illustration of a large dark grey arrown pointing to the lower right amidst a large group of smaller white arrows pointing to the upper left
Though this dedication to public service is commendable, seeking multiple public offices comes with some risk where the offices could by law be deemed “incompatible offices,” thereby resulting in forfeiture of the original office held. On May 1, 2024, the Attorney General issued an opinion that further elucidates this area of the law as it applies to county board members.

The doctrine of incompatible offices was originally established under “common law” — law created by courts via written judicial opinions — that dates back to the 1920s in California. In 1925, the Second District Court of Appeal ruled that there was incompatibility between the offices of “justice of the peace” and “police judge” in People ex rel. Goodell v. Garrett (1925) 72 Cal.App. 452. Since then, California courts and the Attorney General Rob Bonta have opined on this doctrine numerous times, culminating in the Legislature codifying the principles in Government Code section 1099 in 2005. The principles of incompatible offices have largely remained the same since the Goodell case.

Section 1099 provides that elected or appointed officers of governmental boards, commissions, committees or other bodies shall not simultaneously hold offices that are incompatible. (This rule does not apply to employees and positions of employment.) Offices are incompatible when any the following exist:

  • Either of the offices may audit, overrule, remove members of, dismiss employees of or exercise supervisory powers over the other office or body;
  • There is a possibility of a significant clash of duties or loyalties between the offices;
  • Public policy considerations make it improper for one person to hold both offices.
out of focus wide view of an vacant high rise conference room lined by walls of windows

Based on these factors, the inquiry as to whether public offices are incompatible is highly fact-dependent and requires an analysis of the interaction between the duties of the offices involved. There need not be a past or present conflict; rather, it is enough that a conflict between the duties of the positions may occur. (Op. No. 23-1101, 2024 WL 2097039.)

The Attorney General has rendered several opinions on this doctrine for specific offices and, while not binding, such opinions are given great weight by courts. In the latest opinion issued on May 1, 2024, Bonta opined that the same individual may not lawfully serve as a member of both the San Benito County Planning Commission and San Benito County Board of Education. As required, the Attorney General conducted a fact-specific analysis of the duties of the offices involved, and on that basis, determined the offices were incompatible. While noting that neither public office has auditing or supervisory power over the other, Bonta nonetheless found that there were several ways in which the offices might significantly clash in duties or loyalties.

He relied on several examples to make the determination. Bonta noted that a county board member who is also on the planning commission would have divided loyalties when the county board of education is seeking a permit or variance to establish a school facility from the planning commission, which approves, modifies or denies conditional use permits and variances for uses of property. In addition, the Attorney General found that divided loyalties would be inevitable since both bodies participate in land-use decisions, thus exercising jurisdiction over the same area, and “both have an interest in the location of educational facilities.” In fact, the planning commission is required to include educational facilities in the development and implementation of its general plan. Finally, according to Bonta, both bodies review the actions of the county superintendent, as the county superintendent may establish certain facilities, such as emergency schools, that must be approved by the county board of education and reviewed by the planning commission.

Because only one significant clash of duties or loyalties is needed to make offices incompatible, these potential clashes were sufficient for the Attorney General to find the offices incompatible. Based on the analysis by Bonta, this would apply to all county offices of education and planning commissions. This is a bright line rule that members of county boards of education should understand in the event they seek to become a member of their local planning commission. It is also a reminder to be generally cautious in seeking additional public offices when already holding one, even when the intent is simply to provide more public service.

Kristin Lindgren-Bruzzone is CSBA’s General Counsel.

Please note that the information provided here by CSBA is for informational purposes and is not legal advice. Please contact your district or county office of education’s legal counsel for legal questions related to this information.

Back to Issue