Loading...
HomeMy WebLinkAboutMinutes - EVWD Board of Directors - 02/26/1979 EAST SAN BERNARDINO COUNTY W~TER D~STRICT REGULAR MEETING FEBRUARY 26, 1979 MINUTES President O.A. Wall called the meeting to order at 4:00 P.M., declared bid time closed and led the flag salute. ROLL CALL: PRESENT: O.A. Wall, President; Directors Norman W. Forrest, Philip A. Disch, Gerald W. Stoops ABSENT: Dennis L. Johnson CONSULTANTS: Robert J. Farrell, Legal Counsel STAFF: Harold M. Fones, General Manager; Kenneth O. Sorensen, Auditor-Treasurer; Bonnie R. Eastwood, Secretary; Duncan Parkes, Engineering Dept. GUESTS: Herb Baker, J. Schlahta, Jan Cleveland of the Sun, Elizabeth Davis, Larry Rowe, James Asimakis, Mr. McElvain MINUTES Director Disch requested the following correction be made to the Minutes of February 13, 1979: Prior to the motion made by Director Stoops and Johnson, page 7 re Director Forrest, Director Disch made a motion which lost for lack of a second, which stated: that Attorney Farrell provide a written opinion of the facts as they were stated by him regarding the legality of Director Forrest being seated on two boards; also that the Registrar of Voters be contacted to find out why they indicated there was not a conflict of interest. M/S/C (Stoops-Disch) that the Minutes of February 13, 1979 be approved as corrected. Director Forrest abstained from voting. DIRECTOR JOHNSON ARRIVED AT THE MEETING AT 4:08 P.M. BID OPENING - INSTALLATION OF WATER MAINS AND APPURTENANCES WITHIN TRACT 9579 - NW CORNER OF PACIFIC & CENTRAL The Secretary opened and read the bid proposals for installation of water mains and appurtenances within Tract 9579, at the corner of Pacific & Central. All proposals included a ten percent bid bond except NADCO, which had submitted a cashier's check for 10% covering the bid bond. The bids were as follows: Ace Pipeline $60,895.20 JMK Construction 46,888.00 J.L. Scott Co. 66,664.00 Witon Const. Co. 79,060.00 Monarch Const. 81,723.75 Five States Plumbing 76,647.00 NADCO 43,055.85 Engineer's Estimate 86,940.00 2/26/79 M/S/C (Stoops-Forrest) that the bids be turned over to staff for checking and recomraendation. The General Manager stated that the lowest bidder had made a minor error in the calculations, the bid price should have been $43,055.85, rather than $43,059.20; the second lowest bidder had also made a minor error in their calculations, which would have raised their bid $180.00; however, upon legal counsel's approval, the General Manager recommended the bid be awarded to the low bidder, NADCO, in the amount of $43,055.85. M/S/C (Stoops-Forrest) that the bid be awarded the NADCO in the amount of $43,055.85 for installation of water mains and appurtenances within Tract 9579; subject to legal counsel's approval; that the next two lowest bids be retained until the contract is executed. BID OPENING - INSTALLATION OF WATER MAINS AND APPURTENANCES WITHIN TRACT 10042 - NW CORNER OF PACIFIC STREET & CENTRAL AVENUE The Secretary opened and read the bid proposals for installation of water mains and appurtenances within Tract 10042, at the northwest corner of Pacific Street and Central Avenue. All proposals included a ten percent bid bond, except NADCO, which had submitted a 10% cashier's check in lieu of a bid bond. The bids were as follows: Ace Pipeline $16,648.85 JMK Construction 17,959.75 El-Co Contractors 15,341.50 J.L. Scott Company 23,695.00 Witon Construction Co. 24,507.00 Monarch Construction 31,051.25 Five States Plumbing 22,014.75 NADCO 24,469.05 Engineer's Estimate 28,825.00 M/S/C (Stoops-Forrest) that the bids be turned over to staff for checking and recommendation. The General Manager noted the third lowest bidder had neglected to sign the contractor's list; he recommended the low bid from El-Co Contractors for $15,341.00 be accepted. M/S/C (Johnson-Disch) that the bid be awarded to El-Co Contractors in the amount of $15,341.00 for installation of water mains and appurten- ances within Tract 10042, subject to legal counsel's approval; that the next two lowest bids be retained until the contract is executed. SEWER SERVICE REQUEST - 5TH AND SUNNYSIDE STREETS Mr. McElvain was present and requested that due to an emergency sewer problem on his property and the property adjoining him, the District provide sewer service. The General Manager indicated that it would take approximately 530 feet of line to reach the two properties, at an approximate cost of $10,000. This extension would then serve five property owners. The General Manager recommended the line be installed and requested authorization to have it done by purchase order; he would obtain three bids. M/S/C (Forrest-Johnson) that the General Manager be authorized to -2- 2/26/79 extend the sewer line 530 feet to serve properties located at 5th and Sunnyside Streets; that the General Manager be authorized to negotiate on the cost of the extension of the sewer line. ROLL CALL VOTE: AYES: Directors Forrest, Johnson, Stoops, Wall NOES: Director Disch ABSENT: None Director Disch felt the problem should have been brought to the Board several months ago, which would have allowed the District more time to put the job out for bid in the usual manner. REQUEST FOR ADDITIONAL INFORMATION RE DIRECTOR'S COMPENSATION Mr. Schlahta was present and asked the Director's additional questions regarding their compensation, relative to meetings paid for attending, their PERS contributions and also requested information regarding view- ing records pertaining to Director's compensation. No action taken. WATER TABLE LEVELS - LARRY ROWE, SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT Larry Rowe was in attendance, upon request of the Board, to review the various water tables in the area. He stated that this year we have a record water crop; that this area is in an extremely good position, in fact there is a definite possibility of artesian wells; that there has been an increase in ground water temperatures to over 130° in some areas; that tributary water shed amounts were 180% of normal last year and 165% of normal to date this year; he discussed the snow packs in the mountains which are well above normal; he also discussed the fluoride and nitrate problems. San Bernardino Valley Water Conserva- tion District has spread approximately 80,000 acre feet of water last year and about the same this year; the overall state of water supply is excellent in the District, however, Northern California is below average this year. President Wall thanked Mr. Rowe for taking his time to present such a detailed and interesting report on the area water tables. DISTRICT WELL LEVELS The General Manager gave a report on water levels at eight District wells since May 1975. The report indicated that various wells have raised from 7.5 ft. to as much as 28.35 ft. Information only. RESOLUTION 1979.19 - RESOLUTION ACCEPTING AGREEMENT AND AUTHORIZING EXECUTION OF JOINT POWERS AGREEMENT CREATING THE ASSOCIATION OF CALIF- ORNIA WATER AGENCIES JOINT POWERS INSURANCE AUTHORITY BETWEEN THE ASSOCIATION OF CALIFORNIA WATER AGENCIES AND THE DISTRICT. The Auditor stated the Finance Committee had met February 22, 1979 at which time the Joint Powers Agreement Creating the Association of California Water Agencies Joint Powers Insurance Authority Agreement was discussed. Mr. Sorensen indicated he had also inquired about rates with the Canadian Indemnity Company. The Comr~ittee recommended executing the Joint Powers Agreement and contributing $500, as request- ed by ACWA, in order to participate. It was determined at the time a premium is established by ACWA, if the District decides not to become a part of the program, the $500 will be refunded. He also stated the District is rapidly outgrowing the computer, that there is only enough --3-- 2/26/79 room in the bank to hold about 500 more customers,therefore, a new computer should be considered. M/S/C (Johnson-Disch) that Resolution 1979.19 be approved; that $500 be sent to ACWA for participating in the plan. ROLL CALL VOTE: AYES: Directors Disch, Forrest, Johnson, Stoops, Wall NOES: None ABSENT: None RESOLUTION 1979.18 - RESOLUTION OF THE BOARD OF DIRECTORS OF THE EAST SAN BERNARDINO COUNTY WATER DISTRICT PROVIDING PROCEDURES FOR ADMINIS- TRATION OF EMPLOYER-EMPLOYEE RELATIONS WITHIN THE DISTRICT was presented to the Board. The resolution had been reviewed by the Personnel Com- mittee and about 15 employees at a special committee meeting. Director Stoops stated that it had been explained to the employees the resolution was merely an agreement under which the matter is recognized. The Committee recommended approval of the resolution. M/S/C (Stoops-Disch) that Resolution 1979.18 be approved as presented. ROLL CALL VOTE: AYES: Directors Disch, Forrest, Johnson, Stoops, Wall NOES: None ABSENT: None PROPOSED CITY CREEK PARK Director Stoops indicated that Gary Patton, Director of Regional Parks; Supervisor Hansberger, Dennis Johnson, the General Manager and himself had looked the area of City Creek over and discussed the possibility of its being developed into riding and hiking trails. Director Johnson indicated it is a natural park area. Information only. WELLS IN EAST HIGHLANDS The General Manager indicated that the District, in a joint effort with San Bernardino Valley Municipal Water District, had tested the water at the Cone camp in East Highlands. They found the water table to be 17 ft. below the surface; a water quality test was performed and the results should be available soon. A substantial amount of energy would be saved if water could be used from this source, as well as cutting the standby power costs. FLOOD CONTROL Lining the Warm Creek channel with concrete for flood control was dis- cussed briefly. No action taken. CORRESPONDENCE FROM LARRY HENDON, LAFC RE CENSURE RESOLUTION OF DIRECTOR NORMAN W. FORREST had been received relative to action taken by the LAFC re the District's resolution of censure. Information only. SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT OPEN HOUSE, MARCH 5, 1979 from 8 a.m. to 8 p.m. was announced. No action taken. LEGAL OPINION BY ATTORNEY FARRELL RE INCOMPATIBILITY OF OFFICE - NORMAN W. FORREST As requested at the February 13, 1979 Board Meeting, Attorney Farrell -4- 2/26/79 0 970 submitted an opinion re the incompatibility of office of Norman W. Forrest. Attorney Farrell was requested to read the opinion verbatim and answer any questions which the Board might have, which he did. After which, Director Forrest read an opinion from the Legislative Counsel of California, Bion M. Gregory, which was requested by Senator Ayala on the same matter. Mr. Forrest also read an explanation of Incompatibility of Office. (Both opinions attached to Minutes of this meeting.) Mr. Farrell explained and read sections of Water Code in- dicating the manner in which the vacant seat could be filled. He stated "it would appear from the stated opinion that Mr. Forrest is no longer legally an officer or member of the Board of Directors of the East San Bernardino County Water District and that a vacancy upon the Board of Directors of East San Bernardino County Water District which may be filled by the Board of Directors, pursuant to Section 178 of the Government Code of the State of California." The method of filling the seat was discussed. Director Forrest stated that there may also be an incompatibility of office concerning Mr. Stoops, serving as a Director on the Redlands-Highland-Yucaipa Resource Conservation District and Mr. Wall serving as a Director of the San Bernardino Valley Water Conservation District. Mr. Stoops stated that he had resigned last Saturday from the Redlands-Highland-Yucaipa Resource Con- servation District Board, and cancelled all his fringe benefits with the East San Bernardino County Water District, except PERS which he was unable to do. After further discussion Director Johnson moved that Director Forrest's seat be declared vacant. Director Forrest at that point read a letter of resignation, effective this date February 26, 1979. ' M/S/C (Stoops-Johnson) that the Board accept Director Norman W. Forrest's resignation from the East San Bernardino County Water Dis- trict Board of Directors. MR. NORMAN W. FORREST LEFT THE MEETING AT 6:50 P.M. A brief discussion ensued regarding the Board appointing a new member, the costs of an election, and the possible time limits involved. OPINION REGARDING INCOMPATIBILITY OF OFFICE - O.A. WALL AND GERALD W. STOOPS, DIRECTORS M/S/C (Johnson-Stoops) that Attorney Farrell be authorized to pre- pare an opinion regarding the possibility of an incompatibility of office for Director Wall and Director Stoops; that such opinions be presented at the March 12th Board Meeting. Attorney Farrell stated he would try to have them ready. ACCEPTANCE OF SEWAGE COLLECTION SYSTEM WITHIN TRACT 9848 The General Manager indicated the installation of a sewage collection system within Tract 9848 had been completed February 14, 1979 and re- quested it be accepted by the Board. M/S/C (Disch-Johnson) that the sewage collection system within Tract 9848 be accepted by the District. WARRANTS General 3711-3829 $321,742.77 - Payroll 3070-3040 $9,808.65 Total $331,551.42 2/26/79 M/S/C (Disch-Johnson) that the warrants be approved as submitted. A 64TH NATIONAL ORANGE SHOW OFFICIAL DEDICATION KICKOFF LUNCHEON, MARCH 22, 1979 INVITATION was presented to the Directors. Information only. NOTICE FROM CITY OF SAN BERNARDINO RE PUBLIC HEARING, TUESDAY, MARCH 6, 1979, TO DISCUSS PRE-ZONING AND PROPOSED ANNEXATION FOR 112 ACRES located west of Del Rosa Avenue, north and south of Pumalo and Date Streets was submitted for the Director's information. QUESTIONNAIRE FOR EAST SAN BERNARDINO COUNTY WATER DISTRICT USERS IN REGARDS TO CITYHOOD FOR HIGHLAND Director Johnson indicated the Highland Cityhood Committee had request- ed that the District consider sending a questionnaire to property owners in Highland inquiring as to whether or not they would prefer a new City of Highland or go to the City of San Bernardino. It was determined that a Committee investigate the matter and make a recon~nendation to the Board. Directors Johnson and Stoops were appointed to the Cityhood of Highland Committee by President Wall. ACWA JOINT POWERS INSURANCE AUTHORITY The Auditor indicated that ACWA had requested a Director be appointed to serve on their Joint Powers Insurance Authority Board of Directors, also that an alternate from the staff be appointed. M/S/C (Stoops-Disch) that President O.A. Wall be authorized as the District representative to serve on the Joint Powers Insurance Authority Board; that Auditor, Kenneth Sorensen, be authorized as the alternate. Director Johnson was out of the room when the motion was made and voted upon. COMPLETION OF INSTALLATION OF SEWAGE COLLECTION SYSTEM WITHIN TRACT 10085, ORANGE STREET, BETWEEN HIGHLAND AND ATLANTIC AVENUE The General Manager indicated that installation of the sewage collection system within Tract 10085 had been completed and requested the Board to M/S/C (Johnson-Disch) that installation of sewage collection system within Tract 10085 be accepted. WATER POLICY HEARINGS Correspondence had been received from William Leonard, Assemblyman, re Water Policy Hearings scheduled throughout the next month. It was determined the matter would be reviewed further, since water rights would be discussed March 16, 1979 in San Diego. No action taken. VACANCY ON BOARD DISCUSSED The General Manager requested authorization to confer with Attorney Farrell regarding the vacant seat on the Board, the question on time limits relative to holding an election or making an appointment. M/S/C (Johnson-Stoops) that the General Manager be authorized to confer with Attorney Farrell regarding the action which must be taken -6- 2/26/79 O~n the specified time frame to fill the vacant seat on the Board; also to inquire as to the costs for such actions. M/S/C (Johnson-Disch) that all payments to Norman W. Forrest be detained until an effective date for final payment is determined. PERS STUDY RE SOCIAL SECURITY The Auditor requested funds, not to exceed $500, for PERS to conduct an actuary study relative to the possibility of the District dropping Social Security. M/S/C (Disch-Stoops) that the Auditor be authorized to spend up to $500 for a PERS study relative to the District dropping Social Security. ADJOURNMENT There being no further business the meeting was adjourned at 7:20 p.m. Bonnie R. Eastwood Secretary O.A. Wall : President ~ 2/26/79 -7- FARRELL & FARRELL ATTORNEYS AT LAW ROBERT J. FARRELL FIRST AMERICAN TITLE BUILDINO T£LI~HONE February 26, 1979 Board of Directors East San Bernardino County Water District 1155 Del Rosa Avenue San Bernardino, California 92405 Re: Incompatibility of Office regarding Norman W. Forrest Gentlemen: You have requested that we prepare, for your consideration, a written legal opinion regarding the present status of Norman W. Forrest as a member of the Board of Directors of East San Bernardino County Water District, and particularly as to whether or not, by virtue of his incumbency as a member of the Board of Directors of San Bernardino Valley Municipal Water District, an incompatibility of office arises affecting his ability and eligibility to continue as a member of the Board of Directors of East San Bernardino County Water District. It is our opinion that an incompatibility of office does exist in this in- stance and that by reason of acceptance of incumbency, by Mr. Forrest, on the Board of Directors of San Bernardino Valley Municipal Water District, that he may no longer be considered as a member of the Board of Directors of East San Bernardino County Water District, and that, accordingly, there presently exists a vacancy on the Board of Directors of East San Bernardino County Water District. Our opinion in this regard is based upon the facts in the instant matter and the law relating thereto as enunciated in the decisions of the Courts of this State and in particular as set forth in the case of People ex tel Chapman -vs- Rapsey 16 Cal(2) 636. At the outset we would point out that we deem both the office of a Director of San Bernardino Valley Municipal Water District and that of a Director of East San Bernardino County Water District as a "Public Office" as defined by the Court in the case of Patton -vs - Board of Health 127 Cal 388, wherein the Court stated: "It seems to be reasonably well settled that where the legislature creates the position, prescribes the duties, and fixes the compensation, and these duties pertain to the public and are continuing and permanent, not occasional or tem- porary, such position or employment is an office and he who occupies it is an officer. In such a case, there is an unmistakable declaration by the legislature that some portion, great or small, of the sovereign functions of government are to be exerclsed for the benefit of the public, and the legislature has dectded for itself that the employment is of sufficient dignity and importance to be deemed to be an office". Board of Directors East San Bernardino County Water District Page 2 February 26, 1979 In the case of Leymel v. Johnson, 105 Cal. App. 694 [288 Pac. 858], the District Court of Appeal quoted with approval from volume 21, California Jurisprudence, pages 819 and 820, as follows: "'The words "public office" are used in so many senses that the courts have affirmed that it is hardly possible to undertake a precise definition which will adequately and effectively cover every situation. Definitions and applic- ation of this phrase depend, not upon how the particular office in question may be designated nor upon what a statute may name it, but upon the power granted and wielded, the duties and functions performed, and other circumstances which manifest the nature of the position and mark its character, irrespective of any formal designation. But so far as definition has been attempted, a public office is said 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 public benefit. "' The individual who occupies such an office is a public officer. He is a public agent and as such acts only on behalf of his principal, the public, whose sanction is generally considered as necessary to ~ive to acts performed by the officer the authority and power of a public act or taw. An "incumbent" is one who is in the present possession of an office. The terms "officer" and "office" are paronymous, and in their original and proper sense are to be regarded as strictly correlative. They may be used in a sense other than the proper one, but the presumption is, unless the contrary appears, that the proper sense was intended. "' Of the various characteristics attached to public office by definition, some are regarded as indispensable, and others, while not in themselves con- clusive, are yet said to indicate more or less strongly the legislative intent to create or not to create an office. One of the prime requisites is that the office be created by the Constitution or authorized by some statute. And it is essential that the incumbent be clothed with a part of the sovereignty of the state to be exercised in the interest of the public. '" Upon consideration of the material above quoted we feel there is no question but that both the office of Director of San Bernardino Valley Municipal Water District and that of Director of East San Bernardino County Water District are "public offices" and that a person holding such offices is a "public officer". It may be urged that there is no explicit statutory inhibition against hold- .ing the two public offices in question by one person at the same time, but the impediment of such holding is predicated upon the common law doctrine of public policy which is the basis or foundation of many decisions of the Courts of this state. This policy and the rule which developed therefrom was referred to in Board of Directors East San Bernard(no County Water District Page 3 February 26, 1979 the case of People -vs- Garret(. 72 Cai App. 452, where the Court stated: "The doctrine arising from attempts by single individuals to exercise · tons of incompatible offices springs out of considerations of public the func i -' ..... :~ ar(sin~ naturally from the view that two offices policy..., such conslucrauu-~ ~ ' ' cannot be held by one person when, from the divergent character of the offices, the public interest will suffer thereby." And at page 457: "The relationship between offices which will lead to a judicial determin- ation that they are incompatible Jnd cannot therefore be held by one person will a ear when, to quote from a standard textboo.k, ' the na.r.ure .a.nd duties a~l~w.~ay~s~. ~pp~e~ nre such as to render it improper, from co.n. sl~.e.rar,~o..n~.t_^_ ut t,, ,-- .......... . ....... ,~- *-,,th ' (Dillon on ivlunlclpal public policy, for one ~ncumne~nt tu ~=,,~, .~'~,';~'~..-.'2 5 nf McCluillin on Municipal - -- .... a~n v' bection/Ito'~ ol \,[JrtUlllC....... "~--- -- at(ohS, ,~th ecl., suc. Corporations says: "Two offices are said to be incompatible when the holder cannot in every instance discharge the duties of each. Incompatibility arises, therefore, from the nature of the duties of the offices, when there is an inconsistency in the functions of the two, where the functions of the two are inherently inconsistent or repugnant, as where antagonism would result in the attempt by one person to discharge the duties of both offices, or where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both. The true test is whether the two offices are in- comr)atible in their natures, in the rights, duties or obligations connected with or f~owing from them." In 46 Corpus ]uris 941, it is said: "At common law the holding of one office does not of itself disqualify the incumbent from holding another office at the same time, provided there is no in- consistency in the functions of the two offices in question. But where the func (ions of two offices are inconsistent, they are regarded as incompatible. The inconsistency, which at common law makes offices incompatible, does not con- sist in the physical impossibility to discharge the duties of both.offic.es, but lies rather in a conflict of interest, as where one is subordinate to the other and sub- ject in some degree to the supervisory power of its incumbent, or where the in- cumbent of one of the offices has the power to remove the incumbent of the other or to audit the accounts of the other." In State v. Jones. 130 Wis. 572 ~110 N.W. 431, 118 Am. St. Rep. 1042, 10 Ann. Cas. 696, 8 L.R.^. (N.S.)11071, the Court said: "It is not an essential dement of incompatibility at common law that the clash of duty should exist in all or in the greater part of the official functions. If one office is superior to the other in some of its principal or important duties, so that the exercise of such duties might conflict, to the public detriment, with the exercise of other important duties in the subo~:dinate office, then the offices are incompatible." Board of Directors least San Bernardino County Water District Page 4 February 26, 1979 From a review of the authority, duties, powers and functions of the San Bernardino Valley Municipal Water District, it becomes readily obvious that in some instances East San Bernardino County Water District is subord- inate to the overriding authority of the San Bernardino Valley Municipal Water District, and that San Bernardino Valley Municipal Water District is superior to East San Bernardino County Water District in some of its principal and im- portant duties. In the past, and probably in the future, differences of opinion retarding pumping rights, water usage, water rights, etc., have arisen and wi¥1 arise. In addition, contracts and other agreements have been entered into, and will continue to be entered into, between the two said Districts. It becomes readily obvious that a person acting as a Director of both of said Districts can- not in every instance discharge the duties of each. The two offices in question being incompatible in our opinion, it follows that when Mr. Forrest accepted the office of a member of the Board of Directors of San Bernardino Valley Municipal Water District such acceptance had the effect of vacating or terminating his right to hold the office of a member of the Board of Directors of East San Bernardino County Water District. As stated in the cas~ ' people -vs- Garrett, above referred to: "The rule is settled with unanimity that where an individual is an incum- bent of a public office and, during such incumbency, is appointed or elected to another public office and enters upon the duties of the latter, the first office be ~ comes at once vacant if the two are i.n. compatible (Mecbem on Public Officers, sec. 412; 22 R.C.L., sec. 63) .... McQuillin on Municipal Cc~rporations, second edition, volume 2, section 469, thus states the rule: "The common law rule is that the acceptance by a public officer of another office which is incompatible with the first thereby vacates the first office; that is, the mere acceptance of the second incom..patible 6ffice per se terminates the first office as effectively as a resignation. It would appear from what we have indicated in the above opinion that Mr. Forrcst is no longer legally an officer or member of the Board of Directors of East San Bernardino County Water District and that a vacancy upon the Board of Directors of East San Bernardino County Water District which may be filled by the Board of Directors, pursuant to Section 1780 of the Government Code of the State of California. Respectfully submitted, FARRELL & FARREI.L Robed't J. Farr~I1 RJF:jln Sacramento, California · February 9, 1979 Dual Office Holding. Dear Senator Ayala: ' QUESTION You have asked whether a member of the board of direct'ors of a county water district may also serve as a mmber of the board of directors of a water conservation district or a resource conservation district* located within the county water district. OPINION A mera~el~ of the board of directors of a county water district may not also serve as a member of the board of directors of a water conservation district or a resource conservation district located within the county water district. There is no constitutional or statutory provisions l~rhich would expressly prohibit a member of the board of * Resource conservation districts were formerly known as soil conservation districts (see Sec. 9021, P.R.C.). O~7~rectors of a county water district from also serving on the board of a water conservation district or a resource conservation district. However, the common law doctrine of incomparability of offices has been held applicable in this state (People v. Garrett, 72 Cal. App2 452, 456). Under the common law doctrine, offices are generally considered incompatible where their, duties and functions are '- inherently inconsistent and repugnant so that, because of the antagonism which would result from the attempt of one person to discharge faithfully, impartially, and efficiently the duties of both offices, considerations of public policy render it improper for an incumbent to retain both. The basis of the rule of incompatibility of offices does not lie in the physical impossibility to discharge the duties of both, but rather in a conflict of interests or a conflict in the duties of the offices, as where one is subordinate to the other or subject in some degree to the supervisory power · of its incumbent, or where the incumbent of one of the offices has the power to remove the incu~bent of the other or to audit the accounts of the other (People v. Thompsoq, 55 Cal. App. 2d 147; People v. Rapsey, 16 Cal. 2d 636; People v. Bagshaw, 55 Cal. App. 2d 155). Generally speaking, incompatibility of offices is' found by examining the character of the offices and their relation to each other, as noted in peopl~ v. Rapsey, supra, as follows: "Two offices are said to be incompatible when the holder cannot in every instance dis- , ~ charge the duties of each. Incompatibility arises, therefore, from the nature of the duties of the offices, when there is an in- consistency in the functions of the two, where the functions of the two are inherently in- consistent or repugnant, as where antagonism would result in the attempt by one person to ' ' discharge the duties of both offices, or where the nature and duties of the two offices are such as to render it improper from consi- derations of , ~ pub~ policy for one person to retain both. The true test is whether the two offices are incompatible in their natures, in the rights, duties or obligations con- nected with or flowing from them." (at pp. 641-642) (Emphasis added.) A district such Nc = count', water district, conservation district, or ~s~urce c~nservatlon district an autonomous entity- Such a district is a governmental agency exercising, to a limited extent, powers of government vested in it by the legislative enactment from which it draws its right to exist and power of operation (People ex tel. City of Do%.mev v. Downey County Water Dist.,' 202 Cal. App~ 2d 786--~ ~95).- The-~a~ of directors of any one of such districts is not Vested with authority over the affairs of the other district- A county water district, water conservation dis- trict, or resource conservation district, however, are all vested with broad authority with respect to the development and distribution of water. A county water district may do any act necessary to furnish sufficient water in the dis- trict for any present or future beneficial use (Sec. 31020, Wat. C.), and may, among other things, store water for the benefit of the district, conserve water for future use, and appropriate, acquire, and conserve water and water rights. ~or an~' useful purpose (Sec. 31021, Wat. C.)- A water conservation district is likewise authorized to appropriate, acquire, and conserve water and water rights for any useful purpose (Sec. 74521, Wat. C.). A water conservation district may, among other things, sell~ deliver~ distribute or otherwise dispose of any water that may be stored or appropriated, o%~ned, or controlled by the district (Sec. 74526, War. C.). A resource conservation district is authorized to be formed for, amon~.pther purposes, the development and. .~istribution o_~f water (Sec. 9151, '~.R~C'"[)~ The directors of a resource conservation district are authorized generally to ~uake improvements or conduct operations in furtherance of water conservation an~ dist ibutio~(Sec. 9409, P.R.C.). We think that the duties of a member of the board of directors of a county water district and a member of the board of directors of a water conservation district or a resource conservation district may well conflict in deter- mining whether and to what extent each of the"districts is to develop and distribute water within the area included within both districts. We think it is apparent, moreover, that conflicts could develop between directors of such dis- tricts in many-areas relating to such development and distribution, as for example, in the acquisition or purchase of water or water rights, the constructmo of distribution facilities, and the establishment of water rates. In our opinion, therefore, a member of the board O~Oof directors of a county water district may not also serve as a member of the board of directors of a water conserva- tion district or a resource conservation district locate~ within the county water district. Very truly yours, Bion M. Gregory Legislative Counsel Thomas D. Whelan Deputy Legislative Counsel TDW:kh INCOMPATIBILITY OF OFFICE 1. BACKGROUND. Incompatibility of offices is to be distinguished from the more familiar problem of conflict of interest. The subject of conflict of interest involves a situation in which one who holds the public office has a conflicting private interest, usually of a financial nature. In the conflict of interest situation the office holder is normally required to disclose his conflicting private interest and to abstain from any participation in his public capacity in any decision affecting such private financial interest. In the incompatibility of office situation the same individual holds or attempts to hold two public offices which give rise or may potentially give rise to conflicting obligations or res- ponsibilities in the individual's public capacities. These are two common situations in which the doctrine of incompatibility does not apply: (1) Where in one capacity or the other the individual is a public employee rather than one who holds a public office, and, (2) Where there is specific statutory authority for the dual office holding or a specific statutory scheme which obviously contemplates the dual office holding. The integrity of the individual is irrelevant in the incompatibility as stated in 3 McQuillin, Municipal Corporations S 12.67: "Public policy demands that an officeholder discharge his duties with undivided loyalty. The doctrine of incompatibility is intended to assure performance of that quality. Its applicability does not turn upon the integrity of the person concerned or his individual capacity to achieve impartiality, for inquiries of that kind would be too subtle to be rewarding. The doctrine applies inexorably if the offices come within it, no matter how worthy the officer's purpose or extraordinary his talent." 2. THE EXCEPTIONS, The exceptions are easily disposed of here. For purposes of the doctrine of incompatibility an individual is considered as holding an office if his position is created by statute and invests the occupant of the position with some govern- mental function of a policy making nature. There are some recent authorities in which persons occupying various public positions have been held to be merely public employees and not public officers. See, for instance, Neigel v. Superior Court, 72 Cal. App. 3d 373 (1977), in which a San Bernardino city policeman was held not to be a public officer for purposes of the incompatibility doctrine and was therefore qualified to take office as a school board member without vacating his employment as a policeman, and 56 Cal. Ops.A.G. 556 (1973), in which the Attorney General's office, with some hesitancy, held that a nonstatutory state Assistant Superintendent of Public Instruction was only an employee and therefore could serve as a member of the Los Angeles College Board of Trustees. 3. WHEN ARE OFFICES INCOMPATIBLE? The leading California cases on the doctrine of incompatibility is the case of People v. Rapse~, 16 Cal, 2d 636 (1940), Mott v. Horstmann, 36 Cal. 2d 388 (1950), People v. Thompson, 55 Cal. App. 2d 147 (1942), People v. Bagshaw, 55 Cal. App. 2d 155 (t942). In general, the Rapsey case and the other cases which have followed it, together with the Attorney General~s opinions construing the incompatibility doctrine as founded on these cases, have concluded that there is an incompatibility of offices wherever one office may exercise a supervisory function over the other, either directly or in the sense that it exercises some governmental function affecting -2- the other, or where the agencies on which the officer sits may be empowered to deal with each other by contract or otherwise so that the dual. officer would have obligations to both agencies which would be conflicting. The doctrine of incompatibility is said to apply even though the incompatibility is only potential, that is, where the agencies are authorized to contract with each other but are not likely to do so, or where the likelihood of occasion to exercise the supervision function is small. The doctrine of incompatibility is also said to be applicable even if there is only a single clash or potential class of loyalties for the dual office holder~ the public officer must be free to exercise his discretion unfettered by any clash of loyalties in everS instance. Nor may the problem be cured by his absention in one capacity or both, as in the case of conflict of interest situation; it is not for the office holder to determine when he is to exercise his public responsibilities and when not, as he must be free to do in all cases. 4. THE EFFECT OF INCOMPATIBILITY. What is the effect of incompatible office holding? As stated in the Rapsey case and followed in the other authorities, is that upon accepting and assuming the second office, the first office is automatically vacated. This does not occur merely upon election to the second office or completing the various formalities such as execution of the oath, but only upon the actual assumption of the second office. See People v. Thompson, 55 Cal. App. 2d 147 (1942). Once an incompatible office is assumed, however the off~ce holder does not have the option to decide which office he will retain, since by assuming the second office he has already vacated the first one. Up until he assumes the second office, presumably he may make his choice either by deciding to leave the first office by resigning from it or vacating it through assuming the second, or by deciding to retain the first by refusing to assume the second by resignation before assuming it or allow it to become vacant by failing to qualify. -4- m