"Hello Mr. Mayor,
You spoke of the legalities of eminent domain in a previous column…what about the legalities of holding duel offices (serving on the city council while also on the board for the Metro Gold Line Authority)…what about conflict of interest laws? As mayor of Glendora and chair of the GLCA board, how is your case different from the city officials removed from their High-Speed Rail post?"
This is obviously a very timely question. The question itself reveals the complexity and the lack of understanding of the basic issues. In order to provide a meaningful answer, we need to look at the law itself.
Government Code Section 1099 says that a public official shall not simultaneously hold two public offices that “are incompatible”. .. unless “simultaneous holding of the offices…is expressly authorized by law:”
An office is “incompatible” when:
1. Either one may audit, overrule, remove members of, dismiss employees of, or exercise supervisory powers over the other.
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.
If an office is found to be incompatible the first office is forfeited upon acceding to the second.
Now, let’s apply this to the current situation confronting appointed members of the Gold Line Construction Authority Board that are also elected Council Members.
The enabling legislation that created the Construction Authority was enacted before Section 1099, consequently there was no language dealing with the question of incompatible offices. On the other hand, the language clearly anticipated elected officials being appointed to the board.
Legislation that created the Expo Line Construction Authority, written after 1099 was enacted, specifically provided for their board to be comprised of elected officials.
There is current legislation, AB 706, that has technical correction language that will “expressly authorize” the existing Gold Line Board composition. This legislation is sponsored by a bi-partisan group of State Senators and State Assembly members; when passed, it will make the issue of incompatible offices moot.
If AB 706 isn’t passed, then the Attorney General would have to find that one or more of the conditions of incompatibility exists. In my opinion, there could be no finding that either office has the enumerated powers listed in Item 1 above.
There is, similarly, no possibility of a “significant” clash of duties or loyalties between the offices. The right of way is established. The interests of each city are compatible with the establishment of mass transit. Each section of the proposed extension is represented on the board; there is no concentration of power or influence by any city or region.
The public policy interests are enhanced by having elected officials representing the alignment cities. The alternative, unelected appointees, responsible to no one, would not enhance public policy.
Finally, if the Attorney General did find that the Gold Line Board and the City Council were incompatible; I would forfeit the Gold Line responsibilities and retain the City Council seat. This would occur because I was re-elected in March 2011 and was re-appointed to the Gold Line Board in December 2010.
The final part of the question deals with the officials that resigned from the High Speed Rail Authority last year. Very simply, those two officials also held seats on The Orange County Transportation Authority and the MetroLink Board as well as the Metroplitan Transportation Authority. Those positions did create the significant clash of duties and loyalties proscribed by Section 1099. The regional and competing responsibilities were clearly incompatible.
The property owner that is trying to delay the completion of the Gold Line will have to find another approach that has more substance than this one!
*The views and opinions expressed in these articles are those of Doug Tessitor alone. They are not to be construed to represent official positions of the city or the opinions of any other council member.
Glendora Mayor Doug Tessitor fields your community questions and answers them in a weekly column. In Glendora Patch’s Mayor’s Roundtable, you are invited in an ongoing dialogue about issues and concerns you have regarding your city. Share your ideas and voice your opinion.
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