LAWS, RULES AND POLICY GOVERNING CONFLICTING ROLES AND ACTIVITIES OF PUBLIC OFFICIALS, OFFICERS AND EMPLOYEES: INCOMPATIBLE OFFICERS, INCOMPATIBLE ACTIVITIES, AND OTHER LEGAL RESTRICTIONS

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I:l® BEST .BEST & KREEGER � ATTORNEYS AT LAW 6. Restrictions Arising from Future Employment; 7. Agency -Specific Rules, Regulations, And Statutory Requirements. DISCUSSION Conflicting roles and activities may arise in many instances, including when an officer or employee of a public agency becomes an employee, officer, or elected or appointed official of the same agency or another public entity. Generally, such positions must be examined in the context of a) the common law doctrine of incompatible offices, as codified in Government Code section 1099; b) Government Code section 53227, prohibiting being sworn in as an official of a public agency when employed by that public agency; and c) Government Code section 1126, to the extent the holding of dual roles could violate the conflict of interest policy adopted by one of the public agencies. (Public agencies may adopt a conflict of interest policy pursuant to Government Code section 1126 to establish those circumstances in which a conflict arises as to that agency.) Finally, certain restrictions also apply to subsequent employment in the private sector as well. 1. Common Law Doctrine — Incompatible Offices (Gov. Code § 1099) Incompatible offices is a common law doctrine that prohibits and prevents simultaneously holding two incompatible public offices. When two public offices are incompatible, the public officer will be deemed to have forfeited the first office upon acceding to (being sworn in or assuming the employment by) the second, even if the first office is an elected position. Section 803 of the California Code of Civil Procedure authorizes the California Attorney General to bring an action to enforce forfeiture of the first held office.' This action is referred to as quo warranto. The Attorney General is authorized to grant an interested third party, including a public entity or person, the ability to sue in quo warranto. (CCP §§ 810, 811; Cal. Code of Regs., tit. 11, §§ 1-11.) "An action may be brought by the attorney general, in the name of the people of this state, upon his own information, or upon a complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise, or against any corporation, either de jute or de facto, which usurps, intrudes into, or unlawfully holds or exercises any franchise, within this state. And the attorney general must bring the action, whenever he has reason to believe that any such office or franchise has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed to do so by the governor." (Code Civ. Proe. § 803.) This product provided under the Public Policy & Ethics Group Program. -2- 93939.00001A30063125.3