Holding dual elective offices...
CPR recently sent the following letter to the San Mateo County Board of Supervisors:
CALIFORNIANS FOR PROPERTY RIGHTS P. O. Box 282 Moss Beach, CA 94038 March 16, 2005
SAN MATEO COUNTY BOARD OF SUPERVISORS Hall of Justice and Records 400 County Center Redwood City, CA 94063
SUBJECT: LEGALITY OF HOLDING DUAL ELECTIVE OFFICES IN A COUNTY SPECIAL DISTRICT AND MUNICIPAL ADVISORY COUNCIL
Honorable Supervisors:
As a public interest query, Californians for Property Rights (CPR) respectfully seeks the County’s opinion as to the legality of a person simultaneously holding dual elective offices in a County special district and municipal advisory council. This practice appears to violate the separation of powers doctrine expressed in California Constitution Article III, Section 3, which states:
“The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”
If it is the County’s opinion that the practice is unlawful, CPR requests that the Supervisors agendize the issue at their earliest convenience. If the County believes otherwise, CPR requests a written opinion to that effect from County Counsel. Currently, two persons occupy dual elective offices, both as directors of the Montara Water & Sanitary District (MWSD) and as council members of the MidCoast Community Council (MCC). CPR’s specific query to the Supervisors and County Counsel is thus:
Is it a violation of California Constitution Article III, Section 3 for a person to simultaneously hold dual elective positions in the Montara Water & Sanitary District and the MidCoast Community Council?
CPR’s research on this issue has broken the elements down into the following questions, all of which have been found to be answered in the affirmative:
- Does Article III, Section 3 apply to local government?
- Is the MWSD in the executive branch of government?
- Is the MCC in the legislative branch of government?
- Does the MCC, as a municipal advisory council, have actual ‘powers’ such that Article III, Section 3 applies to it?
- Is the MCC specifically mandated to advise the Supervisors concerning the MWSD?
- Is there evidence that the MCC’s advisory mandate is materially impaired by the presence of the MWSD directors on the MCC?
These questions will be briefly treated in turn.
1. DOES ARTICLE III, SECTION 3 APPLY TO LOCAL GOVERNMENT?
Since the Article refers to powers of state government, not local, it is possible to misinterpret the separation of powers doctrine as applying only at the statewide level. California’s Constitution makes it clear, however, that local government is a creation of state government, and that constitutional provisions apply equally at all levels of state government. For example, Article XI, Section l (a) states:
“The State is divided into counties which are legal subdivisions of the State.”
Article XI, Section 3 (a) states:
“The provisions of a [county] charter are the law of the State and have the force and effect of legislative enactments.”
Article XI, Section 7 states:
“A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” (emphasis added)
Article IV, Section 16 (a) states:
“All laws of a general nature have uniform operation.”
Undoubtedly, the separation of powers doctrine expressed in Article III, Section 3 applies to local government.
2. IS THE MWSD IN THE EXECUTIVE BRANCH OF GOVERNMENT?
In the broadest terms, the legislative branch makes laws and policies, while the executive branch administers and executes them. A special district, created by the County to provide water and sewer utility service, passes number of tests that clearly place it in the executive branch of government. For example, as an administrative agency it creates and enforces ordinances and regulations, approves or denies permit applications, issues cease & desist orders, collects special taxes, grants and appropriations. It is possible to misinterpret a special district’s ability to create ordinances and regulations, which have the force and effect of law provided they fall within the special district’s lawful authority, as evidence that the special district is in fact a legislative body. Our judicial system has long recognized that executive branch administrative agencies will, in order to accomplish their mandates, routinely and of necessity create ordinances and regulations incidental to their executive functions. That does not make them legislative bodies.
3. IS THE MCC IN THE LEGISLATIVE BRANCH OF GOVERNMENT?
MidCoast Community Council letterhead defines the MCC as “An Elected Municipal Advisory Council to the San Mateo County Board of Supervisors.” Since the Board of Supervisors is the County legislative authority (California Government Code 25207), the MCC clearly falls within the legislative branch of government.
4. DOES THE MCC, AS A MUNICIPAL ADVISORY COUNCIL, HAVE ACTUAL ‘POWERS’ SUCH THAT ARTICLE III, SECTION 3 APPLIES TO IT?
Article V, Section 5.01 of the MCC bylaws is entitled “Powers of Community Council.” Although the powers of the MCC do not include the ability to make and enact law, as a public benefit corporation the MCC has a variety of actual corporate powers.
5. IS THE MCC SPECIFICALLY MANDATED TO ADVISE THE SUPERVISORS CONCERNING THE MWSD?
Article XIV, Section 14.01 of the MCC bylaws states its purpose as a municipal advisory council:
”(a) to advise the Board of Supervisors on such matters which relate to the Area as may be designated by the Board of Supervisors concerning services which are or may be provided to the Area by San Mateo County or other local governmental agencies, including but not limited to advice on matters of public health, safety, welfare, public works, and planning….”
The MCC statement of purpose, to advise the Supervisors on public works agencies in its area, including the MWSD, is important because it provides the opportunity to apply a judicial test of an alleged violation of separation of powers doctrine. The test is whether or not the exercise of the power of one branch of government is materially impaired by another branch (O’Brien v. Jones, (2000) 23 Cal 4th 40).
6. IS THERE EVIDENCE THAT THE MCC’S ADVISORY MANDATE IS MATERIALLY IMPAIRED BY THE PRESENCE OF THE MWSD DIRECTORS ON THE MCC?
It is necessary to examine how, in practice, the presence of two MWSD directors on the MCC impairs the council’s ability to advise the Supervisors, particularly concerning that special district. For example, the directors have been in possession of a report describing an MWSD boundary discrepancy for over a year, yet they appear never to have turned the report over to the MCC. The boundary discrepancy, which variously affects the MidCoast public and has been confirmed by County Counsel and Supervisor Gordon, should not remain undisclosed to the MCC and general public by MCC council members who, in their capacity as MWSD directors, can be assumed to have a vested interest in protecting their special district from scrutiny. While the MWSD directors apparently have not disclosed unfavorable information about their own special district to the MCC and general public, they also appear to use the MCC as a context to challenge other special districts with whom they have rivalries, or to support special districts with whom they enjoy friendly relations. Specifically, the MWSD directors, in their capacity as MCC council members, have recently requested a LAFCo Municipal Service Review of the rival Point Montara Fire Protection District, while sponsoring Granada Sanitary District’s effort to become a parks/community services special district. In this respect, there is every appearance that the MCC is being used, not to advise the Supervisors concerning special districts, but as a forum to protect and advance a particular special district’s interests. This subverts the intent of the separation of powers doctrine, that the different branches of government check and balance, but not materially impair, one another’s respective powers.
Finally, there may be the opinion that the problems described here reflect the inevitable conflicts of interest which at times confront public officials, situations best remedied through elective officials’ voluntary use of recusal. Whereas CPR’s query to the Supervisors posits a continuing violation of the separation of powers doctrine, the prerogative of recusal is discretionary, allowing a public official to occasionally absent oneself from an issue on the basis of a real or perceived conflict of personal interest. There are no circumstances under which the exercise of recusal could be expected to correct a systematic commingling of legislative and executive powers. Thank you in advance for your timely attention to this matter. If you agree that California Constitution Article III, Section 3 is violated by the practice of holding dual elective offices in the MCC and the MWSD, you will also agree that the detriment is ongoing and cumulative. Respectfully submitted,
Terrence D. Gossett for
Californians for Property Rights
cc: County Counsel Thomas F. Casey III