Doctrine of Incompatible Offices
What is the Doctrine of Incompatible Offices?
The Doctrine of Incompatible Offices concerns a potential clash of two incompatible public offices held by a single official. In other words, the doctrine concerns a conflict between an individual’s performance of potentially overlapping public duties.
This type of conflict is distinguishable from the concept of conflicts of interest that involves a potential clash between an official’s private interests, on the one hand, and the official’s public duties, on the other.
This legal doctrine will be important to you if you are ever being considered for appointment or election to a board, council, commission, or other office during your tenure as a state officer or employee.
To fall within the Doctrine of Incompatible Offices, two elements must be present.
- Hold two public offices simultaneously, and
- A potential conflict or overlap in the functions or responsibilities of the two offices must exist.
The doctrine of incompatible offices is contained in Government Code section 1099. An officer who simultaneously holds two incompatible offices automatically forfeits the first office held.
However, the Legislature may choose to expressly authorize the dual holding of offices under particular circumstances even though the dual holding would otherwise be prohibited by the doctrine. For example, the Legislature passed a measure that specifically provides that the rule does not apply to representational membership on a joint powers agency or its governing board.
Because of this legislation, a member of a state commission may serve as a member of a joint powers agency even though the joint powers agency may sometimes act inconsistently with the best interests of the state commission.
Question: The Doctrine of Incompatible Offices is concerned with a potential clash between two things. What is it concerned with? Select the best answer from the list below. There is only one correct response.
- A public office and private office
- A public office and a private financial interest
- Two public offices held by different people
- Two public offices held by an individual
Answer: d. The Doctrine of Incompatible Offices is concerned with a potential clash between two public offices held by an individual.
Question: TRUE or FALSE: The Legislature may expressly authorize the dual holding of offices even though the doctrine would otherwise prohibit it.
Answer: True. The Legislature may compel or authorize the dual holding of offices that would otherwise be prohibited under section 1099.
Here’s Jessica Carrington again, speaking with Jose Lopez about the specifics of the Doctrine of Incompatible Offices.
Jessica: “Jose, I was reading about the Doctrine of Incompatible Offices. I understand that only offices are covered by this doctrine. Is that correct? What types of offices are we talking about?”
Jose: “Yes, Jessica. It is correct that only offices are covered by this doctrine. When we speak of offices, we are referring to public offices for the purposes of this doctrine.”
Jessica: “Can you define for me just what a public office is?”
Jose: “For the purpose of the Doctrine of Incompatible Offices, public office is a position in government created or authorized by the Constitution or some law. The tenure of the position must be permanent, not occasional or temporary; and the incumbent must perform a public function for the public benefit and exercise some of the sovereign powers of the state.”
Jessica: “So the doctrine does not apply to state employees, right?”
Jose: “Since an employment is not an office, the Doctrine of Incompatible Offices does not preclude an official from simultaneously holding an office and an employment.”
Jessica: “Can you list some specific offices that are covered by the doctrine?”
Jose: “Elected offices, agency secretaries or department directors, deputy secretaries and directors, members of decision-making boards and commissions are covered. Clerical positions, mid-level and low-level civil servants, and others who are not vested with discretion are not covered.”
A deputy to a principal is not necessarily deemed to be holding the same office as the principal for purposes of the Doctrine of Incompatible Offices. Only where the deputy stands in the principal’s shoes with respect to policy-making decisions will the deputy be deemed to be holding the same office as the principal for purposes of the doctrine.
Question: TRUE or FALSE: The doctrine applies to any high-level government positions that are incompatible.
Answer: False. Only incompatible government "offices" are covered by the doctrine.
Potential, Not Actual, Conflict Between Offices is Sufficient
With respect to a conflict between the duties or functions of two offices, the clash between the two offices in the context of a particular decision need not be proved in order to activate the Doctrine of Incompatible Offices. It is enough that there is a potential for a significant clash between the two offices at some point in the future.
Let’s look at the specific language the California Supreme Court uses to discuss the conflict between offices.
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.
Frequently, offices are incompatible when one office has power over the other. For example, the offices of water district director and school board member would be incompatible when the school district is located partially or wholly within the boundaries of the water district if the water district has power over the school district concerning new or expanded access to water.
Similarly, the office of city planning commissioner and state highway commissioner were found to be incompatible because the best decision for the state with respect to the highway location could conflict with the city’s wishes.
Penalties and Enforcement
Where a public official is found to have accepted two public offices, the doctrine provides for an automatic vacating of the first office.
Question: From the list below, select the responses that describe situations in which offices are generally incompatible. Select all that apply.
- When one has budgetary or regulatory power over the other
- When the offices are of the same type, but in different jurisdictions
- When the offices exercise authority over the same geographical area
Answer: a and c. It is possible that offices of the same type located in different jurisdictions may be incompatible, but the mere fact that the offices are of the same type and are in different jurisdictions does not establish incompatibility.
Question: From the list below, identify the consequences that occur when an individual violates the Doctrine of Incompatible Offices. There is only one correct response.
- The officeholder may be asked to resign one of the offices.
- The officeholder is deemed to have vacated the first office.
- The officeholder must disqualify himself or herself from the decision in question.
- The officeholder will receive administrative fines.
Answer: b. The officeholder is deemed to have vacated the first office.
Remember These Points
- The doctrine applies only to offices, and not employment positions.
- Potential, not actual, conflict is sufficient.
- First office vacated when offices are incompatible
- Disqualification will not cure incompatibility.
You have completed the "Doctrine of Incompatible Offices" module. The next module is Misuse of Public Funds.
The California Attorney General's Office and the Fair Political Practices Commission