Can Vazquez Keep Seat if Elected to State Office? The Answer is Not So Simple

By Jorge Casuso

July 24, 2018 -- Speculation has been growing that Santa Monica City Councilmember Tony Vazquez could remain on the dais if he wins the race for a seat on a powerful State tax board in November.

Vazquez has not made his intentions publicly known and he has not returned several calls from the Lookout for comment.

But remaining on the Council could be a possibility if Vazquez wins the November 6 race for the Third District seat on the California Board of Equalization ("Santa Monica Council Member Tony Vazquez Makes Strong Showing in County Race," June 6, 2018).

Flier for Tony Vazquez fundraiser in Santa Monica

The California Fair Political Practices Act has no prohibition against a person "holding multiple public positions, either within a single agency or different agencies," according to the Commission that oversees the Act.

It also does not preclude someone "from serving in more than one elective office at any one time."

However, Gov. Code Section 1099 codifies the common law prohibition against the holding of “incompatible offices,” according to the Fair Political Practices Commission (FPPC).

"This doctrine restricts the ability of public officials to hold two different public offices simultaneously if the offices have overlapping and conflicting public duties," the agency's website states.

This would apply in cases when "either of the offices exercises a supervisory, auditing, or removal power over the other," when there is "a significant clash of duties or loyalties between the offices" or when there are "public policy considerations that make it improper."

"The consequence of holding an incompatible office is that the person is 'deemed to have forfeited the first office upon acceding to the second,'" according to the FPPC.

The Santa Monica City Attorney's office told the Lookout this week that it "has not advised Councilmember Vazquez personally on this matter."

It noted that that the City Attorney does not advise Councilmembers "in their personal or individual capacities" and that any legal advice to the City Council is subject to the attorney-client privilege.

Concerning the issue of holding two elected offices, the City Attorney echoed the FPPC, noting that the Government Code and the common law prohibit individuals from holding “incompatible offices.”

"Where offices are incompatible, recusal / abstention does not cure the incompatibility; rather, the individual is deemed by law to have forfeited the first office held," the City Attorney said.

"Neither the City Council nor the City Attorney’s Office is charged with determining whether two offices are compatible or incompatible."

It is the individual officeholder who "first determines whether the offices are compatible or incompatible," the City Attorney said.

The officeholder can then decide to "voluntarily relinquish the first held office if they are believed to be incompatible."

The officholder who determines the posts are compatible can be challenged by the Attorney General or a private party that disagrees, the City Attorney said.

Either can "take action in quo warranto to resolve claims regarding the disputed office."