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Board of Trustees Meeting May 13, 2008 |
Agenda Topic: Old Business
Update on Oath of Office Issue and Corrective Action Recommendation.
Background:
As previously
noted, the District’s former General Counsel and/or its General Manager had
advised the Trustees that the oath of office was optional for Vector Control
Boards. Based on this advice, no
specific oaths of office were taken or filed by the Trustees. Rutan & Tucker has advised the Board that
the taking of an oath of office is mandatory.
All Trustees have now taken and filed their oaths.
At the special meeting held on April 22, 2008, Ms. Jenson indicated that Rutan & Tucker was looking into the impact of the Trustees’ failure to take an oath of office on the District’s past actions and payments for expenses paid to Trustees.
Below is a summary of the findings and recommended actions.
A. THE DISTRICT’S PAST ACTIONS.
As previously reported, the
California Constitution requires that all public officials and employees must
take an oath prior to entering office. (
It appears clear that, so long as the District’s past actions affected persons other than the Trustees themselves, the actions will be considered valid. (See Cal. Gov. Code § 1303 [“This section does not affect the validity of acts done by a person exercising the functions of a public office in fact, where other persons than himself are interested in maintaining the validity of such acts”]; see also Miller v. Filter (2007) 150 Cal.App.4th 652 [A de facto officer is “one who actually assumes and exercises the duties of a public office under color of a known and authorized appointment but who has failed to comply with all of the requirements and conditions by law prescribed as a precedent to performance of the duties of the office”]; The Oakland Paving Company v. Donovan (1912) 19 Cal.App.488, 494 [“The lawful acts of an officer de facto, so far as the rights of third persons are concerned, are, if done within the scope and by the apparent authority of the office, as binding as if he were an officer legally elected and qualified and in full possession of it [Citation.]”].)
Because the vast majority of the District’s decisions dealt with the prevention, surveillance, and control of diseases, and therefore affected members of the public, these decisions are considered valid, and no corrective action is required.
However, if there are any District decisions which only affected the Trustees themselves, these decisions may not be considered valid, and corrective action may be required.
B. PRE-OATH REIMBURSEMENT FOR EXPENSES PROVIDED TO TRUSTEES.
In addition to questions regarding the validity of past actions, issues have also been raised as to whether Trustees are obligated to re-pay any re-imbursement monies received prior to taking an oath of office.
The Government Code prohibits public officers from receiving any compensation or reimbursement of expenses prior to taking an oath of office. (Cal. Gov. Code § 1367 [“No compensation or reimbursement for expenses incurred shall be paid to any officer by any public agency unless he has taken and subscribed to the oath or affirmation required by this chapter.”], referring to Cal. Gov. Code § 1360 [public officers must take oath set forth in Cal. Const. Art. XX, § 3].)
As an initial matter, it is important to note that Government Code section 1367 focuses on the taking and subscribing the oath rather than the “filing” of the oath with the appropriate agency. It appears that many of the Trustees had taken an oath of office at some point prior to being appointed to the Board. For example, several of the Trustees are City Council members and would have taken an oath of office in connection with those officers. Others may have served on commissions that have required that they take an oath of office.
Because several Trustees have taken oaths for other public offices, the prohibition on receiving reimbursement from the District might not apply to them, depending on the specific office for which the oath was taken. (See 22 Ops.Cal.Atty.Gen 79 (1953).) The historical important of oath of office relates primarily to ensuring that public officials are not communists and do not hold beliefs that would involve the overthrowing of the government. The form of the oath is prescribed by the constitution. Once taken and signed, it would appear that technical requirements of Government Code Section 1367 have been satisfied, and thus its prohibition should not apply to any Trustee who had previously taken and signed an oath of office. (See 22 Ops.Cal.Atty.Gen 79 (1953) [“Certainly, the Constitution intends that the oath be taken at the inception of the person’s public status, but it does not necessarily demand that the oath be taken anew with each shift of position in the service of a single public employer”].)
For this reason, Rutan & Tucker has requested that the Trustees who have taken a prior oath of office obtain a copy of the prior oath and file that prior oath with the Clerk of the Board.
As to any Trustee who had not previously taken any oath of office, the law is somewhat less clear.
On the one hand, neither the Government Code, nor any other statute or authority could be located that sets forth the precise ramifications, if any, for making or accepting reimbursement payments prior to taking the oath of office, especially where, as here, the failure to take the oath was based upon official legal advice and was corrected immediately upon discovery of the true requirement. While public officials do have a duty to return excess compensation or reimbursement payments received in error, we have found no case or statutes which have imposed that duty where there was a failure to take an oath of office. Thus, it appears that there is no express duty for the District to seek reimbursement for pre-oath compensation based upon the temporary (and now corrected) absence of an oath of office.
However, because the taking of an oath is a pre-requisite for a Trustee to receive any reimbursements from the District, any payments made by the District and received by Trustees for reimbursement of expenses prior to such Trustees taking an oath of office appear to have been “unauthorized” by law. (See by analogy 83 Ops.Cal.Atty.Gen. 124 (May 3, 2000) [payments made to school district board members were not authorized by the applicable statutory scheme and were therefore unlawful]; see also Aebli v. Board of Education of the City and County of San Francisco (1944) 62 Cal.App.2d 706, 727-30 [teacher salaries paid as a result of a the school district’s misinterpretation of applicable regulations were monies paid as a result of mistake of fact or law and could be recovered from the payee].)
In this regard, and as a general
matter,
In many circumstances, legal disputes arise as to what constitutes an unlawful use of public funds. These disputes generally fall into two categories: (1) disputes concerning whether the use of public funds to carry out a legislative program or policy constitutes the “illegal” or “wasteful” use of public funds; or (2) disputes concerning the payment of money to governing board members or third parties pursuant to statutory schemes authorizing such payments. While the courts generally provide deference to the local agency with respect to the use of public funds in the context of the former situations, the courts typically strictly construe statutory schemes governing the payment of funds to governing board members or agency employees. In these latter circumstances, the courts generally apply a doctrine of strict compliance out of the implicit recognition that governing board members are fiduciaries to the taxpayers. (See, e.g., Cal. Const. Art. XVI, § 6; Cal. Emp. Com. v. Payne (1947) Cal.2d 210, 216; 75 Ops.Cal.Atty.Gen.20 [providing deference to a local agency spending taxpayer funds for the implementation of policy]; cf. 83 Ops.Cal.Atty.Gen. 124 (May 3, 2000) [payments made to school district board members were not authorized by the applicable statutory scheme and were therefore unlawful]; Aebli, 62 Cal.App.2d at 727-30 [strict compliance required with respect to compensation or other payments made to governing board members or employees].)
While we could not locate any cases or statutory provisions that directly control the present set of facts, there are many statutory provisions, judicial opinions, and opinions of the Attorney General which indicate that District Trustees who received payments for expenses prior to taking an oath of office should provide reimbursement to the District of any such unauthorized monies paid.
For example, in Aebli, 62 Cal.App.2d 706, the issue was
whether a school district could obtain reimbursement from school teachers who
had received salary payments in excess of what the regulatory scheme had
authorized. The teachers argued, in
part, that reimbursement could not be sought because the payments were made and
received in reliance on erroneous legal advice and in good faith. The court rejected this argument, concluded
that the district could obtain reimbursement, and stated that “money paid out
by a governmental agency under either mistake of fact or law may be recovered
by the payee. . . . [i]t should be added that the good faith of the payee in no
way affects the applicability of the above rules.” (
In 83 Ops.Cal.Atty.Gen. 124, at issue was whether unauthorized (and hence unlawful) cash payments made to school district trustees could be recovered in a taxpayer lawsuit authorized by Code of Civil Procedure section 526a, and whether board members who received such unlawful payments could be prosecuted for criminal offenses. Citing to numerous statutory provisions, the Attorney General concluded that a taxpayer action could be maintained to recover the illegal expenditures, and that, depending on the facts and circumstances, violations of various criminal statutes could possibly be demonstrated.[1] (See also TRIM, 86 Cal.App.3d at 542 [“Taxpayers clearly have standing to challenge illegal expenditures of funds. . . .”].)
In our opinion, in light of our conclusion that reimbursement payments received prior to taking an oath of office were unlawful, and in light of the authorities cited above, in order to attempt to avoid a lawsuit by any third party taxpayers, and in order to reduce the risk of criminal prosecution, District Trustees should reimburse the District for any unauthorized expense reimbursement received prior to taking an oath of office.
As mentioned above, because several Trustees may have taken oaths for other public offices (i.e., oaths of office required for elected City Council positions), it is our opinion that reimbursement for lawful expenses paid to Trustees following the date of the taking of these oaths (even if received before the date of the filing of a new oath of office for the District) would not be required under Aebli and the other authorities set forth above. The purpose of the oath is to ensure loyalty to the State and, provided that an oath was taken and filed with a Trustee’s appointing or other body, this would appear to comport with the public policy prerogatives of the statutory scheme. (See 22 Ops.Cal.Atty.Gen 79 (1953).)
However, as set forth in the related staff report pertaining to the Adoption of Resolution Regarding Reimbursement of Trustees, no Trustees would be authorized to maintain payments received in violation of Health & Safety Code section 2030, which provides that Trustees for the District may either be reimbursed for their actual expenses incurred on official business or in lieu of this reimbursement, may be paid an allowance of up to $100 per month. (Health & Safety Code § 2030, subd. (b) [“The members of the board of trustees may receive their actual and necessary traveling and incidental expenses incurred while on official business. In lieu of paying for actual expenses, the board of trustees may by resolution provide for the allowance and payment to each trustee a sum not to exceed one hundred dollars ($100) per month for expenses incurred while on official business. A trustee may waive the payments permitted by this subdivision”].)
Thus, for those Trustees that have previously taken and filed an oath of office with their respective appointing agencies, while this fact may shield the Trustee from having to reimburse all of the reimbursement payments received from the District prior to filing an oath of office with the District, the fact that a previous oath was taken would not authorize a Trustee’s receipt of both actual expenses and payments for attendance at meetings in violation of Health & Safety Code section 2030.