California Attorney General Opinion: Disputed Appointment To Water District Board Caused By Disagreement Over Whether Vacancy Existed Needs Judicial Resolution

In Opinion No. 05-1103, the California Attorney General considered a dispute over an appointment to the Board of Directors (“Board”) of the Mojave Water Agency (“Agency”), after the Board appointed one person to fill a vacancy, then rescinded that appointment, and voted to appoint someone else.

The Attorney General opined that the question of whether the rescission of the first appointment was valid, and consequently whether a vacancy existed which could be filled by the second appointment, raised substantial questions of fact and law that should be resolved in court.

Facts

In 2004, the Agency moved to fill a vacancy on the Board by voting to appoint Cal Camara to the position. The next day, Camara took the oath of office from a notary public. After some public reaction that the Board had not provided adequate public notice on the vote to appoint Camara, the Board’s legal counsel opined that adequate public notice had not in fact been provided.

Two days later, the Board voted to rescind the appointment of Camara. It then voted to appoint Art Bishop to fill the vacancy. Bishop was then administered the oath of office by the Board’s executive secretary.

Camara asked the Attorney General for leave to sue, in hopes that a court would determine that Bishop’s appointment was invalid, because the rescission of his previous appointment was invalid, and no vacancy therefore existed.

Attorney General’s Opinion

The Attorney General turned to MacAlister v. Baker (1934) 139 Cal.App. 183, for guidance. In that case, the Los Angeles City Council appointed Robert MacAlister to fill a vacancy on the council, and then rescinded the appointment the following day. The court agreed with MacAlister that once he had been duly appointed, that appointment could not be reconsidered. The court distinguished between executive and ministerial actions, noting that the executive action, the vote by the appointing board, is the act that completes the appointment.

Accordingly, the Attorney General said, Camara had raised substantial questions of fact and law concerning whether his appointment remained valid, and whether Bishop’s appointment was invalid because no vacancy existed.

There was therefore a public interest in a judicial resolution to the question, the Attorney General said. The application to sue was granted.

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