Untitled California Attorney General Opinion ( 1999 )


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  •                  TO BE PUBLISHED IN THE OFFICIAL REPORTS
    OFFICE OF THE ATTORNEY GENERAL
    State of California
    BILL LOCKYER
    Attorney General
    :
    OPINION                    :                 No. 98-1010
    :
    of                     :               February 4, 1999
    :
    BILL LOCKYER                  :
    Attorney General              :
    :
    ANTHONY S. Da VIGO                :
    Deputy Attorney General           :
    :
    JEROLD A. GODDARD has requested this office to grant leave to sue in quo
    warranto upon the following:
    ISSUES OF FACT OR LAW
    Did the office of city clerk of the City of Redondo Beach become vacant by
    virtue of the officeholder’s conviction of a violation of Vehicle Code section 4463,
    subdivision (a)(1)?
    1                                    98-1010
    CONCLUSION
    Whether the office of city clerk of the City of Redondo Beach became vacant
    by virtue of the officeholder’s conviction of a violation of Vehicle Code section 4463,
    subdivision (a)(1) presents substantial issues of fact and law; however, the application for
    leave to sue is denied due to the expiration of the term of office on March 30, 1999.
    PARTIES
    JEROLD A. GODDARD (“relator”) contends that JOHN L. OLIVER
    (“defendant”) is unlawfully holding and exercising the office of city clerk of the City of
    Redondo Beach (“City”).
    MATERIAL FACTS
    The City is a chartered municipal corporation situated within the County of Los
    Angeles. Defendant was elected to and entered upon the office of city clerk on April 1,
    1995, for a term which expires on March 30, 1999. In the event that the election of March
    2, 1999, for municipal offices results in a runoff, defendant’s current term would extend to
    May 14, 1999.
    On July 7, 1998, defendant was charged with the crime of forging a vehicle
    registration license tag in violation of Vehicle code section 4463, subdivision (a)(1),1 a
    felony. The criminal complaint alleged:
    1
    All references hereafter to the Vehicle Code are by section number only. Section 4463, subdivision
    (a) provides:
    “Every person who, with intent to prejudice, damage, or defraud, commits any of the
    following acts is guilty of a felony and upon conviction thereof shall be punished by
    imprisonment in the state prison for 16 months, two or three years, or by imprisonment in the
    county jail for not more than one year:
    “(1) Alters, forges, counterfeits, or falsifies any certificate of ownership, registration
    card, certificate, license, license plate . . . or permit provided by this code . . . .”
    “. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . .
    . . . .”
    2                                                                  98-1010
    “On or about October 27, 1997, in the County of Los Angeles, the
    crime of FORGERY OF A REGISTRATION TAB, in violation of VEHICLE
    CODE SECTION 4463(a), a Felony, was committed by JOHN LYNN
    OLIVER, who did unlawfully and with intent to defraud, alter, forge,
    counterfeit, and falsify a registration card to and for a motor vehicle. . . .”
    The basis for the charge was that defendant, over a seven-year period,
    fabricated a number of annual registration license tags for his vehicles, including a boat and
    trailer. He affixed the unauthorized facsimiles to several of his vehicles during this period
    and kept the materials for making the forgeries in his garage. He purchased a van in 1990
    without registering it, and did not pay annual registration fees for the van over the seven-year
    period. On October 27, 1997, a parking control officer saw the van on a street with a forged
    license tag, which led to further investigation and defendant’s arrest.
    On August 10, 1998, defendant entered a plea of nolo contendere2 to a
    violation of section 4463, subdivision (a)(1), a felony. The court accepted the plea, found
    the defendant guilty, declared the offense a misdemeanor pursuant to Penal Code section 17,
    subdivision (b),3 suspended imposition of sentence, granted summary probation for three
    years on certain conditions, including that defendant perform 300 hours of public service and
    pay a fine of $200, and report back to the court on February 8, 1999, as to the progress of
    his probation. The court took into account “the very real likelihood that he is going to lose
    his job.”
    2
    A plea of nolo contendere is a conclusive admission of guilt and constitutes a conviction within the
    ordinary as well as the technical meaning of the word. (People v. Jones (1995) 
    33 Cal. App. 4th 1087
    , 1093-
    1094.)
    3
    Penal Code section 17, subdivision (b) provides:
    “When a crime is punishable, in the discretion of the court, by imprisonment in the
    state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes
    under the following circumstances:
    “. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
    ....
    “(3) When the court grants probation to a defendant without imposition of sentence
    and at the time of granting probation, or on application of the defendant or probation officer
    thereafter, the court declares the offense to be a misdemeanor.
    “. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
    . . . .”
    3                                                                  98-1010
    Under the City’s charter, the city clerk’s duties include administering the
    financial affairs of the City, supervising all expenditures and disbursements of the City,
    providing and maintaining a general accounting system for the City, and approving all
    charges against the City before payment.
    Refusing to follow the legal advice of the city attorney, the city council has not
    declared vacant the office of city clerk.
    ANALYSIS
    In deciding whether to grant leave to sue in the name of the People of the State
    of California in a quo warranto action, we consider initially whether there exists a substantial
    question of law or fact that requires judicial resolution, and if so, whether the proposed
    action would serve the overall public interest. (81 Ops.Cal.Atty.Gen. 98, 100 (1998).) An
    action in quo warranto is an appropriate remedy to test the right of a person to hold public
    office, including a local office of a charter city. (Hallinan v. Mellon (1963) 
    218 Cal. App. 2d 342
    , 347-348; 81 Ops.Cal.Atty.Gen. 207, 208 (1998).)
    A charter city is granted plenary power by the Constitution to provide for the
    election, appointment, and removal of its officers and employees. (Baines v. Zemansky
    (1917) 
    176 Cal. 369
    , 377; Scheafer v. Herman (1916) 
    172 Cal. 338
    ; Dinan v. Superior Court
    (1907) 
    6 Cal. App. 217
    .) Specifically, subdivision (b) of section 5 of article XI of the
    Constitution provides as follows:
    “It shall be competent in all city charters . . . and (4) plenary authority
    is hereby granted, subject only to the restrictions of this article, to provide
    therein or by amendment thereto, the manner in which, the method by which,
    the times at which, and the terms for which the several municipal officers and
    employees whose compensation is paid by the city shall be elected or
    appointed, and for their removal . . . .”
    Accordingly, the provisions of a city charter relative to the removal or discharge of a city
    officer generally supersede inconsistent general laws. (Craig v. Superior Court (1910) 
    157 Cal. 481
    ; Curphey v. Superior Court (1959) 
    169 Cal. App. 2d 261
    , 266.)
    We turn to the city charter of the City to determine whether the criminal
    conviction in question operated, without regard to any administrative action by the city
    4                                        98-1010
    council, to create a vacancy in the office of the city clerk. Article X, section 10.2, of the city
    charter provides in part as follows:
    “In the event any elective official of the City of Redondo Beach . . . is
    convicted of a crime involving moral turpitude, or otherwise ceases for any
    reason to be eligible to hold office, his office shall become vacant and shall be
    so declared by the City Council.”
    We entertain no doubt that defendant was convicted of a crime involving moral
    turpitude. In 75 Ops.Cal.Atty.Gen. 64, 69 (1992), we stated with respect to pleading nolo
    contendere to a misdemeanor charge of filing a false travel claim with intent to defraud the
    state:
    “We do not have here an offense that involves purely ‘private’conduct.
    [Citations.] Rather, it is conduct that is detrimental to the state itself and bears
    direct relationship upon the fitness to perform official state duties. [Citation.]
    Because the victim of this crime of moral turpitude is the public, the very party
    whom the public officer was elected to represent, a violation of duties owed
    to the public is clearly involved. As was noted in the context of duties owed
    by an attorney to his client:
    “ ‘The term moral turpitude includes fraud and has been said to mean
    dishonesty and conduct not in accordance with good morals; being based on
    moral guilt, it implies intentional breach of the duty owed to a client as
    distinguished from an unintended failure to discharge his duties to the best of
    his ability.’ [Citation.]” (Id., at p. 69.)
    We also quoted from the Supreme Court’s decision in In re Hallinan (1954) 
    43 Cal. 2d 243
    ,
    247-248, as follows:
    “Although the problem of defining moral turpitude is not without
    difficulty [citations], it is settled that whatever else it may mean, it includes
    fraud and that a crime in which an intent to defraud is an essential element is
    a crime involving moral turpitude. [Citations.] It is also settled that the related
    group of offenses involving intentional dishonesty for purposes of personal
    gain are crimes involving moral turpitude. [Citations.] . . . We see no moral
    distinction between defrauding an individual and defrauding the government
    [citation], and an attorney, whose standard of conduct should be one of
    complete honesty [citation], who is convicted of either offense is not worthy
    of the trust and confidence of his clients, the courts, or the public, and must be
    disbarred, since his conviction of such a crime would necessarily involve
    5                                         98-1010
    moral turpitude.” (Id., at p. 69, fn. 9.)
    Here, defendant defrauded the public by not paying state registration license
    fees over a seven-year period. To the extent he failed to pay the requisite state fees, he
    benefitted himself financially. He also fabricated registration license tags and placed them
    on numerous vehicles for at least the same seven-year period. Inasmuch as defendant
    pleaded nolo contendere to a charge of forgery of a registration tab, a felony, with intent to
    defraud, alter, forge, counterfeit, and falsify a registration card to and for a motor vehicle,
    he committed a crime involving moral turpitude. (See In re Kelley (1990) 
    52 Cal. 3d 487
    ,
    494; Young v. State Bar (1990) 
    50 Cal. 3d 1204
    , 1217; In re Fahey (1973) 
    8 Cal. 3d 842
    , 849;
    In re 
    Hallinan, supra
    , 43 Cal.2d at 247-248; In re Rothrock (1940) 
    16 Cal. 2d 449
    , 454;
    People v. Gaul-Alexander (1995) 
    32 Cal. App. 4th 735
    , 741; People v. Leach (1959) 
    168 Cal. App. 2d 463
    , 467.)
    The fact that here the city council has not declared a vacancy in the office of
    city clerk upon defendant’s conviction does not change our analysis. Whatever reasons the
    council members may have in failing and refusing to perform their official duties, such
    inaction cannot prevent a determination that defendant committed a crime involving moral
    turpitude.4 At the very least, a substantial question of law and fact is presented whether
    defendant’s office is vacant without a declaration of vacancy by the city council.
    Finally, we note the cautionary language of the Court of Appeal in Lubin v.
    Wilson (1991) 
    232 Cal. App. 3d 1422
    , 1429-1430:
    “Removal from public office is simply a consequence of a reasonable
    and sound public policy, and a condition imposed upon a public official in
    furtherance of the public interest in good government. Public officials are
    elected for the benefit of the community and can and should be removed,
    irrespective of detriment to the individuals involved if the interests of the
    community so require. [Citation.]
    “. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
    4
    Whether individual council members may be prosecuted for “willful omission to perform any duty
    enjoined by law” (Gov. Code, § 1222; see Adler v. City Council (1960) 
    184 Cal. App. 2d 763
    , 774-775; 80
    Ops.Cal.Atty.Gen. 36, 39 (1997); 76 Ops.Cal.Atty.Gen. 289, 292-293 (1993)) or removed from office for
    “willful or corrupt misconduct” (Gov. Code, § 3060; see People v. Hayes (1982) 
    129 Cal. App. 3d 930
    , 938-
    939; People v. Tice (1956) 
    144 Cal. App. 2d 750
    , 754; 80 
    Ops.Cal.Atty.Gen., supra
    , 40-41; 76
    
    Ops.Cal.Atty.Gen., supra
    , 291) would depend upon the particular facts and present issues beyond the scope
    of this opinion. Obviously, if the city council had performed its legal duty on August 10, 1998, or thereafter,
    no application to remove defendant from office would be necessary.
    6                                                        98-1010
    ....
    “. . . Disqualification is automatic, a vacancy occurs, and the convicted
    person forfeits his or her office and the rights and powers incident to office.
    [Citation.] A person holds office subject to conditions imposed by the state
    and, where cause for removal is provided by law, the person is deemed to have
    accepted the office on condition he or she could be removed for that cause and
    in the manner provided. [Citation.]”
    These words are particularly relevant here where defendant has been convicted of defrauding
    the state and is responsible in his official duties for protecting public funds of the City.
    PUBLIC INTEREST
    Nevertheless, we must consider whether, assuming the existence of a
    justiciable issue, the maintenance of an action in quo warranto in the present circumstances
    would be consistent with the public interest. As noted at the outset, defendant’s term expires
    on March 30, 1999. For all practical purposes, therefore, judicial proceedings may not
    reasonably be expected to terminate until after he leaves office. We view our discussion in
    75 Ops.Cal.Atty.Gen. 10, 14 (1992) as dispositive:
    “. . . It is well settled that the mere existence of a justiciable issue does
    not require the Attorney General to grant leave to sue in quo warranto.
    [Citations.]
    “Investigation of the interests of the public must be undertaken in the
    context of the particular facts of each case. It is recognized that the public and
    each public entity have an interest in the undivided loyalty of their elected
    officers. [Citations.] Nevertheless, here the office sought to be declared vacant
    by the proposed action was acquired in April 1988 and expires in April 1992.
    Thus, less than four months remain of a four year term.
    “While it cannot be accurately predicted how long it would take for the
    present action to be filed, heard, and resolved, even in the absence of an
    appeal, it is at least reasonably probable that the issue would become moot
    prior to resolution. Accordingly, we perceive no basis for the expenditure of
    public funds for legal fees and court costs in connection with such a
    proceeding. . . .” (See also 75 Ops.Cal.Atty.Gen. 287, 289-290 (1992).)
    Leave to sue in quo warranto is DENIED.
    *****
    7                                         98-1010
    

Document Info

Docket Number: 98-1010

Filed Date: 2/4/1999

Precedential Status: Precedential

Modified Date: 2/18/2017