Can a city sue in California to remove a water district director, claiming the district wrongly excluded the city's nominee from the appointment ballot?

Plain-English summary

In 2016, the California Legislature restructured the Central Basin Municipal Water District in southeast Los Angeles County following a critical state audit. Assembly Bill 1794 added three appointed seats to the existing four-elected-seat board, including one seat selected by the cities that buy water from the district from among "nominees of cities." A nominee for the city seat must "demonstrate eligibility and relevant technical expertise," meaning at least five years of experience in water-system management, operations, engineering, finance, or regulation.

In January 2017, the City of Huntington Park nominated Dr. Michael Gomez. The district's general manager removed Gomez from the city-category ballot, taking the position that he was not "employed by or a representative of a city" because he had no specific connection to a city in the district. (Gomez had decades of experience on the Walnut Park Mutual Water Company board, but Walnut Park is unincorporated.) The district allowed Gomez on the at-large purveyor ballot, where he lost. With Gomez excluded from the city ballot, John Oskoui ran unopposed and was appointed.

Huntington Park sued in superior court for a writ of mandate. The court ruled that quo warranto was the proper remedy and required the city to first obtain the Attorney General's consent. The city applied. The AG granted leave to sue, concluding that whether Gomez was a "representative of a city" was a substantial legal question warranting judicial review.

Three points drove the AG's analysis. First, the ordinary meaning of "representative" was someone "chosen or elected to speak and act on behalf of others." A city's act of nominating someone naturally implied delegating that person to speak for the city. Second, AB 1794's stated goal of bringing technical expertise onto the board cut against importing extra "nexus" requirements that the Legislature had not written into the statute. Other governance statutes (San Francisco Bay Conservation, San Diego Unified Port District, State Board of Fire Services) included explicit residency or city-employment language; the Legislature's omission of comparable text from Water Code section 71267 cut the other way. Third, the district's "nexus" test was multi-factor and uncertain, while a plain-meaning approach gave a bright-line rule grounded in the cities' votes.

The AG was careful to note this was only leave to sue. The opinion did not decide the merits. It was a finding that the question warranted judicial resolution and that proceeding served the public interest in correct application of district appointment procedures.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What was at stake in this opinion?

Whether the City of Huntington Park could sue, in the name of the People of California, to remove a sitting director of the Central Basin Municipal Water District. The city argued the district had wrongly excluded its nominee from the appointment ballot for the city-category seat. Quo warranto was the only procedurally available remedy.

Did the AG decide that Dr. Gomez was a "representative of a city"?

No. The AG's role at the leave-to-sue stage was preliminary: it determined that there was a substantial issue of law and fact appropriate for a court to decide, and that judicial resolution would serve the public interest. The merits, including the meaning of "representative of a city," remained for the superior court.

Why did the AG focus on the ordinary meaning of "representative"?

California's interpretive default is to give statutory words their ordinary meaning unless the statute defines them otherwise or context requires departure. Water Code section 71267 did not define "representative." Standard dictionaries defined the term as someone chosen to speak or act for another, which is what nomination by a city naturally accomplishes. The AG also pointed to other California statutes (Commercial Code, Public Utilities Code, federal Railway Labor Act) that used "representative" in similarly broad terms.

Why did the AG criticize the district's "nexus" test?

Two reasons. First, it added a requirement (a city-specific connection) that the Legislature had not written into the statute. Where the Legislature wanted such requirements (Bay Conservation, San Diego Port District, State Board of Fire Services), it had drafted them. Second, the multi-factor nexus test created uncertainty about when a candidate qualified or when an incumbent's connection became too thin. A plain-meaning rule, by contrast, depended on the cities' votes and was easy to administer.

What happens after a leave-to-sue grant?

The relator (here, the city) files a quo warranto action against the defendant (the seated director) in superior court. The defendant is entitled to file a response and contest the facts. The court decides the merits on the record before it. If the court ultimately rules that the appointment process was defective, it can void the seating and require a new process, which the AG noted could include re-nomination of the previously seated director.

Does this opinion bind the Central Basin Water District today?

The opinion granted leave to sue based on the law as it stood in 2018. Subsequent litigation, statutory amendments, or further AG opinions may have changed the analysis. Anyone working with Water Code section 71267 today should verify current statute and case law.

Background and statutory framework

The Central Basin Municipal Water District

The district was created in 1952 under the Municipal Water District Law of 1911 to mitigate groundwater overpumping in southeast Los Angeles County. It buys imported water from the Metropolitan Water District of Southern California and sells it to local water purveyors, both municipal water companies and private utilities, who then deliver water to retail users.

In December 2015, the State Auditor reported that the district had engaged in improper contracting practices, spent public funds outside its mission, and lacked appropriate leadership. The Legislature responded with Assembly Bill 1794, codifying Water Code sections 71265 through 71267 effective January 1, 2017.

How AB 1794 restructured the board

Before AB 1794, the district was governed by five directors, each elected from a geographic division. AB 1794 reduced elected seats from five to four (effective with the November 2022 election) and added three appointed seats:

1. One seat selected by all "large water purveyors" of the district from large-purveyor nominees. A "large water purveyor" is one of the top five purchasers of district water by volume over the prior three fiscal years.
2. One seat selected by all cities that are water purveyors of the district from city nominees. Each city has one vote.
3. One seat selected by all water purveyors of the district from any nominee, with votes weighted by service connections.

Appointed directors must demonstrate "relevant technical expertise" (defined as at least five years in qualifying water-system roles), live or work within the district, hold no elective office, and own no more than 0.5 percent of any utility regulated by the Public Utilities Commission. The term of an appointed city-category director is "terminated if the appointed director no longer is employed by or a representative of a city."

The dispute

Huntington Park nominated Dr. Gomez in January 2017. Gomez had 26 years on the board of the Walnut Park Mutual Water Company, a district water purveyor whose service area was an unincorporated community. The district's general manager allowed Gomez on the at-large purveyor ballot but removed him from the city-category ballot, finding he was not "a representative of a city" because he lacked a city-specific nexus. Oskoui, then unopposed in the city category, was appointed.

The city sued first in mandate; the superior court sustained a demurrer, ruling quo warranto was the sole remedy. The AG's opinion is the leave-to-sue determination required before the city could refile in quo warranto.

Quo warranto and the leave-to-sue framework

Code of Civil Procedure section 803 authorizes quo warranto actions against persons who "usurp, intrude into, or unlawfully hold or exercise" a public office. A private party (or, here, a municipality) needs the AG's consent to bring such a suit. The AG applies a three-part framework:

1. Quo warranto is the proper remedy.
2. The application presents a substantial issue of law or fact warranting judicial resolution.
3. Granting leave serves the public interest.

The AG found all three satisfied. Quo warranto was the proper remedy because Oskoui held a "public office" (a water district director seat) and the city challenged his title to that office. The substantial-issue requirement was met because the meaning of "representative of a city" was an unsettled statutory question with serious arguments on both sides. And the public interest was served by clarifying the district's appointment procedures.

Citations

The AG's analysis drew on the major California cases and AG opinions on quo warranto and statutory construction:

• Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221 establishes that the proper test of an unlawful officeholder's title is quo warranto, not mandate.
• Rando v. Harris (2014) 228 Cal.App.4th 868 describes the AG's discretion in granting or denying leave to sue.
• Moore v. Panish (1982) 32 Cal.3d 535 sets out the test for what counts as a "public office."
• Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th 1241 illustrates the principle that statutory terms keep their ordinary meaning across contexts unless context dictates otherwise.
• Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379 is the standard reference for California's statutory-construction methodology.

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/17-902_2.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
XAVIER BECERRA
Attorney General

OPINION
of
XAVIER BECERRA
Attorney General
LAWRENCE M. DANIELS
Deputy Attorney General

No. 17-902
April 24, 2018

Proposed relator THE CITY OF HUNTINGTON PARK has requested leave to sue proposed defendant JOHN OSKOUI in quo warranto to remove him from the Board of Directors of the Central Basin Municipal Water District. Proposed relator contends that the water district improperly excluded proposed relator's nominee from consideration for appointment as a director of the district by incorrectly concluding that the nominee was not "a representative of a city" within the meaning of Water Code section 71267, subdivision (f)(2).

CONCLUSION

Whether proposed relator's nominee was "a representative of a city" and was therefore improperly excluded from consideration for appointment, thereby requiring proposed defendant's removal from office so that a new appointment process may be conducted, presents substantial questions of law and fact warranting judicial resolution. Further, allowing the action to proceed would serve the public interest. Therefore, leave to sue in quo warranto is GRANTED.

ANALYSIS

Introduction

Water Code section 71267, subdivision (f)(2) provides that "[t]he term of a director" appointed on behalf of cities who are water purveyors of the Central Basin Municipal Water District (District) "is terminated if the appointed director no longer is employed by or a representative of a city." In its application to sue proposed defendant John Oskoui (Defendant) in quo warranto, proposed relator the City of Huntington Park (City) seeks to remove Defendant from his office as an appointed District director, so that the City's own nominee for that office, Dr. Michael Gomez, may be considered for appointment. The City claims that the District wrongly excluded Dr. Gomez from consideration for appointment based on an incorrect determination that he was not a "representative of a city." The City argues that, consistent with the ordinary meaning of "representative," it selected Dr. Gomez to speak and act for it by nominating him. For the reasons that follow, we believe that the City's claim warrants a judicial resolution.

Background

The District is a municipal water district organized in 1952 under the Municipal Water District Law of 1911 to help mitigate groundwater overpumping in southeast Los Angeles County. The District purchases imported water from the Metropolitan Water District of Southern California and sells the water within the District's boundaries to water purveyors (municipal water companies, investor-owned utilities, private companies, and other water districts) which then retail the water to residents and businesses. The City is a water purveyor of the District and provides water to residents of the City.

The District's board of directors was formerly composed of five members, each elected by the voters of one of the District's five geographical divisions to represent that division. In December 2015, an audit by the California State Auditor reported that, among other things, the District engaged in improper contracting practices, spent public funds unrelated to its mission, and failed to provide appropriate leadership. In response, the Legislature enacted Assembly Bill Number 1794, adding Water Code sections 71265 through 71267, effective January 1, 2017. These sections implemented one of the audit's recommendations: to improve the District's governance by expanding the membership of the board of directors to include appointees of different categories of water purveyors. The Legislature's purpose in enacting this legislation was to increase the board's technical expertise and to make it more representative and accountable to a greater range of stakeholders.

Specifically, this legislation reduced the number of elected directors from five to four, and created three appointee-positions to the board, for a total of seven directors. In this new scheme, one appointed position is to be selected by each of the following: (1) all large water purveyors of the District from the nominees of large water purveyors; (2) all cities that are water purveyors of the District from the nominees of cities; and (3) all water purveyors of the District from any nominee. The nominee of each of these three water-purveyor categories who receives the highest number of votes from the specified water purveyors is appointed as director for that category.

The category at issue in this matter is all cities that are water purveyors of the District (the city category). For appointment to the city category, a nominee must "demonstrate eligibility and relevant technical expertise." An appointed director in the city category must live or work within the District, hold no elective office, and own no more than 0.5 percent of a company regulated by the Public Utilities Commission. In addition, "[t]he term of a director [in the city category] is terminated if the appointed director no longer is employed by or a representative of a city."

We are informed that in January 2017, the City nominated Dr. Michael Gomez as its nominee for cities and as its nominee for all water purveyors. The general manager of the District permitted Dr. Gomez to be placed on the ballot in the all-water-purveyor category but refused it in the city category on the ground that he was not "employed by or a representative of a city."

In February 2017, over the City's objections, the District conducted the vote for appointment in the all-water-purveyor category with Dr. Gomez on the ballot and in the city category without Dr. Gomez on the ballot. In the all-water-purveyor category, Dr. Gomez was not selected for appointment. In the city category, Defendant was the only nominated candidate and was appointed as a director of the District for a four-year term expiring in February 2021. In a letter to the District, the City argued that Defendant's appointment was invalid because Dr. Gomez was its designated representative by virtue of its nomination and thus should have been on the appointment ballot.

In March 2017, the District sent a letter to the City rejecting its claim that the appointment process had been improper. The District reiterated that Dr. Gomez was not an employee of a city. It explained that Dr. Gomez also was not a representative of a city because, based on all the circumstances, he had no "nexus" with a city in the District. Although Dr. Gomez had relevant technical experience from his 26 years on the Board of Directors of the Walnut Park Mutual Water Company, a water purveyor of the District, that company only supplied water to the unincorporated area of Walnut Park, not to a city. Nor did Dr. Gomez live or work in the City or serve on any water commission of the City.

In May 2017, the City filed a petition for writ of mandate in superior court against the District to order a new appointment-process on the ground that the City's nominee, Dr. Gomez, was improperly excluded from consideration for appointment in the city category. In June 2017, the District filed a demurrer arguing, in part, that quo warranto, not mandate, was the appropriate form of action. In July 2017, the superior court sustained the demurrer on this basis with leave to amend if the City obtained the Attorney General's consent to file an action in quo warranto.

The Nature of Quo Warranto

Quo warranto is used to challenge whether someone unlawfully holds a public office. Code of Civil Procedure section 803 provides:

An action may be brought by the attorney-general, in the name of the people of this state, upon his own information, or upon a complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office . . . within this state.

When a private party wishes to file a quo warranto action in superior court, the party must first obtain permission, or "leave," from the Attorney General. In order to grant an applicant leave to sue in quo warranto, we must make three findings: (1) quo warranto is the proper remedy to resolve an issue presented; (2) the application presents a substantial issue of law or fact appropriate for judicial resolution; and (3) granting the application would serve the overall public interest. Using this three-part framework, we consider the question presented in Relator's application.

1. Quo Warranto is the Proper Remedy Here

To decide if quo warranto is the proper remedy, we examine whether Defendant is holding a public office and whether the City is challenging Defendant's title to that public office. We have previously determined that a director of the District holds a public office. The position of a water-district director is a public office because: it is a governmental position; created or authorized by law; with a continuing and permanent tenure; and in which the incumbent performs a public function and exercises some sovereign powers of government.

We also find that the City is challenging Defendant's title to the office of District director in the city category by claiming that the District wrongfully excluded its nominee for that office. Defendant argues that quo warranto is not a proper remedy in this instance because there is no dispute that he was qualified to serve, and because the City does not directly challenge his qualifications or right to hold office. However, if the City is correct that Dr. Gomez, the City's nominee, should have been considered for appointment, then Defendant's appointment resulted from a defective appointment process, despite Defendant's own apparent eligibility. Where a relator has been prohibited from appointment based on his or her qualifications, this may form a sufficient basis for quo warranto relief. Moreover, in sustaining the District's demurrer, the superior court already determined that quo warranto was the "sole remedy" in this case.

2. The Application Presents Substantial Questions of Law and Fact

Having established that quo warranto is the proper remedy, we next address whether the City has raised a substantial issue of law or fact that warrants judicial resolution. In deciding whether there is a substantial issue of law or fact, we do not purport to determine the merits of the controversy. As we have explained, "the action of the Attorney General is a preliminary investigation, and the granting of the leave is not an indication that the position taken by the relator is correct, but rather that the question should be judicially determined and that quo warranto is the only proper remedy."

Here, the question presented is whether the general manager of the District properly declined to accept Dr. Gomez as the City's nominee in the city category. According to the parties, this question hinges on whether Dr. Gomez, if appointed, would be "a representative of a city" within the meaning of Water Code section 71267, subdivision (f)(2). Again, subdivision (f)(2) provides that "[t]he term of a director appointed pursuant to subparagraph (B) of paragraph (1) of subdivision (c) [the city category] is terminated if the appointed director no longer is employed by or a representative of a city."

In interpreting this language, we rely on well-established rules of statutory construction. The fundamental purpose in interpreting a statute is to ascertain the Legislature's intent in order to effectuate the law's purpose. "If the statute's language is clear and unambiguous, its provisions should be applied according to their terms without further judicial construction so long as their meaning is in accord with the purpose of the statute." "[W]e consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose." Words in statutes are generally accorded "their usual, ordinary meaning, which in turn may be obtained by referring to a dictionary."

Applying these principles, we must determine if there is a substantial question whether the District correctly decided that Dr. Gomez was ineligible for appointment because he was not "employed by or a representative of a city." We believe that the plain meaning of "representative" supports the City's claim that Dr. Gomez was eligible to be "a representative of a city" and should have been considered for appointment. The Legislature did not define "representative" as used in Water Code section 71267, subdivision (c)(1)(B), and the statute's legislative history does not address the meaning of the term. "Representative," however, is commonly and popularly defined as "[a] person chosen or elected to speak and act on behalf of others in a legislative assembly or deliberative body." This dictionary definition of "representative" is consistent with the term's definition in other statutory contexts. In the Commercial Code, for example, "'[r]epresentative' means a person empowered to act for another, including an agent, an officer of a corporation or association, and a trustee, executor, or administrator of an estate."

A plain-meaning interpretation of "representative" comports with the Legislature's goal to enact a law that "allows [the District's] board to draw upon more technical expertise, and makes the board more representative and accountable to a broader range of stakeholders." By broadening the pool of candidates, this interpretation leaves the cities freer to choose the most technically qualified persons. And, by affording the cities more discretion to select or dismiss directors who best further the cities' interests, this interpretation makes the board more accountable to the cities as District stakeholders.

In this case, if the general manager had allowed Dr. Gomez's name to be included on the ballot in the city category, and if the cities had voted to appoint him, the cities would have delegated him to speak for them and act on their behalf. He therefore would have been their "representative" according to that term's plain meaning.

Defendant nonetheless maintains that a nexus with a city was necessary to be a representative of a city. In this connection, he argues that the District properly found that Dr. Gomez had no nexus with the City because: Dr. Gomez lived in an unincorporated community (Walnut Park), not the City; although he was a director of the Walnut Park Mutual Water Company, it has its own water system not served by the District; and he was not a City employee, City water consultant, or City water-commission member. Although Defendant's (and the District's) position is not unreasonable, we see some weaknesses in that approach.

First, there is no support in the ordinary meaning of the phrase "representative of a city" to conclude that the cities cannot decide, without any further showing, that a qualified nominee should act or speak on their behalf. Because this plain meaning is consistent with the statute's purpose, as explained above, it seems needless to venture beyond it.

Second, Defendant's test would insert an additional, "nexus" requirement into the statutory qualifications for serving as an appointee. The Legislature enumerated specific eligibility requirements to ensure the cities would be well-represented (particularly, that their chosen director must have relevant technical expertise and must live or work within the District) but not a city-nexus requirement. With respect to other boards, the Legislature has explicitly imposed eligibility requirements involving a connection with the cities that the appointed board members represent; its omission of such a requirement here cuts against Defendant's interpretation.

Third, the District's nexus test does not accommodate the judicial preference for bright-line rules. Under the District's multi-factor examination, it may be uncertain when a candidate's connection with a city is sufficient, or when a director's connection with a city is no longer sufficient. On the other hand, under the plain-meaning interpretation of the term "representative," the determination becomes clear because it depends solely on the cities' votes to appoint or remove a director.

Defendant also relies on Water Code section 71267, subdivision (c)(2)(B), which provides, "The appointment of directors . . . shall not result in any of the following: . . . . The appointment of three directors that are all employed by or representatives of entities that are all cities." He argues that this provision shows that the Legislature intended "that the cities will have a director of their own, something that would not result if any individual who otherwise is qualified could be nominated in the city category." However, subdivision (c)(2) simply promotes the board's accountability to a greater range of stakeholders by preventing the three appointed directors from all being employees or representatives of the same type of water purveyor (all of cities, or all of large or small water purveyors). It sheds no more light on the meaning of "representative of a city" in Water Code section 71267, subdivision (f)(2).

Our analysis indicates that there are substantial questions of law and fact as to the legality of the procedure by which Defendant was appointed as a director of the District, and that these questions warrant a judicial resolution. We therefore turn to the third and final inquiry, whether it would be in the public interest to grant the application.

3. It Will Serve the Public Interest to Allow the Lawsuit to Proceed

Absent countervailing circumstances not present in this case, we ordinarily view the need for judicial resolution of a substantial question of law or fact as an adequate "public purpose" to warrant granting leave to sue. In addition, here, we find a specific public interest in ensuring correct and consistent evaluations of the qualifications for appointed District directors. As we have explained, the constituents and board of a special district "have mutual interests in a judicial resolution regarding the procedures to be followed in making appointments to the Board." Accordingly, for the reasons discussed above, the City's application for leave to sue in quo warranto is GRANTED.