NAPA COUNTY COUNSEL
Minh C. Tran, County Counsel
1195 3rd Street, Suite 301
Napa, CA 94559
www.co.napa.ca.us
Main: (707) 253-4521
Fax: (707) 259-8220
To: Board of Supervisors
From: Minh C. Tran, County Counsel
Janice D. Killion, Deputy
Date: September 17, 2013
Re: Board Appointment of Registrar of Voters
The manner in which the Board of Supervisors may separate the duties and responsibilities of county
officers is set forth in California Government Code section 24301, which allows the Board to separate duties by
ordinance. Effective in 2009, Napa County was added to Government Code section 26802.51, which specifically
allows separation of the duties of the Registrar of Voters from the elected County Clerk officer.
Case law firmly holds that if the consolidated duties would each have to be performed by an elected
official, any separation must occur at the end of the elected official’s term in order to preserve the vote of the
people. (Connolly v. County of Orange (1992) 1 Cal.4th 1105; People v. Langdon (1976) 54 Cal.App.3d 384, 390)
On the other hand, duties not required to be performed by an elected official may be separated from that
position at any time. For instance, the duty of purchasing agent could be performed by someone other than the
clerk of the board, and duties of the clerk of the superior court could be performed by someone other than the
county clerk. (Anderson v Superior Court (1995) 11 Cal.4th 1152)
The separation of the superior court clerk and county clerk positions is analogous to our Registrar of
Voter (ROV) situation. By statute, the duties of superior court clerk were performed ex officio by the elected
county clerk, however statutes also allowed a local superior court to separate the court clerk duties and assign
them to court personnel. As stated in Anderson, supra “No provision of law requires that the person assigned the
duties of superior court clerk be elected to perform those duties. It follows that the duties of superior court clerk
may be transferred under local rule . . . to another county officer before expiration of petitioner's term.”
The ROV is not a statutorily elected position; however the county clerk, which is an elected position, is
statutorily required to perform the duties of the ROV unless the ROV duties are separated by ordinance. It is
arguable, then, that the ROV duties may be separated from the county clerk at any time pursuant to Anderson.
The remaining question is that whether or not the ROV is so combined with the County Clerk that
separating the duties would infringe on the electorate’s choice of the ROV. The Anderson court noted that the
§ 26802.5. Appointment and duties of registrar of voters in certain county; County clerk not ex officio registrar
In the Counties of El Dorado, Imperial, Kings, Lake, Marin, Merced, Monterey, Napa, Riverside, San Joaquin, Solano, and
Tulare, a registrar of voters may be appointed by the board of supervisors in the same manner as other county officers are
appointed. In those counties, the county clerk is not ex officio registrar of voters, and the registrar of voters shall discharge all
duties vested by law in the county elections official that relate to and are a part of the election procedure.
1
Board of Supervisors
Re: Separation of ROV duties
September 17, 2013
Page 2 of 2
existence of the statutory authority to split the court clerk duties from the county clerk duties was presumably
known by both the county clerk and the voters: “Each county clerk would have run for and, if successful, taken
office with actual or constructive notice of … (the law governing the county clerks’ duties) and its possible effect
upon them during their term of office, as would each voter who, like county clerks and all the rest of us, are
presumed to know the law."
The above reasoning in Anderson regarding actual or constructive notice of the law by the voters would also
authorize the separation of the ROV’s duties mid-term.
Timeline if ROV duties were separated at the end of the current term:
The current term of the Assessor-Recorder-County Clerk ends in January of 2015. The election to select
the next Assessor-Recorder-County Clerk is scheduled to occur June 3, 2014. Therefore, if the Board wishes to
separate the duties of the ROV and the County Clerk prior to the next election cycle, it would need to enact an
implementing ordinance prior to December 27, 20132,
This approach will ensure the required ordinance will be in effect prior to the date nomination papers for
the consolidated position of Assessor-Recorder-County Clerk must be made available and avoids any argument
that once nomination papers are taken out for the position of Assessor-Recorder-County Clerk, the positions of
County Clerk and ROV cannot be separated until the end of the term which would be January of 2019. The actual
separation of duties would not take place until the end of 2014, when the current office expires.
The recommended outside timeline for enacting the ordinance that will take effect not later than
December 27, 2013, is as follows:
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

November 12 regular meeting of the Board – first reading of the ordinance
November 26 regular meeting of the Board – second reading
Publication of the ordinance or a summary of it within 15 days of the adoption of the ordinance
(Government Section 25124)
December 26 – ordinance is effective (30 days after its passage pursuant to Government Section 25123)
Please advise if you need anything further regarding this matter or wish further analysis of the manner in
which the County Clerk, County Recorder or County Assessor could be reconstituted as one or more separate
offices.
2
Pursuant to Elections Code Section 8020, the first date that nomination forms must be made available is 113 days prior to
the June 3, 2014 election date. Elections Code Section 8016 requires petitions with signatures in lieu of filing fee be made
available 45 days prior, for a total of 158 days prior to the June election, which is December 27, 2013.
cc/doc/rov/separation of duties