                           OFFICE OF THE ATTORNEY GENERAL


                                     State of California



                                    JOHN K. VAN DE KAMP


                                       Attorney General



                          ______________________________________

                  OPINION            :
                                     :          No. 90-391
                  of                 :
                                     :          JULY 6, 1990
       JOHN K. VAN DE KAMP           :
           Attorney General          :
                                     :
       RODNEY O. LILYQUIST           :
        Deputy Attorney General      :
                                     :
______________________________________________________________________________

                THE BOARD OF TRUSTEES OF THE SAN LUIS COASTAL UNIFIED
SCHOOL DISTRICT ("Board") has requested this office to grant it leave to sue CAROLINE
BOTWIN pursuant to the provisions of Code of Civil Procedure sections 803-810. The proposed
complaint alleges that Ms. Botwin is disqualified from holding the office of Board member
because she is a certificated employee of the San Luis Coastal Unified School District
("District"). In her response, Ms. Botwin alleges that a school teacher is not barred from being
elected to the office of school district board member.

                                         CONCLUSION

               Leave to sue is denied.


                                      MATERIAL FACTS

               On September 6, 1983, Ms. Botwin was hired by the District as a probationary
certificated employee to teach English at Morro Bay High School. On June 30, 1985, she became
a permanent certificated employee of the District and has continued to serve as a full-time teacher
of English at Morro Bay High School.

              On November 7, 1989, Ms. Botwin was elected as a member of the governing
board of the District. On February 2, 1990, Ms. Botwin took the oath of office as a Board
member.

                                         LEGAL ISSUE

              May a school teacher lawfully hold the office of school trustee for the district in
which he or she is employed?




                                                  1.                                          90-391

                                           ANALYSIS



               Code of Civil Procedure 803 authorizes the Attorney General to bring an action
"in the name of the people . . . upon a complaint of a private party, against any person who
usurps, intrudes into, or unlawfully holds or exercises any public office . . . ." The action
authorized is "in the nature of quo warranto." (International Assn. of Fire Fighters v. City of
Oakland (1985) 174 Cal.App.3d 687, 693.)

               Preliminarily we note that the right to seek public office is constitutionally
protected. In Canaan v. Abdelnour (1985) 40 Cal.3d 703, 727, the Supreme Court observed:

                "The right to seek public office and the right to the unrestricted exercise
       of the franchise are fundamental. They are protected by the First Amendment and
       article 1, section 2 of the California Constitution."

In Helena Rubenstein International, Inc. v. Younger (1977) 71 Cal.App.3d 406, 418, the court
declared:

               "We consider disqualification from public office a significant civil
       disability. In California, the right to hold public office has long been recognized
       as a valuable right of citizenship. In 1869, in People v. Washington, 36 Cal. 658,
       662, our Supreme Court declared that "[t]he elective franchise and the right to
       hold public offices constitute the principal political rights of citizens of the
       several States." In Carter v. Com. on Qualifications etc., 14 Cal.2d 179, 182, the
       court pointed out: "[T]he right to hold public office, either by election or
       appointment, is one of the valuable rights of citizenship . . . The exercise of this
       right should not be declared prohibited or curtailed except by plain provisions of
       law. Ambiguities are to be resolved in favor of eligibility to office. . . ." (Italics
       added.) More recently, the high court, citing Carter, has termed the right to hold
       public office a "fundamental right." (Zeilenga v. Nelson, 4 Cal.3d 716, 720; Fort
       v. Civil Service Commission, 61 Cal.2d 331, 335.) Thus, any ambiguity in a
       constitutional provision calling for forfeiture of an existing office and
       disqualification from holding public office should be resolved in favor of
       continued eligibility."

               With respect to the statutory qualifications for being a school board member in
California, Education Code section 35107 provides:

                "Any person, regardless of sex, who is 18 years of age or older, a citizen
       of the state, a resident of the school district, a registered voter, and who is not
       disqualified by the Constitution or laws of the state from holding a civil office, is
       eligible to be elected or appointed a member of a governing board of a school
       district."

The Legislature thus has not expressly precluded school teachers from serving as school board
members.1 Indeed, Education Code section 35107 gives a statutory right to hold the office of

   1
     In contrast the Legislature has prohibited school teachers and other district employees from
serving on a county board of education. Education Code section 1006 states:

               "Any registered voter is eligible to be a member of the county board of

                                                2.                                              90-391
school trustee by those meeting its criteria. Ms. Botwin meets the qualifications specified in the
statute.

                In light of Education Code section 35107, we believe that the only basis here for
possibly granting leave to sue under the terms of Civil Code sections 803-810 would be the
application of the "incompatibility of office" doctrine. Institution of "quo warranto" proceedings
would be appropriate if both positions held by Ms. Botwin were "offices," and the offices were
incompatible under the terms of this common law doctrine. (See, e.g., 27 Ops.Cal.Atty.Gen. 33
(1956).) In the leading case of People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636, the
Supreme Court ruled that a "quo warranto" action was properly filed against a city judge who had
accepted an appointment as the city attorney. The court applied the common law rule "that the
acceptance by a public officer of another office which is incompatible with the first thereby
vacates the first office; that is, the mere acceptance of the second incompatible office per se
terminates the first office as effectively as a resignation." (Id., at p. 644.)2

                The incompatibility of office prohibition has no application, however, when one
of the two positions is an employment rather than an office. (68 Ops.Cal.Atty.Gen. 337, 339-340
(1984).) It has long been decided that a school teacher is an employee rather than an officer for
purposes of this common law doctrine. (9 Ops.Cal.Atty.Gen. 64, 66 (1947); see Coulter v. Board
of Education (1974) 40 Cal.App.3d 445, 455; Main v. Claremont Unified School Dist. (1958) 161
Cal.App.2d 189, 197-198; Leymel v. Johnson (1930) 105 Cal.App. 694, 699-703.) Accordingly
this doctrine does not provide a basis for granting leave to sue Ms. Botwin under the terms of
Civil Code sections 803-810. We know of no other constitutional principle or rule of law that
would bar Ms. Botwin from being elected to the office of school trustee.

               It must be conceded, however, that Ms. Botwin will have a conflict of interests
from time to time when performing her dual responsibilities for the District. Decisions as a
Board member regarding salaries for teachers (Ed. Code, §§ 45022; see Gov. Code, § 3540.1)
provide an obvious conflict for Ms. Botwin. A proposal to spend money on any program other
than teacher salaries may be viewed as competing against fund proposals for teacher
compensation and benefits including reduced class sizes. The administrators who have authority
over and evaluate Ms. Botwin's teaching performance are in turn subject to evaluation by the
Board. (Ed. Code, §§ 35160.5, 44660-44665.) Board members are required to act upon all
recommendations for dismissal or disciplinary action involving teachers and would necessarily
decide whether to lay off any employees in the event of a lack of funds. (Ed. Code, §§ 44932,
44955.)

                 While these situations may call for the application of various conflict of interests
laws, the laws themselves normally do not call for a resignation from one of the conflicting
positions or activities. Instead, each matter is usually decided on an individual basis with the
person abstaining when so required. In any event, these laws do not provide a basis for trying
title to office in a "quo warranto" proceeding. They depend upon activities subsequent to the
person taking the oath of office.



        education except the county superintendent of schools, any member of his staff, or
        any employee of a school district."
  2
    As pointed out in the Supreme Court's language, if the incompatibility of office doctrine were
to apply to Ms. Botwin, she would be held to have vacated the (first) "office" of certificated
employee and would retain her (second) office as Board member.

                                                 3.                                          90-391
                  For example, the Political Reform Act of 1974 (Gov. Code, §§ 81000-91015),
which is the principal conflict of interests statutory scheme in California, prohibits participating
in or influencing governmental decisions on a case by case basis. (Gov. Code, § 87100 ["No
public official . . . shall make, participate in making or in any way attempt to use his official
position to influence a governmental decision in which he knows or has reason to know he has
a financial interest"]; see 70 Ops.Cal.Atty.Gen. 45, 46 (1987); 67 Ops.Cal.Atty.Gen. 7, 9 (1984);
63 Ops.Cal.Atty.Gen. 916, 918-919 (1980).) Not only does this legislation not cause a forfeiture
of office, it would be inapplicable to the present situation of a school teacher elected to be a
school board member. "As a general proposition, the PRA was intended to proscribe conflicts
arising between public duties and private or personal financial interests, and not conflicts which
might arise between two public interests an individual might have." (59 Ops.Cal.Atty.Gen. 604,
614, fn 15 (1976).) While "financial interest" is defined to include "[a]ny source of income"
(Gov. Code, § 87103, subd. (c)), "income" is defined to exclude "[s]alary . . . received from a
state, local, or federal government agency" (Gov. Code, § 82030, subd. (b)(2)). Because of this
exclusion, Ms. Botwin's salary as an employee of the District would not affect her decision-
making duties as a Board member for purposes of the Political Reform Act of 1974. (See 68
Ops.Cal.Atty.Gen. 337, 353 (1985); 61 Ops.Cal.Atty.Gen. 412, 414 (1978); 59 Ops.Cal.Atty.Gen.
604, 612, fn. 15 (1976).)

              Another conflict of interests statute, one that is made expressly applicable to
school board members,3 is Government Code section 1090. It provides in part:

                  "Members of the Legislature, state, county, district, judicial district, and
         city officers or employees shall not be financially interested in any contract made
         by them in their official capacity, or by any body or board of which they are
         members."

This prohibition would clearly prevent a school board member from becoming a teacher in the
same district. (See Thomson v. Call (1985) 38 Cal.3d 633, 645; Neilsen v. Richards (1925) 75
Cal.App.680, 691; 69 Ops.Cal.Atty.Gen. 305, 307-309 (1982); 26 Ops.Cal.Atty.Gen. 281, 283-
286 (1955).)

              On the other hand, it is equally clear that the terms of Government Code section
1090 would not prevent a teacher with an existing contract from becoming a school board
member. The person would not have had the dual roles at the time the contract was executed.
(See City of Imperial Beach v. Bailey (1980) 103 Cal.App.3d 191, 194-196; 69
Ops.Cal.Atty.Gen. 102, 107-108 (1986); 65 Ops.Cal.Atty.Gen. 305, 306-308 (1982); 3
Ops.Cal.Atty.Gen. 332, 333-334 (1944).)

               While Government Code section 1090 normally does not allow the making of a
contract by a governmental board even when the financially interested board member abstains
(Thomson v. Call, supra, 38 Cal.3d 633, 649; City of Imperial Beach v. Bailey, supra, 103
Cal.App.3d 191, 195), various statutory exceptions exist to the prohibition (see Gov. Code, §§
1091, 1091.5; Citizen Advocates, Inc. v. Board of Supervisors (1983) 146 Cal.App.3d 171, 178-

   3
       Education Code section 35233 provides:

                  "The prohibitions contained in Article 4 (commencing with Section 1090)
         and Article 4.7 (commencing with Section 1125) of Division 4 of Title 1 of the
         Government Code are applicable to members of governing boards of school
         districts."

                                                  4.                                             90-391

179; Frazer-Yamor Agency, Inc. v. Del Norte County (1977) 68 Cal.App.3d 201, 217-218),4 and
a "rule of necessity" has been applied in various circumstances to allow the making of a contract
that Government Code section 1090 would otherwise proscribe (see 69 Ops.Cal.Atty.Gen. 102,
107-112 (1986); 65 Ops.Cal.Atty.Gen. 305, 308-311 (1982)). We have based our "rule of
necessity" opinions allowing school boards to enter into contracts with their employees on the
grounds that a school board is the only entity empowered to contract on behalf of a school
district, a district must employ teachers, and teachers have statutory rights against termination
except for cause. (See also Caminetti v. Pac. Mutual L. Ins. Co. (1943) 22 Cal.2d 344, 366-367;
Gonzalves v. City of Dairy Valley (1968) 265 Cal.App.2d 400, 404-405; Jeffery v. City of Salinas
(1965) 232 Cal.App.2d 29, 40; 69 Ops.Cal.Atty.Gen. 255, 256-257; 67 Ops.Cal.Atty.Gen. 369,
378 (1984).)

               At most, then, Government Code section 1090 would require Ms. Botwin to
abstain when the Board is making contracts in which she has a financial interest and would
prevent her from changing her employment relationship with the District by promotion or
otherwise. (See 69 Ops.Cal.Atty.Gen. 102, 110, fn. 7 (1986). The basis for the latter treatment
would be that no "necessity" would exist for the Board to act with respect to a change of position.

                Importantly for purposes of this "quo warranto" application, the provisions of
Government Code section 1090 do not cause a forfeiture of office or even provide a basis for
requiring the person to resign. (Thomson v. Call, supra, 38 Cal.3d 633, 650, fn. 25 ["Resignation
from office does not, however, appear to be a viable alternative; indeed, it may be counter to the
public interest in retaining competent public officers"]; 67 Ops.Cal.Atty.Gen. 7, 10 (1984)
[Government Code section 1090 "is not intended to prohibit an individual from holding public
office or employment"]; 65 Ops.Cal.Atty.Gen. 305, 310 (1982) [" . . . The superintendent need
not resign. First of all, as an elective official, he has been placed in office by the people. The
electorate have a right to expect that he will serve unless he voluntarily resigns from office or is
removed from office under clearly established procedures for removal (e.g., recall by the
electorate, see Elec. Code, § 27000 et seq., or removal for willful or corrupt misconduct in office,
Gov. Code, § 3060 et seq.)"].)

                 Another conflict of interests statute made expressly applicable to school board
members (see Ed. Code, § 35233) is Government Code section 1126. The basic prohibition of
this statute is found in subdivision (a) and states as follows:

                " . . . a local agency officer or employee shall not engage in any
        employment, activity, or enterprise for compensation which is inconsistent,
        incompatible, in conflict with, or inimical to his or her duties as a local agency
        officer or employee . . . ."

                 We have previously concluded that the application of Government Code section
1126 does not cause a forfeiture of office or even require resignation. Normally, abstention on
a transaction by transaction basis is all that is required when a particular conflict arises under this
statute. "It is therefore concluded that section 1125 et seq. do not require a resignation of one
office or employment if an incompatibility is found within the meaning of section 1126, but that
abstention will be permitted on a transactional basis." (59 Ops.Cal.Atty.Gen. 604, 613 (1976);
accord, 70 Ops.Cal.Atty.Gen. 157, 162 (1987).)

  4
    We note that Education Code section 35239 acts as a special statutory exception to the general
prohibition of Government Code section 1090 for small school districts meeting the conditions
specified therein.

                                                  5.                                           90-391
               Even if the conflict of interests were found to be pervasive and continuing for
purposes of Government Code section 1126, the appropriate remedy would not be a "quo
warranto" proceeding to try title to the office. Rather, we have said that a grand jury accusation
(Gov. Code, § 3060) or recall by the electorate (Elec. Code, §§ 27000-27346) based upon
misconduct while in office would provide appropriate remedies if the individual did not
voluntarily cease one of the conflicting activities. (70 Ops.Cal.Atty.Gen. 157, 166-167 (1987).)


                Having found no basis upon which to grant leave to sue pursuant to the terms of
Civil Code sections 803-810, we conclude that it would not be in the interests of the public to
institute proceedings against Ms. Botwin as requested by the Board.

                                            *****




                                                6.                                        90-391


