                                     TO BE PUBLISHED IN THE OFFICIAL REPORTS

                                          OFFICE OF THE ATTORNEY GENERAL
                                                    State of California

                                                 DANIEL E. LUNGREN
                                                    Attorney General
                                        ______________________________________

                                       OPINION             :
                                                           :          No. 96-707
                                       of                  :
                                                           :         August 5, 1997
                             DANIEL E. LUNGREN             :
                                Attorney General           :
                                                           :
                              CLAYTON P. ROCHE             :
                             Deputy Attorney General       :
                                                           :
                    ______________________________________________________________________

                     THE HONORABLE TOM J. BORDONARO, JR., MEMBER OF THE CALIFORNIA
         ASSEMBLY, has requested an opinion on the following question:

                         Is Labor Code section 1150 constitutional in prohibiting members of the Agricultural Labor
         Relations Board from engaging in any other business, vocation, or employment?



                                                        CONCLUSION

                         Labor Code section 1150 is constitutional in prohibiting members of the Agricultural Labor
         Relations Board from engaging in any other business, vocation, or employment.



                                                          ANALYSIS

                          Labor Code section 1150 Footnote No. 1 provides:

                         "Each member of the board and the general counsel of the board shall be eligible for
               reappointment, and shall not engage in any other business, vocation, or employment."

         The "board" is the Agricultural Labor Relations Board (§ 1140.4, subd. (i); "Board"). We are asked whether
         section 1150 is constitutional in prohibiting Board members from engaging "in any other business, vocation,
         or employment." We conclude that the statutory prohibition is constitutional.

                         In addressing this question, we first note that section 1150 is part of the
         Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975 (§§ 1140-1166.3; "Act"). The
         purpose of the Act is to provide collective bargaining rights for agricultural employees. Section 1140.2 states:

                          "It is hereby stated to be the policy of the State of California to encourage and protect

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                             t s e eby stated to be t e po cy o t e State o Ca o a to e cou age a d p otect
               the right of agricultural employees to full freedom of association, self-organization, and
               designation of representatives of their own choosing, to negotiate the terms and conditions of
               their employment, and to be free from the interference, restraint, or coercion of employers of
               labor, or their agents, in the designation of such representatives or in self-organization or in other
               concerted activities for the purpose of collective bargaining or other mutual aid or protection.
               For this purpose this part is adopted to provide for collective-bargaining rights for agricultural
               employees."

         The Act is administered by the Board (§§ 1141-1151.6), which consists of five members appointed by the
         Governor with the advice and consent of the Senate. The Board has the authority to delegate certain of its
         powers to members of its staff. Subdivision (b) of section 1142 provides:

                           "Besides the principal office in Sacramento, as provided in subdivision (a), the board
               may establish offices in such other cities as it shall deem necessary. The board may delegate to
               the personnel of these offices such powers as it deems appropriate to determine the unit
               appropriate for the purpose of collective bargaining, to investigate and provide for hearings, to
               determine whether a question of representation exists, to direct an election by a secret ballot
               pursuant to the provisions of Chapter 5 (commencing with Section 1156), and to certify the
               results of such election, and to investigate, conduct hearings and make determinations relating to
               unfair labor practices. The Board may review any action taken pursuant to the authority
               delegated under this section upon a request for a review of such action filed with the board by an
               interested party. Any such review made by the Board shall not, unless specifically ordered by the
               board, operate as a stay of any action taken. The entire record considered by the board in
               considering or acting upon any such request or review shall be made available to all parties prior
               to such consideration or action, and the board's findings and action thereon shall be published as
               a decision of the board."

         Nevertheless, Board members essentially serve "full-time" in the performance of their official duties.
         Footnote No. 2

                           In addressing the constitutionality of section 1150, we will analyze (1) the possible
         constitutional rights of Board members that are affected by section 1150, (2) the standard of review to be
         applied in such circumstances, and (3) the application of the appropriate standard to section 1150 in light of
         similar applications in other cases.

                          1.         The Right To Work

                           Section 1150 prohibits all forms of outside employment by Board members. Does such
         prohibition interfere with or regulate any recognized constitutional rights of the members?

                           In Truax v. Raich (1915) 239 U.S. 33, the court found a "right to work" in the due process
         clause of the Fifth Amendment to the United States Constitution Footnote No. 3 and its substantive component
         in the Fourteenth Amendment. Footnote No. 4 As stated in Truax:

                           ". . . It requires no argument to show that the right to work for a living in the common
               occupations of the community is of the very essence of the personal freedom and opportunity
               that it was the purpose of the [Fifth] Amendment to secure. . . . " (Id., at p. 41.)

         Or as subsequently stated in Meyer v. Nebraska (1923) 262 U.S. 390, 399, in the context of the Fourteenth
         Amendment:

                         "While this Court has not attempted to define with exactness the liberty thus
               guaranteed the term has received much consideration and some of the included things have been

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               guaranteed, the term has received much consideration and some of the included things have been
               definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the
               right of the individual to contract, to engage in any of the common occupations of life, to acquire
               useful knowledge, to marry, establish a home and bring up children, to worship God according to
               the dictates of his own conscience, and generally to enjoy those privileges long recognized at
               common law as essential to the orderly pursuit of happiness by free men." (Italics added.)

                           California, likewise, has recognized a constitutionally protected "liberty" interest in the right
         to work in the common occupations of life. (See Frink v. Prod (1982) 31 Cal.3d 166, 174-175, fn. 12; Sail'er
         Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 17; Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566,
         579.) In Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 470, the court explained:
         "An individual's freedom of opportunity to work and earn a living has long been recognized as one of the
         fundamental and most cherished liberties enjoyed by members of our society."

                           Accordingly, it may be urged that section 1150 interferes with a Board member's
         constitutionally protected "liberty" interest under the Fifth and Fourteenth Amendments to engage in "the
         common occupations of life."

                          2.          The Standard of Review

                           In Bowman v. Township of Pennsauken (D.N.J. 1989) 709 F.Supp. 1329, 1346, the court
         applied the "rational relationship" test to a city council's resolution governing outside employment of its
         off-duty police officers:

                           "The court must next resolve whether the resolution unconstitutionally infringes upon
               the officers' liberty interest in pursuing a common occupation. The resolution of this question
               begins with the determination of the appropriate standard of review. Municipal resolutions that
               do not impinge upon a fundamental right or suspect class are reviewed under the rational
               relationship test. [Citations.] In fact, the Supreme Court has held that municipal regulations
               governing police employment are entitled to a presumption of validity. [Citation.] This rational
               relationship test has been followed by numerous courts analyzing challenges of a broad array of
               police regulations. . . .

                            "Under the rational relationship test, the court must determine whether the adopted
               resolution is `so irrational that it may be branded "arbitrary," and therefore a deprivation of
               [plaintiffs'] "liberty interest."' [Citations.] . . . ."

         In Woods v. Holy Cross Hospital (5th Cir. 1979) 591 F.2d 1164, 1176, the court explained the rational
         relationship test as follows:

                           "The state must prove a compelling reason for a law only if it restricts a fundamental
               right; so long as such a right is not affected a law need only rationally relate to a legitimate
               government end. `Only when a law is a totally arbitrary deprivation of liberty will it violate the
               substantive due process guarantee.' . . ."

                          We believe that California courts would similarly apply the rational relationship test to the
         application of section 1150 in the present circumstances. (See D'Amico v. Board of Medical Examiners
         (1974) 11 Cal.3d 1, 18; California Gillnetters Assn. v. Department of Fish and Game (1995) 39 Cal.App.4th
         1145, 1152-1155.)

                          3.          Application of the Standard of Review

                          The "outside" activities and employment of public officers and employees in California are
         subject to regulation under various conflict of interest laws (see Gov Code §§ 1090 1098; 8920 8926

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         subject to regulation under various conflict of interest laws (see Gov. Code, §§ 1090-1098; 8920-8926,
         87100-87500) and authorized "incompatibility statements" issued by their individual employing agencies
         (see Gov. Code, §§ 1126, 19990; Long Beach Police Officers Assn. v. City of Long Beach (1988) 46 Cal.3d
         736). While no California case has definitively ruled upon the constitutionality of a statute or ordinance
         containing an absolute prohibition upon outside employment, two cases have assumed the validity of the
         rules of a city fire department prohibiting other employment. (See Lake v. Civil Service Commission (1975)
         47 Cal.App.3d 224; Vick v. Patterson (1959) 158 Cal.App.2d 414.)

                            Cases from other jurisdictions have upheld prohibitions against outside employment in a
         variety of contexts. Some have involved an absolute prohibition, while most have involved more limited
         restrictions such as the necessity to obtain prior agency approval for outside activities. We recognize that
         most have involved police officers and firefighters where the prohibition is to ensure their availability to
         respond to emergencies and their physical fitness to perform necessary duties. (See, e.g., Decker v. City of
         Hampton, Va. (E.D. Va. 1990) 741 F.Supp 1223 [police officers]; Trelfa v. Centre Island (1976) 389
         N.Y.S.2d 22 [police officers]; Flood v. Kennedy (1963) 239 N.Y.S.2d 665, 190 N.E.2d 13 [police officers];
         Jurgens v. Davenport (Iowa 1958) 88 N.W.2d 797 [police officers]; Hayes v. Civil Service Com. (Ill. App.
         1952) 108 N.E.2d 505 [police officers]; Matter of Calfapietra v. Walsh (N.Y. 1945) 62 N.E.2d 490
         [firefighters].) In Dake v. Bowen (1987) 521 N.Y.S. 2d 345, 347, for example, the court noted:

                            "As to the regulation prohibiting outside, security-related employment, since a total
               ban on outside employment by police officers has been upheld as furthering legitimate law
               enforcement and public safety objectives [citation], it would again follow that the instant, less
               restrictive regulation does not raise any constitutional question. Defendants have also
               demonstrated a rational basis for imposing it, in order to avoid potential conflicts of interest and
               to minimize the risk of claims of liability for off-duty conduct of members of the Department."

                           Similarly in Goldstein v. Bartlett (1978) 401 N.Y.S.2d 706, the court upheld a rule severely
         limiting the right of court-employed attorneys from practicing law for others, rejecting the contention that
         their constitutional rights to due process and equal protection were violated by the rule. In Civil Service Bar
         Assn., Etc. v. Schwartz (1982) 452 N.Y.S.2d 478, the court upheld a city regulation prohibiting the private
         practice of law by attorneys employed by the city.

                           A few courts, however, have found that a ban on outside employment has not met the
         rational relationship test when considered in light of the particular circumstances. (See, e.g., Benelli v. City of
         New Orleans (La.App. 1985) 478 So.2d 1370; City of Crowley Firemen v. City of Crowley (La. 1973) 280
         So.2d 897.)

                             In our view, the prohibition of section 1150 is constitutional under the rational relationship
         test. First, the statute ensures that Board members will devote their full time and energies to the duties of
         their office. Second, section 1150 constitutes a heightened conflict of interest proscription. It is reasonable to
         conclude that the Legislature intended for the members of the Board, who oversee and monitor agricultural
         labor relations, to be completely neutral and that the public perceives them as such. Banning all outside
         employment furthers that end.

                            Where a regulation is being tested under the due process requirement, the legislation will be
         presumed to be constitutional, and the courts will defer to the legislative policy if the law is not arbitrary or
         irrational. (See, e.g., Usery v. Turner Elkhorn Mining Co. (1976) 428 U.S. 1, 15; West Coast Hotel Co. v.
         Parrish (1937) 300 U.S. 379, 391-392, 398-399; Nebbia v. New York (1934) 291 U.S. 502, 536-538.) Even
         though the regulation may not "achieve perfection," "the reasonableness of a policy is evaluated based upon
         whether it is designed to achieve its legitimate objectives" (Graham v. Kirkwood Meadows Pub. Util. Dist.,
         (1994) 21 Cal.App.4th 1631, 1641; 80 Ops.Cal.Atty.Gen. 27, 31-32 (1997); 69 Ops.Cal.Atty.Gen. 191, 197
         (1986).)


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                           Section 1150, insofar as it restricts the outside employment of Board members, is rationally
         related to the purposes of ensuring that the members achieve optimum performance with respect to their
         duties and that they perform those duties free of any bias or lack of neutrality, actual or perceived.

                         In sum, we conclude that section 1150 is constitutional in prohibiting members of the Board
         from engaging in any other business, vocation, or employment.


                                                                *****

         Footnote No. 1
         All references hereafter to the Labor Code are by section number only.
         Footnote No. 2
         The Unemployment Insurance Appeals Board (Unemp. Ins. Code, § 401), the State Board of Prison Terms (Pen. Code,
         § 5076), and the Youthful Offender Parole Board (Welf. & Inst. Code, § 1716) are other examples of "full-time" state
         boards.
         Footnote No. 3
         "No person shall . . . be deprived of life, liberty, or property, without due process of law."
         Footnote No. 4
         "[N]or shall any state deprive any person of life, liberty, or property, without due process of law."




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