               TO BE PUBLISHED IN THE OFFICIAL REPORTS



                   OFFICE OF THE ATTORNEY GENERAL

                         State of California


                         JOHN K. VAN DE KAMP

                           Attorney General



----------------------------------------------------------------
                              :

          OPINION             :         No. 86-1006

                              :

             of               :         JUNE 24, 1987

                              :

     JOHN K. VAN DE KAMP      :

       Attorney General       :

                              :

       CLAYTON P. ROCHE       :

     Deputy Attorney General :

----------------------------------------------------------------
          THE HONORABLE BILL LOCKYER, MEMBER OF THE CALIFORNIA

STATE SENATE, has requested an opinion on the following question:


          Is it a violation of section 1126 of the Government

Code for a school board member to own and operate for profit a

preschool facility and a K-3 school where (1) the preschool

facility is located within the member's school district and acts

as a "feeder" school for his K-3 school and where (2) although

the K-3 school is not located within the member's district, it

draws pupils from his district?


                             CONCLUSION


          It is a violation of section 1126 of the Government

Code for a school board member to own and operate for profit a

preschool facility and a K-3 school under the circumstances

described above.

                             ANALYSIS


          1.    The Factual Background


          In 1985 an individual was elected to the governing

board of a unified school district.1/ At the time he was

elected, and presently, he owned and operated and owns and

operates two private schools for profit. One is a preschool

facility which is located within the member's school district. 

The other is a K-3 school which is not within the boundaries of



     1. Unified school districts operate classes "at least in

grades 1 through 12." (Ed. Code, sec. 37022.)

the member's school district, but is located slightly less than

two miles from the nearest elementary school operated by the

district.


          The preschool facility has approximately 60 pupils. 

Tuition is $50.00 per week with additional charges being made for

extended day services (morning, early afternoon and late

afternoon). The preschool acts as a "feeder" school for the

member's private K-3 school. A large majority of the K-3 school

pupils are former pupils of the preschool.


          Although the K-3 school is not located within the

member's school district, both schools draw pupils from the

surrounding territory, including the member's district. The K-3

school has approximately 90 pupils. Tuition and extended day

charges are the same as for the preschool.


          We are asked whether the ownership and operation of

these two schools for profit by the school board member

constitutes a violation of section 1126 of the Government Code. 

We conclude that it does.


          2.   The Statutory Background-Section 1126


          Section 1126 of the Government Code is the main

operative provision in a series of sections generally governing

inconsistent and incompatible outside activities of local agency

officers and employees. These provisions, first enacted in 1971

(Stats. 1971, ch. 633), are presently found in sections 1125

through 1128 of the Government Code. Section 1125 contains the

definition of "local agency" for purposes of the provisions. 

Section 1126, as noted, is the main operative provision. Section

1127 sets forth certain exceptions with respect to the outside

employment of policemen and firemen, not germane herein, and

section 1128 sets forth an exception for publicly employed

attorneys, also not germane herein.


          For purposes of section 1126, a school district is a

"local agency". Section 1125 provides:


          "'Local agency,' as used in this article,

          means a county, city, city and county,

          political subdivision, district, or municipal

          corporation."


This all encompassing definition clearly includes a school

district. (See 56 Ops.Cal.Atty.Gen. 556 (1973); 58 Ops.Cal.





                                                           86-1006

                                 2

Atty.Gen. 110, 112-114 (1975).)2/


          Section 1126 is set forth in two subdivisions. 

Subdivision (a) thereof contains the general proscription that


          "...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 or with the

          duties, functions, or responsibilities of his

          or her appointing power or the agency by

          which he or she is employed...."3/



Subdivision (b) then provides that each appointing power may

determine which outside activities of local agency 

employees are to be considered "inconsistent with, incompatible

to, or in conflict with their duties as local agency officers or

employees." Criteria are set forth for making that

determination. Subdivision (b) also provides that the local

agency may adopt rules regarding section 1126, which shall

include notice of proscribed activities, proposed disciplinary



     2. Furthermore, as will be discussed post, section 35233 of

the Education Code, enacted in 1985 (Stats. 1985, ch. 816),

specifically makes section 1126 applicable to members of

governing boards of school districts. 


     3.   Subdivision(a) of section 1126 provides in full:


          "(a) Except as provided in Section 1128, 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 or with the

          duties, functions, or responsibilities of his

          or her appointing power or the agency by

          which he or she is employed. Such officer or

          employee shall not perform any work, service,

          or counsel for compensation outside of his or

          her local agency employment where any part of

          his or her efforts will be subject to

          approval by any other officer, employee,

          board, or commission of his or her employing

          body, unless otherwise approved in the manner

          prescribed by subdivisions (b).


                                                              86-1006

                                 3

action to be taken, and employee appeals.4/



     4.   Subdivision (b) of section 1126 provides in full:


          "(b) Each appointing power may determine subject to

           approval of the local agency, and consistent

           with the provisions of Section 1128 where

           applicable, those outside activities which,

           for employees under its jurisdiction, are

           inconsistent with, incompatible to, or in

           conflict with their duties as local agency

           officers or employees. An employee's outside

           employment, activity, or enterprise may be

           prohibited if it: (1) involves the use for

           private gain or advantage of his or her local

           agency time, facilities, equipment and

           supplies; or the badge, uniform, prestige, or

           influence of his or her local agency office

           or employment or, (2) involves receipt or

           acceptance by the officer or employee of any

           money or other consideration from anyone

           other than his or her local agency for the

           performance of an act which the officer of

           employee, if not performing such act, would

           be required or expected to render in the

           regular course or hours of his or her local

           agency employment or as a part of his or her

           duties as a local agency officer or employee

           or, (3) involves the performance of an act in

           other than his or her capacity as a local

           agency officer or employee which act may

           later be subject directly or indirectly to

           the control, inspection, review, audit, or

           enforcement of any other officer or employee

           or the agency by which he or she is employed,

           or (4) involves such time demands as would

           render performance of his or her duties as a

           local agency officer or employee less

           efficient.


         "The local agency may adopt rules governing the 

application of this section. Such rules shall include provision

for notice to employees of the determination of prohibited

activities, of disciplinary action to be taken against employees

for engaging in prohibited activities, and for appeal by

employees from such a determination and from its application to

an employee."


          We note that subdivision (a)'s proscriptions include 

     activities which are "inimical" to the officer's or


                                                           86-1006

                                 4

          In the decade and a half that section 1126 has been in

operation, this office has written numerous formal and informal

opinions both interpreting and applying the section.


          We noted early that although section 1126 was intended

primarily to apply to the activities of subordinate officers and

employees, it was by its terms broad enough to encompass the

governing body of the local agency itself. (See, e.g., 58 Ops.

Cal.Atty.Gen. 109, 113 (1975); 57 Ops.Cal.Atty.Gen. 252, 260,

note 5 (1974).) We further noted early that the subdivision (a)

proscription was couched in mandatory terms ("shall not") whereas

subdivision (b) was couched in permissive terms ("may") with

respect to the determination to be made concerning proscribed

activities. From this we concluded that the provisions of

subdivision (a) were self-executing, with incompatibility

determinations or statements being discretionary. (See 58 Ops.

Cal.Atty.Gen. 109, 113 (1975); Cal. Atty. Gen., Indexed Letter

No. I.L. 74-227 (Dec. 23, 1974).)5/ Accordingly, as interpreted

by this office, an elected school board member could have been

considered to have violated section 1126 under subdivision (a)

despite the fact that there was no precise determination anywhere

as to what activities were prohibited. Indeed, on numerous

occasions, we opined on whether or not a particular officer or

employee, including elected officials, violated this section

despite the absence of an incompatibility statement or

determination of incompatible activities. (See, e.g., 62 Ops.

Cal. Atty. Gen. 512 (1979), county supervisor-attorney could not

represent criminal defendants on cases presented by his own



    employee's duties, or the duties and functions of his

    or her appointing power or local agency.


         Interestingly, subdivision (b) does not include the 

    term "inimical" in its description of proscribed

    activities. Nor does it provide for the determination

    of activities which are inconsistent with, incompatible

    to, or in conflict with the duties, functions or

    responsibilities of his or her appointing power or

    local agency as opposed to the officer or employee's

    duties themselves.


     5. The logic in this conclusion is put into relief when one

considers that section 1126 was clearly patterned upon then

section 19251 of the Government Code, applicable to state

employees, which in its first paragraph proscribed incompatible

activities and then mandated ("shall") each appointing power to

determine those activities deemed to be incompatible for its

employees. (See Stats. 1949, ch. 474. See now, Gov. Code, sec.

19990. See also discussion in 64 Ops.Cal.Atty.Gen. 795, 798

(1981).)


                                                         86-1006

                               5

district attorney; Cal. Atty. Gen., Indexed Letter No. I.L. 74­
227 (Dec. 23, 1974), city councilman could not be firefighter in

his own city.)


          Our above described approach to section 1126 was,

however, modified in 64 Ops.Cal.Atty.Gen. 795 (1981) based upon

the decision of the Court of Appeal in Mazzola v. City and County

of San Francisco (1980) 112 Cal.App.3d 141, hearing denied

1/21/81. That case rejected the "self-executing" approach to

section 1126 and concluded that the appointed officer involved

therein could not be deemed to have violated section 1126 unless

he had notice of the proscribed activities and notice of the

intended disciplinary action to be taken and appeals procedures

therefrom.


          We accordingly concluded in 64 Ops.Cal.Atty.Gen. 795

(1981), supra, based upon Mazzola that section 1126 could not be

applicable to an elected governing board member. We stated:


          "Clearly, the court's approach to and

          interpretation of section 1126 set forth

          above is inconsistent with the prior approach

          taken by this office. Since elective

          officials have no appointing power other than

          the electorate, no notice can be given to

          them of proscribed activities, of intended

          disciplinary action or of appeals procedures

          from such disciplinary action. Additionally,

          no disciplinary action would be applicable to

          the governing board itself as might be

          provided by section 3060 for removal from

          office by accusation by the grand jury or by

          recall by the electorate." (Id. at p. 800.)


          However, at least as to school board members, this

conclusion was to be short-lived. By Statutes of 1985, chapter

816, the Legislature enacted, inter alia, section 35233 of the

Education Code. That section provides:


          "The prohibitions contained in Article 4

          (commencing with Section 1090) and Article

          4.7 (commencing with Section 1125) of

          Division 4 of Title l of the Government Code

          are applicable to members of governing boards

          of school districts."6/


     6. Statutes of 1985, chapter 816 repealed the special

conflict of interest provisions contained in the Education Code

which were applicable to school board members. As to some of the

problems created by the switchover of school board members from


                                                           86-1006

                               6

          Thus, at the present time, section 1126 is clearly

applicable to school board members.


          Before we reach an analysis as to whether the school

board member at issue herein who owns and operates private

schools for profit is in violation of section 1126, one more

point with respect to the interpretation of 1126 requires

discussion.


          Initially, this office analogized section 1126 to the

common law doctrine prohibiting the holding of incompatible

offices. (See, e.g., 68 Ops.Cal.Atty.Gen. 7 (1985) for a

discussion of this doctrine.) If offices are incompatible the

same individual may not simultaneously hold both positions. Only

one significant clash of duties and loyalties, actual or

potential, is necessary to make offices incompatible. Abstention

from action is not permitted as a means of avoiding the doctrine. 

Accordingly, in our earlier opinions, we concluded that whenever

a violation of section 1126 was found, the officer or employee

should resign one of the positions. However, in 59 Ops.Cal.

Atty.Gen. 604, 612-613 (1976) we modified our approach, reasoning

as follows:


          "Upon further reflection on section 1125 et

          seq, when considered in relation to

          Proposition 9 and section 1090 et seq.

          concerning contractual conflicts of interest,

          it is the view of this office that our prior

          approach requires modification. It is the

          current belief of this office that the

          analogy between section 1125 et seq. of the

          Government Code and the common law doctrine

          concerning incompatible offices cannot be

          fully applied so as to require resignation

          where incompatibility may inhere in some of

          the functions of the two positions. This is

          brought into relief when one considers that

          the PRA prohibits conflicts on a

          transactional basis, and hence abstention is

          permitted as well as required. Additionally,

          section 1090 et seq. permit abstention on a

          transactional basis where the conflict is

          defined statutorily as a 'remote interest.' 

          See §1091. Were a strict application of the

          doctrine concerning incompatibility of



those proscriptions to the proscription of section 1090 et seq.

of the Government Code (relating to contractual conflicts of

interest) see 69 Ops.Cal.Atty.Gen. 255 (1986) and 69

Ops.Cal.Atty.Gen. 102 (1986).


                                                           86-1006

                                7

          offices to be applied by analogy to an

          incompatibility found under section 1125 as

          to private employment or other private

          activities, the anomalous situation could

          arise where the PRA would permit abstention,

          section 1090 et seq. would permit abstention,

          and the general and somewhat obscure

          provisions of section 1125 et seq. would

          require resignation from one of the

          conflicting employments or activities. Such a

          result would render the operation of the PRA 

          and section 1090 et seq. meaningless in many

          cases. Such a result is to be avoided.


               "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. The more

          specific provisions of the PRA and section

          1090 et seq. should control over the more

          general provisions of 1125 insofar as they

          are covered by the former sections. We do

          not mean to hold, however, that if the

          incompatibility is of such a continuing and

          pervasive nature that a public officer or

          employee may constantly abstain from

          performing his duties because of personal

          conflict. In such a situation, resignation

          from the public office or employment or

          cessation of the conflicting private activity

          would appear to be required. Prior informal

          opinions of this office, to wit, I.L. 76-95

          and I.L. 74-227 are hereby disapproved

          insofar as their reasoning is contrary to the

          reasoning set forth above." (Final emphasis

          added: Footnotes omitted.)


          And more recently, we applied this approach to section

1126 in 63 Ops.Cal.Atty.Gen. 916, 922-923 (1980) as follows

involving a county supervisor who was also a consultant to a

county air basin which included his county:


          "The supervisor in question has already

          agreed that he will abstain from

          participation in any matter coming before the

          board of supervisors with respect to air

          pollution control matters. However, as noted,

          section 1126 does not permit a local agency

          officer to abdicate his responsibilities to


                                                           86-1006

                                8

          that agency in favor of his outside

          activities. The agreement to abstain from

          participation in all air pollution matters

          which would come before the board of

          supervisors would amount to just that, an

          abdication of his duties to the district, an

          entity separate from the county. Whether

          such abstention would in fact be required as

          to all or a major portion of those duties we

          cannot say. This would require an analysis

          of the duties actually assigned to the

          individual pursuant to the air basin contract

          contrasted with his duties as a district

          board member. However, his agreement to

          abstain would indicate to us that there would

          be tremendous difficulty in attempting to

          walk a 'fine line' and perform the duties of

          both positions. Permitted abstention under

          section 1126 is the exception, not the rule." 

          (Final emphasis is added.)


And we finally concluded:


               "In summary, we conclude that there is

          no statute or common law doctrine which would

          absolutely prohibit the county supervisor

          from entering into the subject consulting

          contract with the Mountain Counties Air

          Basin. However, sections 1126, 87100 and the

          common law doctrine on conflicts of interest

          could still apply on a transactional basis. 

          Whether there would be no such conflicts, or

          few or many would depend upon the actual

          duties assigned to him under the contract

          considered in relation to both his personal

          interests and his duties to the county air

          pollution control district. Under section

          1126 the supervisor may not abdicate the

          duties he owes to the district. If

          abstention at the county air pollution

          control district level would be required in

          all or a major portion of the matters coming

          before the supervisors as district board, the

          consulting contract would be incompatible

          with the supervisor's duties owed to that

          'local agency.'"



          Accordingly, the office's approach to section 1126 has

been that there is essentially a continuum as to violations of

section 1126 which can range from continuous and all pervasive to


                                                            86-1006

                                9

a mere isolated transaction. To determine where a particular

officer or employer falls with regard to section 1126 on such

continuum, one must refer to the duties and responsibilities of

his public position or his public agency and the actual or

potential conflict or harm which can arise from his outside

activities and his or her attempt to perform the functions of

both the public and the private positions or activities. And, as

noted by us in the above quoted opinion, "[p]ermitted abstention

under section 1126 is the exception, not the rule." (See also

Graham v. Municipal Court (1981) 123 Cal.App.3d 1018, 1023,

discussed post.)


          3.   Application of Section 1126


          We now examine the question as to whether the school

board member at issue herein here who owns the preschool and K-3

school may be said to be in violation of section 1126. To decide

this question we examine the duties and functions of the school

board, which board controls the school district. (Ed. Code, sec.

35010.)


          It is suggested on behalf of the school board member

involved herein that there have been no conflicts which have

arisen which would have required his abstention, and that when

they do occur, he will appropriately abstain from board

participation. On the other side of the coin, at least several

instances have been cited to us where certain school district

matters have directly clashed with the board member's private

school interests.


          Although many of the duties and functions of a school

board are specifically set forth in the Education Code, it is

well to initially note that since January 1, 1976 the governing

boards of all school districts


               "...may initiate and carry on any

          program, activity, or otherwise act in any

          manner which is not in conflict with or

          inconsistent with, or preempted by, any law

          and which is not in conflict with the

          purposes for which school districts are

          established." (Ed. Code, sec 35160).


Accordingly, within the limitation of section 35160, the matters

which might come before and be considered by a school board are

limitless.


          However, when one considers the statutory powers and

duties set forth in the Education Code with reference to the

school board member at issue herein, it is difficult to see how

the board member may legitimately serve on the board and at the


                                                          86-1006

                                10

same time run private schools for profit which essentially

compete for students with the district's own elementary schools.


          In our opinion, any matter which might come before the

school board which would improve the school system generally, or

the elementary school system particularly, if adopted and

implemented, could be deleterious to the board member's private

schools and their success. We can virtually take official notice

of the fact that the better a public school system is, the less

likely parents are to send their children to private schools. 

The matters which could influence such a decision could reach not

only the educational attributes of the schools, but also other

activities and amenities such as sports or even the provision of

day care at the school for working parents.


          We examine some of a board's statutory powers. A

school board may establish day care programs. (Ed. Code, sec.

8460 et seq.) A school board may establish preschool programs. 

(Ed. Code, sec. 37042; see also 61 Ops.Cal Atty.Gen. 520 (1978).)

It may also provide a summer school program or even a year round

school program. (Ed. Code, secs. 37250, 37420, 37500, 37610.) It

also may establish a school cafeteria. (Ed. Code, sec. 39871.) 


          A school board is required to purchase and improve

school lands and select school sites. (Ed. Code, sec. 39001 et

seq.) A school board is also required to build and maintain

school buildings. (Ed. Code, secs. 39110 et seq., 39170.)


          A school board is required to prepare a "course of

study" for schools under its jurisdiction. (Ed. Code, secs.

51053-51054.) In addition to required courses, a school board

may prescribe such additional courses of study as if deems fit

for its pupils. (Ed. Code, sec. 51201.) It also is required to

evaluate and revise its district's educational programs,

including activities both in and outside of class. (Ed. Code,

sec. 51041.) It also may institute special programs such as the

gifted student program (Ed. Code, sec 52200 et seq.), a math

improvement program (Ed. Code, sec. 54300) or instruction in

special subjects such as aviation (Ed. Code, sec. 51791) or

consumer economics (Ed. Code, sec. 51830.) A school board may

also establish "alternative schools" for nontraditional

education. (Ed. Code, sec. 58500 et seq.)


          A school board determines textbooks and other school

materials to be used in its district (Ed. Code, sec 60040 et

seq.; sec 60260 et seq.). Although the materials are generally

required to be from state approval lists (See Ed. Code, sec.

60200), a school board is empowered to request state approval to

obtain and use its own educational materials. (Ed. Code, sec.

60200, subdiv.(c).)



                                                          86-1006

                               11

          A school board may also become involved in school

district reorganizations, which could affect its district's

boundary lines, and accordingly the area the district will serve

and from which it will draw its pupils. (Ed. Code, sec. 35500 et

seq.) "Reorganization" could include such matters as the

annexation or transfer of all or part of the territory of a

district to another district, or even whether to dissolve a

unified school district, such as is involved herein. (Ed. Code,

sec. 35511.)


          In addition to its normal budgetary problems and

decisions (which would include the number of teachers to be

retained and hired, as well as other staff) a school board may

make other financial decisions, such as whether to apply to the

state for funds to carry out various school projects. (See,

e.g., Ed. Code, sec. 17899.1 with respect to the California

School Finance Authority Fund.)


          In our view, a board member who runs private schools

for profit which essentially are in competition with a public

school or schools under his board's jurisdiction is engaged in an

activity for compensation which is inconsistent, incompatible and

in conflict with his duties as a school board member, not only on

a possible transactional basis but on a continuing and pervasive

basis. One need only examine the above chronicled statutory

duties and functions of school boards, which are not exhaustive,

to conclude that an individual, no matter how well intentioned,

could not engage in the decision making process with reference to

these duties and functions without some personal bias or

interest. The success or failure of the public schools could have

a real effect upon the success or failure of his private schools.


          Additionally, as noted at the outset, section 1126 not

only proscribes outside activities for compensation which are

inconsistent with, incompatible to or in conflict with a local

agency officer's or employee's public duties, but also proscribes

outside activities which are "inimical" not only to his or her

duties, but also to "the duties, functions, or responsibilities

of his or her appointing power or the agency by which he or she

is employed."


          Although the terms "incompatible", "inconsistent" and

"in conflict with" are more or less synonymous, at least in

common parlance, (see Webster's New International Dictionary, 3d 

Ed. 1961, pp. 477, 1144), the term "inimical" has a somewhat

different connotation. Thus, the same dictionary defines

inimical (at page 1163) as follows:


          "Inimical 1...a: having the disposition or

          temper of an enemy: viewing with disfavor:

          HOSTILE... b: reflecting or indicating


                                                          86-1006

                               12

          hostility: UNFRIENDLY... 2. prejudicial in

          tendency, influence, or effects: HARMFUL,

          ADVERSE... syn see ADVERSE."



          In our opinion, the operation of the private preschool

and K-3 school by the board member at issue herein, where the

preschool acts as a "feeder" school for his K-3 school, and both

schools draw students from his school district, is inimical to

the duties, functions and responsibilities of his school

district. Every student who attends his K-3 school is a student

for whom the district will receive no "ADA". In short, his K-3

school is siphoning funds off of his own school district. 

Certainly such is "prejudicial in tendency, influence, or

effects" and is both harmful and adverse to his district. And

with respect to this facet of section 1126, there is no question

that such is a continuous "conflict" so long as the private K-3

school exists and draws pupils from the school district. As to

this facet of section 1126, we need not worry about nor speculate

upon whether conflicts are pervasive or merely arise on an

occasional transactional basis.


          Furthermore, we believe it is inimical to the school

district to have a board member on the board who is essentially

in competition with the district. This is so when one considers

the variety of matters which may be brought before the district

board for its consideration. Such matters would, of course, be

initiated by motion of a single board member. No matter how well

intentioned the particular board member at issue herein may be,

can it be said that the board member will initiate programs or

other matters himself where they might act to his disadvantage?

We believe the district is entitled to board members whose

priority interests are the best interests of their district. 

Returning to the definition again of "inimical", such a situation

certainly has the potential for "prejudice in tendency,

influence, or effects" and could be both harmful and adverse to

the district's best interests. 


          And finally, in the same vein, we believe it to be

inimical to the functions, duties and responsibilities of the

school district to have on its board an individual who is privy

to all school district matters by virtue of his public office,

including personnel and other closed hearing matters, which he

can then use to his benefit in making his decisions with respect

to his private schools.


          Accordingly, we conclude that under the circumstances

at issue herein, the school board member who owns the two private

schools is pervasively and continually in violation of the

proscriptions of section 1126 of the Government Code.



                                                          86-1006

                               13

          4.   The Question of Sanctions


          Under the decision of Mazzola v. City and County of San

Francisco, supra, 112 Cal.App.3d 141, the question of sanctions

for violations of section 1126 is clear as to subordinate

appointive officers and employees. The appointing authority must

first apprise the officer or employee of the proscribed

activities, and the agency must adopt rules and regulations as to

the operation of the section, including intended disciplinary

action and appeals therefrom. In short, the sanctions for

violation of the section is disciplinary action. 


          Such a procedure, however, as prescribed by the final

paragraph of section 1126, would not apply to an elected school

board member. As noted in our post-Mazzola opinion, 64 Ops.Cal.

Atty.Gen. 795, 800 (1981), discussed ante:


          "...elective officials have no appointing

          power other than the electorate, no notice

          can be given to them of proscribed

          activities, of intended disciplinary action

          or of appeals procedures from such

          disciplinary action. ..."



          Under such circumstances, we believe that the

appropriate action would be that suggested by us in earlier

opinions of this office where we had considered section 1126 to

have been entirely self-executing, and where no regulations

regarding proscribed activities had been adopted by the agency

involved. Our approach was that the incompatibility should be

cured by the cessation of either the public office or public

employment or the outside incompatible activity. (See e.g. 59

Ops.Cal.Atty.Gen. 604, 612, (1976), supra .) Such would seem to

be the appropriate course of action herein.


          This is the approach also suggested by the court in

Graham v. Municipal Court, supra, 123 Cal.App.3d 1018. In that

case it was contended that a county supervisor who was

representing a criminal defendant in his own county was in

violation of section 1126, subdivision (a). The court found

there were compelling reasons for the representation, and hence

it was permissible in that instance. The court then stated:


          "... And finally, a key factor influencing

          our decision is that Mr. Davis'

          representation of Graham while on the county

          board appears to be an isolated incident

          rather than a persistent practice. Sparks v.

          Superior Court (1975) 45 Cal.App.3d 533, 537

          [119 Cal. Rptr. 441].) Only if he were


                                                          86-1006

                                14

          consistently representing criminal defendants

          within the county would Davis in our view be

          required to decide, as a matter of both

          public policy and professional ethics,

          whether to eschew such representation or

          resign from the board." (Id. at p. 1023.)


          We do note, however, that section 1126 itself provides

no mechanism to force a school board member voluntarily to cure

an existing, pervasive incompatibility or conflict. Absent

voluntary action by a board member who is in violation of section

1126, the sanctions available would be removal from office

pursuant to section 3060 et seq. of the Government Code 7/, or

recall by the electorate.


                           *   *    *    *





     7.  Section 3060 of the Government Code provides:

          "An accusation in writing against any officer of a

     district, county, or city, including any member of the

     governing board or personnel commission of a school

     district or any humane officer, for willful or corrupt

     misconduct in office, may be presented by the grand

     jury of the county for or in which the officer accused

     is elected or appointed. An accusation may not be

     presented without the concurrence of at least 12 grand

     jurors."


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                                   15

