Untitled California Attorney General Opinion ( 1987 )

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."
86-1006
15