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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 decisionmaking 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. 

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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