TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General
 

: 

OPINION : No. 86-1003 

: 

of : March 11, 1987 

: 

JOHN K. VAN DE KAMP : 

Attorney General : 

: 

RODNEY O. LILYQUIST 

Deputy Attorney General 

: 

: 

: 

THE HONORABLE H. L. RICHARDSON, MEMBER, CALIFORNIA 

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

May a school board member vote upon a proposed program or contract 

submitted to the board by an organization of which the member is the salaried executive 

director? 

CONCLUSION 

A school board member may not vote upon, participate in considering, or 

attempt to influence action taken upon a proposed program or contract submitted to the board 

by an organization of which the member is the salaried executive director except in limited 

circumstances. With respect to a contract proposal, the board would generally be prohibited 

from entering into the contract. 

1
 
ANALYSIS
 

An organization proposes to a school district board that a program or contract 

be approved involving the schools and pupils of the district. One of the board members is the 

salaried executive director of the organization. May the member vote on the proposal without 

violating the various conflict of interest laws of California? We conclude that the member 

would generally be prohibited from voting on such a proposal. 

1. The Political Reform Act of 1974 

The Political Reform Act of 1974 (Gov. Code, §§ 81000-91015; "Act")1

 has 

as one of its goals that "[p]ublic officials, whether elected or appointed should perform their 

duties in an impartial manner, free from bias caused by their own financial interests...." (§ 

81001, subd. (b).) Accordingly, the Act provides that "inappropriate circumstances the 

officials should be disqualified from acting in order that conflicts of interest may be 

avoided." (§ 81002, subd. (c); see Witt v. Morrow (1977)70 Cal. App. 3d 817, 822-823.) The 

Act covers both state and local officials (§§81001, 2003, 87100), including school board 

members (69 Ops. Cal. Atty. Gen.102, 103, fn. 1 (1986)). 

Section 87100 contains the basic prohibition of the Act dealing with conflicts 

of interest: 

"No public official at any level of state or local government 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." 

Several exceptions to section 87100 allow a public official to make a 

governmental decision in which he has a financial interest. Section 87103, for example, 

expressly limits the definition of "financial interest," while section 87101 allows participation 

where the official's "participation is legally required for the action or decision to be made." 

Extensive regulations have been promulgated by the Fair Political Practices 

Commission ("Commission") with respect to potential conflicts of interest. (See §§ 

83111-83112; Cal. Admin. Code, tit. 2, 18700-18702.2; 66 Ops. Cal. Atty. Gen.156, 162, fn. 

6 (1983).) The Commission also provides written advice and issues opinions which may be 

relied upon by public officials. (§ 83114; 67 Ops. Cal. Atty. Gen. 369, 374 (1984).) 

1

All references hereafter to the Government Code are by section number only. 

2
 
While we have not been given a set of facts to consider with respect to the 

proposed program or contract, the case of Witt v. Morrow, supra, 70 Cal. App. 3d 817, 

appears instructive concerning the general approach to be taken regarding the application of 

section 87100. In Witt, a member of a redevelopment agency was the salaried president and 

attorney of a nonprofit organization. The organization was the beneficiary of a trust that held 

title to property near a proposed redevelopment project. The court analyzed the possible 

conflict of interest as follows: 

"Morrow argues there is no conflict of interest here because there is no 

evidence his activities as president and attorney of BEE and his receipt of $550 

per month would be affected in any way by any decision on this project. His 

concept of what constitutes a conflict of interest is too narrow. It is not just 

actual improprieties which the law seeks to forestall but also the appearance 

of possible improprieties. Any employee, in the private or public sector, 

wishes to keep his job and maintain good relations with his employer. A 

person who must make decisions which may affect his employer's purse is in 

a situation where he may not give full consideration to the merits of the 

decision." (Id., at p. 823.) 

Similarly, we believe that a school board member may not generally vote upon, 

participate in considering, or attempt to influence action taken upon a proposed program or 

contract submitted to the board by an organization of which the member is the salaried 

executive director. Limited exceptions to the prohibition of section 87100 may apply, and 

the Commission is available to provide advice on a case- by-case basis. 

2. The Board's Own Code 

The Act authorizes "the Legislature or any other state or local agency" to 

impose" additional requirements on any person if the requirements do not prevent the person 

from complying with" the Act's provisions. (§ 81013; see § 87102; 67 Ops. Cal. Atty. Gen. 

369, supra, 375, fn. 5.) Section 87300 expressly requires public agencies to" adopt and 

promulgate a Conflict of Interest Code,” which has “the force of law." (See 67 Ops. Cal. 

Atty. Gen. 369, supra, 374.) 

Accordingly, the school board's own conflict of interest code may prohibit a 

member from voting on a proposed program or contract that would otherwise be permissible 

under the Act's provisions. (See § 87302, subd. (c).) Such code would require examination 

in light of the particular circumstances involved. 

3
 
 

3. The Common Law Doctrine 

The prohibition against a public officer having a conflict of interest in the 

performance of public duties has long been recognized in common law. The common law 

doctrine "strictly requires public officers to avoid placing themselves in a position in which 

personal interest may come into conflict with their duty to the public." (46 Ops. Cal. Atty. 

Gen. 74, 86 (1965).) 

While this doctrine is subject to being abrogated by express statutory 

provisions, we have previously concluded that it is applicable where no statutory conflict 

exists. (67 Ops. Cal. Atty. Gen. 369, supra, 381; 59 Ops. Cal. Atty. Gen. 604, 613-614 

(1976); 58 Ops. Cal. Atty. Gen. 345, 354-356 (1975).) 

Exceptions to the common law doctrine exist, such as the rule of necessity (see 

67 Ops. Cal. Atty. Gen. 369, supra 381), and the doctrine "may usually be avoided by 

complete abstention from any official action with respect to or attempt to influence the 

transaction" (64 Ops. Cal. Atty. Gen. 795, 797 (1981)). 

Whether the common law prohibition would prevent the school board member 

from voting on a proposed program or contract, otherwise permissible under the Act and the 

Board's own code, would depend upon the particular facts presented. 

4. Section 1090 

Since the proposal to the school board may concern a contract, the provisions 

of section 1090 require examination. (See People v. Watson (1971) 15 Cal. App. 3d 28, 34, 

fn. 1; People v. Darby (1952) 114 Cal. App. 2d 412, 428; 67 Ops. Cal. Atty. Gen. 369, supra, 

375; 64 Ops. Cal. Atty. Gen. 369, supra, 375; 64 Ops. Cal. Atty. Gen. 795, supra, 797, fn. 

2; 26 Ops. Cal. Atty. Gen. 287, 288-289 (1955); Widiss, The California Conflict of Interest 

Laws (1963) 36 So. Cal. L. Rev. 186, 198-199; Kennedy & Beck, Interest of Public Officers 

in Contracts Prohibited by Law (1955) 28 So. Cal. L. Rev. 335, 345; Comment, Conflict of 

Interest in Public Contracts in California (1956) 44 Cal. L. Rev. 355, 360-361.)2 

Section 1090 states 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 

2

School board members are expressly covered by the provisions of section 1090. (Ed. Code. § 

35233.) 

4
 
are members. Nor shall state, county, district, judicial district, and city officers 

or employees be purchasers at any sale or vendors at any purchase made by 

them in their official capacity."3 

Significantly, when section 1090 is applicable to one member of a board or 

commission, the proscription cannot be avoided by having the interested member abstain; the 

entire board or commission is precluded from entering into the contract.(Thomson v. Call 

(1985) 38 Cal. 3d 633, 649; Stigall v. City of Taft, supra, 58 Cal.2d 565, 570-571; City of 

Imperial Beach v. Bailey, supra, 103 Cal. App. 3d 191,195.) 

The Legislature has provided several exceptions to the prohibition of 

section1090. In section 1091.5 are described nine situations where the "officer or employee 

shall not be deemed to be interested in a contract." (See Citizen Advocates, Inc. v. Board of 

Supervisors (1983) 146 Cal. App. 3d 171, 178-179; Frazer-Yamor Agency, Inc. v. Del Norte 

County (1977) 68 Cal. App. 3d 201, 217-218.) 

In section 1091 the Legislature has described ten situations where a "remote 

interest" will be found, allowing the board or commission to enter into a contract" without 

counting the vote or votes of the officer or member with the remote interest."(See 67 Ops. 

Cal. Atty. Gen. 369, supra, 377, fn. 8; 65 Ops. Cal. Atty. Gen. 305, 307 (1982).) For this 

exception to apply, the existence of the interest must be" disclosed to the body of the board 

of which the officer is a member and noted in its official records." (§ 1091, subd. (a).) 

Finally, we note the "rule of necessity" exception to section 1090. This rule 

allows a governmental agency to acquire an essential supply or service despite the conflict 

of interest; it allows the interested official to act where he is the only one who may do so. 

Similarly the board may act with the interested member abstaining in such a situation. (See 

Caminetti v. Pac. Mutual L. Ins. Co. (1943) 22 Cal. 2d 344, 366-367; 69 Ops. Cal. Atty. Gen. 

102, supra, 108-109; 67 Ops. Cal. Atty. Gen.369, supra, 378; 65 Ops. Cal. Atty. Gen. 305, 

supra, 310).) 

As with the other conflict of interest prohibitions, whether section 1090 would 

be applicable in a particular situation would depend upon all the facts and circumstances. 

3

While the statute refers to a contract being "made," the term has been expansively interpreted by 

the courts to cover "such embodiments in the making of a contract as preliminary discussions, 

negotiations, compromises, reasoning, planning, drawing of plans and specifications and solicitation 

forbids." (Millbrae Aim, for Residential Survival v. City of Millbrae (1968) 262 Cal. App. 2d 222, 237; 

see Stigall v. City of Taft (1962) 58 Cal. 2d 565, 571; City Council of Imperial Beach v. Bailey 

(1980)103 Cal. App. 3d 191, 196; People v. Vallerga (1977) 67 Cal. App. 3d 847, 868; People v. 

Sobel(1974) 40 Cal. App. 3d 1046, 1052.) 

5
 
In answer to the question presented, therefore, we conclude that a school board 

member may not vote upon, participate in considering, or attempt to influence action taken 

upon a proposed program or contract submitted to the board by an organization of which the 

member is the salaried executive director except in limited circumstances. With respect to 

a contract proposal, the board would be prohibited from entering into the contract unless the 

situation falls within the exceptions enumerated in section 1091.5 or the "rule of necessity." 

6