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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.
 

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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).
 

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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
 

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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).)
 

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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
 

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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
 

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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
 

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