In Thorpe v. Long Beach Community College District, [2000 Cal. App. Lexis 701 (Sept. 5, 2000)] the California Court of Appeal for the Second Appellate District, ruled that an employee of the Long Beach Community College District (hereafter "District") could not receive a promotion because it would constitute a conflict of interest for her husband because he is a member of the Board of Trustees of the District.
The employee had been working at the District since 1974. In April 1996, the employee’s husband was elected to the Board of Trustees. In 1998, the Board approved a new management position. The employee, who was uniquely qualified because of her experience at the District, applied for the newly created position. The employee did not receive the appointment because it was determined that this action would cause a conflict of interest because her husband was on the Board.
Government Code section 1090 prohibits any public officer or employee from having any financial interest, direct or indirect, in any contract made by the public employee or officer in his or her official capacity or made by a board on which the officer serves. The Court of Appeal found that an employment contract between a school district and a school board member’s spouse may violate section 1090 because the board member has a community property interest in the spouse’s contract with the District.
However, Government Code section 1091.5 sets out certain exceptions to section 1090. The employee tried to rely on the provision that states that an officer or employee does not face a conflict of interest as long as the spouse’s employment existed at least one year before the election of the officeholder. The Court of Appeal rejected the employee’s reliance on section 1091.5. Although the District had employed the employee for twenty-two years before her husband’s election to the board, the Court determined that her promotion would constitute new employment.
The appellate court concluded that the intent of the one-year exception in section 1091.5 “is to continue the status quo as to a spouse already employed for over a year, but to prohibit the spouse’s employment in a different position that requires approval of the Board of Trustees of which the employee’s spouse is a member.”
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