There are several provisions of law that apply to the matter set forth above. We have set forth below a reference to and discussion of the several code sections in question.

1. Employment of Spouse of Board Member

A. Initial Employment

Government Code section 1090 provides as follows:

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. 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.

As used in this article, "district" means any agency of the state formed pursuant to general law or special act, for the local performance of governmental or proprietary functions within limited boundaries.

This provision has been construed so as to prohibit a spouse from being initially employed by a district so long a s the other spouse remains on the board. (California

Attorney General Opinion 97-807, copy enclosed.) This conclusion is based on the fact that since California is a community property state, one spouse necessarily has a financial interest in the earnings of the other spouse.

B. Ongoing Employment

Government Code section 1091.5(a)(6) provides as follows:

(a) An officer or employee shall not be deemed to be interested in a contract if his or her interest is any of the following:

(6) That of a spouse of an officer or employee of a public agency in his or her spouse's employment or officeholding if his or her spouse's employment or officeholding has existed for at least one year prior to his or her election or appointment. (Emphasis added.)

Thus, if one spouse has been an employee of the district for at least one year the other spouse may be elected or appointed to the board. As noted below, the Political Reform Act of 1974 (Government Code sections 87100 et seq.) govern decisions involving spouses made by board members.

Note 2:

No similar exception exists regarding the employment of minor children of a board member.

C. Political Reform Act of 1974

Government Code section 87100 provides as follows:

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.

Government Code section 87103 provides, in part, as follows:

A public official has a financial interest in a decision within the meaning of Section 87100 if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on the official, a member of his or her immediate family, or on any of the following:

(c) Any source of income, other than gifts and other than loans by a commercial lending institution in the regular course of business on terms available to the public without regard to official status, aggregating two hundred fifty dollars ($250) or more in value provided to, received by or promised to the public official within 12 months prior to the time when the decision is made.

Note:

This requires that the board member not participate in the discussion or vote on any matter that uniquely effects a spouse. This is explained in FPPC Regulations, Title 2, Code of Regulations Section 18705.(c)(1) as follows:

Special Rules. Notwithstanding Title 2, California Code of Regulations, sections 18705.1 through 18705.5, inclusive, an official does not have to disqualify himself or herself from a governmental decision if:

2. Employment of Minor Children

Under California law a parent has a financial interest in the earnings of non-emancipated minor children (See Civil Code Sections 7050 and 7500). Thus, the employment of minor children of a board member is prohibited by Government Code Section 1090, for the reasons set forth above under the discussion of spouses. Unlike the exception for the continuation of employment of a spouse who has been employed for at least one year prior to the other spouse becoming a board member, no such exception exists with respect to minor children. Thus, minor children of a board member cannot be employed for compensation by the board.

3. Employment of Relatives of Board Members Other than Spouses or Minor Children

Education Code section 35107(e) provides as follows:

(e) A member of the governing board of a school district shall abstain from voting on personnel matters that uniquely affect a relative of the member but may vote on collective bargaining agreements and personnel matters that affect a class of employees to which the relative belongs. For purposes of this section, "relative" means an adult who is related to the person by blood or affinity within the third degree, as determined by the common law, or an individual in an adoptive relationship within the third degree.

Note 1:

For the reasons set forth above, this section does not apply to spouses of board members (the common law definition of affinity is the relationship one has with the blood relatives of the other spouse) and applies only to adult children.

Note 2:

No employee of a school district may be a board member of that district. See Education Code section 35107(b)(1) which provides as follows:

(b)(1) An employee of a school district may not be sworn into office as an elected or appointed member of that school district's governing board unless and until he or she resigns as an employee. If the employee does not resign, the employment will automatically terminate upon being sworn into office.