On Nov. 2, 2021, California Attorney General Rob Bonta issued an advisory opinion (No. 20-102) concluding that executive directors and other charter school employees — like employees of traditional public schools — may not serve as members of the county board of education in the county where their employing school is located.
This opinion serves to advance public policy by limiting the potential for conflicts of interest among individuals with loyalties to both a county board of education and a charter school within the same county.
California charter schools are governed by California’s Charter School Act and operate differently than traditional public schools. (Ed. Code, § 47600 et seq.) The Charter School Act exempts charter schools from many laws governing traditional school districts and are intended to expand learning opportunities, encourage innovative teaching methods, provide expanded public educational choice, and promote educational competition and accountability within the public school system. While charter schools operate independently from traditional public schools, they are still subject to public oversight and regulation by county boards of education, which may approve or deny initial charter petitions submitted directly to the county board, or charter petitions appealed to the county board after being denied by a district governing board.
To answer the question of whether a charter school employee can serve on a county board of education, Bonta first turned to the “incompatible offices doctrine” outlined in Government Code section 1099. The incompatible offices doctrine prohibits public officers from holding two public offices when one office may audit, overrule, remove members of, dismiss employees of, or exercise supervisory powers over the other office. Additionally, public officers may not hold two offices where, based on the powers and jurisdictions of the offices, there is a possibility of a significant clash of duties or loyalties between the offices. If a public officer obtains a second position in violation of the incompatible offices doctrine, the public officer shall be deemed to have forfeited the first office upon acceding to the second.
For the purposes of the incompatible offices doctrine, a position of public office is defined as “‘a position in government (1) which is created or authorized by the Constitution or some law; (2) the tenure of which is continuing and permanent, not occasional or temporary; (3) in which the incumbent performs a public function for the public benefit and exercises some of the sovereign powers of the state.’” (101 Ops.Cal.Atty.Gen. 81, 83 (2018), quoting 68 Ops.Cal.Atty.Gen. 337, 342 (1985).)
The Attorney General opinion found that some — but not all — charter school employees hold “positions of office” contemplated by the incompatible offices doctrine. Moreover, making the necessary distinction between “positions of office” and “positions of employment” is not always straightforward in the charter school context. For example, Bonta examined the role of a charter school executive director and found that while directors generally hold positions of employment akin to a public school principal, in some circumstances, directors may be public officers because of the specific state powers they exercise.
Bonta turned next to Education Code section 1006(a), which states: “Any registered voter is eligible to be a member of the county board of education except the county superintendent of schools or any member of his or her staff, or any employee of a school district that is within the jurisdiction of the county board of education.”
While section 1006(a) prohibits school employees from sitting on the board of education in the county in which their employing school is located, section 1006(a) does not expressly state whether the prohibition applies to charter school employees. To determine the Legislature’s intent, Bonta looked to surrounding statutory framework, citing the express inclusion of charter schools in a number of conflict-of-interest laws such as: the Ralph M. Brown Act, the Bagley-Keene Open Meeting Act, the California Public Records Act, the Political Reform Act, and the article of the Government Code containing section 1099 and section 1090 (which prohibits conflicts of interest in government contracts).
Concluding that principles of statutory construction generally support strict enforcement of conflict-of-interest statutes to achieve public policy goals, the Attorney General opined that section 1006(a) was intended to include charter school employees. As a result, section 1006(a) should be read to prohibit both traditional public school employees and charter school employees from serving as members of the county board of education in the county where their employing school is located.
The Attorney General opinion can be found here.
