California Attorney General Declares That Charter School Employees May Not Serve on a County Board of Education in the County Where Their Employing School Is Located
On November 2, 2021, the California Attorney General released a formal opinion concerning the ability of charter school executive directors and other employees to serve as a member of the county board of education in the same county where their employing school is located. AG’s opinions are advisory and not legally binding, but are generally given great weight by the courts. Based on the AG’s Office’s interpretation of the incompatible offices doctrine codified in Government Code section 1099, executive directors, charter school board members, and other charter school employees who are considered “public officers” are prohibited from serving as a member of the board of education in the same county due to the potential for conflict between the two positions. According to the AG’s analysis of Education Code section 1006, that rule against holding incompatible offices extends to any employee of a school district, whether traditional or charter, and prohibits them from serving on the county board of education with jurisdiction over their school employer.
Government Code section 1099 – the Incompatible Offices Doctrine – prohibits any person from holding two incompatible public offices. The AG previously established that a position in government is a public office rather than merely public employment when it: (1) is created or authorized by the California Constitution or law; (2) is of continuous or permanent tenure versus occasional or temporary; and (3) serves a public benefit by independently exercising sovereign power of the state. (101 Ops.Cal.Atty.Gen. 81, 83 (2018), quoting 68 Ops.Cal.Atty.Gen. 337, 342 (1985)). Under previous case law and opinions, it has been established that the position of charter school governing board member is a “public office” by these criteria. (79 Ops.Cal.Atty.Gen. 155, 157 (1996)). Within one county, the positions of charter school governing board member and county board of education member are incompatible because the county school board acts as the chartering authority for the county, it exercises general oversight of the charter schools within its jurisdiction, and it serves as an appellate body within the chartering process. A person who held both positions would therefore suffer a serious possibility of conflicting duties or loyalties.
This same analysis would apply to an individual who holds positions as the executive director of a charter school and a county board of education member, but is a little more dependent on the specific position’s job duties because an executive director is not always a public officer. The executive director, for example, does not always exercise independent judgment with respect to delegated state powers. In the end, this analysis does not have to be conducted because the AG also determined that, pursuant to Education Code section 1006, any charter school employee is prohibited from serving on the county board in the same jurisdiction.
Section 1006 directs that “[a]ny 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.” According to the Opinion, the AG has determined that the Legislature intended that charter school employees be included in the prohibition against school district employees serving on county boards of education due to the potential for conflicts. This reasoning was based on the fact that, when the Legislature has confronted the question of whether to treat charter schools as school districts for the purposes of public integrity statutes, it has done so. The California Legislature has recently made charter schools subject to the Brown Act, the Bagley-Keen Act, the Political Reform Act, the conflict prohibitions of Government Code Section 1090 et seq., and the California Public Records Act. (Ed. Code, § 47604.1, Stats. 2019, ch. 3 (S.B. 126), § 1).
If you have any questions regarding this alert, please contact the authors or your regular attorney at Atkinson, Andelson, Loya, Ruud & Romo.