Status of Board Member's Spouse

The California Attorney General recently issued an opinion on a long-pending question concerning employment of a board member’s spouse.  (Opinion No. 02-206, February 26, 2004).
School and community college governing board members are considered to have a financial interest in the employment contracts of their spouses.  Government Code section 1090 prohibits the entire governing board from approving a contract where one board member has a prohibited financial agreement.  (Abstention from voting and participation does not cure the problem.)  Violation of this rule will be grounds for any interested person to demand that the contract be voided, and can result in criminal penalties for the board members.
The Legislature developed a ”safe harbor” permitting the employment of a board member’s spouse where the spouse held the position at least one year before the board member’s election or appointment (Government Code section 1091.5(a)(6)), on the theory that the employment contract was approved by a prior, disinterested board.  However, prior opinions have held that the spouse cannot be promoted or accept a different position, since the new employment arrangement would have to be approved by the board on which the employee’s  spouse sits.  (The Attorney General recently opined that the conflict could not be avoided by having the superintendent approve all promotions.)
In the case considered by the Attorney General, the spouse was a probationary teacher employed for more than one year prior to the board member’s election.  With respect to a spouse employed as a probationary teacher, the opinion notes that if the board does not take action to ”non-reelect” the probationary teacher, the teacher automatically becomes a permanent employee without formal board action.  The Attorney General stated that while transitioning to permanent status is not guaranteed, it can be ”considered the norm.”  The two job classifications are the same with respect to job title, job description, duties, working conditions, compensation and union representation.  The primary difference is that a probationary teacher may be terminated without cause within the statutory time frame, while the permanent teacher is tenured and may be terminated only for cause after a hearing.
The Attorney General concluded that if the job title, job description, rights, duties, responsibilities and compensation are different, the ”safe harbor” for board member spouses will not apply.  The Attorney General did not consider the difference in termination rights between the probationary and permanent positions to be sufficient to consider them two different positions.  Like a salary step increase, this change does not require board approval, since the law does not require the governing board to take affirmative action to ”reelect” a probationary teacher in order for the teacher to attain permanent status.
The Attorney General pointed out that the board is not required by this opinion to reelect a probationary teacher married to a board member.  If the board wishes to avoid even the appearance of impropriety due to the financial interest in a particular case, it is free to notify the employee of non-reelection.
Opinions of the Attorney General are not binding on courts but are entitled to great weight and considered persuasive authority in the absence of controlling precedent.
Please contact our office if you need further assistance in this regard.