TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-807
of :
: November 12, 1997
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE BROOKS FIRESTONE, MEMBER OF THE CALIFORNIA STATE
ASSEMBLY, has requested an opinion on the following question:
May the spouse of a member of the governing board of trustees of a school district be hired
by the district as a substitute teacher?
CONCLUSION
The spouse of a member of the governing board of trustees of a school district may not be
hired by the district, whether as a substitute teacher or in any other employment capacity.
ANALYSIS
The question presented for resolution concerns the ability of a school district to employ, as a
substitute teacher, the spouse of a member of the school district's governing board of trustees. A substitute
teacher is an "employee of a school district who is employed in a position requiring certification
qualifications, whose duties require him or her to provide direct instruction to pupils in the schools of that
district for the full time for which he or she is employed." (Ed. Code, § 41401; Cal. Code Regs., tit. 5,
§ 17604, subd. (d).) The function of a substitute teacher is to fill the position of a regularly employed teacher
who is absent from service. (Ed. Code, § 44917.) A substitute teacher may be employed as a temporary
employee for up to one complete school year to fill a position for which no regular employee is available.
(Ed. Code, § 44918, subd. (a).) Other substitute teachers serve in an "on-call" capacity to replace absent
regular employees on a day-to-day basis. (See Ed. Code, § 44918, subd. (d).) Footnote No. 1
The question we consider here involves the initial hiring of a substitute teacher by a school
district and is similar to a question we answered in 69 Ops.Cal.Atty.Gen. 255 (1986). We noted in our prior
opinion that absent a finding of a "remote interest" (see Gov. Code, § 1091) Footnote No. 2 or a "noninterest"
(see § 1091.5), section 1090 prohibits public officers and employees from being financially interested in
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(see § 1091.5), section 1090 prohibits public officers and employees from being financially interested in
contracts made by them in their official capacity, or made by boards or commissions of which they are
members. (69 Ops.Cal.Atty.Gen., supra, at 255.) Footnote No. 3 One statutory "noninterest" is applicable in
specified circumstances to the spouse of a public officer or employee and was the focus of our 1986 opinion.
Section 1091.5 provides:
"(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.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
We concluded that under the terms of section 1091.5, subdivision (a)(6), a currently employed spouse may
not be promoted or appointed to a different employment position. We interpreted "employment" for the
one-year period to mean the same employment with the public agency, rather than any employment with the
agency. (69 Ops.Cal.Atty.Gen., supra, at 258-259.) The public agency involved in our 1986 opinion was a
school district, and we specifically applied the terms of subdivision (a)(6) of section 1091.5 to substitute
teaching. We stated in part:
"With respect to substitute teachers, a category of certificated employees of general
interest, we conclude first that section 1090 of the Government Code would not prevent the
employed spouse from continuing annual employment as a substitute teacher. We believe such
continued employment would constitute the same employment within our analytical framework.
Although a new contract would be required each year, we still believe that subdivision (a)(6)
authorizes the board to make the contract despite the member's interest. The legislative intent we
find in subdivision (a)(6) of section 1091.5 is to permit a continuation of the status quo with
respect to the spouse's employment.
"However, were the spouse to attempt to become a permanent employee, whether
certificated or classified, this would require the board to make a new contract which would be
prohibited by section 1090 of the Government Code. A different employment position would be
involved with different employment rights. These would include such matters as the right to
become a permanent classified employee after satisfactorily serving a probationary period or the
right to become tenured in the certificated service. The status quo would clearly be disturbed by
such new employment." (Id., at p. 259; fn. omitted.) Footnote No. 4
Here, the language of subdivision (a)(6) of section 1091.5 is entirely inapplicable since the
spouse has not served the requisite one-year period as a substitute teacher and in fact has had no previous
contractual agreement with the district. The proposal to hire the spouse in the first instance would violate the
proscription of section 1090. Accordingly, we conclude that the spouse of a member of the governing board
of trustees of a school district may not be hired by the district, whether as a substitute teacher or in any other
employment capacity.
*****
Footnote No. 1
A person may become a substitute teacher by possessing a bachelor's degree, passing the California basic educational skills
test, and obtaining a teaching credential. (Ed. Code, § 41401, subd. (d).) An emergency 30-day substitute teaching permit is
available for those meeting the first two requirements and having on file an application for a teaching credential. (Cal. Code
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(
Regs., tit. 5, § 80025.)
Footnote No. 2
All section references hereafter are to the Government Code unless otherwise indicated.
Footnote No. 3
Section 1090, where applicable, constitutes an absolute prohibition from entering into the prohibited contract by a board or
commission. Accordingly, its proscriptions cannot be avoided by having the financially interested board member abstain
from participation in the making of the contract. (69 Ops.Cal.Atty.Gen., supra, at 256.)
Footnote No. 4
Pursuant to sections 44917 and 44918, substitute teachers who meet certain length of service requirements during a school
year are eligible for probationary employee credit or status. Granting a substitute teacher a change in status, i.e., from
temporary to probationary, would violate section 1090 if such occurs after the substitute teacher's spouse has been
appointed or elected to the board of trustees. (69 Ops.Cal.Atty.Gen., supra, at 259, fn. 6.)
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