Friday, February 13, 2004
Lockyer Rejects School District Bid to Avoid Conflict-of-Interest Prohibition
By KENNETH OFGANG, Staff Writer
A school district cannot avoid conflict of interest prohibitions by delegating to the superintendent the authority to award contracts, which could then go to spouses of board members, Attorney General Bill Lockyer has opined.
Lockyer Wednesday advised Assemblyman Greg Aghazarian, R-Stockton, that the award of a contract pursuant to such arrangement would still violate Government Code Sec. 1090. The statute prohibits most public officers and employees, including school board members, from being “financially interested in any contract made by them in their official capacity, or by any body or board of which they are members.”
Aghazarian, who represents parts of San Joaquin and Stanislaus counties, advised the attorney general that the spouse of a school board member had gone to work for a firm that has been leasing copy machines to the district under a no-bid contract for several years. In addition, the assemblyman explained, an administrator in the same district, who is seeking a promotion, is married to a board member who was elected several years after she began working in the schools.
In order to allow the administrator to seek her promotion, and the district to continue leasing copy machines from the same firm, the district is seeking to delegate its contracting authority to the superintendent, the lawmaker explained.
The asserted legal basis for the delegation is Education Code Sec. 35161, which allows a board to “delegate to an officer or employee of the district any of [its] powers or duties,” although the board “retains ultimate responsibility over the performance of those powers and duties so delegated.”
So long as the board retains ultimate responsibility, Lockyer opined, Sec. 1090 applies and no board member or spouse of a board member—longstanding authority treats an officer or employee and his or her spouse as the same person in determining whether a conflict of interest exists—may have an interest in a board contract.
Even when powers are delegated, the attorney general added, the Education Code requires ratification by the board of every contract. “Any policy that purports to divest the governing board of its responsibility to contract on behalf of the district would be contrary to state law,” Lockyer wrote.
The attorney general distinguished prior opinions allowing certain officials to hold government contracts where an “independent” official entered into the agreement on the agency’s behalf. Thus, a 1974 opinion held that a county purchasing agent, who had statutory authority to enter into certain contracts without the approval of the board of supervisors, could purchase goods from a firm owned by a supervisor.
The distinction, Lockyer said, is that a school superintendent is not, in entering into contracts, independent of the board that must ratify the agreements.
The opinion, No. 03-508, was prepared for Lockyer by Deputy Attorney General Susan Duncan Lee.
Copyright 2004, Metropolitan News Company