Holding Two Positions
Nothing in the Act or its conflict-of-interest rules prevents a public official from seeking or holding a particular employment position, whether public or private. A conflict of interest may arise only after a person takes office and is dependent on that person’s conduct subsequent to taking office. (Eldridge v. Sierra View Hospital District, 224 Cal. App. 3d 311 (1990).)
A conflict of interest does not prohibit a person from seeking or holding office. Rather, the conflict-of-interest provisions of the Act prohibit a public official from participating in a decision that will have a financial effect on his or her financial interests. This prohibition is applied on a decision-by-decision basis. For information about financial conflicts of interest under the Act, refer to Conflicts of Interest.
May I Hold Two Public Positions?
The Act does not prohibit you from holding multiple public positions, either within a single agency or different agencies. In addition, there are no provisions of the Act which preclude you from seeking more than one elective office in a single election, or from serving in more than one elective office at any one time. (See Incompatible Offices, below.) For example, a firefighter may be elected to the fire protection district, or a parks and recreation board member may also be elected to the water district.
Governmental Salary Does Not Create a Conflict. If you are employed by a federal, state, or local government agency, the salary you receive from that agency is excluded from the definition of income under the Act. (Section 82030(b)(2).) Therefore, the governmental income which you receive will not give rise to a conflict of interest under the Act. This exclusion applies to salary, reimbursement for expenses, or per diem that you receive from a government agency. However, the exclusion for governmental salary generally does not apply to individuals who work under contract for a government agency. (Moore Advice Letter, No. I-93-343.)
Will a teacher’s salaried position with the Morongo Unified School District create a conflict of interest with respect to her decisions as a Twentynine Palms city council member? Her governmental salary from the district is excluded from the definition of income under the Act. Neither her salary from nor employment with the school district will create an financial interest in the district that could result in a conflict of interest. (Meyer Advice Letter, No. A-93-051.)
Is an individual who wants to run for the county board of supervisors prevented by the Act from seeking election because he is employed by the county office of education as director of a career center? It does not. His salary from the county office of education is excluded from the definition of income under the Act, and will not create a conflict of interest for him should he be elected. (Simmons Advice Letter, No. I-95-245.)
Votes Affecting Your Own Position. The Political Reform Act does not require you to disqualify yourself on decisions that affect the salary, per diem or reimbursement for expenses you and other employees in the same job classification or position receive from your agency. (Regulation 18704(d)(3).) You cannot, however, vote to create a new position for yourself or to increase your position from part to full time. (Koski Advice Letter, No. I-96-289.)
In addition, Gov. Code Section 1090 provides that a public official may not make a contract in which he or she is financially interested. A board member may violate Section 1090 if he or she contracts with the board to provide services. Under Section 1090, a board member of an agency may not participate in making an employment agreement for him or her to take the position of Executive Director of the Agency. (Burns Advice Letter, No. A-15-096.)
Incompatible Offices. Gov. Code Section 1099 codifies the common law prohibition against the holding of “incompatible offices.” This doctrine restricts the ability of public officials to hold two different public offices simultaneously if the offices have overlapping and conflicting public duties. For this section to apply, each position must be a “public office.” (Gov. Code Section 1099(c).)
Pursuant to Section 1099, a person may not simultaneously hold two public offices if: either of the offices exercises a supervisory, auditing, or removal power over the other office or body, there is a significant clash of duties or loyalties between the offices, or there are public policy considerations that make it improper. The consequence of holding an incompatible office is that the person is “deemed to have forfeited the first office upon acceding to the second.” (Gov. Code Section 1099(b).) In addition, the California Constitution has provisions addressing the holding of two government positions.
The doctrine of incompatible offices is outside the jurisdiction of the Fair Political Practices Commission, but the Attorney General's office has issued numerous opinions on the subject which are available on the Attorney General’s web site. If you have a question about whether two public offices which you hold or seek to hold would be considered incompatible offices, contact your city attorney, county counsel, or the Attorney General's office.
Can the elected trustee of the South Bay high school district run for a seat on the Redondo Beach City Council, or does the Political Reform Act prohibit it? The Act does not prohibit him from holding two elected offices. However, he may want to check with the Attorney General's office to make sure that district trustee and council member are not "incompatible offices." (Downs Advice Letter, No. I-90-278.)
May I Hold a Public Position and Private Employment?
The Act does not prohibit you from holding a public position, and also being employed by a private business or firm. But you may not make a governmental decision that would affect your financial interests, such as the business or firm you work for, or in some cases, your clients, as discussed above.
Does the Act prohibit a council member from accepting employment with a brokerage firm, Merrill-Lynch, that does business in the jurisdiction and has contracted with the city in the past to issue bonds? The Act does not prohibit the council member from accepting employment with Merrill-Lynch. However, the conflict-of-interest provisions of the Act prohibit the council member from making, participating in making, or otherwise using his official position to influence a governmental decision that will materially affect any financial interest, including sources of income such as Merrill-Lynch and clients who will have paid the council member commission income. (Rede Advice Letter, No. I-93-023.)
Outside Employment and Activities - Your Agency's Own Guidelines. State and local agencies are authorized to adopt "statements of incompatible activities" that govern their employees' conduct. State and local agencies can prohibit their employees from engaging in outside employment, activities, or enterprises, that are inconsistent or in conflict with their duties as agency employees. (Gov. Code Sections 19990 and 1126 et seq.) This area of law is outside the jurisdiction of the Fair Political Practices Commission. You should check with your supervisor or agency counsel to see whether your agency has adopted a statement of incompatible activities.
May a Fair Political Practices Commission employee open a campaign consulting business? No. The Commission’s statement of incompatible activities prohibits Commission employees from being compensated to perform any political campaign activities. In addition, the statement of incompatible activities prohibits an employee from engaging in outside employment if that employment prevents the employee from devoting his or her full time, attention, and efforts to performing regularly assigned Commission duties.
Professional Ethics. Many professions have their own codes of ethics. While particular outside employment or positions may not present a conflict of interest under the Act, you may wish to review your profession's code of ethics to make sure that your activities do not create a professional ethics problem.
Your Spouse's Employment
The Act does not prohibit you from seeking a public position just because your spouse holds another public position or private employment. Under the Act, however, an official's income includes a community property interest in the income of his or her spouse. (Section 82030(a).) If your spouse has received income from a business or firm, you may have to disqualify yourself if a decision would have a material financial effect on that business. Check with your agency counsel or the FPPC to determine whether you have a conflict of interest with respect to the governmental decision. (Refer to the FPPC's guide Am I Disqualified? Conflicts of Interest Overview.)
May a city council member, whose spouse has been employed by a bank for several years, vote on the bank's petition for a variance? No, the council member must disqualify himself because the bank has been a source of community property income to him of $500 or more in the preceding 12 months.
Would an individual who is interested in running for an elected position on the Castaic Lake Water Agency Board have a conflict of interest if she is elected to a position on the Castaic board since her husband is an elected director on the Newhall County Water District Board? No. The salary her husband receives from the Newhall board is excluded from the definition of income under the Act and will not create a conflict of interest for her if she is elected to the Castaic board. (Dunn Advice Letter, No. A-96-211.)
As a public official, you must disqualify yourself from a decision that will result in the hiring, firing, promotion, demotion, suspension of or taking disciplinary action against yourself or your immediate family or setting a salary for yourself or your immediate family different from salaries paid to other employees in the same job classification. (Regulation 18704(d)(3).) However, you do not have to disqualify yourself from a decision that only affects the salary, per diem, or reimbursement for expenses you or your spouse receives from a state or local government agency, where these are the same as what other employees in the same job classification or position receive. (Regulation 18704(d)(3).)
Can a school board member vote on the district's budget if his spouse is a teacher in the district and the budget decisions might affect teacher salaries? In general, yes if his spouse's salary is exempt from the definition of income under the Act and the decision affects the salary of all teachers in the district, not just his spouse's. (Regulation 18704(d)(3); see also Sylvia Advice Letter, No. I-02- 76.)