The Attorney General Opines that Trustee May Participate in Negotiations with Bargaining Unit of Spouse Employed at Least One Year Prior to Trustee's Election, but May Not Negotiate Health Benefits Linked to Trustee's Retirement Benefits

A trustee of a community college district board was elected in 2013. His spouse is a tenured faculty member in the district, and had been tenured since at least one year before he was elected. The faculty member's compensation and benefits are established by a collective bargaining agreement between the district and the faculty bargaining unit. The trustee is also a retiree of the district, and he receives the same health benefits that current employees receive, and will continue to do so after his term as a trustee ends.

The Chancellor of the California Community Colleges requested an opinion from the Attorney General as to (1) whether the trustee may participate in collective bargaining between the district and the bargaining unit representing his spouse; and (2) whether the trustee may participate in negotiating health benefits for current employees, which his own retirement benefits will match.

The Attorney General concluded that a trustee may participate in collective bargaining with the bargaining unit representing his spouse (with some limitations) because his spouse has been employed by the public agency at least a year before the trustee's election. Government Code section 1090 prohibits public officers from participating in public contract decisions in which they have a personal financial interest. Under this law, a trustee is "financially interested" in a contract when it controls the salary or terms of his or her spouse's employment. However, the Government Code also provides an exemption when the spouse has been an employee of a public agency for at least one year before the officer's election or appointment. Under these facts, the Attorney General concluded that the trustee may participate in collective bargaining with his spouse's bargaining unit.

However, the Attorney General also noted that a board member may participate in the making of a contract involving a spouse only to the extent that the contract concerns the conditions applicable to the spouse's current classification, rather than creating a new or different employment for the spouse. Thus, participating in the creation of a contract covering the salaries and benefits of the spouse's classification is permissible, but not participating in the creation of contracts involving unique benefits for the spouse, such as decisions to promote, reclassify, or hire the spouse. The trustee would have to abstain from the contract-making process in those cases.

The Attorney General also concluded that a trustee may not participate in negotiating health benefits for current employees, which his own retirement benefits then match. The Attorney General gave an opinion on this issue in 2006, which has since been endorsed by the California Supreme Court. (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1082.) In that 2006 opinion, the Attorney General concluded that, because the trustee receives the same health benefits as current employees, his official interest in conserving district resources conflicts with his personal interest in drawing greater health benefits, and the exceptions to Government Code section 1090 do not apply.

97 Ops.Cal.Atty.Gen. 62