The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 92-1210
of :
: JUNE 8, 1993
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE ROBERT G. BEVERLY, MEMBER OF THE CALIFORNIA
SENATE, has requested an opinion on the following question:
Does a city council's approval of the renewal, sale, assignment, or transfer of a cable
television franchise held by a city council member constitute the "making of a contract" prohibited
by Government Code section 1090?
CONCLUSION
A city council's approval of the renewal, sale, assignment, or transfer of a cable
television franchise held by a city council member constitutes the "making of a contract" but would
not be prohibited by Government Code section 1090 if the rule of necessity is applicable in the
particular circumstances.
ANALYSIS
We are advised that in December of 1984 a city granted a franchise for the
construction, operation, and maintenance of a cable communication system within the city. In April
of 1992, the grantee of the franchise was elected to the city council. Under the terms of the franchise
agreement, the franchise will expire in December of 1994 unless renewed by the parties on mutually
agreeable terms and conditions following a determination by the city that the grantee has
satisfactorily performed his obligations under the franchise during the primary term. Approval of
the city council is needed for any rate increases and for the sale, transfer, lease, or assignment of the
franchise. The franchise in question is currently the only one providing cable television service in
the city.
We are asked to determine whether the interaction between the city council and the
grantee councilman as to either the renewal or sale of the franchise would constitute the "making
of a contract" prohibited by Government Code section 1090.1/ We conclude that the renewal or sale
of the franchise constitutes the making of a contract for purposes of the statute; however, the
statutory prohibition would not be applicable if the "rule of necessity" applied in the particular
circumstances.
Section 1090 provides in pertinent part:
"Members of the Legislature, state, county, district, judicial district, and city
officers or employees shall not be financially interested in any contract made by
them in their official capacity, or by any body or board of which they are members."
Section 1090 is concerned with financial interests, other than remote or minimal interests, which
would prevent officials from exercising absolute loyalty and undivided allegiance in furthering the
best interests of their public agencies. (See Stigall v. City of Taft (1962) 58 Cal.2d 565, 569.)2/
Moreover, when section 1090 is applicable to one member of the governing body of a public entity,
the proscription cannot be avoided by having the interested member abstain; the entire governing
body is precluded from entering into the contract. (Thomson v. Call (1985) 38 Cal.3d 633, 647-649;
Stigall v. City of Taft, supra, 58 Cal.2d at p. 569; City of Imperial Beach v. Bailey (1980) 103
Cal.App.3d 191, 197; 70 Ops.Cal.Atty.Gen. 45, 48 (1987); 69 Ops.Cal.Atty.Gen. 102, 104 (1986).)
A contract which violates section 1090 is void. (Thomson v. Call, supra, 38 Cal.3d at p. 646.)
In determining whether section 1090 is applicable with respect to the circumstances
presented, we note that the granting by a local government of a cable franchise or license is a
legislative act and establishes a contractual relationship between the parties. (City of Lafayette v.
American Television & Communication Corp. (1979) 98 Cal.App.3d 27, 31; Orange County Cable
Communications Co. v. City of San Clemente (1976) 59 Cal.App.3d 165, 171; Monarch Cablevision,
Inc. v. City Council (1966) 239 Cal.App.2d 206, 210; 66 Ops.Cal.Atty.Gen. 418, 421-422 (1983).)
Stated otherwise, a franchise when accepted by the grantee results in a valid contract binding both
the franchise holder and the public entity granting the franchise. (County of L.A. v. Southern Cal.
Tel. Co. (1948) 32 Cal.2d 378, 384-386.) Thus the prohibition of section 1090 would clearly
prohibit a current member of a city council from obtaining a cable television franchise from the city
during his term of office. (See Thomson v. Call, supra, 38 Cal.3d at p. 645; Neilsen v. Richards
(1925) 75 Cal.App. 680, 691; 73 Ops.Cal.Atty.Gen. 191, 194-195 (1990); 65 Ops.Cal.Atty.Gen. 305,
307-309 (1982).)
On the other hand, it is equally clear that the terms of section 1090 would not prevent
the grantee of an existing cable television franchise from becoming a member of the grantor city
council. The grantee would not have had the dual roles at the time the contract was executed. (See
Eldridge v. Sierra View Local Hospital District (1990) 224 Cal.App.3d 311, 321 ["Because
appellant had an existing contract of employment at the time she was elected, she was not required
by the operation of section 1090 to resign either her job or a position on the board"]; City of Imperial
Beach v. Bailey, supra, 103 Cal.App.3d at pp. 194-196; 73 Ops.Cal.Atty.Gen., supra, 195; 69
Ops.Cal.Atty.Gen., supra, 107-108; 65 Ops.Cal.Atty.Gen., supra, 306-308.)
1. All section references hereafter to the Government Code are by section number only.
2. Provisions relating to "remote interests" (§ 1091) and "non-interests" (§ 1091.5) are
not germane to the contractual matters we deal with here.
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Here we must determine whether the prohibition of section 1090 is triggered by
events occurring after the granting of the franchise (the original contract) and after the election of
the grantee to the city council.
A. Renewal of the Franchise
In City of Imperial Beach v. Bailey, supra, 103 Cal.App.3d 191, the operators of a
concession stand on a municipal pier sought a renewal of the concession contract with the city
pursuant to the contract. Shortly before giving notice of their intent to renew, one of the concession
operators was elected to the city council. The city refused to renew the contract on the grounds that
the renewal would constitute the making of a contract in violation of section 1090 and that the
attendant adjustment of the rate to be paid by the concession holder required a "negotiation"
prohibited by section 1090. In upholding the city's position, the court rejected arguments by the
concession holder that the city could unilaterally set the new rate, with the affected council member
abstaining, and that the renewal was akin to a ministerial act because a right to renew had vested in
the concessionaire prior to her election to the city council. The court stated:
". . . Assuming City sets the rate unilaterally, the Council must still approve
it. Since Hazel is a member of the Council, this is prohibited by section 1090, even
if she abstains from voting. It is not her participation in the voting which constitutes
the conflict of interest, but her potential to do so (Fraser-Yamor Agency, Inc. v.
County of Del Norte (1977) 68 Cal.App.3d 201, 211).
". . . . . . . . . . . . . . . . . . . . . . . . . . . .
". . . Whether the right to exercise the option vested prior to Hazel's election
to the Council, the fact still remains to exercise the option at the present time Hazel,
as a Council member, would have to affirm the contract and determine the new
monthly rate. This she cannot do under section 1090." (Id., at pp. 195-196.)
The court further noted that "the final execution of the contract and its affirmation by the council
would not be the only time when a conflict of interest may be presented." (Id., at p. 196.) Quoting
from one of its prior decisions, the court pointed out that "`the negotiations, discussions, reasoning,
planning, and give and take which go beforehand in the making of a decision to commit oneself must
all be deemed to be a part of the making of an agreement in the broad sense . . . .'" (Ibid.) It
concluded that "the trial court properly found that the exercise of the option to renew Concession's
contract was a `making' of a contract prohibited by Government Code section 1090 as long as Hazel
Bailey is a member of the council." (Id., at p. 197.)
In the matter under consideration here, the same principles apply as regards the
renewal of the franchise. Whether the renewal involves the renegotiation of the contract or a mere
affirmation thereof, the potential for the franchise holder to participate in the voting on the renewal
constitutes the conflict of interest. As stated in Thomson v. Call, supra, 38 Cal.3d at p. 649: "Mere
membership on the board or council establishes the presumption that the officer participated in the
forbidden transaction or influenced other members of the council. [Citations.]" Application of
section 1090 would thus cause the renewal to fail, and, in the absence of renewal, the franchise
agreement would expire by its own terms. Any subsequent attempt by the city council and the
3. 92-1210
franchise holder to enter into a new agreement while the franchise holder remained a member of the
council would be void.3/
However, what is known as the "rule of necessity" may be applicable here to allow
renewal of the franchise by the council member. This rule was recently summarized by the court
in Eldridge v. Sierra View Local Hospital District, supra, 224 Cal.App.3d 311:
"The rule of necessity provides that a governmental agency may acquire
essential goods or services despite a conflict of interest, and in nonprocurement
situations it permits a public officer to carry out the essential duties of his/her office
despite a conflict of interest where he/she is the only one who may legally act. The
rule ensures that essential government functions are performed even where a conflict
of interest exists. [Citations.]" (Id., at p. 321.)
As mentioned in Eldridge, there are two different situations in which the rule of necessity has been
applied. The first facet of the rule was explained in greater detail in our opinion in 65
Ops.Cal.Atty.Gen., supra, 310:
"The contracting officer . . . would be the sole source of supply of such
essential supply or service, and also would be the only official . . . permitted by law
to execute the contract. Public policy would authorize the contract despite this
conflict of interest."
In 59 Ops.Cal.Atty.Gen. 604 (1976), we stated:
"We do not attempt to determine all the ramifications of the doctrine of
necessity in the case of a contractual transaction. This office has assumed its
existence in extreme cases of emergency, or where no alternative source of supply
of goods or services existed. [Citations.]
"Interestingly, in above types of situations, the necessity is caused by the
need to obtain something for the governmental unit, not by the mere fact that only
that particular person or body may act with regard to the transaction." (Id., at p. 619,
fn. 18.)
A rule of necessity situation involving the lack of an alternative source of supply of services was
presented in 42 Ops.Cal.Atty.Gen. 151, 156 (1963):
". . . In a few counties of small population there is only one mortuary and the
funeral director is the coroner. Coroner cases in these counties are handled by the
coroner's private mortuary and generally the accompanying funeral business is
handled by that mortuary also. Since the coroner has no real choice about where to
have the body held, it is not an abuse of his office to assign the body to his mortuary.
Cf. Capital Gas Co. v. Young, 109 Cal. 140 (1895) (public utility required to furnish
3. In Finch v. Riverside and Arlington Railway Co. (1891) 87 Cal. 597, a streetcar
company was granted a franchise to provide streetcar service to the City of Riverside. Because one
of the subscribers to the stock of the company was also a city trustee who took an active part in the
proceedings in relation to the franchise, the court held that the franchise was void and that the
defendant company thereby became a mere intruder upon the street and was subject to ejectment.
4. 92-1210
gas to city can collect on bill despite otherwise prohibited interest of mayor);
Hotchkiss v. Moran, 109 Cal.App. 321, 323-324 (1930) (electric company) . . . ."
As we noted in 69 Ops.Cal.Atty.Gen., supra, 102, "the `rule of necessity' is to reflect actual
necessity after all possible alternatives have been explored." (Id., at p. 109, fn. 6.)
It is conceivable that this facet of the rule of necessity may be applied to the present
circumstances. The cable television industry is one affected with the public welfare, providing
services that may be considered "essential" to its subscribers (see Santa Barbara County Taxpayer
Assn. v. Board of Supervisors (1989) 209 Cal.App.3d 940, 949; Cox Cable San Diego, Inc. v. City
of San Diego (1987) 188 Cal.App.3d 952, 963, 967; 66 Ops.Cal.Atty.Gen., supra, 421-422); it is
highly regulated by the federal government (see 47 U.S.C. § 521 et seq. [Cable Communications
Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act
of 1992]), the state (see §§ 53054-53056, 53066-53066.5), and local governments (see Cox Cable
San Diego, Inc. v. City of San Diego, supra, 188 Cal.App.3d at p. 965; City of Lafayette v. American
Television & Communication Corp., supra, 98 Cal.App.3d at p. 32); and the services are similar to
the delivery of electricity, gas, and other public utilities (see Pub. Util. Code, §§ 215.5, 768.5,
10001; 54 Ops.Cal.Atty.Gen. 135, 137-138 (1971)). The concession business in City of Imperial
Beach v. Bailey, supra, 103 Cal.App.3d 191 (selling bait, fishing tackle, and refreshments) may be
distinguished as not involving the sole source of an essential supply or service.
The issue of whether a public official provides the sole source of a particular service
or supply presents a question of fact. Here, to be considered is whether the services are essential to
the city as well as to its residents, and whether any other cable television services would be available
to the city. Depending upon the circumstances presented, the rule of necessity may be applicable
so as to allow the renewal of the franchise held by the city council member which would otherwise
be subject to section 1090's prohibition.
B. Transfer of the Franchise
Turning to the question of the application of section 1090 to the sale of the
councilman's franchise, we find that under the terms of the franchise agreement, a sale or other
transfer is subject to the approval of the city. Without such approval, no transfer may occur. The
council's approval is just as necessary to the "making" of the contract, whether it is a contract of sale,
assignment, or other transfer, as is the consent of the councilman and the new owner. The transfer
of the franchise will necessarily involve the sale of the councilman's assets for which he will be
compensated by the new owner. We view the entire exchange, with the council's approval of the
franchise agreement transfer, as one interrelated transaction for purposes of section 1090. (See
Thomson v. Call, supra, 38 Cal.3d at p. 645.) We conclude that the council member will have a
financial interest under the terms of section 1090 in the council's "contract" approving the transfer.
It would be anomalous to conclude, however, that the city councilman in question
may only resign from office in order to avoid the proscription of section 1090. Even in City of
Imperial Beach v. Bailey, supra, 103 Cal.App.3d 191, the councilwoman was given a choice
between resigning from office or selling her business:
"In the present case, as was the case in City Council v. McKinley, supra, it
is conceded Hazel Bailey's integrity is above reproach and we sympathize with her
position of having to choose between remaining on the Council or continuing as
owner of Concession. However, the purpose of Government code section 1090 is not
only to strike at actual impropriety, but also to strike at the appearance of
impropriety." (Id., at p. 197.)
5. 92-1210
In Thomson v. Call, supra, 38 Cal.3d 633, the Supreme Court viewed resignation from office as an
inappropriate single remedy: "Resignation from office does not, however, appear to be a viable
alternative; indeed it may be counter to the public interest in retaining competent public officers."
(Id., at p. 650, fn. 25; see 73 Ops.Cal.Atty.Gen., supra, 195-196.)
Here, we view the second facet of the rule of necessity as being applicable to the
councilman's sale of the franchise. Under this facet of the rule, an officer or board may perform
necessary public duties without violating section 1090 if no one else may legally act. (See Caminetti
v. Pac. Mutual Life Insurance Co. (1943) 22 Cal.2d 344, 366 [insurance commissioner may act
against delinquent insurer in which he holds a policy]; 69 Ops.Cal.Atty.Gen. 102 (1986) [school
board may enter into a memorandum of understanding with a teacher's association even though one
of the trustees is married to a teacher]; 65 Ops.Cal.Atty.Gen. 305 (1982) [superintendent may enter
into a memorandum of understanding with school employees although married to one of the
employees].) Assuming section 1090 allows termination of the proscribed conflict in addition to
resignation from office, we believe that the councilman in question may sell or otherwise transfer
his franchise to avoid his financial conflict. Since such termination would require approval by the
council, the council's action would constitute a public duty exempt from the section 1090 prohibition
under the second facet of the rule of necessity.
Finally, we caution that a violation of section 1090 may result in substantial penalties
and that the courts have not read its provisions in a narrow or restrictive manner. Anyone who
willfully violates section 1090 is punishable by a fine of not more that $1,000, "or by imprisonment
in the state prison, and is forever disqualified from holding any office in this state." (§ 1097.) In
Thomson v. Call, supra, 38 Cal.3d 633, a city mayor was required to pay the city $258,000 as a
result of violating section 1090 even though he had acted upon the advice of the city attorney, actual
fraud or dishonesty was not established in the case, and it was assumed that the contract was fair,
just, and equitable to the city. (Id., at pp. 648-650.) Even if we were to conclude that the rule of
necessity is applicable in a particular situation, a court may conclude otherwise.4/
In answer to the question presented, therefore, we conclude that a city council's
approval of the renewal, sale, assignment, or transfer of a cable television franchise held by a city
council member constitutes the "making of a contract" but would not be prohibited by section 1090
if the rule of necessity is applicable in the particular circumstances.
*****
4. Of course, in any event, the city council member himself may not vote on the approval of the
renewal, sale, assignment, or transfer of the franchise when it comes before the council. Under the
Political Reform Act of 1974 (§§ 81000-91015), a public official may not "make, participate in
making or in any way attempt to use his official position to influence a governmental decision in
which he knows or has reason to know he has a financial interest" (§ 87100). Section 87103
specifies that "[a]n official has a financial interest in a decision . . . if . . . the decision will have a
material financial effect . . . on . . . [a]ny source of income . . . received by or promised to the public
official within 12 months prior to the time when the decision is made." If the councilman renews
the franchise or receives compensation for its transfer, he would be subject to these statutory terms.
The Fair Political Practices Commission has promulgated extensive regulations and provides written
advice to public officials on these statutory requirements. (See 70 Ops.Cal.Atty.Gen., supra, 46.)
6. 92-1210