The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 96-701
of :
: January 24, 1997
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
______________________________________________________________________
THE CALIFORNIA PUBLIC UTILITIES COMMISSION has requested an opinion on the
following question:
Is the California Public Utilities Commission required to discharge an employee who marries an
employee of a regulated utility?
CONCLUSION
The California Public Utilities Commission is required to discharge an employee who marries an
employee of a regulated utility.
ANALYSIS
Section 303 of the Public Utilities Code Footnote No. 1 provides:
"No person in the employ of or holding any official relation to any corporation or
person that is subject in whole or in part to regulation by the commission, and no person owning
stocks or bonds of any such corporation or who is in any manner pecuniarily interested therein
shall be appointed to or hold the office of commissioner or be appointed or employed by the
commission. If any such person becomes the owner of such stocks or bonds or becomes
pecuniarily interested in such corporation otherwise than voluntarily, his office or employment
shall become vacant unless within a reasonable time he divests himself of such ownership or
interest."
We are asked to determine whether the California Public Utilities Commission ("Commission")
must discharge an employee who marries an employee of a regulated utility. Would section 303 apply in such
circumstances, and if so, is the statute constitutional?
Because of California's community property laws, it is evident that an employee of the Commission
who marries an employee of a regulated utility would be "pecuniarily interested" in the utility due to his or
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her spouse's compensation. Furthermore, this interest may not be nullified by an agreement that the spouse's
compensation be treated as his or her separate property, since even separate property is liable for the
necessaries of life of the other spouse. (Fam. Code, § 914; 78 Ops.Cal.Atty.Gen. 230, 237 (1995); 65
Ops.Cal.Atty.Gen. 305, 308 (1982).) In Nielsen v. Richards (1925) 75 Cal.App. 680, for example, the court
concluded that a husband had an interest in the separate property of his wife, so that she had to be discharged
from employment with the county schools where he was the county superintendent. Besides relying upon the
statutory "necessaries of life" obligation (id., at pp. 685-687), the court quoted from an Illinois case as
follows:
". . . `There is, moreover apart from this pecuniary interest, an intimacy of relation and
affection between husband and wife, and of mutual influence of the one upon the other for their
common welfare and happiness, that is absolutely inconsistent with the idea that the husband can
occupy a disinterested position as between his wife and a stranger in a business transaction. He
may, by reason of his great integrity, be just in such a transaction; but unless his marital relations
be perverted, he cannot feel disinterested--and it is precisely because of this feeling of interest
that the law forbids that he shall act for himself in a transaction with his principal.'" (Id., at p.
689.)
The court concluded:
". . . In the case at bar the county of Butte was entitled to the unbiased judgment of the
county school superintendent. Here we have contained not merely the personal and confidential
relation existing between husband and wife, but also the pecuniary advantage which was being
gained by the husband by reason of the contract which we have heretofore specified." (Id., at p.
690.)
More recently, in County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 676, the court observed that the
separate property of the wife of a public official "might be materially affected by his official actions," since
"[c]ommon sense tells us that . . . he may react favorably, or without total objectivity, to a proposal which
could materially enhance the value of that property."
Accordingly, on its face section 303 would prohibit continued employment by an employee of the
Commission who marries an employee of a regulated utility.
It has been suggested, however, that section 303 has been superseded by the conflict of interest
provisions of the Political Reform Act of 1974 (Gov. Code, § 81000-91015; "Act"). The Act generally
prohibits participation in any governmental action by a public officer or employee in which he or she has a
"financial interest." (See Gov. Code, §§ 82029, 82030, 82048, 87100-87103). Under the Act, in case of a
conflict of interest, only abstention from participation is required. (See Metropolitan Water Dist. v. Fair
Political Practices Com. (1973) 73 Cal.App.3d 650, 658; Witt v. Morrow (1977) 70 Cal.App.3d 817; 66
Ops.Cal.Atty. Gen. 156, 161-162 (1983).) Discharge from employment is not necessary.
How do the provisions of the Act affect the requirements of section 303? Government Code section
81013 states:
"Nothing in [the Act] prevents the Legislature or any other local agency from imposing
additional requirements on any person if the requirements do not prevent the person from
complying with [the Act]. If any act of the Legislature conflicts with the provisions of [the Act],
[the Act] shall prevail."
We believe that an additional and more stringent regulation would not present a "conflict" with the Act.
Compliance with the more stringent standard would necessarily constitute compliance with the Act's less
stringent standard (See 62 Ops Cal Atty Gen 90 99-100 (1979) ) In 59 Ops Cal Atty Gen 604 617-618
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stringent standard. (See 62 Ops.Cal.Atty.Gen. 90, 99-100 (1979).) In 59 Ops.Cal.Atty.Gen. 604, 617-618
(1976), we faced a similar question concerning the continued viability of Government Code section 1090, a
more stringent regulation than the Act with respect to contractual conflicts of interest. We concluded that the
more stringent requirements remained viable after the Act's adoption in 1974. This conclusion was recently
reinforced by the Court of Appeal in People v. Honig (1996) 48 Cal.App.4th 289, 330, where the court
explained in part:
". . . [T]he [Act] specifically provides that it is not exclusive. Section 81013 provides:
`Nothing in this title prevents the Legislature or any other state or local agency from imposing
additional requirements on any person if the requirements do not prevent the person from
complying with this title. If any act of the Legislature conflicts with the provisions of this title,
this title shall prevail.' By its terms, additional requirements, such as a prohibition against
making a contract in which one is financially interested, would conflict with the [Act] only if
those requirements prevented the official from complying with the [Act]. Since nothing in
section 1090 would prevent or inhibit an official from complying with the [Act], it cannot be
considered to be in conflict with [the Act]." (Fn. omitted.)
Similarly here nothing in section 303 would prevent or inhibit an officer or employee of the Commission
from complying with the Act's requirements.
No other statutory provision appears applicable to whether the Commission must apply the terms of
section 303 in the present circumstances. We are left, then, with the issue of whether section 303 is
constitutional. In addressing this issue, we note first that section 303 does not prohibit the marriage of anyone
to anyone. The "fundamental right" to marry (see Turner v. Safley (1986) 482 U.S. 78, 94-95; Loving v.
Virginia (1967) 388 U.S. 1, 12; Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 161; 65
Ops.Cal.Atty.Gen., supra, at 311) is at most incidentally affected by the terms of section 303. The courts
have long sanctioned conflicts of interest prohibitions that might have an indirect impact upon a marriage
relationship. (See Kimura v. Roberts (1979) 89 Cal.App.3d 871 [wife removed from city planning
commission when husband elected to city council].)
What section 303 does prohibit is an employee's continued employment with the Commission when
the proscribed financial interest is present. Does an employee have a constitutional right to continued public
employment? This question was recently answered in Graham v. Kirkwood Meadows Pub. Util. Dist. (1994)
21 Cal.App.4th 1631, 1643-1645, where the court stated:
"As to the assertion of a right to continued employment, there is no fundamental
constitutional right to work for, or to have continued employment with, a particular public or
private employer. (Rittenband v. Cory, supra, 159 Cal.App.3d 410; Kubik v. Scripps College
(1981) 118 Cal.App.3d 544, 549; Hetherington v. State Personnel Bd. (1978) 82 Cal.App.3d
582, 589.) . . .
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"`Notwithstanding the principle enunciated in Truax v. Raich (1915) 239 U.S. 33, 41
[60 L.Ed. 131, 135 . . .] that the right to work at a lawful occupation is an essential component of
liberty, the United States Supreme Court consistently has refused to recognize a fundamental
right to particular employment. [Citations.] California courts have followed substantially the
same reasoning, holding [] that there is no fundamental right to work for a particular employer,
public or private. [Citations.]' (Kubik v. Scripps College, supra, 118 Cal.App.3d at p. 549, fn.
omitted [mandatory retirement of college music professor reviewed under rational basis test].)"
In Graham, the court upheld the dismissal of a public employee for not residing within three miles
of his place of employment. The court found the public agency's three-mile requirement to be "reasonably
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drawn to effectuate the legitimate purpose of ensuring continued operations in bad weather conditions."
(Graham v. Kirkwood Meadows Pub. Util. Dist., supra, 21 Cal.App.4th at 1642.) Even though the agency's
policy failed "to achieve perfection," the court explained that "the reasonableness of a policy is evaluated
based upon whether it is designed to achieve its legitimate objectives." (Id., at p. 1641.)
As indicated in Graham, what is constitutionally required for a statute such as section 303 is that it
bear a "rational relationship" to a "legitimate governmental objective." In 69 Ops.Cal.Atty.Gen. 191, 197
(1986), we stated:
"Section 1 of the Fourteenth Amendment to the Constitution of the United States
provides inter alia that no state shall deprive any person of life, liberty or property without due
process of law. A virtually identical proscription is found in the California Constitution, article 1,
section 7. The concept of substantive due process requires that a statute must bear a rational
relationship to a legitimate governmental objective. (Williamson v. Lee Optical Co. (1955) 348
U.S. 483, 491.) However, the law need not be in every respect logically consistent with its aims
to be constitutional; the courts will not review the wisdom or providence of state laws regulatory
of business and industrial conditions. (Id. at pp. 487-488; Ferguson v. Skrupa (1963) 372 U.S.
726. 731-732.)" Footnote No. 2
The obvious objective of section 303 is to prevent a Commission officer or employee from acting in
his or her best interests rather than in the best interests of the public. In analyzing Government Code section
1090, the contractual conflicts-of-interest prohibition, the court in People v. Honig, supra, 48 Cal.App.4th at
324-325, observed:
". . . In United States v. Mississippi Valley Generating Co., supra, 364 U.S. 520 [5
L.Ed.2d 268], in a decision our state courts have often relied upon, the United States Supreme
Court considered a federal conflict-of-interest statute similar to section 1090. There the high
court noted that the federal statute was preventative in nature and was aimed at what might have
happened rather than what actually happened. (364 U.S. at p. 549-550 [5 L.Ed.2d at p. 288].) Its
purpose was to eliminate temptation and to this end spoke in broad, absolute terms, thus
establishing `an absolute standard of conduct.' (Id. at pp. 550, 559 [5 L.Ed.2d at pp. 288-289,
294].) . . .
.....................
"Section 1090, like the federal statute at issue in United States v. Mississippi Valley
Generating Co., supra, establishes an objective and absolute standard of conduct for public
officials. In this context the California Supreme Court long ago noted: `"For even if the honesty
of the agent is unquestioned, and if his impartiality between his own interest and his principal's
might be relied upon, yet the principal has in fact bargained for the exercise of all the skill,
ability, and industry of the agent, and he is entitled to demand the exertion of all this in his own
favor."' (San Diego v. S.D. & L.A.R.R. Co. (1872) 44 Cal. 106, 113.) For over a hundred years
our courts have consistently held that our conflict-of-interest statute, now embodied in section
1090, is intended to enforce the government's right to the absolute, undivided, uncompromised
allegiance of public officials by proscribing any personal interest. (See Thompson v. Call, supra,
38 Cal.3d at p. 648; Stigall v. City of Taft, supra, 58 Cal.2d at p. 569.) To this preventative end,
section 1090 establishes a broad, objective proscription which is violated when an official places
himself in an `ambivalent position' or an `ambiguous situation,' by having any financial interest
in an official contract, and which does not depend upon the actuality of a personal influence on
his decisions."
It may be argued that section 303 should not apply to employees of the Commission who have
clerical or ministerial positions and do not make decisions affecting the regulated utilities in which they have
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clerical or ministerial positions and do not make decisions affecting the regulated utilities in which they have
pecuniary interests. Is the prohibition of section 303 too broadly worded? A similar argument was raised in
Vance v. Bradley (1979) 440 U.S. 93, where the court upheld a requirement that participants in the foreign
service retirement system retire from their government positions at age 60. The requirement met the rational
basis test, since it was at least arguable that a significant percentage of people over age 60 might not perform
their duties as foreign service officers as ably as those who were younger. (Id., at p. 111.)
Other cases lend support to applying the terms of section 303 in the proposed circumstances. In
Keely v. State Personnel Board (1975) 53 Cal.App.3d 88, the court upheld the discharge of a state prison
guard for owning a liquor store. The court agreed that the guard might have a conflict of interest in selling
liquor to parolees knowing that many parole agreements contain a requirement that the parolee either totally
abstain from alcohol or abstain from excess drinking. (Id., at pp. 92-93, 97.)
In Reece v. Alcoholic Bev. etc. Appeals Bd. (1976) 64 Cal.App.3d 675, the wife of a sheriff's
detective owned a grocery store and cafe as her separate property. Relying upon Nielsen v. Richards, supra,
75 Cal.App. 680, and County of Nevada v. MacMillen, supra, 11 Cal.3d 662, the court ruled that the
detective had an indirect interest in his wife's business, including the beer and wine license issued for the
premises. (Id., at pp. 682-683.) It concluded that the administrative regulation prohibiting law enforcement
officers from holding liquor licenses applied to the detective, even though he was not assigned to patrol
duties. While the purpose of the regulation was "to prevent a conflict of interest between liquor licensees and
those involved in the enforcement of liquor laws," the court relied upon Keely v. State Personnel Bd., supra,
53 Cal.App.3d 88, in finding a conflict where the detective's indirect ownership "`might lead to
nonenforcement or lenient enforcement of violations on [the] premises by fellow officers . . . .'" (Id., at p.
682.)
In Kimura v. Roberts, supra, 89 Cal.App.3d 871, a city planning commissioner was removed from
office because her husband was elected to the city council. She claimed that "her removal from office
pursuant to Ordinance No. 549 violated her rights to be married and to hold public office simultaneously."
(Id., at p. 873.) The court rejected her claim, stating that "there is no doubt that either an actual bias or
conflict of interest, or the appearance thereof, would or could at times be present." (Id., at p. 875.)
In Hobbs, Wall & Co. v. Moran (1930) 109 Cal.App. 316, a city council member was the manager
of a store where the city purchased $250 in supplies. The court rejected the store's claim for payment even
though the supplies "were obtained in perfect good faith at reasonable prices":
". . . As manager of the mercantile business, which employment demanded strict loyalty
to his employer, it may be inferred Dressler, as a councilman, was not free to negotiate a bargain
in behalf of the city as favorable to the municipality as though these conflicting interests did not
exist. Dressler's membership on the council may reasonably be expected to influence his
associates in purchasing supplies for the city. The desire to favor a fellow-councilman,
unwarranted confidence, or carelessness in bargaining for supplies might result in a substantial
loss to the city. It is not necessary to show actual fraud, dishonesty or loss to invalidate the
transaction. The purpose of the statute is to remove all indirect influence of an interested officer
as well as to discourage deliberate dishonesty.
"Nothing in the relationship of a public officer should prevent him from exercising
absolute loyalty and undivided allegiance to the best interest of the municipality he serves.
"Although Mr. Dressler had no greater interest in the transaction than is shown by the
mere agency as business manager of the store from which the supplies were purchased, even
though they were obtained in perfect good faith at favorable prices, still the transaction was void
and the claims were illegally allowed." (Id., at p. 319.)
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As the courts have thus indicated, we do not question the wisdom of the Legislature in enacting
section 303, as long as it has a rational relationship to a legitimate governmental objective. Under the statute,
the officials and employees of the Commission who make decisions regarding regulated utilities will not be
influenced by their own pecuniary interests or by supervisors, associates, coworkers, or subordinates who
have pecuniary interests in regulated utilities. The Commission is entitled "to the absolute, undivided,
uncompromised allegiance of" all of its officers and employees without personal financial interests
influencing Commission decisions, whether the influence is from the employee's own personal interest or that
of a coworker. Section 303 is a broad, objective proscription that is violated when the Commission officer or
employee places himself or herself in a financial conflict of interest position. A rational relationship exists
between the terms of section 303 and eliminating the temptation of corrupting pecuniary influences. Footnote
No. 3
In answer to the question presented, therefore, we conclude that the Commission is required to
discharge an employee who marries an employee of a regulated utility.
*****
Footnote No. 1
All references hereafter to the Public Utility Code are by section number only.
Footnote No. 2
The rational basis test would also be applicable if section 303 were challenged on equal protection grounds (U.S.Const.,
14th Amend., § 1 ["No state shall . . . deny to any person within its jurisdiction the equal protection of the laws"];Cal.
Const.art. 1, § 7,subd. (a) ["A person may not be . . . denied equal protection of the laws"]).
(See Heller v. Doe (1993) 509 U.S. 312, 319-321; Graham v. Kirkwood Meadows Pub. Util. Dist., supra, 21 Cal.App.4th at
1642-1646.) We thus need not address separately this constitutional provision.
Footnote No. 3
Of course, the Legislature has the authority to exempt the spousal interest in question from the prohibition of section 303.
For example, in conflicts of interests involving the contractual obligations of public agencies, the Legislature has exempted
a spouse's employment or officeholding if the employment existed for at least one year prior to the election or appointment
of the contracting official. (Gov. Code, § 1091.5, subd. (a)(6); see 69 Ops.Cal.Atty.Gen. 255 (1986); 69 Ops.Cal.Atty.Gen.
102 (1986); 65 Ops.Cal.Atty.Gen. 305 (1982).)
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