People v. Elliott, Cr. 4833

CourtCalifornia Court of Appeals
Writing for the CourtMcCOMB; MOORE, P. J., and FOX
Citation252 P.2d 661,115 Cal.App.2d 410
Docket NumberCr. 4833
Decision Date16 January 1953

Page 661

252 P.2d 661
115 Cal.App.2d 410

Cr. 4833.
District Court of Appeal, Second District, Division 2, California.
Jan. 16, 1953.
Rehearing Denied Jan. 29, 1953.
Hearing Denied Feb. 11, 1953.

Page 663

[115 Cal.App.2d 413] Paul Barksdale d'Orr, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Dan Kaufmann, Deputy Atty. Gen., S. Ernest Roll, Dist. Atty., and Mark Brandler, Deputy Dist. Atty., Los Angeles, for respondent.

McCOMB, Justice.

The Grand Jury of Los Angeles County in an accusation charged defendant with wilful and corrupt misconduct in office under section 3060 of the Government Code, in that as a member of the Board of Education of the City of Los Angeles he violated section 1011 of the Education Code and section 1090 of the Government Code by being interested in nine contracts entered into by the Board of Education and the Landier Management Company, a corporation

The accusation contains nine specifications of misconduct, each one being based on a separate contract ranging in dates from July 11, 1949, to and including March 1, 1951.

Defendant was tried before a jury and found guilty of wilful and corrupt misconduct in office. Motion for a new trial was denied and the court pronounced judgment removing him from office as a member of the Board of Education of the Los Angeles City School District, Los Angeles City High School District, and Los Angeles Junior College District.

From the judgment of conviction and the order denying his motion for a new trial, defendant appeals.

Questions: First: Did the accusation state facts sufficient to constitute the offense of wilful and corrupt misconduct in office?

[115 Cal.App.2d 414] Yes. Defendant was accused by the Grand Jury of Los Angeles County under the provisions of section 3060, Government Code, of wilful and corrupt misconduct in office as a member of the Board of Education of the City of Los Angeles, in that he violated section 1090, Government Code, and section 1011, Education Code, by having an interest in certain specified contracts with Landier Management Company.

Defendant concedes the applicability of section 1011 of the Education Code, which reads as follows: 'No member of the governing board of any school district shall be interested in any contract made by the board of which he is a member.'

This being true the accusation stated a cause of action, because in order to constitute misconduct it is not necessary that the act be a crime. (In re Reid, 182 Cal. 88, 89 et seq. , 187 P. 7; In the Matter of Burleigh, 145 Cal. 35, 37, 78 P. 242; Coffey v. Superior Court, 147 Cal. 525, 529, 82 P. 75.)

Defendant contends however that section 1090 of the Government Code is not applicable to him since school board members are not mentioned in the section, which provides: 'Members of the legislature, state, county, judicial district and city officers shall not be interested in any contract made by them in their official capacity, or by any body or board of which they are members', and therefore such school board members are excluded.

This contention is devoid of merit for the reason that school board members are both city and state officers. The State Constitution, Article XI, section 8 1/2, subdivision 2, specifically permits chartered cities to provide the manner in which, the times at which, and the terms for which the members of the boards of education shall be elected or appointed; for their

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qualifications, compensation and removal; and for the number which shall constitute any one of such boards. In accordance with this power the City of Los Angeles has provided for the board of which defendant is a member, specifically including board members as city officials. (Cal.Stats., 1925, p. 1039, art. II, sec. 5, L.A. City Charter.) The courts have consistently recognized the two-fold nature of school board members as both city and state officials. (See Becker v. Council of the City of Albany, 47 Cal.App.2d 702, 705[1 & 2], 118 P.2d 924.) To the extent that the city can provide for the removal of the members of the board of education [115 Cal.App.2d 415] for misconduct in having an interest in a contract entered into by the board, such members are clearly municipal officers.

The terms 'state officers' is not limited to officers whose jurisdiction is co-extensive with the state but applies generally to persons clothed with functions which affect the public and duties assigned to them by state laws. The state legislature may in the exercise of its police power direct the performance of prescribed state functions through local officers within the counties of the state, and to the extent that local officers discharge such duties they act as state officers. Clearly a member of the board of education falls within the foregoing rule. (Cf. People v. Richards, 86 Cal.App. 86, 89, 260 P. 582.)

The matter of education is of statewide concern and is one of the responsibilities of the state government. A member of the school board who carries out that responsibility on behalf of the state is therefore a state officer notwithstanding his activities may be limited to any particular city. Thus there is no reasonable basis for excluding him from the classification of 'state officer' as used in section 1090 of the Government Code. (See People v. Richards, supra, 86 Cal.App. at page 89, 260 P. 582.)

It logically follows that section 1097 of the Government Code is also applicable to defendant. Section 1097, Government Code reads in part: 'Every officer or person prohibited by the laws of this State from making or being interested in contracts, * * * who violates any of the provisions of such laws, is punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in the State prison for not more than five years, and is forever disqualified from holding any office in this State.' There is nothing in the history of the Education and Government Code provisions, which defendant sets forth at length, which detracts from the foregoing conclusions, nor does the fact that the legislature has seen fit to place a different civil penalty in section 1092, Government Code, as contrasted with section 1013 of the Education Code, alter our conclusions.

Second: Was the accusation of the Grand Jury sufficiently specific?

Yes. The accusation charged defendant with nine specific acts of wilful and corrupt misconduct in office in that he, as a member of the board of education, in violation of section 1011 of the Education Code and section 1090 of the Government Code, was interested in nine specified contracts [115 Cal.App.2d 416] made by the board of education of which he was then a member. The specific dates of the contracts, the number of the contracts and the Landier Management Company as contractor were all specifically alleged. These allegations meet the requirements of section 3061 of the Government Code which provides: 'The accusation shall state the offense charged in ordinary and concise language, and without repetition.' The primary purpose of the accusation is to apprise defendant of the offense of which he is accused so he may make his defense thereto. (Reid v. Superior Court, 44 Cal.App. 349, 356, 186 P. 634.)

It is likewise unnecessary for the accusation to set forth in detail all the facts constituting defendant's prohibited interest in a contract. (Woods v. Varnum, 85 Cal. 639, 646, 24 P. 843.) In addition defendant was furnished a copy of the Grand Jury proceedings containing all the testimony and exhibits which were the basis for the return of the accusation. These documents fully informed him as to the

Page 665

character of the charges and acquainted him with the evidence to be used against him at the trial. (People v. Harby, 51 Cal.App.2d 759, 766, 125 P.2d 874.)

In other words the accusation specifically advised defendant that he was a member of the board of education and while serving as such, in violation of two specified statutes of this state, he acquired an interest in contracts entered into by the board of education, of which he was a member, with the Landier Management Company. Under the new rules of pleading in criminal cases, an accusation is sufficient if it charges the offense and the enactment describing it and the details are supplied by a copy of the transcript of the proceedings before the Grand Jury, which defendant received. (People v. Pierce, 14 Cal.2d 639, 645, 96 P.2d 784; People v. Codina, 30 Cal.2d 356, 358 et seq., 181 P.2d 881.)

Third: Was there substantial evidence to sustain the trial jury's finding that defendant was guilty of wilful and corrupt misconduct in office?

Yes. The evidence disclosed that defendant was a member of the board of education of Los Angeles City at the time it entered into nine contracts with the Landier Management Company to provide bus transportation for pupils of the school district.

Defendant, as a member of the board, voted to approve each of these contracts. At the time of the first contract defendant was the attorney for F. P. Landier and at the [115...

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