Incompatible Activities in Local Government Employment

Government Code Title 1, Division 4, Chapter 1, Article 4.7 concerns incompatible activities and was added to state law in 1971. Article 4.7 contains Sections 1125 to 1129. It deals specifically with local agency officials and Section 1125 defines a “local agency” to mean a county, city, city and county, political subdivision, district, or municipal corporation.

Section 1126 essentially provides that a local agency officer or employee is “prohibited from engaging in any employment, activity, or enterprise for compensation which is inconsistent, incompatible, in conflict with, or inimical to his or her duties as a local agency officer or employee or with the duties, functions, or responsibilities of his or her appointing power or the agency by which he or she is employed.”

The officer or employee is prohibited from performing any work, service, or counsel for compensation outside of his or her local agency employment where any part of his or her efforts will be subject to approval by any other officer, employee, board, or commission of his or her employing body.

There are exceptions, which require approval of the local appointing power. Basically, each appointing power may determine, subject to approval of the local agency, and consistent with the provisions of applicable law, those outside activities which, for employees under its jurisdiction, are inconsistent with, incompatible to, or in conflict with their duties as local agency officers or employees.

Nonetheless, an employee’s outside employment, activity, or enterprise may be prohibited if it:

(1) involves the use for private gain or advantage of his or her local agency time, facilities, equipment and supplies; or the badge, uniform, prestige, or influence of his or her local agency office or employment or,

(2) involves receipt or acceptance by the officer or employee of any money or other consideration from anyone other than his or her local agency for the performance of an act which the officer or employee, if not performing such act, would be required or expected to render in the regular course or hours of his or her local agency employment or as a part of his or her duties as a local agency officer or employee or,

(3) involves the performance of an act in other than his or her capacity as a local agency officer or employee which act may later be subject directly or indirectly to the control, inspection, review, audit, or enforcement of any other officer or employee or the agency by which he or she is employed, or

(4) involves the time demands as would render performance of his or her duties as a local agency officer or employee less efficient.

Section 1126 requires the local agency to adopt rules governing this area of law and these rules must include provision for notice to employees of the determination of prohibited activities, of disciplinary action to be taken against employees for engaging in prohibited activities, and for appeal by employees from such a determination and from its application to an employee.

Section 1127 provides that “It is not the intent of this article to prevent the employment by private business of a public employee, such as a peace officer, fireman, forestry service employee, among other public employees, who is off duty to do work related to and compatible with his regular employment, or past employment, provided the person or persons to be employed have the approval of their agency supervisor and are certified as qualified by the appropriate agency.”

Section 1128 specifies that an individual’s service on an appointed or elected governmental board, commission, committee, or other body by an attorney employed by a local agency in a nonelective position is not, by itself, deemed to be inconsistent, incompatible, in conflict with, or inimical to the duties of the attorney as an officer or employee of the local agency and shall not result in the automatic vacation of either such office.

Finally, Section 1129 notes that service on the Board of Directors of the Local Agency Self-Insurance Authority by an officer or employee of a local agency, or by a person who serves in an appointed or employed position with an agency or entity created by a joint powers agreement to provide insurance pooling, is not, by itself, deemed to be inconsistent, incompatible, in conflict with, or inimical to, duties of the officer or employee in either capacity.