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91 California Attorney General Reports and Opinions 1 (2008)

handle is hein.sag/sagca0091 and id is 1 raw text is: ATTORNEY GENERAL'S OPINIONS Opinion No. 07-104-February 15, 2008 Requested by: CITY PROSECUTING ATTORNEY, CITY OF RIALTO Opinion by: EDMUND G. BROWN JR., Attorney General SUSAN DUNCAN LEE, Supervising Deputy Attorney General THE HONORABLE ROBERT OWEN, CITY PROSECUTING ATTORNEY, CITY OF RIALTO, has requested an opinion on the following question: Is Government Code section 1090 a barrier to compromise settlement by a city of a suit for damages that was brought by a city council member against the city and its employees before his election to the council, for alleged wrongful conduct committed against him as a private citizen by city employees? CONCLUSION Although the issue is not entirely free from doubt, under the current state of the law, we conclude that a court could invalidate as contrary to state law a city's compromise settlement of a suit for damages that was brought by a city council member, before his election to the council, against the city and its employees for alleged wrongful conduct committed against him as a private citizen, because the plaintiff council member's financial interest in the settlement would be prohibited by Government Code section 1090. ANALYSIS In 2002, a city resident filed a complaint for money damages in a federal district court, alleging that the City of Rialto, certain of its employees, and various county employees had violated 42 U.S.C. §§ 1983, 1985(3), and 1986. Two years later, the plaintiff was elected to the city council of Rialto. We are advised that the action has been resolved as to all parties except the City of Rialto and some of its individually named employees, and we are asked whether the City may now enter into a compromise settlement of the litigation with the plaintiff council member. Resolution of this question requires us to consider again the issue whether the law recognizes an exception to Government Code section 1090 when the contract being examined concerns resolution of litigation, this time when the suit is one for damages against both the municipality and certain of its employees.' Although we believe that a court could reasonably come to a contrary conclusion in this circumstance, current jurisprudence construing and applying section 1090 compels us to advise that a compromise settlement of even a damage action such as the one 1 In 86 Ops.Cal.Atty.Gen. 142 (2003), we concluded that section 1090 would bar settlement of a suit that had been filed by a board member, while holding that office, against the board of which he was a member, for the purpose of reversing an earlier board action in which he had a personal financial interest. In that case, a community services district had issued a groundwater extraction permit to the neighbor of one of the district's directors. The director opposed the decision because of the possible adverse effect that the development might have on his well water. The director did not participate in the decision to approve the permit, and then filed a lawsuit against the district to overturn the board's decision. 1 February 2008

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