California Court of Appeals, Second District, First Division
APPEALS from a judgment and an order of the Superior Court of Los Angeles County. Stephen A. Marcus, Judge. Los Angeles County Super. Ct. No. SA075027
Hillel Chodos, Philip Kaufler, and Michael A. Goldfeder for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels, and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
Karen Christiansen was charged with four counts of conflict of interest in violation of Government Code section 1090,  which generally prohibits public officials from being financially interested in contracts they make in their official capacity. A jury convicted Christiansen on all counts, and the trial court sentenced her to 4 years 4 months in prison and ordered her to pay restitution of approximately $3.5 million.
On appeal, Christiansen argues on numerous grounds that her convictions must be reversed. We agree. Because Christiansen was not a member, officer, or employee of the relevant public body, section 1090 does not apply to her. We therefore reverse her convictions, vacate her sentence and the restitution award, and direct the superior court to dismiss all charges against her.
Section 1090 provides as follows: “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.” Violation of section 1090 is a crime punishable by a fine of not more than $1, 000 or by imprisonment in state prison, and violators are “forever disqualified from holding any office in this state.” (§ 1097.)
The amended information charged Christiansen with four counts of conflict of interest in violation of section 1090 (counts 3 through 6; the first two counts of the amended information alleged crimes by a different defendant). It further alleged as to count 6 that Christiansen intentionally took, damaged, and destroyed property worth more than $1.3 million within the meaning of Penal Code section 12022.6, subdivision (a)(3).
Christiansen pleaded not guilty. The charges were tried to a jury, which found Christiansen guilty on all counts and found the special allegation true.
The trial court sentenced Christiansen to 4 years 4 months in prison, calculated as follows: the low term of 16 months as to count 6, plus 36 months pursuant to Penal Code section 12022.6, subdivision (a)(3). The court also imposed concurrent sentences of the mid-term of 2 years on each of counts 3, 4, and 5. In addition, the court ordered restitution to the Beverly Hills Unified School District (the District) in the amount of $3, 539, 991. The court further imposed various statutory fines and fees and credited Christiansen with 62 days of presentence custody (31 days actual time, 31 days good time/work time).
The evidence introduced at trial showed the following facts: In February 2005, Christiansen entered into a written contract with the District (the 2005 contract). The 2005 contract stated that in 2004 Christiansen became an employee of the District, with the title “Director of Planning and Facilities.” The 2005 contract provided that she would remain employed in that position through June 2007, and it spelled out the terms and conditions of that continuing employment.
In June 2006, Christiansen and the District entered into a new contract (the 2006 contract). The 2006 contract acknowledged that the District had employed Christiansen as the Director of Planning and Facilities “continuously since August, 2004, ” that “[d]uring this period of time the relationship between [t]he District and Karen Christiansen has been one of employer-employee, ” that Christiansen had not been an independent contractor, and that she had been “required to devote 100% of her professional time to fulfill her duties as Director of Planning and Facilities.” The 2006 contract went on to provide that “[t]he District and Karen Christiansen have mutually decided that it is in the best interest of both that the employer-employee relationship between [t]he District and Karen Christiansen be terminated as of May 31, 2006, and that Karen Christiansen shall continue to provide services to [t]he District as a consultant, and not as an employee, beginning immediately thereafter.” The 2006 contract further provided that “[i]t is the intent of [t]he District and Karen Christiansen that the transition be seamless as far as the operations of [t]he District and the responsibilities of Karen Christiansen are concerned and that Karen Christiansen continue to have the same responsibilities she had as the Director of Planning and Facilities except for those duties and responsibilities which would be precluded due to her change in status from employee to consultant.” The 2006 contract expressly permitted Christiansen “to perform work unrelated to her work as Director of Planning and Facilities and for clients other than [the] District.” A separate paragraph of the 2006 contract further emphasized the termination of the employment relationship: “Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers of one another.”
Other provisions of the 2006 contract gave substance to Christiansen’s new status as a consultant rather than an employee. For example, the 2005 contract provided for various employee benefits, such as medical and dental coverage and vacation and sick leave. The 2006 contract, in contrast, provided for no such benefits and instead merely provided that Christiansen would be paid by the hour for her services, up to a maximum annual amount that could be exceeded only with the prior written consent of the District’s board. In addition, the 2005 contract did not require Christiansen to obtain any form of insurance, ...