California Court of Appeals, Second District, Second Division
APPEAL from an order of the Superior Court of Los Angeles County, No. BA393121 Clifford L. Klein.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Jackie Lacey, District Attorney, Phyllis C. Asayama and Mathew Brown, Deputy District Attorneys, for Plaintiff and Appellant.
Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, Gary S. Lincenberg and Benjamin D. Lichtman for Defendant and Respondent.
Crowel & Moring, J. Daniel Sharp; University of California Los Angeles Office of Legal Affairs, Kevin S. Reed; University of California Los Angeles Office of the General Counsel, Charles F. Robinson, Karen J. Petrulakis, Stephen P. Morrell, Mark Morodomi and Elizabeth C. Yap as Amici Curiae on behalf of Defendant and Respondent.
The issue presented in this case is whether a University of California faculty member may be criminally prosecuted under Government Code section 1090 for participating in a decision to hire his wife as a program assistant for a four-week summer study abroad course. We conclude that he may not, and for reasons we discuss affirm the trial court’s order dismissing the information under Penal Code section 995.
Defendant Michael Lofchie (Lofchie) has been a faculty member at the University of California at Los Angeles since 1964. He was chairman of the political science department in 2008. In July 2008, Lofchie taught a four-week summer session abroad course and participated in a decision to hire his wife, Kelly Comras Lofchie (Comras), as a program assistant for the 2008 summer session. Comras was hired by the University’s Office of Summer Sessions and was paid $3, 100 plus a per diem for her expenses.
Richard Anderson, another professor in the political science department, also taught a class in the University’s 2008 summer session. When Anderson learned that Comras had been hired as a program assistant, he objected, first to Lofchie, and then to the person who succeeded Lofchie as chairman of the political science department. Anderson also filed an anonymous whistleblower complaint and met with the University’s director of compliance and the dean of the social science division. When the University’s administration rejected his complaint, Anderson brought the matter to the attention of the Los Angeles County District Attorney.
The district attorney, on behalf of the People of the State of California,  filed an information charging Lofchie with a felony violation of section 1090, alleging he was “financially interested” in a contract made by him in his official capacity to hire Comras as a program assistant in the summer of 2008. Lofchie filed a motion under Penal Code section 995 to set aside the information on various grounds, including that article IX, section 9 of the California Constitution (hereafter article IX, section 9) precludes the Legislature from regulating the employment practices of the University of California through section 1090; that section 1090 does not apply to a University of California professor; and that a more specific statute, Public Contract Code section 10516, preempts application of Government Code section 1090. The People opposed the motion.
After hearing argument from the parties, the trial court granted Lofchie’s motion to set aside the information. This appeal followed.
THE PARTIES’ CONTENTIONS
Lofchie and the Regents of the University of California (the Regents), to whom we granted leave to file an amicus curiae brief, both argue that section 1090 does not apply to the University because it is not the “state” within the meaning of the statute, but rather a constitutionally created public trust subject to legislative control in only specifically enumerated areas that do not include internal hiring decisions. The Regents further contend University of California employees are already subject to internal conflict of interest policies, including policies that address conflicts of interest in decisions involving spouses and family members, and that the district attorney’s expansive interpretation of section 1090 would render the statute an unconstitutional interference with university autonomy. Lofchie also contends the People forfeited the right to argue on appeal that he is a state employee because they took the opposite position in the trial court below; that Public Contract Code section 10516 supplants Government Code section 1090; and section 1090 is unconstitutionally vague as applied to him.
The People contend they did not forfeit any argument that the University of California is a state entity and Lofchie is an employee of the “state” within the meaning of section 1090. The People further contend article IX, section 9 does not exempt the University from regulation under section 1090, and Public Contract Code section 10516 does not preclude application of section 1090.
Lofchie argues that the doctrines of waiver and invited error preclude the People from pursuing this appeal because they expressly conceded in the trial court below that he is not a state employee. The doctrine of waiver precludes a party from changing its position and adopting a new and different theory on appeal because “‘“to do so would not only be unfair to the trial court, but manifestly unjust to the opposing party.”’” (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 873 [36 Cal.Rptr.3d 515].) "Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error. [Citations.]” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212 [285 Cal.Rptr. 99, 814P.2d 1341].)
The People acknowledge that they took inconsistent positions in the proceedings below regarding Lofchie’s employment status, at times conceding he is not a “state employee, ” but rather a “public employee” subject to
section 1090. They argue, however, that both Lofchie and the trial court understood the People’s position to be that University employees such as Lofchie are subject to section 1090, that Lofchie suffered no prejudice, and that there was no invited error on the part of the trial court.
We agree that there was neither prejudice nor invited error. Lofchie successfully opposed the People’s arguments in the trial court below that section 1090 applied to him as either a “state employee” or a “public employee.” The trial court’s memorandum of decision expressly rejects the People’s argument that University of California employees should be included as employees of the “state” within the meaning of section 1090.
Finding no grounds for forfeiture, we address the merits of the parties’ contentions.
II. The legal framework
A. Section 1090
Section 1090 provides:
“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. Nor shall state, county, district, judicial district, and city officers or employees be purchasers at any sale or vendors at any purchase made by them in their official capacity.
“As used in this article, ‘district’ means any agency of the state formed pursuant to general law or special act, for the local performance of governmental or proprietary functions within limited boundaries.”
Section 1090 “represents the Legislature’s decision to codify the common law rule prohibiting public officials from having a personal financial interest in the contracts they form in their official capacities. [Citation.]” (People v. Wong (2010) 186 Cal.App.4th 1433, 1450 [113 Cal.Rptr.3d 384].) A contract is made for purposes of section 1090 if the public official “had the opportunity to, and did, influence execution [of the contract] directly or indirectly to promote his personal interests. [Citation.]” (People v. Sobel (1974) 40 Cal.App.3d 1046, 1052 [115 Cal.Rptr. 532].) A public official can violate the statute even if he did not participate in the execution of the contract. (Ibid.)
There are both civil and criminal remedies for violations of section 1090. Contracts made in violation of the statute ...