Untitled California Attorney General Opinion

Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL

State of California

JOHN K. VAN DE KAMP

Attorney General

---------------------------- :

OPINION :

:

of : No. 87-1101

:

JOHN K. VAN DE KAMP : January 28, 1988

Attorney General :

:

ANTHONY S. DaVIGO :

Deputy Attorney General :

:

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THE HONORABLE RALPH C. DILLS, MEMBER OF THE CALIFORNIA

STATE SENATE, has requested an opinion on the following question:

May an individual be a member simultaneously of the State

Industrial Welfare Commission and the Personnel Commission of the

Los Angeles County Superintendent of Schools?

CONCLUSION

An individual may be a member simultaneously of the State

Industrial Welfare Commission and the Personnel Commission of the

Los Angeles County Superintendent of Schools.

ANALYSIS

The question presented concerns the common law doctrine

of incompatible public offices as applied to dual membership on the

Personnel Commission of the Los Angeles County Superintendent of

Schools ("commission") and the Industrial Welfare Commission

("I.W.C."). The doctrine prevents a person from holding

simultaneously two public offices if the performance of the duties

of either office could have an adverse effect on the other. (68

Ops.Cal.Atty.Gen. 337, 338-339 (1985).) In 66 Ops.Cal.Atty.Gen.

176, 177 (1983), we summarized as follows:

"'Offices are incompatible, in the absence of

statutes suggesting a contrary result, if there is any

significant clash of duties or loyalties between the

offices, if the dual office holding would be improper for

reasons of public policy, or if either officer exercises

a supervisory, auditory, or removal power over the

other.' (38 Ops.Cal.Atty.Gen. 113 (1961).)

"(See also, generally, People ex rel Chapman v.

Rapsey (1940) 16 Cal.2d 636, 641-642, and e.g. 65

Ops.Cal.Atty.Gen. [606] (1982), Opn. No. 82-901; 64

Ops.Cal.Atty.Gen. 288, 289, (1981); 64 Ops.Cal.Atty.Gen.

137, 138-139 (1981); 63 Ops.Cal.Atty.Gen. 623 (1980); 63

Ops.Cal.Atty.Gen. 607, 608 (1980).)

"The policy set forth in People ex rel Chapman v.

Rapsey, supra, 16 Cal.2d 636 comprehends prospective as

well as present clashes of duties and loyalties. (See 63

Ops.Cal.Atty.Gen. 623, supra.)

"'. . . Neither is it pertinent to say that the

conflict in duties may never arise, it is enough that it

may, in the regular operation of the statutory

plan. . . .' (3 McQuillin, Municipal Corporations (3d

Ed. 1973, 12.67, p. 297).

"'[O]nly one significant clash of duties and

loyalties is required to make . . . offices

incompatible. . . .' (37 Ops.Cal.Atty.Gen. 21, 22

(1961).) Furthermore, '[t]he existence of devices to

avoid . . . [conflicts] neither changes the nature of the

potential conflicts nor provides assurance that they

would be employed. (38 Ops.Cal.Atty.Gen. 121, 125

(1961).) Accordingly, the ability to abstain when a

conflict arises will not excuse the incompatibility or

obviate the effects of the doctrine. A public officer

who enters upon the duties of a second office

automatically vacates the first office if the two are

incompatible. (People ex rel. Chapman v. Rapsey,supra,

16 Cal.2d 636, 644.) Both positions, however, must be

offices. If one or both of the positions is a mere

employment as opposed to a public office, the doctrine

does not apply. (See 58 Ops.Cal.Atty.Gen. 109, 111

(1975).)'"

For purposes of the doctrine, a public office is (1) a

position in government, (2) which is created or authorized by the

Constitution or by law, (3) the tenure of which is continuing and

permanent, not occasional or temporary, (4) in which the incumbent

performs a public function for the public benefit and exercises

some of the sovereign powers of the state. ( Id. at 342.) In

Schaefer v. Superior Court (1952) 113 Cal.App.2d 428, 432-433, the

court clarified the meaning of "sovereign powers of the state" as

follows:

"If specific statutory and independent duties are

imposed upon an appointee in relation to the exercise of

the police powers of the State, if the appointee is

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invested with independent power in the disposition of

public property or with the power to incur financial

obligations upon the part of the county or state, if he

is empowered to act in those multitudinous cases

involving business or political dealings between

individuals and the public, wherein the latter must

necessarily act through an official agency, then such

functions are a part of the sovereignty of the state."

There is in each county a Superintendent of Schools (Cal.

Const., art. IX, § 3) whose duties are prescribed by statute (e.g.,

Ed. Code,1 §§ 1240-1271).2 In order to carry out these duties, the

superintendent may employ certificated (§ 1293) and classified

(§ 1311) personnel. With respect to such classified employees, the

Los Angeles County Superintendent of Schools has, pursuant to

section 45224, adopted a merit system procedure in accordance with

the provisions of section 45240 et seq. Section 45243 provides for

the establishment of a personnel commission. (See generally, 56

Ops.Cal.Atty.Gen. 421 (1973); 48 Ops.Cal.Atty.Gen. 64 (1966).) The

statutory scheme prescribes the qualifications for membership on

the commission (§ 45244), the manner of appointment (§ 45245),

three year staggered terms of office (§ 45247), and the

compensation of members (§ 45250).

It is the duty of the commission to prepare an annual

budget for its own office (§ 45253), to classify all

noncertificated employees and positions within the jurisdiction of

the governing board or of the commission, with specified exceptions

(§ 45256), to prescribe, amend, and interpret such rules, which

shall be binding upon the governing board, as may be necessary to

insure the efficiency of the service and the selection and

retention of employees upon a basis of merit and fitness, and

providing for the procedures to be followed by the governing board

as they pertain to the classified service regarding applications,

examinations, eligibility, appointments, promotions, demotions,

transfers, dismissals, resignations, layoffs, reemployment,

vacations, leaves of absence, compensation within classification,

job analyses and specifications, performance evaluations, public

advertisement of examinations, rejection of unfit applicants

without competition, and other necessary matters (§§ 45260, 45261),

1 Unidentified statutory citations are to the Education Code.

2 Article XI, section 4, provides that "County charters shall

provide for . . . (e) [t]he powers and duties of governing bodies

and all other county officers . . . ." The County Superintendent

of Schools is a county officer. (Gov. Code, § 24000; 52

Ops.Cal.Atty.Gen. 8, 9 (1969).) The Los Angeles County Charter

contains no provision respecting the duties of that office inasmuch

as the office is constitutionally created. (Cf. ( Nielsen v.

Richards (1924) 69 Cal.App. 533.)

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to appoint a personnel director and all employees of the commission

(§ 45264), and to recommend to the governing board salary schedules

for the classified service (§ 45268; and see 54 Ops.Cal.Atty.Gen.

77 (1971)).

The I.W.C. is an agency of the state Department of

Industrial Relations, established pursuant to the authority

provided under California Constitution, article XIV, section 1.

Each of five members, appointed by the Governor with the consent of

the Senate, serves a four year term of office. (Lab. Code, §§ 70,

71.) The I.W.C. is authorized to promulgate orders regulating

wages, hours, and working conditions of any occupation, trade, or

industry in which employees are employed in this state. (Lab.

Code, §§ 1173, 1182.) As summarized in Industrial Welfare Com. v.

Superior Court (1980) 27 Cal.3d 690, 701-702:

"From its inception in 1913 to the present, the

commission has been vested with broad statutory authority

to investigate 'the comfort, health, safety, and welfare'

of the California employees under its aegis (§ 1173,

enacted Stats. 1913, ch. 324, § 3, p. 633) and to

establish (1) '[a] minimum wage . . . which shall not be

less than a wage adequate to supply . . . the necessary

cost of proper living and to maintain the health and

welfare of such [employees],' (2) '[t]he maximum hours of

work consistent with the health and welfare of [such

employees]' and (3) '[t]he standard conditions of labor

demanded by the health and welfare of [such employees]

. . .' (§ 1182, enacted Stats. 1913, ch. 324, § 6, pp.

634-635.)

"Indeed, the 1973 act--while retaining the

authorizing language of section 1182 quoted above-­ restated the commission's responsibility in even broader

terms, directing the commission continually to review and

to update its 'rules, regulations and policies to the

extent found by the commission to be necessary to provide

adequate and reasonable wages, hours, and working

conditions appropriate for all employees in the modern

society." (Italics added.) (§ 1173, enacted States.

1973, ch. 1007, § 1.5, p. 2002.)"

Such orders are published in the California Administrative Code,

title 8, section 11000 et seq. To carry out its duty, I.W.C. or

any member thereof may subpena witnesses and administer oaths.

(Lab. Code, § 1176.)

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While we entertain no doubt that both of the positions in

question are public offices, we predicate our conclusion herein

exclusively upon the absence of incompatibility between them. The

commission is concerned solely with public employees, i.e., the

classified employees of the County Superintendent of Schools. As

we shall see, I.W.C. is concerned solely with employees in the

private sector. Neither agency has any official interest in or

jurisdiction over the province of the other.

The statutes creating and defining the powers of the

I.W.C. contain no express reference to any public agency or to

public employment. The California Supreme Court has recently

reviewed the principles of construction which must be followed in

determining whether the general terms of a statute are applicable

to a public jurisdiction:

"[I]n the absence of express words to the contrary,

neither the state nor its subdivisions are included

within the general words of a statute. [Citations.] But

this rule excludes governmental agencies from the

operation of general statutory provisions only if their

inclusion would result in an infringement upon sovereign

governmental powers. 'Where . . . no impairment of

sovereign powers would result, the reason underlying this

rule of construction ceases to exist and the Legislature

may properly be held to have intended that the statute

apply to governmental bodies even though it used general

statutory language only.' [Citations.]" ( City of Los

Angeles v. City of San Fernando (1975) 14 Cal.3d 199,

276-277; accord Regents of University of California v.

Superior Court (1976) 17 Cal.3d 533, 536; and see 66

Ops.Cal.Atty.Gen. 217, 218 (1983).)

In 65 Ops.Cal.Atty.Gen. 267, 272-273 (1982), we summarized:

"The crucial distinction in each case is whether the

particular legislation affects the fundamental purposes

and functions of the governmental body. Immunity is

granted if statutorily mandated activities are impaired

(see Hall v. City of Taft (1956) 47 Cal.2d 177, 182-183;

City of Orange v. Valenti (1974) 37 Cal.App.3d 240, 244),

while no exception is provided when the agency's public

purposes are unaffected. (See Regents of University of

California v. Superior Court, supra, 17 Cal.3d at 537;

Flournoy v. State of California (1962) 57 Cal.2d 497,

498-499; State of California v. Marin Mun. Water District

(1941) 17 Cal.2d 699, 704-705; City Streets Imp. Co. v.

Regents, etc. (1908) 153 Cal. 776, 779; Dropo v. City &

County of S.F. (1959) 167 Cal.App.2d 453, 460.)"

5. 87-1101

In 63 Ops.Cal.Atty.Gen. 24, 27 (1980), we expressed our view

concerning the relationship between public employment and

governmental purposes:

"It is manifest that the relationship between a

public employer and its employees affects the fundamental

purposes and functions of the governmental body. (Cf. In

re Means (1939) 14 Cal.2d 254, 258; and see unpub. op. of

the California Attorney General, dated Dec. 29, 1978, No.

IL 78-151.) It has been stated in this regard that

governments perform their functions through their

officers and employees elected or appointed for that

purpose, and that any process of law which would tend to

embarrass such officers or employees while in office, and

hinder or distract them in the discharge of their duties,

would injuriously affect the capacity of the state to

perform its functions. ( Ruperich v. Baehr (1904) 142

Cal. 190, 193; Balthasar v. Pacific Electric Railway Co.,

supra, 187 Cal. at p. 308.)

"The rule that governmental agencies are excluded

from the operation of general statutory provisions, in

the absence of express words to the contrary, only if

their inclusion would result in an infringement upon

sovereign powers, is long established. (Butterworth v.

Boyd (1938) 12 Cal.2d 140, 150; Hoyt v. Board of Civil

Service Commissioners, supra, 21 Cal.2d at p. 402.)

Nevertheless, we are aware of no cases which have held

public agencies bound by a general statute which

regulates the employment relationship. On the contrary,

we have, on a number of occasions, construed such

statutes as not applicable to public jurisdictions, in

the absence of any expression of legislative intent to

the contrary. (See 1 Ops.Cal.Atty.Gen. 607 (1943)

(§ 226, itemized statement of deductions); 5

Ops.Cal.Atty.Gen. 122 (1945) (employment of minors); 9

Ops.Cal.Atty.Gen. 275 (1947) (length of work day).) In

Butterworth v. Boyd, supra, it was held that certain

provisions of the Insurance Code could not be applied to

a city where such application would have impaired the

city's power to provide a health service system for

municipal employees. In Nutter v. Santa Monica (1946) 74

Cal.App.2d 292, it was held that the state policy

regarding labor relations, Labor Code section 923, was

not applicable to public employers."

Further, the policy of this state with respect to the

classified employees of the County Superintendent of Schools, as

shown at the outset, is reflected in an integral, comprehensive

regulatory scheme which is, in itself, an indication that the

provisions of a general statute were not intended to apply. (Cf.

In re Means, supra, 14 Cal.2d at 257; 63 Ops.Cal.Atty.Gen., supra,

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28.) In O'Sullivan v. City & County of San Francisco (1956) 145

Cal.App.2d 415, 418, the court similarly observed that

"It is doubtful that the Labor Code applies to employees

under a comprehensive municipal civil service system."

The views expressed herein are further supported by the

presumption that the interpretations set forth in the Attorney

General's opinion last quoted, and related cases, have come to the

attention of the Legislature, and if they were contrary to

legislative intent that some corrective measure would have been

adopted during the course of the intervening period. (California

Correctional Officers' Association v. Board of Administration

(1978) 76 Cal.App.3d 786, 794; 69 Ops.Cal.Atty.Gen. 191, 196-197

(1986).)

Our determinations herein are also consistent with

contemporaneous administrative interpretation. The orders of

I.W.C. have never been applied to or enforced against public

employees. On the contrary, order number MW-80 presently in

effect, expressly exempts public employees. (Tit. 8, Cal. Admin.

Code, § 11000, ¶ 2.) It is well settled that where the terms of a

statute are ambiguous, the construction of the statute by the

officials charged with its administration must be given great

weight. ( Rivera v. City of Fresno (1971) 6 Cal.3d 132, 140; 62

Ops.Cal.Atty.Gen. 494, 500 (1979).)

Finally, it is noted that provisions of the Labor Code

extending to public employment do so expressly. (E.g., former

§ 1413, subd. (d), see now Gov. Code, § 12926, subd. (c) -- Fair

Employment Practices; § 3300 -- Workers' Compensation; § 6300 -­ Occupational Safety and Health.) When the Legislature has

carefully employed a term in one place and has excluded it in

another, it should not be implied where excluded. (Ford Motor Co.

v. County of Tulare (1983) 145 Cal.App.3d 688, 691.)

Inasmuch as the respective domains of the I.W.C. and of

the commission are mutually exclusive, it is concluded that an

individual may be a member simultaneously of both.

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