Untitled California Attorney General Opinion ( 1987 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
----------------------------------------------------------------
:
OPINION : No. 87-404
:
of : DECEMBER 22, 1987
:
JOHN K. VAN DE KAMP :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
----------------------------------------------------------------
THE HONORABLE ADRIAN KUYPER, COUNTY COUNSEL, ORANGE
COUNTY, has requested an opinion on the following question:
May a county board of supervisors lawfully make additions and changes to the
proposed budget for the purpose of changing the appropriations which are applicable to the period
prior to the adoption of the final budget?
CONCLUSION
A county board of supervisors may not lawfully make additions and changes to the
proposed budget for the purpose of changing the appropriations which are applicable to the period
prior to the adoption of the final budget.
ANALYSIS
The procedures for the adoption of the annual budget and tax rates by the county
board of supervisors (hereinafter "board") are contained in sections 29000 through 29144 of the
Government Code.1 These provisions generally provide for the approval on or before July 20th of
1
All section references are to the Government Code unless otherwise indicated.
1. 87-404
each year of a proposed budget for the fiscal year commencing July l, or alternatively on or before
August 10th pursuant to section 29065.5 (secs. 29060-29066), and for the adoption of a final budget
on or before August 30th of each year (§§ 29080-29093). The final budget provides the
appropriations for the county for the ensuing fiscal year. (§§ 29120-29131. See also, generally 67
Ops.Cal.Atty. Gen. 205, 209-210 (1984); 64 Ops.Cal.Atty.Gen. 362, 364-365 (1981).)
To ensure that the county has funds appropriated for the period prior to the adoption
of the final budget, section 29124 provides:
"If at the beginning of any fiscal year, the appropriations applicable to that
year have not been finally determined and adopted, the auditor shall approve
payments for the support of the various budget units in accordance with the
following authorizations:
"(a) The several amounts set forth in the proposed budget for the objects and
purposes therein specified, except obligations for fixed assets and for new permanent
employee positions unless specifically approved by the board, are deemed
appropriated until the adoption of the final budget. For the purposes of this
subdivision, the words 'new permanent employee positions' do not include any
employee position created in lieu of an employee position which is abolished.
"(b) If the proposed budget has not been approved by the board, the amounts
deemed appropriated shall be based on the budget of the preceding year, excluding
fixed assets and for new permanent employee positions unless specifically approved
by the board."
(See also Atty. Gen. Unpub. Opn. I.L. 68-250.)
This request for our opinion presents the question whether the proposed budget may
be amended by the board for the purpose of changing the appropriations provided for by section
29124, subdivision (a), prior to the adoption of the final budget. We conclude that the proposed
budget may not be so amended.
Examining the provisions of section 29000 et seq. in greater detail, we note that each
"budget unit" must, on or before June 10th of each year, submit budget estimates to the county
auditor, and if directed by the board, to the county administrative officer. (§§ 29040-29042.) The
auditor then may make "recommendations, if any, for any changes to the estimated financing sources
referenced in Section 29040." (§ 29044.)
Thereafter, the auditor, or the administrative officer if so designated, prepares
tabulations of the "estimates". The board may also designate the administrative officer to review,
hold hearings on, and recommend changes in the budget "estimates" before they are tabulated.
(§ 29061.) However, on or before June 30th, the tabulations must be submitted to the board.
(§ 29062.) The board then, before adoption of the proposed budget, "shall make any revisions,
2. 87-404
reductions or additions therein that it deems advisable" (§ 29063) and shall approve on or before
July 20th such tabulations, "whereupon it shall constitute the proposed budget" (§ 29064, emphasis
added).2
On or before August 10th of each year the proposed budget must be reproduced so
that any member of the public may obtain a copy. (§ 29065.) Also on or before August 10th the
board must publish a notice to the effect that copies of the proposed budget are available to the
public, and that on a date not less than 10 days thereafter, it will hold a public hearing on the
proposed budget "preparatory to making a final determination thereon" at which any member of the
public may appear and be heard. (§ 29066.)
On or before August 20th, pursuant to the above notice, the board must hold a hearing
on the final budget, which may be continued from day to day, and at which interested officials and
members of the public may be heard. (§ 29080-29083.) Section 29088 then provides:
"After the conclusion of the hearing, and not later than August 30th of each
year, and after making any revisions of, deductions from, or increases or additions
to, the proposed budget it deems advisable during or after the public hearing, the
board shall by resolution adopt the budget as finally determined. Increases or
additions shall not be made after the public hearing, unless the items were proposed
in writing and filed with the clerk of the board before the close of the public
hearing."
2
Section 29063 and 29064 provide in full as follows:
"29063. Upon receipt of the tabulation the board shall consider it and, on or
before July 20th of each year, at such time as it directs, shall make any revisions,
reductions or additions therein that it deems advisable. Any official or person
whose estimates have been so revised, reduced or increased by the board shall be
given the opportunity to be heard thereon before the board during or prior to the
hearings required by Section 29080 of this chapter."
"29064. On or before July 20th of each year the board, by formal action, shall
approve the tabulation with the revisions, additions and changes in conformity
with its judgment and conclusions as to a proper financial program for the budget
period, whereupon it shall constitute the proposed budget for the period to which
it is to apply."
We note that section 29065.5, enacted in 1985 (Stats. 1985, ch. 751), provides an
alternative procedure for the adoption of the proposed budget in counties which formally adopt
such procedure. It provides that, by August 10th a designated official shall file the "tabulation"
with the clerk of the board, where upon it "shall constitute the proposed budget and shall be
reproduced by the designated official so that each member of the public may obtain one."
3. 87-404
In the context of this statutory scheme for the adoption of the county budget, it has
been suggested that there are a number of possible choices as to whether the proposed budget may
be amended by the board for the sole purpose of changing the appropriations provided for by section
29124 subdivision (a). These choices are: (1) there is no authority to revise; (2) any revisions must
be made before July 20th; (3) any revisions must be made prior to reproduction for and distribution
to the public; and (4) there is unlimited authority to revise.
In our view, the only alternative other than no authority to revise which would appear
to be justified under the statutory procedure would be that any changes would have to be made
before the proposed budget was reproduced and distributed to the public, since the public would
have the right to rely upon such reproduction. However, the statutory scheme has not seen fit to
adopt this alternative. The statutes provide only for revisions by the board in "estimates" before the
adoption of the proposed budget and for revisions at or after the hearings on the final budget which
are to be incorporated into and made a part of the final budget. (See §§ 29063, supra, 29088, supra.)
In our view, this statutory scheme is exclusive.
As a general proposition, the power of a legislative body to legislate on, or exercise
discretionary authority over, a given subject includes the implied authority to amend or repeal its
own acts. This general rule applies, however, only "'in the absence of a valid provision to the
contrary.'" (Blotter v. Farrell (1954) 42 Cal.2d 804, 811; see also City of Sausalito v. County of
Marin (1970) 12 Cal.App.3d 550, 563-564; United Milk Producers v. Cecil (1941) 47 Cal.App.3d
758, 765.
We believe that the county budget provisions outlined above implicitly negate any
power of the board of supervisors to amend, modify or change the proposed budget for the purpose
of changing the appropriations applicable to the period prior to the adoption of the final budget. The
statutory scheme outlined above demonstrates a legislative purpose to fix at a given point in time
the budget proposals so that they may be printed, published and distributed to the public for its
consideration so that final hearings may be held. This purpose is particularly demonstrated in
section 29064, supra, where the Legislature has stated that after the board of supervisors has had an
opportunity to revise the "tabulation", "it shall constitute the proposed budget for the period to which
it is to apply." (Emphasis added.) This is the point in time selected by the Legislature to fix or settle
budget proposals so that the next steps in the budget process may proceed in an orderly fashion,
without disruption by modifications in such proposals.
This conclusion is in accordance with the general principles expressed by the
California Supreme Court in Ryan v. Byram (1935) 4 Cal.2d 596, 607, wherein The Court stated:
". . . we are of the opinion that the provisions for preparing a preliminary
budget; for its printing and publication; for the giving of notice and the holding of
hearings; and for the adoption of a budget before the tax rate is fixed are all for the
benefit of the taxpayer, are mandatory, and that, if any of the steps had been omitted,
the tax levy would be invalid. . . ." (Emphasis added.) (See also Otis v. Los Angeles
County (1937) 9 Cal.2d 366, 372.)
4. 87-404
This conclusion also comports with and confirms the conclusion this office reached
in a 1940 opinion, NS2846, wherein we were presented with the question whether the preliminary
county budget could be increased "after preparation, printing and publishing thereof pursuant to
Political Code section 3714 and prior to the final adoption of the budget." After concluding that the
board has the power to change budget items before final adoption which had been the subject of
consideration at the public hearings on the budget, we stated and reasoned:
"A more serious problem, however, arises concerning power to alter the
preliminary budget as to portions thereof which have not been the subject of protest
or discussion at the hearing. It is true there is no express prohibition against changes
in such items. Nevertheless, when it is considered that the board in considering the
original tabulations is required to make such changes in the departmental estimates
as 'it may deem advisable', so as to make the preliminary budget conform to the
board's judgment and conclusion 'as to a proper financial program for the county for
the fiscal year', and the result of their work in this regard is then publicized to the
county at large as the considered financial program for the ensuing year, we are
inclined to the view that the statute was drawn with the intent of constituting the
budget thus drawn the financial program which will be adhered to unless in the light
of the subsequent public hearings and solely as the result thereof, the board comes
to the conclusion that the public interest requires changes therein.
"Since your question is a general one, disclosing no specific factual problem,
our answer must likewise be general. In accordance with the foregoing, it is our
opinion that the rule by which the supervisors should be guided is that they may
make such changes in the preliminary budget as appear warranted as a result of the
public hearings, but they are not at liberty to otherwise alter it."
This reasoning is, we believe, as valid today as it was in 1940.
Accordingly, in summary we conclude that a county board of supervisors may not
lawfully make additions and changes to the proposed budget for the purpose of changing the
appropriations which are applicable for the period prior to the adoption of the final budget.
*****
5. 87-404