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. 86-1004
:
of : September 22, 1987
:
JOHN K. VAN DE KAMP :
Attorney General :
:
ANTHONY S. DA VIGO :
Deputy Attorney General :
:
THE HONORABLE DENNIS A. BARLOW, COUNTY COUNSEL,
COUNTY OF YUBA, has requested an opinion on the following question:
May the board of supervisors of a general law county establish the position
within the county's merit system and prescribe the salary of Superior Court
Administrator/Jury Commissioner?
CONCLUSION
The board of supervisors of a general law county may not establish the position
within the county's merit system and prescribe the salary of Superior Court
Administrator/Jury Commissioner.
ANALYSIS
1
The present inquiry is whether a county board of supervisors may create and
fix the compensation for the office of Superior Court Administrator/Jury Commissioner.
Generally, a county possesses and can exercise only such powers as are granted it by the
constitution or statutes, together with those powers as arise by necessary implication from
those expressly granted. (Byers v. Board of Supervisors (1968) 262 Cal. App. 2d 148, 157;
66 Ops. Cal. Atty. Gen. 287, 292 (1983).)1
California Constitution, article VI, section 4, provides that the Legislature ".
. . shall prescribe the number of judges and provide for the officers and employees of each
superior court." The power to "provide for" officers necessarily includes the power to
establish their qualifications for eligibility as well as their duties, tenure, and compensation.
(Cf. Reed v. Hammond (1912) 18 Cal. App. 442, 443; 66 Ops. Cal. Atty. Gen. 293, 298
(1983).) Further, the use of the term 'provide," as distinguished from the word "prescribe"
in the same sentence, indicates an intention to authorize the Legislature to delegate its own
power in that respect. (Cf. County of Madera v. Superior Court (1974) 39 Cal. App. 3d 665,
669-670; 63 Ops. Cal. Atty. Gen. 151, 152 (1980).)
Another constitutional provision, article XI, section 1, subdivision (b),
provides:
"The Legislature shall provide for county powers and an elected
governing body in each county. Except as provided in subdivision (b) of
Section 4 of this article, each governing body shall prescribe by ordinance the
compensation of its members, but the ordinance prescribing such
compensation shall be subject to referendum. The Legislature or the governing
body may provide for other officers whose compensation shall be prescribed
by the governing body. The governing body shall provide for the number,
compensation, tenure, and appointment of employees." (Emphasis added.)
(And see Gov. Code, § 25300; 66 Ops. Cal. Atty. Gen. 293, 298-299 (1983).) Under this
1
Government Code section 23003 provides:
"A county is a body corporate and politic, has the powers specified in this title, and
such others necessarily implied from those expressed."
Government Code section 25207 provides:
"The board may do and perform all other acts and things required by law not
enumerated in this part, or which are necessary to the full discharge of the duties of the
legislative authority of the county government."
These sections confer a wide latitude in carrying out the duties mandated upon a county by the
Legislature. (San Joaquin County Employees' Assn. v. County of San Joaquin (1974) 39 Cal. App. 3d 83,
89.)
2
section, county officers2 and employees, including those who serve under the county clerk,
are appointed pursuant to the laws, ordinances and rules governing county personnel. To be
distinguished from this group are court personnel under the court executive officer appointed
pursuant to specific statutory authority. (See Gov. Code, § 69890 et seq.; Service Employees
Internat. Union v. Superior Court (1982) 137 Cal. App. 3d 320, 324-325.) With respect to
these employees the court stated (id. at 326):
"The positions in this group are referred to in the statutes as attaches
and employees of the superior court. As previously stated they are exempt
from civil service. They are appointed by the court and serve at the pleasure
of the court. The court has the exclusive right to control the duties of these
employees. It is only in the payment of salary and benefits that the county is
involved. These attaches and employees are clearly employees of the superior
court and not the county." (Emphasis added.)
(And cf. 32 Ops. Cal. Atty. Gen. 161, 162-163 (1958).) In our view, the reference in article
XI, section 1, subdivision (b), to "other" officers is limited to those of the county and does
not include officers of the superior court within the purview of article VI, section 4. This
interpretation harmonizes the respective constitutional provisions to avoid conflict. (Cf.
Stanton v. Panish (1980) 28 Cal.3d 107, 115.)
The Legislature has provided for the office of court administrator, or "executive
officer" of the superior court. Government Code section 69898 provides as follows:
"(a) Any superior court may appoint an executive officer who shall hold
office at the pleasure of the court and shall exercise such administrative
powers and perform such other duties as may be required of him by the court.
The court shall fix the qualifications of the executive officer and may delegate
to him any administrative powers and duties required to be exercised by the
court. He shall supervise the secretaries of the judges of the court and perform,
or supervise the performance of, the duties of jury commissioner. The salary
of the executive officer shall be fixed by the court and shall be paid by the
county in which he serves. Each such position shall be exempt from civil
service laws.
"Any superior court may appoint the county clerk as executive officer,
who shall hold office as such executive officer at the pleasure of the court and
shall exercise such administrative powers and perform such other duties as
2
See Government Code section 24000 - county officers.
3
may be required of such person by the court.
"(b) Any superior court for which a specific authorization to have an
executive or administrative officer has been enacted by the Legislature may
elect to proceed under its specific authorization or under this section, but not
under both.
"(c) In every superior court having an executive or administrative
officer appointed under the provisions of this section or under a specific
statutory authorization, that officer has the authority of a clerk of the superior
court.
"(d) Notwithstanding any other provision of law, a superior court
having an executive or administrative officer may, by local rule, specify which
of the powers, duties and responsibilities required or permitted to be exercised
or performed by the county clerk in connection with judicial actions,
proceedings and records shall be exercised or performed by the executive or
administrative officer. The county clerk shall be relieved of any obligation
imposed on him by law with respect to these specified powers, duties and
responsibilities, to the extent the local rule imposes on the executive or
administrative officer the same powers, duties and responsibilities."
This section authorizes the superior court to appoint an executive officer who shall, inter
alia, ". . . perform, or supervise the performance of, the duties of jury commissioner." The
executive officer shall exercise such administrative powers as may be required by the court.
The court shall fix the qualifications and the salary of the executive officer, whose position
". . . shall be exempt from civil service laws." Manifestly, the board of supervisors is not
authorized under this section to create and fix the compensation for the office in question.
For purposes of this opinion it will be assumed that no specific authorization
referred to in subdivision (b) of section 69898 applies.3 In any event, no such provision
authorizes the appointment of an executive officer by the board of supervisors.
We perceive no express or implied delegation of legislative power to the
county board of supervisors to appoint or to prescribe the salary of a superior court
administrator. On the contrary, Government Code section 69898 prescribes the mode by
which such an office may be established. Where a statute prescribes the mode by which a
3
Government Code sections 69892.1 and 69894. 1 - Los Angeles; 69893.5 - Sacramento; 69893.7
- Yolo; 69895 and 69900 - San Francisco; 69903 - Alameda. No such specific provision applies to the
County of Yuba.
4
power may be exercised, the mode is the measure of the power. (Uhl v. Baderacco (1926)
199 Cal. 270, 283; Cowell v. Martin (1872) 42 Cal. 605, 613; Bear River, Etc. Corp. v.
County of Placer (1953) 118 Cal. App. 2d 684, 689; 64 Ops. Cal. Atty. Gen. 804, 808
(1981).)
". . . In the grants [of powers] and in the regulation of the mode of
exercise, there is an implied negative; an implication that no other than the
expressly granted power passes by the grant; that it is to be exercised only in
the prescribed mode...." (Wildlife Alive v. Chickering (1976) 18 Cal. 3d 190,
196; 66 Ops. Cal. Atty. Gen. 17, 24 (1983).)
(See also Garson v. Juarique (1979) 99 Cal. App. 3d 769, 774; Kirby v. Alcoholic Bev. Cont.
App. Bd. (1969) 3 Cal. App. 3d 209, 221.)
It is concluded that the board of supervisors of a general law county may not
establish the position within the county's merit system and prescribe the salary of Superior
Court Administrator/Jury Commissioner.
5