Untitled California Attorney General Opinion ( 1988 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
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:
OPINION :
:
of : No. 87-1101
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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,
6. 87-1101
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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