Untitled California Attorney General Opinion ( 1991 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 91-201
of :
: AUGUST 13, 1991
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE FRANK S. PETERSEN, COUNTY COUNSEL, DEL NORTE
COUNTY, has requested an opinion on the following question:
May a general law county appoint as county counsel a partner in a private law firm
and contract for that firm to assist the county counsel in the performance of his or her duties?
CONCLUSION
A general law county may appoint as county counsel a partner in a private law firm
and contract for that firm to assist the county counsel in the performance of his or her duties, if
certain limitations and qualifications are met.
ANALYSIS
The board of supervisors of a general law county may appoint a county counsel under
the authorizing provisions of section 27640 of the Government Code.1 A county counsel serves a
four year term and is removable only for cause. (§ 27641.) A county counsel essentially performs
the civil or nonprosecutorial duties otherwise required to be performed by the district attorney (§§
26529, 27642), although various specific duties of the office are set forth by statute. (See §§ 27640-
2768.)
While the law is silent on the point, there would appear to be no legal objection to
a county counsel engaging in private practice. (Cf. County of Madera v. Gendron (1963) 59 Cal. 2d
798 [district attorney may engage in private practice where not prohibited by statute]; Mousseau v.
1
All section references are to the Government Code unless otherwise specified. A county need
not have a county counsel. All legal services may be performed for the county by the district
attorney. (§§ 26500-26543.)
Garey (1926) 200 Cal.201 [county officer may engage in additional county employment absent
statutory prohibition].)2
The question presented for analysis is whether a general law county may appoint as
county counsel a partner in a private law firm and contract for that firm to assist the county counsel
in the performance of his or her duties. As to compensation, all county counsel matters (other than
complex litigation) would be furnished in return for a fixed monthly fee, whether performed by the
county counsel personally or by his or her associates. For complex litigation, an hourly rate would
be provided in the contract, with the county having the option of referring the matter to the county
counsel's firm or to another law firm. We conclude that such a contract may be entered into by the
board of supervisors under the general authority of sections 25203, 27644 and 31000, subject to
certain limitations.3
Section 25203 provides:
"The board [of supervisors] shall direct and control the conduct of litigation
in which the county . . . is a party; by a two-thirds vote of all the members, the board
may employ counsel to assist the district attorney, county counsel, or other counsel
. . . in the conduct of such actions. . . ."
Section 27644 states:
"The board of supervisors shall furnish the county counsel with such
assistants as will enable him to perform properly the duties of his office."
Section 31000 provides:
"The board of supervisors may contract for special services on behalf of the
following public entities: the county, any county officer or department . . . . Such
contracts shall be with persons specially trained, experienced, expert and competent
to perform special services. The special services shall consist of services, advice,
education or training . . . [and] shall be in financial, economic, accounting . . .
engineering, legal . . . services."4
The history, operation, and relationship of these statutory provisions were discussed
at length in the recent case of Harvey v. County of Butte (1988) 203 Cal. App. 3d 714. In Harvey,
the court examined a county reorganization plan in which the county counsel and his deputies would
be available to provide legal advice on routine inquiries from county departments. As to other
advice matters, outside legal counsel specializing in such matters would be used. For litigation, the
county counsel would decide whether to assign the matter to his deputies, or if so complex, whether
2
This conclusion is subject to the power of a board of supervisors to declare private practice an
incompatible activity pursuant to section 1126. Additionally, as discussed below, the county counsel
would be required to avoid conflicts of interest between his or her county duties and his or her
private practice.
3
Although somewhat unique as to a county, cities for many years have had so-called "contract"
city attorneys who maintian separate private practices. (See generally Montgomery v. Superior
Court (1975) 46 Cal. App. 3d 657, 670-671; 66 Ops.Cal.Atty.Gen. 382, 383, fn. 2 (1983).)
4
Section 53060 is similar to section 31000 for "local agencies" in general.
2. 91-201
to contract out the matter with the board's approval. The court concluded that these procedures
would be proper under the statutes outlined above, subject to various limitations.
As to litigation, the Harvey court held that section 25203, as interpreted in earlier
cases, provided the authority for the county to contract out any case in which the county had an
interest, even without participation by the county counsel. The court stated:
". . . we conclude that section 25203 governs the circumstances in which
boards of supervisors may contract with outside counsel for litigation services. The
only constraint imposed by this section is that the specific services must be
authorized by a two-thirds majority vote; . . . The check against improvident
expenditures for such purposes is the requirement of recurrent authorizations by an
extraordinary majority of the Board. Presumably if contracting for outside legal
services for litigation proves to be an extravagant method of meeting that need, the
members of the board of supervisors will change course or face the adverse
consequences in the electoral arena." (Id. at pp. 726-727.)
Accordingly, a board of supervisors may contract out all litigation on a case by case basis where
outside counsel will represent the county with or without participation of the county counsel. (See
Woolwine v. Superior Court (1920) 182 Cal. 388, 390.)
Under the proposed contractual agreement, the county counsel may handle all
litigation whether routine or complex. The board of supervisors, by a two-thirds vote pursuant to
section 25203, may authorize the law firm to handle specific litigation. The law firm would then
appear not as county counsel, but as an independent contractor representing the county.
As to advice matters, the Harvey court relied upon Jaynes v. Stockton (1961) 193 Cal. App. 2d
47, in concluding that a county may contract out for truly specialized services that are not of the type
potentially available "in house." The court stated:
"Jaynes holds that there is no authority to contract for outside legal services
unless such authority is expressly conferred upon the contracting agency or the
services are unavailable ``in house' for reasons beyond the agency's control. (193
Cal.App.2d at p. 54.) It asserts two supporting principles. First, wasteful duplication
of expense may otherwise occur. (Ibid.) Second, the statutes assigning the
obligation to perform such services to public officers should be construed as vesting
such responsibility and authority in the designated public officers. (Id., at p. 55.)
Hence, if the county counsel is assigned the duty to provide certain legal services,
that allocation should not be undercut by contracts with outside counsel unless
necessary. (See Ibid., also cf., e.g., 15 Ops.Cal.Atty.Gen. 46, 48-49 (1950), ``It is
apparent that the Legislature has imposed upon the board of supervisors of the
various counties a duty to budget annually sufficient moneys not only to pay the
salary of the district attorney and county counsel, but also to furnish each of them
with deputies, assistants, clerks, office space and other facilities necessary in order
to enable each of them to properly perform the duties imposed upon him by law.')
". . . . . . . . . . . . . . . . . .
"As to matters other than litigation, the policy adopted by the Board can be
read as consistent with the provisions of section 31000, which authorizes contracts
for special services ``with persons specially trained, experienced, expert and
competent to perform the special services.' The principal purpose of an authorization
3. 91-201
for engaging ``special services' is to obtain services which are unavailable from public
sources." (Id. at pp. 724-725.)
Whether services are truly "specialized services" is in each case a question of fact. (See California
Sch. Employees Assn. v. Sunnyvale Elementary Sch. Dist. (1973) 36 Cal. App. 3d 46, 61; Jaynes v.
Stockton, supra, 193 Cal. App. 2d 47, 53.) Accordingly, each contracting out for special services
must be done on a case by case basis.
Under the proposed agreement, the county counsel may personally give advice and
opinions to all county officers and departments. If the law firm is to act independently in advice
matters, it must do so pursuant to section 31000. In such cases, the board of supervisors must
determine on a case by case basis that the advice is truly a "specialized service" that the county
counsel could not potentially provide "in-house."
With respect to the law firm members "assisting" the county counsel, we note that
"[e]very county . . . officer . . . may appoint as many deputies as are necessary for the prompt and
faithful discharge of the duties of his office" (§ 24101) but that the board of supervisors itself has
no power to appoint deputies (see Hicks v. Board of Supervisors (1977) 69 Cal. App. 3d 228, 242).
Hence, the fact that the board of supervisors may provide in the contract in question that the other
members of the firm shall assist the county counsel (see § 27644) in no way makes them deputy
county counsels. The county counsel would have to appoint his or her associates as deputies. (See
§ 24102; see also generally §§ 1190-1194.) Without such appointments, they could not act in place
of the county counsel. (See 63 Ops.Cal.Atty.Gen. 710, 712-714 (1980).)
Accordingly, under the proposed contract, the law firm associates may "assist" but
not act independently of the county counsel (e.g., by attending board and commission meetings at
which they render on the spot advice or by making court appearances on behalf of the county
counsel) unless they are deputized.
Two other statutory schemes are relevant to our inquiry. The Political Reform Act
of 1974 (§§ 81000-91015) prohibits public officials from making or participating in the making of
any governmental decision in which they know or have reason to know they have a financial
interest. (§ 87100.) Here, the issue would be whether a decision made by the county counsel would
have a "material financial effect" upon his or her law firm. (See Cal. Code Regs., tit. 2, §§ 18700
-18703.5).
Another conflicts of interest statute of concern would be section 1090. It prohibits
a public official from being financially interested in any contract made by him or her in an official
capacity by a board or commission of which he or she is a member. Significantly, the courts have
construed section 1090 liberally so as to cover not only the board or officer who actually enters into
the contract, but also any governmental officer or employee who participates in the making of the
contract by way of advice, preliminary negotiations, or the like. (See 63 Ops.Cal.Atty.Gen. 19
(1980); 53 Ops.Cal.Atty.Gen. 163 (1970).)
Both the Political Reform Act of 1974 and section 1090 would require analysis with
respect to the proposed activities in question. Each imposes restrictions that must be considered in
structuring the county's contract with the law firm.
In summary, we conclude that a general law county may appoint as county counsel
a partner in a private law firm and contract with that firm to assist the county counsel in the
performance of his or her duties, if certain qualifications and limitations are met.
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