Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
_________________________
:
OPINION : No. 85-906
:
of : MARCH 14, 1986
:
JOHN K. VAN DE KAMP :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
________________________________________________________________________
THE HONORABLE FLOYD R. B. VIAU, COUNTY COUNSEL,
FRESNO COUNTY, has requested an opinion on the following question:
In an unsuccessful recall effort to recall school trustees, where a county
clerk performs services including checking signatures on the recall petition and certifying
the petition as insufficient, are the costs incurred by the county clerk a county charge or a
school district charge?
CONCLUSION
In an unsuccessful recall effort to recall school trustees, where a county
clerk performs services including checking signatures on the recall petition and certifying
the petition as insufficient, the costs incurred by the county clerk are a school district
charge.
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ANALYSIS
This opinion request posits the issue as to which entity is to bear the costs
incurred by the county clerk in an unsuccessful recall effort in a school district, the
county or the school district.
The Education Code presently provides that "[s]chool district elections . . .
shall be governed by the Elections Code, except as otherwise provided in [the Education
Code]. (Ed. Code, § 5300.) The Education Code additionally provides in the same vein
that "[t]he provisions of this chapter [relating to the "Conduct of Elections"] shall apply
to all district elections, except as otherwise provided by law. . . ." (Ed. Code, § 5301.) It
also provides that "the county clerk or the registrar of voters . . . shall perform the duties
incident to the preparation for, and holding of, all district elections." (Ed. Code, § 5303.)
Prior to 1977, recall elections in school districts were governed by sections
5050 through 5076 of the Education Code. These provisions were repealed, effective
April 30, 1977. (Stats. 1977, ch. 36, § 548.) Now, recall elections in school districts are
conducted under general procedures and provisions in the Elections Code applicable to
"the recall of elective officers of the State of California and of all counties, cities, school
districts, county boards of education, community college districts, special districts, and
judges of courts of appeal and trial courts [other than where city charters contain their
own recall provisions.] . . . ." (Elec. Code, § 27000.) In short, the Election Code now
generally governs all recall proceedings.
Despite the removal of the recall provisions from the Education Code, that
code still contains provisions relating to the payment of school district elections
generally, and recall elections specifically. Thus, section 5420 of the Education Code
provides as to costs generally:
"The cost of any school district or community college district
election may include, but need not be limited to:
(a) Compensation of precinct election officers.
(b) Publication of notices.
(c) The cost of printing official ballots, sample ballots, indexes,
arguments, statements, official notices, and card notices.
(d) Mailing charges for card notices, arguments, recommendations,
statements, and sample ballots.
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(e) Forms for rosters, tally sheets, certificates, envelopes, declaration
of results forms, and legal forms required for bond elections.
(f) Precinct maps.
(g) The actual cost of supplies such as flags, ballot boxes, chairs and
tables, booths, ink pads and stamps, and pencils; provided, that if any such
can be borrowed from any state or county office, no charge for rental shall
be included in the cost of elections." (Emphasis added.)
Section 5421 of the Education Code provides:
"The cost of any election held within a single district shall be borne
by the entire district, and shall be paid out of its funds. Election costs shall
be determined by the county clerk or registrar of voters and approved by the
county board of supervisors"
Section 5424 of the Education Code provides:
"The cost of any recall elcection shall be borne by the district in
which the recall election is held and paid from district funds."
(See also similar provision in Ed. Code, §§ 5422, 5423, 5425 and 5426 regarding costs of
other specific elections held in school districts.)
Despite the provisions of sections 5420, 5421 and 5424 of the Education
Code, it has been urged that the county, not a school district, is to be charged with the
costs of an unsuccessful recall effort where the proponents of the recall do not gather
sufficient signatures on the petition to have the recall go forward. (See generally, Elec.
Code, §§ 27210-27217.) As stated in section 27216 of the Elections Code: "If the
certificate [of the county clerk or registrar of voters] shows that the petition is
insufficient, no action shall be taken on it; but the petition shall remain on file."
In support of this position it is urged that under sections 5421 and 5424 of
the Education Code recall election costs are a school district charge only if an election is
actually held. In further support of this position it is urged that this is confirmed by the
fact that section 5420 of the Education Code, supra, which enumerates specific costs to
be paid by a school district, does not specify costs incurred in checking signatures or
other preliminary matters; that had the Legislature contemplated that such preparatory
costs be included, it would have so specified.
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From these arguments, it is finally urged that the costs of an unsuccessful
recall effort are to be borne by the county under the general provisions of the Elections
Code as costs attributable to the performance of the statutory duties of the county clerk or
registrar under that code. Section 10000 of the Elections Code is then cited in support of
this conclusion. It provides:
"All expenses, authorized and necessarily incurred in the preparation
for and conduct of elections as provided in this code, shall be paid from the
several county treasuries, except that when an election is called by the
governing body of a city, the expenses shall be paid from the treasury of the
city. All payments shall be made in the same manner as other county or
city expenditures are made. The clerk, in providing the materials required
by this division, need not utilize the services of the county or city
purchasing agent."
However, we conclude otherwise. Initially we note that the enumeration of
specific costs in section 5420 of the Education Code, supra, is not exclusive. The section
states that "[t]he cost of any school district . . . election may include, but need not be
limited to" the enumerated costs. Accordingly, the section is broad enough to include
preliminary costs such as checking signatures on a recall position if such are "costs of any
school district election" or "election costs" within the meaning of sections 5420, 5421 and
5424, of the Education Code, supra. In short, the issue presented is what does the word
"election" mean in those sections in the context of a recall proceeding.
Recall proceedings are commenced "by the service, filing, and publication
or posting of a notice of intention to circulate a recall petition." (Elec. Code, § 27007.)
The recall petition is then circulated and filed and the signatures checked for sufficiency
in number. (See Elec. Code, §§ 27030-27217.) If the recall petition is found to be
sufficient, the governing body (in our case, the school board) must call the election.
(Elec. Code, § 27230.) Thereafter, the final steps in the election process are taken (ballot
preparation, etc.) to the end that the recall election is held on the date specified or
required by law. (Elec. Code, § 27310 et seq.)
In the context of recall proceedings, two plausible meanings of the word
"election" as used in sections 5420, 5421 and 5424 of the Education Code appear to
emerge. The first is that the word "election" refers only to that part of the recall process
which deals with the actual election commencing in point of time with the certification of
the sufficiency of the recall petition. Such a certification is the statutory condition
precedent to calling a recall election. The second is that the word "election" is meant to
encompass the entire recall proceedings. It would therefore include preliminary matters
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attributable to the proceedings such as the checking of signatures on the recall petition by
the county clerk.
Our task is to "ascertain the legislative intent so as to effectuate the purpose
of the law." (Moore v. Panish (1982) 32 Cal.3d 535, 541.) The basic purpose of sections
5420, 5421 and 5424 of the Education Code is to charge school districts with costs they
generate because of elections. Given the two choices expressed above, we believe the
second construction best advances that purpose. We can discern no reason why the
Legislature would have distinguished between costs incurred by the county for the benefit
of a school district after the certification of a recall petition and those incurred by the
county for the benefit of a school district before certification of a recall petition. But for
the recall proceedings, neither category of costs would have been incurred. Clearly the
Legislature did not make reimbursement for costs contingent upon a successful recall
election. Why then would the Legislature have intended to require the county, as
opposed to the school district, to pay preliminary costs of a recall proceeding merely
because the recall effort failed at the petition stage instead of the election stage?
We would also note that section 10000 of the Elections Code, set out at the
outset herein, and relied upon as authority for the county being charged with such
preliminary costs, does not make such a distinction. In cases where it is applicable, the
county or the city is charged with "[a]ll expenses authorized and necessarily incurred in
the preparation for and conduct of elections." We believe that costs such as checking
signatures on a recall petition are "incurred in the preparation for" an election. (Emphasis
added.) Accordingly, this section as written additionally supports the concept that the
Legislature intends that the entity to be charged with election costs is to pay for all costs
whether the entity is the county, a city or a school district.
Support for this conclusion may also be found in Cupertino Sanitary Dist.
v. Board of Supervisors (1962) 208 Cal.App.2d 52. That case arose after the completion
of an unsuccessful recall election directed at the district board members. The question
presented on appeal was "whether the district or the county should bear the costs of the
election." (Id., at p. 52.) The district's organic act provided that "the directors of a
sanitary district may be recalled 'in accordance with the recall provisions applicable to
county officers.'" (Id., at p. 56.)
Relying heavily upon an opinion of this office which presented a similar
question as to a recall election in a public utility district (31 Ops.Cal.Atty.Gen.307
(1958)), both the trial court and the District Court of Appeal concluded that the law
imposed upon the sanitary district both the duty to conduct and to pay for recall elections,
including the checking of signatures and the certification of the recall petition. The
District Court of Appeal noted, inter alia:
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". . . The [trial] court also pointed out that a sanitary district, as a
political entity entirely separate and apart from the county, has its own
funds and its own means of financing its activities through taxes and bonds.
To require the county to pay for the cost of conducting the proposed recall
election would be to impose upon county taxpayers an item of expense
arising from the administration of a district over which the vast majority of
county taxpayers have no control and from which they receive no
benefits . . . ." (208 Cal.App.2d at p. 58.)
This conclusion also comports with the following observation of the court
in County of San Mateo v. Belmont County Water District (1978) 83 Cal.App.3d 485.
There the question was presented whether the costs of an election to determine whether
the water district should become a subsidiary district to the city, should be a district
charge under general provisions of the district law and other laws, or should be a county
charge under section 10000 of the Elections Code, supra. The court observed:
"We also note that the costs of such an election by, or concerning, a
lesser public entity such a water district or a city appear traditionally to
have been a charge against the local entity, and not the county. An earlier
County water district law provided that the costs of a water district's
elections 'shall be borne by the district.' (Stats. 1949, ch. 274, [Elec. Code]
section 30704, p. 503.) The same policy that a local entity's election shall
be at its own expense is exemplified by Elections Code section 10000 here
relied upon by the District; as to elections called by the governing body of a
city, 'the expenses shall be paid from the treasury of the city.' And even
where a single election concerns the affairs of both a county and a local
district it is held by executive authority of 'great weight' (See Edgar v.
Oakland Museum Advisory Com., 36 Cal.App.3d 73, 77 [111 Cal.Rptr.
364]) that the costs shall be shared between the two in some equitable
manner (see 36 Ops.Cal.Atty.Gen. 224). And in such a situation, we held
in County of Contra Costa v. East Bay Municipal Util. Dist., 229
Cal.App.2d 556, 570 [40 Cal.Rptr. 495], that 'the apportionment of the
costs of the respective elections [should be] fair and equitable.'"
Accordingly, we conclude that in an unsuccessful recall effort, where a
county clerk performs services including checking signatures on the recall petition and
certifying the petition as insufficient, the costs incurred by the county clerk are a school
district charge.
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