Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 96-506
of :
: January 7, 1997
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE LAWRENCE M. WATSON, CHIEF ACTING COUNTY COUNSEL,
ORANGE COUNTY, has requested an opinion on the following question:
May a person holding a non-management, clerical position in the office of a board of
retirement governed by the County Employees Retirement Law of 1937 serve as a member of the board of
retirement?
CONCLUSION
A person holding a non-management, clerical position in the office of a board of retirement
governed by the County Employees Retirement Law of 1937 may serve as a member of the board of
retirement.
ANALYSIS
Under the County Employees Retirement Law of 1937 (Gov. Code, §§ 31450-31898;
"Act")Footnote No. 1 a retirement system may be established in each county for the employees of the county,
special districts, and specified other public agencies. (§ 31500; Traub v. Board of Retirement (1983) 34
Cal. 3d 793, 798; 79 Ops.Cal.Atty.Gen. 95 (1996); 70 Ops.Cal.Atty.Gen. 1 (1987).) The administration of
such a retirement system is vested in a board of retirement. (Cal. Const., art. XVI, § 17; §§ 31520, 31595;
"board.")Footnote No. 2 Section 31520.1, applicable to the county in question, provides:
". . . the board of retirement shall consist of nine members and one alternate, one of
whom shall be the county treasurer. The second and third members of the board shall be
members of the association, other than safety members, elected by such members within 30 days
after the retirement system becomes operative in a manner determined by the board of
supervisors. The fourth, fifth, sixth, and ninth members shall be qualified electors of the county
who are not connected with the county government in any capacity, except one may be a
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who are not connected with the county government in any capacity, except one may be a
supervisor, and shall be appointed by the board of supervisors. A supervisor appointed as a
member of the retirement board shall not serve beyond his term of office as supervisor. The
seventh member shall be a safety member of the association elected by the safety members. The
eighth member shall be a retired member elected by the retired members of the association in a
manner to be determined by the board of supervisors. . . ."
We are advised that on January 1, 1995, a person holding a non-management, clerical position in the office of
a board of retirement was elected to the board as one of the general employee representatives ("[t]he second
and third members of the board shall be members of the association, other than safety members, elected by
such members"). We are asked whether this person may seek reelection when her current term of office on
the board expires on December 31, 1997. We conclude that she is not barred from seeking reelection.
The issue arises due to the Legislature's recent enactment of section 53227. It provides:
"(a) An employee of a local agency may not be sworn into office as an elected or
appointed member of the legislative body of that local agency unless he or she resigns as an
employee. If the employee does not resign, the employment shall automatically terminate upon
his or her being sworn into office.
"(b) For any individual who is an employee of a local agency and an elected or
appointed member of that local agency's legislative body prior to January 1, 1996, this section
shall apply when he or she is reelected or reappointed, on or after January 1, 1996, as a member
of the local agency's legislative body."
Section 53227.2 sets forth the definitions applicable to the prohibition of section 53227 as follows:
"For purposes of this article, the following definitions apply:
"(a) ``Local agency' means a city, city and county, district, municipal or public
corporation, political subdivision, or other public agency of the state. ``Local agency' does not
include a county.
"(b) ``Legislative body' means the board of supervisors of a city and county, the city
council of a city, or the governing body of a district, municipal or public corporation, political
subdivision, or other public agency of the state."
In analyzing the terms of sections 53227 and 53227.2, we rely on well established principles
of statutory construction. "When interpreting a statute our primary task is to determine the Legislature's
intent. [Citation.]" (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6
Cal. 4th 821, 826.) "To determine the intent of legislation, we first consult the words themselves, giving them
their usual and ordinary meaning. [Citations.]" (DaFonte v. Up-Right, Inc. (1992) 2 Cal. 4th 593, 601.)
"``Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does
not appear on the face of the statute or from its legislative history.' [Citation.]" (Burden v. Snowden (1992) 2
Cal. 4th 556, 562.)
Applying these principles of construction, we note that in order for the prohibition of section
53227 to apply, the person must be "[a]n employee of a local agency." Is a person holding a
non-management, clerical position in the office of a board of retirement such an employee? The Legislature
has defined "local agency" for purposes of section 53227 as excluding a county. "``Local agency' does not
include a county." (§ 53227.2, subd. (a).) We have examined the legislative histories of sections 53227 and
53227.2 (Stats. 1995, ch. 237, § 1; Stats. 1995, ch. 579, § 4.5), and they fully support the intended exclusion
of county employees from the prohibition of section 53227. "The Legislature has power to prescribe legal
definitions of its own language and when an act passed by the Legislature embodies a definition it is binding
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definitions of its own language, and when an act passed by the Legislature embodies a definition it is binding
on the courts." (In re Marriage of Stephens (1984) 156 Cal. App. 3d 909, 913.)
Non-management, clerical personnel in the office of a board of retirement are employees of
the county. Section 31522.1 provides:
"The board of retirement and both the board of retirement and the board of
investment may appoint administrative, technical, and clerical staff personnel as are required to
accomplish the necessary work of the boards. The appointments shall be made from eligible lists
created in accordance with the civil service or merit system rules of the county in which the
retirement system governed by the boards is situated. The personnel shall be county employees
and shall be subject to the county civil service or merit system rules and shall be included in the
salary ordinance or resolution adopted by the board of supervisors for the compensation of
county officers and employees." (Italics added.)
Accordingly the prohibition of section 53227 has no application to those serving on the clerical staff of a
board of retirement, since such employees are employees of the county.Footnote No. 3 Section 53227 does not
modify the provisions of section 31522.1 with respect to board membership, regardless of whether the board
may be considered a "local agency" for purposes of the prohibition. (See Traub v. Board of Retirement,
supra, 34 Cal.3d at p. 798; Summerford v. Board of Retirement (1977) 72 Cal. App. 3d 128, 132.)
We conclude that a person holding a non-management, clerical position in the office of a
board of retirement governed by the Act may serve as member of the board.Footnote No. 4
*****
Footnote No. 1
Undesignated section references herein are to the Government Code.
Footnote No. 2
In certain cases, the responsibility for investing the assets of a retirement system may be delegated to a separate board of
investment. (§ 31520.2.)
Footnote No. 3
The administrator of the retirement system is not subject to county civil service or merit system rules but is a county
employee and subject to "the salary ordinance or salary resolution adopted by the board of supervisors for the
compensation of county officers and employees." (§ 31522.2.)
Footnote No. 4
Since the employee herein is part of the clerical staff of the board, no conflict in her duties would normally be expected
regarding her responsibilities as an employee and board member. Were she to perform work which later was to be reviewed
by the board, her abstention as a board member with respect to the matter would appear to be appropriate. (See, e.g., Cal.
Code Regs. tit. 2, § 558, subd. (6).)
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