Untitled California Attorney General Opinion ( 1994 )


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  •                       TO BE PUBLISHED IN THE OFFICIAL REPORTS
    OFFICE OF THE ATTORNEY GENERAL
    State of California
    DANIEL E. LUNGREN
    Attorney General
    ______________________________________
    OPINION            :
    :          No. 93-903
    of                 :
    :          May 3, 1994
    DANIEL E. LUNGREN            :
    Attorney General          :
    :
    ANTHONY S. Da VIGO           :
    Deputy Attorney General      :
    :
    ______________________________________________________________________________
    THE HONORABLE RICHARD K. RAINEY, MEMBER OF THE CALIFORNIA
    ASSEMBLY, has requested an opinion on the following question:
    Does a county board of supervisors have the legal authority to govern the actions of
    an elected sheriff concerning the manner in which the sheriff's budget allotment is to be spent,
    including the manner in which personnel will be assigned?
    THE HONORABLE GARY T. YANCEY, DISTRICT ATTORNEY, COUNTY OF
    CONTRA COSTA, has requested an opinion on the following question:
    Does a county board of supervisors have the legal authority to govern the actions of
    an elected district attorney concerning the manner in which the district attorney's budget allotment
    is to be spent, including the manner in which personnel will be assigned?
    CONCLUSION
    A county board of supervisors is not authorized to govern the actions of a sheriff or
    district attorney concerning the manner in which their respective budget allotments are expended
    or the manner in which personnel are assigned.
    ANALYSIS
    The present inquiry concerns whether a county board of supervisors1 may govern the
    actions of a sheriff or district attorney with respect to the manner in which budget allotments for
    1
    It will be assumed for purposes of this analysis that the county in question is a general law
    county.
    1.                                          93-903
    those offices are expended, including issues of personnel deployment.2 Generally, a county
    possesses and can exercise only such powers as are granted to it by the Constitution or by statutes,
    together with those powers as arise by necessary implication from those expressly granted. (Gov.
    Code, § 23003; Byers v. Board of Supervisors (1968) 
    262 Cal. App. 2d 148
    , 157; 70
    Ops.Cal.Atty.Gen. 227, 228 (1987).)3 Some county powers are exercised by the board of
    supervisors, while others are exercised by county officers and agents acting under "authority
    conferred by law." Section 23005 states: "A county may exercise its powers only through the board
    of supervisors or through agents and officers acting under authority of the board or authority
    conferred by law."
    In examining the scope of a county's powers, we look first to the Constitution.
    Article XI, section 1, subdivision (b), of the Constitution states as follows:
    "The Legislature shall provide for county powers, an elected sheriff, an
    elected district attorney, an elected assessor, 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 board shall
    provide for the number, compensation, tenure, and appointment of employees."4
    In carrying out its constitutional mandate, the Legislature has provided for an elected governing
    board in each county and has prescribed its powers. (§§ 25000-26400.) Section 25300 states
    specifically:
    "The board of supervisors shall prescribe the compensation of all county
    officers and shall provide for the number, compensation, tenure, appointment and
    conditions of employment of county employees. Except as otherwise required by
    Section 1 or 4 of Article XI of the California Constitution, such action may be taken
    by resolution of the board of supervisors as well as by ordinance."
    Section 25207 more generally 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."
    2
    The questions refer to an "elected" sheriff and to an "elected" district attorney. For purposes of
    this analysis, we find no talismanic significance respecting the manner of selection of these officers.
    (See People v. Kelsey (1868) 
    34 Cal. 470
    ; Beck v. County of Santa Clara (1988) 
    204 Cal. App. 3d 789
    , 794-795; 33 Ops.Cal.Atty.Gen. 180, 182 (1959).)
    3
    Unidentified section references herein are to the Government Code.
    4
    The Constitution also provides that charter counties are to provide in their charters for an elected
    sheriff, an elected district attorney, and an elected governing board, and for the compensation of
    such officers. (Cal. Const., art. XI, § 4; see Beck v. County of Santa 
    Clara, supra
    , 204 Cal.App.3d
    at 796-799.)
    2.                                             93-903
    Finally, of particular significance here regarding the powers of a board of supervisors, section 25303
    states as follows:
    "The board of supervisors shall supervise the official conduct of all county
    officers, and officers of all districts and other subdivisions of the county, and
    particularly insofar as the functions and duties of such county officers and officers
    of all districts and subdivisions of the county relate to the assessing, collecting,
    safekeeping, management, or disbursement of public funds. It shall see that they
    faithfully perform their duties, direct prosecutions for delinquencies, and when
    necessary, require them to renew their official bond, make reports and present their
    books and accounts for inspection.
    "This section shall not be construed to affect the independent and
    constitutionally and statutorily designed investigative and prosecutorial functions of
    the sheriff and district attorney of a county. The board of supervisors shall not
    obstruct the investigative function of the sheriff of the county nor shall it obstruct the
    investigative prosecutorial function of the district attorney of a county.
    "Nothing contained herein shall be construed to limit the budgetary authority
    of the board of supervisors over the district attorney or sheriff."
    With respect to the authority and functions of a district attorney, the Legislature has
    defined various duties and responsibilities. (§§ 26500-26543.) Section 26500 states:
    "The district attorney is the public prosecutor, except as otherwise provided
    by law.
    "The public prosecutor shall attend the courts, and within his or her discretion
    shall initiate and conduct on behalf of the people all prosecutions for public
    offenses."
    A district attorney is expressly authorized and directed to institute proceedings before magistrates
    for the arrest of persons charged or reasonably suspected of public offenses, to attend and advise the
    grand jury, and to draw all indictments and informations. (§§ 26501, 26502.)
    The Legislature has also enacted a statutory scheme defining the powers and duties
    of a sheriff. (§§ 26600-26778.) Section 26600 generally provides:
    "The sheriff shall preserve peace, and to accomplish this object may sponsor,
    supervise, or participate in any project of crime prevention, rehabilitation of persons
    previously convicted of crime, or the suppression of delinquency."
    A sheriff is expressly authorized and directed to investigate public offenses which have been
    committed and to arrest and take before a magistrate all persons who have committed a public
    offense. (§§ 26601, 26602.)
    3.                                                93-903
    Both a district attorney and a sheriff are county officers authorized to appoint as
    many deputies as are necessary for the prompt and faithful discharge of their respective duties. (§§
    24000, 24101.)5
    With these statutory duties in mind, we commence our analysis of the questions with
    a case which interpreted laws enacted under the original Constitution. In 1855, El Dorado County
    retained the services of a private law firm to prosecute certain parties accused of murder. The
    Eleventh Judicial District Court determined that the board of supervisors had no authority to make
    such a contract. (Newell & Williams v. El Dorado County (1856) 1 Labatt 102.) The court
    explained its decision in part as follows:
    ". . . [I]t is the duty of the County to see that the laws are executed and
    criminals punished; but in the exercise of this duty, it goes no farther and can go no
    farther, that to furnish the money, officers and agents, necessary to accomplish the
    object. In the performance of this duty each County is restricted and controlled
    within certain limits, and those are fixed by Statute. It, too, is created by Statutes,
    they are its charter and beyond their provisions it cannot go. It possesses no power
    except such as has been expressly delegated and such as may be necessary to carry
    into effect the delegated powers.
    "In looking to the Statutes for the purpose of ascertaining the extent of these
    powers, and the manner in which they are exercised, we find that Counties, like other
    corporations, conduct their affairs by means of certain officers, and these have
    certain duties assigned them, covering the whole field of criminal prosecutions. . .
    .
    ". . . A District Attorney is paid a liberal salary to attend to the prosecution
    of all criminal cases . . . .
    "The theory of the law is, that these officers and their deputies are able and
    competent to discharge, to the satisfaction of the public and in such a manner as to
    meet its demands, all of the various duties that have been imposed upon them. If the
    Legislature has made a mistake, it is not the fault of the County or of the Board of
    Supervisors, any more than it would be of an agent who had not been clothed with
    powers sufficiently ample to attend properly to the interests of his principal." (Id.,
    at pp. 104-105.)
    Nearly four decades later, a similar question arose concerning the authority of the
    Modoc County Board of Supervisors to employ counsel on behalf of the county to assist the district
    attorney in the prosecution of criminal cases. In County of Modoc v. Spencer (1894) 
    103 Cal. 498
    ,
    501, the Supreme Court analyzed the issues as follows:
    ". . . [I]t is strongly urged in effect that it was within the inherent general
    power of the board, in the absence of special provision, to provide for the proper
    prosecution of these cases. But we know of no such inherent or undefined power in
    the board of supervisors; their powers being purely statutory, their every act must
    find its warrant in the statute, either expressly or by necessary implication.
    [Citations.] The legislature having specified certain cases in which such power may
    5
    However, "[a] county district attorney prosecuting a criminal action within a county, acts as a
    state officer, exercising ultimately powers which may not be abridged by a county board of
    supervisors." (Graham v. Municipal Court (1981) 
    123 Cal. App. 3d 1018
    , 1022.)
    4.                                               93-903
    be exercised, there is no implication that she intended it to be exercised in others;
    expressio unius est exclusio alterius. In fact, an examination of all the provisions of
    the statute bearing upon the subject leads to the conclusion that it never was intended
    that the board of supervisors should be permitted to control or interfere with criminal
    prosecutions or with the district attorney in their management. The district attorney
    in the discharge of the duties of his office performs two quite distinct functions. He
    is at once the law officer of the county and the public prosecutor. While in the
    former capacity he represents the county and is largely subordinate to, and under the
    control of, the board of supervisors, he is not so in the latter. In the prosecution of
    criminal cases he acts by the authority and in the name of the people of the state."6
    In the two cases set forth above, a county board of supervisors attempted to employ
    private attorneys to conduct prosecutorial functions; such employment relationship would place in
    the hands of the supervisors the attendant right to control the conduct and assignment of the
    attorneys under contract. The present inquiry focuses upon the extent of control retained by a board
    of supervisors over the manner in which funds allocated to the offices of the district attorney and
    sheriff are expended, including the manner in which personnel are deployed. As in the foregoing
    cases, the primary issue here concerns the authority of a board of supervisors to assume the
    prerogative of an employer, thereby diminishing necessarily the control exercised by the district
    attorney and sheriff over the conduct and deployment of those who perform the duties of their
    respective offices.
    In Hicks v. Board of Supervisors (1977) 
    69 Cal. App. 3d 228
    , the Court of Appeal held
    that the Orange County Board of Supervisors was not authorized to transfer 22 investigative
    positions from the district attorney's office to the sheriff's office. The court stated as follows:
    "The board of supervisors has no inherent powers; the counties are legal
    subdivisions of the state, and the county board of supervisors can exercise only those
    powers expressly granted it by Constitution or statutes and those necessarily implied
    therefrom. (Cal. Const., art. XI, § 1; People v. Langdon, 
    54 Cal. App. 3d 384
    , 388-
    389; Byers v. Board of Supervisors, 
    262 Cal. App. 2d 148
    , 155.) An examination of
    the provisions of the applicable statutes and of the Constitution reveals that the board
    of supervisors has been granted no power of control over the district attorney in the
    exercise of his discretionary duties. Although the board of supervisors has the power
    to prescribe the number, compensation, tenure, and appointment of county
    employees (Gov. Code, § 25300), the board has no power to itself appoint deputies
    or assistants to the district attorney (County of Modoc v. 
    Spencer, supra
    , 103 Cal. at
    pp. 500-502); although the county board of supervisors has authority to supervise
    county officers in order to insure that they faithfully perform their duties (Gov. Code,
    § 25303), the board has no power to perform county officers' statutory duties for
    them or direct the manner in which duties are performed (People v. 
    Langdon, supra
    ,
    
    54 Cal. App. 3d 384
    , 390), and although the board of supervisors exercises control
    over the county budget (Gov. Code, §§ 29021.1-29101), the board may not, by
    failing to appropriate funds, prevent the district attorney from incurring necessary
    expenses for crime detection as county charges (Gov. Code, § 29601); Cunning v.
    County of Humboldt, 
    204 Cal. 31
    , 33-35)." (Id., at p. 242.)
    6
    The nature and extent of a board's control over the district attorney when he is acting in the
    capacity of the county "law officer" is defined in sections 25203 and 31001; virtually all counties
    now have these civil law functions preformed by the county counsel (§§ 17640-27648). We are
    concerned here, on the other hand, with a district attorney acting as public prosecutor.
    5.                                               93-903
    Following the Hicks decision, the last two paragraphs of section 
    25303, supra
    , were added (Stats.
    1977, ch. 599, § 1), essentially codifying the holding of the court. By the express terms of this
    amendatory language, section 25303 may not be construed to affect the constitutionally and
    statutorily granted powers of a sheriff or district attorney.
    In our view, it is clear that control by a board of supervisors over the manner in which
    funds allocated to the sheriff and district attorney are to be expended, including the assignment of
    personnel, would impair the exercise by those officers of their constitutionally and statutorily
    defined powers. Such supervisory control would directly conflict with the admonition that "the
    board has no power to perform county officers' statutory duties for them or direct the manner in
    which duties are performed . . . ." (Hicks v. Board of 
    Supervisors, supra
    , 69 Cal.App.3d at 242;
    see also People v. Langdon (1976) 
    54 Cal. App. 3d 384
    , 388-390 [county clerk].) Consistent with
    the Hicks rationale, the Supreme Court has recently ruled that the supervisory authority of a board
    of supervisors over the county assessor is limited to ensuring the faithful performance of the duties
    of that office, and does not permit the board to control, directly or indirectly, the manner in which
    the duties are performed. (Connolly v. County of Orange (1992) 
    1 Cal. 4th 1105
    , 1113, fn. 9.)
    With specific regard to the office of sheriff, the court in Brandt v. Board of
    Supervisors (1978) 
    84 Cal. App. 3d 598
    , 602, expressly found:
    "We note the board not only had no duty but also had no right to control the
    operation of the jail; a board of supervisors has no legal authority to use its budgetary
    power to control employment in or operation of the sheriff's office . . . . Only the
    sheriff has control of and responsibility for distribution and training of personnel and
    the specific use of the funds allotted to him."
    In sum, the distinction to be drawn is between the power of a board of supervisors
    to appropriate county funds and the power of a sheriff or district attorney to manage the expenditure
    of the funds so appropriated. The grant of authority given to a board of supervisors by the
    Legislature is unaffected by allowing the sheriff and district attorney to perform their constitutional
    and statutory duties. A board's specific responsibility to "provide for the number, compensation,
    tenure, appointment and conditions of employment of county employees" (§ 25300) is simply an
    inherent aspect of the preparation and adoption of the county's budget, which in turn is an
    indispensable prerequisite to a valid tax levy, a clearly legislative function. (Ryan v. Byram (1935)
    
    4 Cal. 2d 596
    , 602; Hicks v. Board of 
    Supervisors, supra
    , 69 Cal.App.3d at 235; Beck v. County of
    Santa 
    Clara, supra
    , 204 Cal.App.3d at 800-801; County of Butte v. Superior Court (1985) 
    176 Cal. App. 3d 693
    , 698-700; see also California State Employees' Assn. v. State of California (1973)
    
    32 Cal. App. 3d 103
    , 108, 110; California State Employees' Assn. v. Flournoy (1973) 
    32 Cal. App. 3d 219
    , 234.) However, the budget process is integral and complete upon adoption of the budget; it
    does not encompass the management of budgetary resource allotments the responsibility for which
    is conferred by the Constitution or laws upon other county officers either expressly or by necessary
    implication. (Beck v. County of Santa 
    Clara, supra
    , 204 Cal.App.3d at 800-801; County of Butte
    v. Superior 
    Court, supra
    , 176 Cal.App.3d at 698-700; Hicks v. Board of 
    Supervisors, supra
    , 69
    Cal.App.3d at 242-244; cf. State Board of Education v. Levit (1959) 
    52 Cal. App. 2d 441
    , 461-462.)
    Consequently, a board's authority to provide "conditions of employment" (§ 25300) cannot be
    interpreted to confer ongoing control over the actions to be taken by personnel previously assigned
    to the sheriff or district attorney.
    Accordingly, it is concluded that a county board of supervisors is not authorized to
    govern the actions of a sheriff or district attorney concerning the manner in which their respective
    budget allotments are expended or the manner in which personnel are assigned.
    6.                                               93-903
    * * * * *
    7.        93-903
    

Document Info

Docket Number: 93-903

Filed Date: 5/3/1994

Precedential Status: Precedential

Modified Date: 2/18/2017