Untitled California Attorney General Opinion ( 1987 )

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 :
:
JOHN K. VAN DE KAMP : No. 87-205
Attorney General :
: AUGUST 13, 1987
RODNEY O. LILYQUIST :
Deputy Attorney General :
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THE HONORABLE MICHAEL H. KRAUSNICK, COUNTY COUNSEL,
STANISLAUS COUNTY, has requested an opinion on the following question:
Does the borrowing of federal funds by a school district to abate asbestos hazards
require electorate assent under the provisions of section 18 of article XVI of the Constitution?
CONCLUSION
The borrowing of federal funds by a school district to abate asbestos hazards does
not require electorate assent under the provisions of section 18 of article XVI of the Constitution
where such abatement is required by law, thereby making the debt involuntarily incurred and exempt
from the constitutional requirement.
ANALYSIS
Section 18 of article XVI of the Constitution provides in part:
"No . . . school district, shall incur any indebtedness or liability in any
manner or for any purpose exceeding in any year the income and revenue provided
for such year, without the assent of two-thirds of the qualified electors thereof,
voting at an election to be held for that purpose . . . ."
The question presented for resolution concerns whether this constitutional requirement of electorate
assent would be applicable with respect to the borrowing of funds by a school district to abate
asbestos hazards in its schools. We conclude that the voter requirement would be inapplicable
where an official determination has been made that such abatement action is necessary to protect
human health and the environment.
School districts are authorized by the Legislature to obtain federal funds for various
purposes (see Ed. Code, §§ 12400-12405),1 including "asbestos inspection, testing, encapsulation,
and removal" (§ 49410.5, subd. (b)). Congress has established an asbestos hazards abatement
program under which local school districts may receive grants or loans for:
"(A) abating the threat posed by materials containing asbestos to the health
and safety of children or employees;
"(B) replacing the asbestos materials removed from school buildings with
other appropriate building materials; and
"(C) restoring school buildings to conditions comparable to those existing
before abatement activities were undertaken pursuant to this section." (20 U.S.C. §
4014(c)(1).)
To obtain a loan or grant, a school district must send its application to its state governor who ranks
it with other applications "based on the nature and magnitude of the existing and potential exposure
presented by the asbestos materials." (20 U.S.C. § 4013(b)(2).) The governor submits all
applications and his or her priority list to the federal administrator who makes the final
determination as follows:
"In ranking applications, the Administrator shall consider--
"(A) the priority assigned to the abatement program by the Governor pursuant
to section 4013(b)(2) of this title;
"(B)(i) the likelihood of release of asbestos fibers into a school environment;
"(ii) any other evidence of the risk caused by the presence of asbestos
including, but not limited to, situations in which there is a substantial quantity of dry
loose asbestos-containing material on horizontal surfaces or asbestos-containing
material is substantially deteriorated or damaged, and there is asbestos-containing
material in an air plenum or in a high traffic area, confined space or within easy
reach of a passerby;
"(iii) the extent to which the corrective action proposed by the applicant will
1
All references hereafter to the Education Code are by section number only.
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reduce the exposure of school children and school employees; and
"(iv) the extent to which the corrective action proposed by the applicant is
cost-effective compared to other techniques including management of material
containing asbestos." (20 U.S.C. § 4014(c)(2).)
The federal loans "have a maturity period of not more than twenty years" and are "repayable during
such period at such times and in such amounts as the Administrator [of the Environmental Protection
Agency] may specify in the loan agreement." (20 U.S.C. § 4014(f).) The loans in question are thus
authorized by both state and federal statute. The only issue here is whether voter approval for a loan
must first be obtained where it would cause a district to incur an indebtedness "exceeding in any
year the income and revenue provided for such year" as specified in the Constitution.
In answering this question, we note that the voter approval requirement for debts
created by school districts is also applicable to the debts of counties and cities and that this
constitutional language has received extensive commentary. (See, e.g., Kosel, Municipal Debt
Limitation in California (1977) 7 Golden Gate L. Rev. 641; Beebe, Hodgman & Sutherland, Joint
Power Authority Revenue Bonds (1968) 41 So. Cal.L.Rev. 19; Note, States: Municipal
Corporations: Debt Limitation: Circumvention (1950) 38 Cal.L.Rev. 962; Note, Municipal
Corporations: Deductions of Assets in Computation of Indebtedness (1941) 29 Cal.L.Rev. 779;
Note, Municipal Corporations: Debt Limitations: Cal. Const., art. XI, § 18; Contingent Liability
(1935) 23 Cal.L.Rev. 445.)
In Lagiss v. County of Contra Costa (1963) 223 Cal. App. 2d 77, 85, the Court of
Appeal explained the intent of having prior electorate approval of long-term financial obligations:
"This constitutional provision was enacted to prevent the improvident creation of inordinate debts
which might be charged against taxpayers in ever increasing volume from year to year." (See also
Compton Community College etc. Teachers v. Compton Community College Dist. (1985) 165
Cal. App. 3d 82, 88; Starr v. City and County of San Francisco (1977) 72 Cal. App. 3d 164, 173-175;
Wright v. Compton Unified Sch. Dist. (1975) 46 Cal. App. 3d 177, 181.)
Several exceptions, however, to the voter requirement have been recognized by the
courts. In 67 Ops.Cal.Atty.Gen. 349 (1984), we examined these situations and described the
"involuntary debt" exception as follows:
"If the debt is not 'voluntarily' incurred, the constitutional requirement will
be found inapplicable. (American Co. v. City of Lakeport, supra, 220 Cal. 548, 557-
558; City of Pasadena v. McAllaster (1928) 204 Cal. 267, 273; City of Long Beach
v. Lisenby, supra, 180 Cal. 52, 57-58; Lotts v. Board of Park Commrs. (1936) 13
Cal. App. 2d 625, 635.) The primary application of this theory has been where the
Legislature has 'imposed' an obligation upon local governments by statute. (See,
e.g., Lewis v. Widber (1983) 99 Cal. 412, 413; Wright v. Compton Unified School
District (1975) 46 Cal. App. 3d 177, 181-183; City of La Habra v. Pellerin (1963) 216
Cal. App. 2d 99, 102; People ex rel. City of Downey v. Downey County Water Dist.
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(1962) 202 Cal. App. 2d 786, 805; Sacramento Municipal Util. Dist. v. Spink (1956)
145 Cal. App. 2d 568, 579-580.) . . . . 'The unarticulated rationale for this exception
undoubtedly is that it is pointless to submit obligations imposed by law to the
electorate for approval, since the local entity cannot refuse to pay the debt, regardless
of election outcome. [Citation.]'" (Id., at pp. 353-354.)
The involuntary debt exception was first recognized by the Supreme Court in Lewis
v. Widber (1893) 99 Cal. 412. The court stated: "The clear intent expressed in the said clause was
to limit and restrict the power of the municipality as to any indebtedness or liability which it has
discretion to incur or not to incur." (Id., at p. 413; see Compton Community College, etc. Teachers
v. Compton Community College Dist., supra, 165 Cal. App. 3d 82, 90; County of Shasta v. County
of Trinity (1980) 106 Cal. App. 3d 30, 37; Starr v. City and County of San Francisco, supra, 72
Cal. App. 3d 164, 172.)
While a specific duty must be found for this exception to apply (County of Los
Angeles v. Byram (1951) 36 Cal. 2d 694, 699; Compton Community College etc. Teachers v.
Compton Community College Dist., supra, 165 Cal. App. 3d 82, 91-94; Wright v. Compton Unified
Sch. Dist., supra, 46 Cal. App. 3d 177, 183), it is unnecessary that the governing law establish the
particular amount or manner of expenditure (Compton Community College etc. Teachers v.
Compton Community College Dist., supra, 165 Cal. App. 3d 82, 93-94).
In County of Los Angeles v. Byram, supra, 36 Cal. 2d 694, for example, the Supreme
Court ruled that the cost of constructing a courthouse was not subject to the constitutional provision
because the county had a legal duty to provide "adequate quarters" for the courts. This legal duty
was found sufficient even though the county had discretion in determining what kind of courthouse
to supply and how much money to spend. (Id., at p. 700.)
In City of La Habra v. Pellerin (1963) 216 Cal. 2d 99, the Court of Appeal similarly
held that voter approval would not be required for the construction of police and fire stations. Even
though the city had discretion in determining the nature and cost of these buildings, the court found
that the state law requiring the furnishing of police and fire protection was sufficient to satisfy the
involuntary debt exception. (Id., at p. 102.)
With respect to the abatement of asbestos hazards by a school district, Congress has
recently enacted the Asbestos Hazard Emergency Response Act of 1986. (15 U.S.C. §§ 2641-2654.)
The legislation directs the administrator of the Environmental Protection Agency to adopt
regulations requiring the inspection, cleanup, and disposal of asbestos from schools in a timely
manner. (15 U.S.C. § 2643.) Each school district is required to develop an asbestos management
plan describing the "measures to be taken to respond to any friable asbestos-containing material . . .
including the location or locations at which a response action will be taken, the method or methods
of response action to be used, and a schedule for beginning and completing response actions." (15
U.S.C. § 2643(i)(1)(C).) If the regulations are not promulgated, Congress itself has directed the
inspection, cleanup, and disposal of the asbestos. (15 U.S.C. § 2644.) Section 2644 of title 15 of
the United States Code provides in part:
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"The local educational agency shall . . . develop and begin implementation
of an operation and maintenance plan with respect to friable asbestos-containing
material in a school building under its authority . . . .
"The local educational agency shall . . . develop a management plan for
responding to asbestos-containing material in each school building under its
authority and . . . begin implementation of such plan . . . and . . . complete
implementation of such plan in a timely fashion.
". . . . . . . . . . . . . . . . . . . . . . . . .
"The ambient interior concentration of asbestos after the completion of
actions . . . shall not exceed the ambient exterior concentration, discounting any
contribution from any stationary source . . . ."
The federal legislation additionally provides that in an emergency situation the federal administrator
or the governor of a state may "act to protect human health or the environment" and "seek
reimbursement of all costs of an emergency action" from the school district, or either official may
seek injunctive relief against the district "as may be necessary to respond to the hazard." (15 U.S.C.
§ 2648.) For various violations of the regulatory or statutory requirements, a school district may
incur a civil penalty of up to $5,000 a day. (15 U.S.C. § 2647.) Congress has also authorized the
states to adopt more stringent requirements than the federal standards with respect to asbestos
hazards in schools. (15 U.S.C. § 2649.)2
We believe that once an official determination has been made that action is necessary
to protect human health and the environment, the district would have sufficient duty under federal
law to abate the asbestos hazard so as to render inapplicable the provisions of article XVI of the
Constitution when borrowing federal funds to perform such duty. Here the determination would
necessarily be made by the school district in applying for the federal loan, by the Governor in giving
the application a priority, and by the federal government in providing the loan based upon the
statutory criteria of requisite need. (See 20 U.S.C. §§ 4013-4014.) Under such circumstances it
would not be a task voluntarily assumed by the district for which prior voter approval would be
required. Even though a district may have discretion in determining the amount and manner of the
expenditure, it would be under a statutory obligation to provide a safe and healthy environment in
its schools. Hence the involuntary debt exception would be applicable. (See County of Los Angeles
v. Byram, supra, 36 Cal. 3d 694, 700; Compton Community College etc. Teachers v. Compton
Community College Dist., supra, 165 Cal. App. 3d 82, 93-94; City of La Habra v. Pellerin, supra, 216
2
The Commerce Clause (U.S. Const., art. I, § 8, cl. 3) gives Congress the authority to control
asbestos hazards in schools. (See Garcia v. San Antonio Metro. Transit Auth. (1985) 469 U.S.
536, 539-557; Hodel v. Indiana (1981) 452 U.S. 314, 323-329; Hodel v. Indiana Surface Min. &
Recl. Assn. (1981) 452 U.S. 264, 276-292; SED, Inc. v. City of Dayton (S.D. Ohio 1981) 519
F. Supp. 979, 982-984; SED, Inc. v. City of Dayton (S.D. Ohio 1981) 515 F. Supp. 737, 740.)
5. 87-205
Cal.App.2d 99, 102.) The fact that federal law rather than state law provides the duty makes the
debt no less involuntary for purposes of the exception.
In answer to the question presented, therefore, we conclude that the borrowing of
federal funds by a school district to abate asbestos hazards does not require electorate assent under
the provisions of section 18 of article XVI of the Constitution where such abatement is required by
law, thereby making the debt involuntarily incurred and exempt from the constitutional requirement.
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