Untitled California Attorney General Opinion ( 1993 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 92-805
of :
: MAY 5, 1993
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. Da VIGO :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE MICHAEL D. BRADBURY, DISTRICT ATTORNEY,
COUNTY OF VENTURA, has requested an opinion on the following question:
May a general law county contract with persons to provide the same level of services,
but at less expense, than presently performed by its civil service employees?
CONCLUSION
Without statutory authority, a general law county may not contract with persons to
provide the same level of services, but at less expense, than presently performed by its civil service
employees.
ANALYSIS
The present inquiry concerns the authority of a general law county to contract with
persons to perform services currently provided by its civil service employees, on the sole basis that
the services would be provided at less cost to the county. The civil service employees would be
replaced by those having the new contracts, with the goal being that the county would reduce its
payroll expenses.
In accordance with the nature of the inquiry, the analysis and conclusion herein are
general, and do not consider special statutes which may relate to particular service classifications.
(See, e.g., Gov. Code, § 25358 [contracts for maintenance personnel].)1 The inquiry posits that the
county is not chartered (Cal. Const., art. II, §§ 3, 4) and has adopted a civil service system pursuant
to the County Civil Service Enabling Law (§§ 31100-31117). We conclude that the county may not
1
All undesignated statutory references hereafter are to the Government Code.
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dispense with the services of available, qualified civil service employees in favor of contract
services on the sole basis of cost savings.
There are two principal statutes which, for our purposes, shall be considered together.
We have no occasion here to determine which of these statutes would prevail in the event that they
are deemed inconsistent in some respect. Section 31000 states:
"The board of supervisors may contract for special services on behalf of the
following public entities: the county, any county officer or department, or any
district or court in the county. Such contracts shall be with persons specially trained,
experienced, expert and competent to perform the special services. The special
services shall consist of services, advice, education or training for such public
entities or the employees thereof. The special services shall be in financial,
economic, accounting (including the preparation and issuance of payroll checks or
warrants), engineering, legal, medical, therapeutic, administrative, architectural,
airport or building security matters, laundry services or linen services. They may
include maintenance or custodial matters if the board finds that the site is remote
from available county employee resources and that the county's economic interests
are served by such a contract rather than by paying additional travel and subsistence
expenses to existing county employees. The board may pay from any available funds
such compensation as it deems proper for these special services. The board of
supervisors may, by ordinance, direct the purchasing agent to enter into contracts
authorized by this section within the monetary limit specified in Section 25502.5 of
the Government Code."2
Section 53060 provides:
"The legislative body of any public or municipal corporation or district may
contract with and employ any persons for the furnishing to the corporation or district
special services and advice in financial, economic, accounting, engineering, legal,
or administrative matters if such persons are specially trained and experienced and
competent to perform the special services required.
"The authority herein given to contract shall include the right of the
legislative body of the corporation or district to contract for the issuance and
preparation of payroll checks.
"The legislative body of the corporation or district may pay from any
available funds such compensation to such persons as it deems proper for the
services rendered."3
In interpreting sections 31000 and 53060, we observe certain fundamental
interpretive precepts. Specifically, statutes must be accorded a reasonable and common sense
construction consistent with their apparent purpose and intent, practical rather than technical in
nature, and which upon application will result in wise policy rather than mischief or absurdity; such
2
The monetary limit specified in section 25502.5 is $100,000.
3
The term "legislative body" as used in section 53060 includes a county board of
supervisors. (§ 53000.)
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indicators should be considered as context, the object in view, the evils to be remedied, the history
of the times and of legislation on the same subject, public policy, and contemporaneous construction.
(San Diego Union v. City Council (1983) 146 Cal. App. 3d 947, 954; 73 Ops.Cal.Atty.Gen. 424, 425
(1990).)
It is evident that the authority to contract as provided in both sections 31000 and
53060 is expressly limited to "special services" in specified areas, and is further limited to
contractors who are specially trained, experienced, and competent to perform such services. The
criteria for determining the nature of special services were set forth in Darley v. Ward (1982) 136
Cal. App. 3d 614, 627-628:
"Whether services are special requires a consideration of factors such as the
nature of the services, the qualifications of the person furnishing them and their
availability from public sources. (Jaynes v. Stockton (1961) 193 Cal. App. 2d 47, 51-
52.) Services may be special because of the outstanding skill or expertise of the
person furnishing them. (Kennedy v. Ross (1946) 28 Cal. 2d 569, 574; Jaynes v.
Stockton, supra, 193 Cal.App.2d at p. 52.) Whether services are special is a question
of fact. (California Sch. Employees Assn. v. Sunnyvale Elementary Sch. Dist (1973)
36 Cal. App. 3d 46, 61; Jaynes v. Stockton, supra, 193 Cal.App.2d at p. 53.)"
As indicated in Darley, whether the services in question may be classified as "special
services" is ultimately a question of fact. (See 71 Ops.Cal.Atty.Gen. 266, 272 (1988).) It has been
held, for example, that hospital management (Darley v. Ward, supra, 136 Cal. App. 3d 614), research
and development (California Sch. Employees Assn. v. Sunnyvale Elementary Sch. Dist (1973) 36
Cal. App. 3d 46), and special counsel as prosecutor where the city attorney had not been vested with
prosecutorial powers (Montgomery v. Superior Court (1975) 46 Cal. App. 3d 657; compare Jaynes
v. Stockton (1961) 193 Cal. App. 2d 47), constitute special services.
Nothing in the cited statutes suggests that a county may contract for services without
regard to the "special services" limitation, solely on the basis of cost savings. We note in this regard
that in the Legislature's grant of a particular power, "`"there is an implied negative; an implication
that no other than the expressly granted power passes by the grant; that it is to be exercised only in
the prescribed mode . . . ."'" (Wildlife Alive v. Chickering (1976) 18 Cal. 3d 190, 196; see 71
Ops.Cal.Atty.Gen. 266, 274-275 (1988).)
Moreover, when the Legislature has intended to grant authority to contract for the
performance of services on the basis of cost savings, it has expressly so provided. In 73
Ops.Cal.Atty.Gen. 95, 97-100 (1990), we set forth at length the provisions of section 19130
pertaining to contracts for state services. Subdivision (a) of section 19130 allows the contracting
of "personal services" to achieve cost savings but only if numerous specific conditions are followed.
It is not to be reasonably contended, therefore, that a county may exercise such power in the absence
of a grant of authority and in the absence of any specified conditions.
Finally, we note that since the Legislature has already granted the contracting
authority in question to state agencies (§ 19130), it may easily so provide for counties and other
local governments. Even though, for example, the state's civil service system is constitutionally
protected (Cal. Const., art. VII, § 1), the Court of Appeal in California State Employees' Assn. v.
State of California (1988) 199 Cal. App. 3d 840, had little difficulty in upholding the validity of
section 19130's "cost savings" provisions against constitutional challenge. The court stated:
"Decisional law interprets article VII as a restriction on the `contracting out'
of state activities or tasks to the private sector. [Citations.] The restriction does not
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arise from the express language of article VII. [Citation.] `Rather, it emanates from
an implicit necessity for protecting the policy of the organic civil service mandate
against dissolution and destruction.' [Citation.]
". . . . . . . .
"The purposes of article VII as disclosed in the ballot argument of its
predecessor, former article XXIV, are not in conflict with subdivision (a) of section
19130. The constitutional provisions relating to the civil service were adopted in
part `to promote efficiency and economy in state government.' A statute dealing with
the civil service which has cost savings as an object is hardly in conflict with notions
of governmental efficiency and economy.
". . . . . . . .
"Moreover, as we have seen, an established exception to the mandate of civil
service exists where the nature of the services in question is such they cannot be
performed `adequately or competently or satisfactorily' by employees selected
through civil service. [Citations.] Without attempting to endow the quoted words
with definitive content, under a constitutional scheme which commends efficiency
and economy it is reasonable to postulate that at some point a service which is more
costly when performed under civil service than when contracted out may on that
account be one which cannot be performed satisfactorily, adequately or competently.
". . . . . . . .
"We are not at liberty to remove from the Legislature the very discretion
vested in it when the voters adopted first article XXIV and later article VII. The
history of those articles demonstrates the voters wished to adopt a civil service
system free from the whims of political partisanship and appointment. The voters
did not intend, however, to impose upon the state a civil service system which
eschews all considerations of fiscal responsibility and economy in favor of an
infinitely expanding public payroll. Rather, the Legislature was entrusted to consider
various alternatives with regard to civil service administration. In devising such
alternatives, the Legislature may not ignore the purposes behind the constitutional
civil service system; neither, however, must it abdicate fiscal responsibility and
forego opportunities to realize substantial savings to the taxpayers. The goals of
maintaining the civil service must be balanced with the goal of a fiscally responsible
state government. In subdivision (a) of section 19130, the Legislature has
harmonized a viable civil service as a central policy aim. [Citation.]" (Id., at pp.
844-853; fn. omitted.)
Here, we determine only that the Legislature has not acted to grant counties the same
authority possessed by state agencies. Inasmuch as the present inquiry is predicated upon the
assumption that the services in question are currently being performed by civil service employees,4
4
In the absence of any suggestions to the contrary, we assume for purposes of this analysis that
such services are performed adequately, competently, and satisfactorily. The sole concern presented
is whether the services may be contracted outside the civil service system on the basis of cost
savings alone.
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we find that these are not "special services" under the express and limited terms of sections 31000
and 53060.
It is concluded that without statutory authority, a general law county may not enter
into a contract with persons to provide the same level of services, but at less expense, than presently
performed by its civil service employees.
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