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OPINIONS OF THE CITY ATTORNEY
CITY AND COUNIY OF SAN FRANCISCO
1987
DOCUMENTS DEPT.
APR 7 1988
SAN FRANCIiiUO
LOUISE H. RENNE
CITY ATTORNEY
DOCUMENTS DE3PT.
SAr<« FPJAWCISCO
Bumjc LiartARY
ERRATA 1987
OPINION NO.
87-4 Passim
should read office of citizen complaints
Page 2, Line 34
for as much as read as much a
87-9 Page 8, line 36
date should read November 2, 1971
87-15 Passim
should read CAL/OSHA
Page 4, line 14
citation should read 62 Ops .Cal . Atty .Gen. 115
Page 9, line 22
for f uther read further
87-18 Page 1, line 20
for 78-18 read 78-19
4307t
1987 INDEX
CALIFORNIA LAWS AND OFFICIAL DOCUMENTS CITED
ADMINISTRATIVE CODE
Title 8 Section 5208
Title 13 Section 100.50 et seq
ATTORNEY GENERAL OPINIONS
39
Ops.
Cal.
Atty.
Gen.
60
56
Ops .
Cal.
Atty.
Gen.
390
61
Ops .
Cal.
Atty.
Gen.
220
61
Ops .
Cal.
Atty.
Gen.
388
62
Ops.
Cal.
Atty.
Gen.
114
17-15
17-3
87-2
87-5
87-7
87-2
87-15
CODE OF CIVIL PROCEDURE
Section 1021 et seq.
CALIFORNIA COMMISSION ON PEACE OFFICER
STANDARDS AND TRAINING
87-11
87-5
CONSTITUTION
Article I, Section 2
Article XI, Section 7
Article XIII, Section 25
87-8
87-13
87-12
EDUCATION CODE
Section 45318
Section 88137
87-9
87-9
GOVERNMENT CODE
Section 3300 et seq.
Section 22751 et seq,
Section 54950 et seq,
Section 54953.7
87-7
87-2
87-7
87-7
HEALTH AND SAFETY CODE
Section 27500 et seq
Section 27531
Section 27541
Section 28520 et seq,
LABOR CODE
Section 3300
Section 6300 et seq.
Section 6303(a)
Section 6303(b)
Section 6304.1
87-13
87-13
87-13
87-13
87-15
87-15
87-15
87-15
87-15
PENAL
CODE
Section
830
et seq.
Section
830,
.1
Section
830.
.6
Section
832
Section
832.
,5 et seq
Section
832.
,7
87-5
87-5
87-5
87-5
87-7
87-7
PUBLIC RESOURCES CODE
Section 6216 87-12
VEHICLE CODE
Section 16053 87-3
Section 16056 87-3
SAN FRANCISCO LAWS AND OFFICIAL DOCUMENTS CITED
ADMINISTRATIVE CODE
Sections 10.116 through 10.116-3 87-19
Chapter 12B 87-11
see also 87-18
Chapter 12C 87-11
see also 87-18
Chapter 12D 87-11
see also 87-18
ANNUAL APPROPRIATION ORDINANCE
Section 11.1 87-19
BUILDING CODE
Section 301 87-16
CHARTER
Section 1.101 87-19
Section 2.101 87-19
Section 3.500 87-7
see also 87-14
see also 87-19
87-7
87-5
see also 87-7
87-4
87-5
87-5
87-17
87-6
see also 87-17
87-6
87-11
87-1
87-10
87-17
87-19
87-19
87-19
87-9
87-14
87-7
87-9
87-9
87-10
87-2
see also 87-10
Section 8.428 87-1
see also 87-10
Section 8.515 87-5
Section
3.500(f)
Section
3.530
Section
3.530-2
Section
3.531
Section
3.536
Section
3.550
Section
3.552
Section
3.601
Section
3.610
Section
3.681
Section
3.681(e)
Section
6.200
Section
6.302
Section
6.303
Section
6.311
Section
8.100 through 8,
.588-11
Section
8.105
Section
8.343
Section
8.407
Section
8.407-1
Section
8.420
Section
8.420 et seq.
CITY ATTORNEY OPINION
No.
621 dated November 14,
, 1932
87-11
No.
651 dated January 12,
1933
87-11
No.
47-3927
87-16
No.
59-1402
87-6
No.
66-73-A
87-5
No.
69-55
87-5
No.
71-47
87-6
No.
73-124
87-6
No.
75-83
87-14
No.
75-127
87-11
No.
78-19
87-18
No.
79-37
87-14
No.
79-48
87-16
No.
80-66
87-5
No.
83-18
87-4
No.
84-02
87-14
No.
84-29
87-11
see also 87-18
No.
85-3
87-11
No.
85-16
87-5
No.
85-25
87-10
No.
85-34
87-19
No.
87-09
87-15
No.
87-11
87-18
CITY PLANNING CODE
Section 175
87-16
Section 180
87-16
HEALTH CODE
Section 467 87-13
HEALTH SERVICE SYSTEM RULES AND REGULATIONS
Rule 3(c) 87-1
PARK CODE
Article 7 87-18
POLICE CODE
Section 685 87-8
Section 1080.1 87-3
Section 1080.2 87-3
POLICE DEPARTMENT RULES AND REGULATIONS
Rule 2.01 87-5
SALARY STANDARDIZATION ORDINANCE, 1986-87
Section IV. M 87-15
UNITED STATES LAWS AND OFFICIAL
DOCUMENTS CITED
34 CFR
Section 675 et seq.
17-9
UNITED STATES CODE
Title 29, Section 652(5) (1985)
Title 29, Section 667 (1985)
Title 42, Section 2751
17-15
17-15
17-9
UNITED STATES CONSTITUTION
First Amendment
see also
17-8
17-1!
CITY ATTORNEY OPINIONS 1987 SUBJECT INDEX
ADVERTISING
Commercial speech regulation by the government
may relate to time, place or manner of the
speech, but the regulation must pass a four-part
test to determine if it is constitutional 87-5
Prohibition of Police Code Section 685
against the distribution or circulation
of advertising materials unconstitutionally
restricts advertisers' freedom of speech 87-8
AMERICAN LEGION WAR MEMORIAL COMMISSION
Represents San Francisco Posts of the
American Legion with respect to the War
Memorial Veterans Building and has done
so for over fifty years 87-11
AMERICAN LEGION, ALEXANDER HAMILTON POST 44 8
War Memorial Board of Trustees' hearing on
charges of discrimination against the
American Legion War Memorial Commission
filed by the Alexander Hamilton Post 448
of the American Legion 87-11
ART COMMISSION
Power over landscaping is limited to
review and recommendations and the
recommendations are not binding 87-6
Power over Recreation and Park
Commission projects 87-6
Power over structures other than works
of art is more limited than that
over works of art 87-6
Power to approve or disapprove the
design of a proposed fence but does not
have jurisdiction to disapprove the
decision of the Recreation and Park
Commission to install a fence 87-6
Power to establish aesthetic standards
for public property 87-6
Power to review and make recommendations
regarding landscaping and grading and
these recommendations are not binding 87-6
Power to review the design of the
proposed play area rehabilitation
structure but does not have jurisdiction
to disapprove the landscape improvement plan 87-6
Power with respect to:
1. works of art
2. structures other than works of art
3. lines, grades and plotting 87-6
Recreation and Park Commission projects
and jurisdiction of the Art Commission 87-6
ASBESTOS
Duty of the San Francisco Unified School District
to provide a safe place of employment only
to persons who are engaged in employment at
a San Francisco Unified School District location 87-15
Duty of the San Francisco Unified School District
to provide free medical examinations to present
but not former employees exposed to asbestos 87-15
Exposure standards of CAL/OSHA and
federal OSHA 87-15
Medical examination provisions in the
Salary Standardization Ordinance, 1986-1987 87-15
Medical examination requirements of
CAL/OSHA and federal OSHA 87-15
Worker protection provisions of 8 CAC 5208
do not extend to past employees of the
San Francisco Unified School District or past
or present students attending the
San Francisco Unified School District but not
employed by the School District 87-15
BERG, NATALIE, DIRECTOR, PERSONNEL RELATIONS,
SAN FRANCISCO COMMUNITY COLLEGE DISTRICT AND
THE HON. NANCY G. WALKER, PRESIDENT, BOARD
OF SUPERVISORS, ADDRESSEES
Salary Standardization Ordinance applies
to the Community College District 87-9
BERTH FEES
Dual fee structure favoring residents
over nonresidents is prohibited by the
tideland public trust doctrine 87-12
Yacht Harbor berth fees cannot vary
based upon residence 87-12
BOARDS AND COMMISSIONS
Gifts to city boards and commissions are
specifically given authority to "receive"
gifts for any purpose connected or incidental
to the department under its charge
Charter Section 3.500 87-19
Power to receive and administer gifts given
for any purpose connected or incidental
to the department under its charge
Charter Section 3.500 87-19
Vote abstention by an official who has an
interest in a matter before the board
or commission 87-14
BROWN ACT
see
RALPH M, BROWN ACT
(Government Code Section 54950 et seq.)
BUILDING PERMIT
Required since at least 1895 before
beginning construction of any structure
Building Code Section 301 87-16
BURNS, MARY E., GENERAL MANAGER, RECREATION
AND PARK DEPARTMENT, ADDRESSEE
Art Commission jurisdiction over Recreation
and Park Commission projects 87-6
CAL/OSHA REGULATIONS
see
8 CAC 5208 (CALIFORNIA ADMINISTRATIVE CODE, TITLE 8,
SECTION 5208)
CALIFORNIA RESTAURANT ACT
Health and Safety Code Section 28520 et seq.
replaced by the California Uniform Retail
Food Facilities Law, Health and Safety
Code Section 27500 et seq. 87-13
CALIFORNIA UNIFORM RETAIL FOOD FACILITIES LAW
see
HEALTH AND SAFETY CODE SECTION 27500 et seq. 87-13
CASH GIFTS
see also
GIFTS •
Acceptance involves three basic steps:
receipt, acceptance and administration 87-19
Expenditure must be authorized by an
appropriation ordinance and an account of
the expenditure must be kept by the
Controller 87-19
Procedures for acceptance and expenditure of
cash gifts to the Library for library purposes 87-19
CIVIL SERVICE CLASSIFICATION COLLEGE AIDE 3591
Student employee is not part of the
classified service and is paid pursuant to
state and federal law 87-9
CIVIL SERVICE MERIT SYSTEM
Salary procedure is part of the civil service
merit system and applies to Community
College District classified employees 87-9
COLLEGE WORK STUDY PROGRAM
see
WORK STUDY PROGRAM
COMMERCIAL SPEECH
Defined as having "but one purpose -- to
advance an economic transaction" 87-8
Defined to include "speech which does no more
than propose a commercial transaction" 87-8
COMMUNITY COLLEGE DISTRICT
Classified employees are entitled to pay
equity adjustments pursuant to
Charter Section 8.407-1 87-9
Classified employees are paid pursuant
to Charter Section 8.407 87-9
College Aides are student employees not
part of the classified service and are
paid pursuant to state and federal law 87-9
Compensation for classified employees is
set pursuant to Charter Section 8.407 and
includes pay equity adjustments of
Section 8.407-1 87-9
Part of the state public school system
whose internal operations are subject only
to state law 87-9
Work Study Program students are not part
of the classified service and are paid
pursuant to state and federal law 87-9
CONFLICT OF INTEREST
Procedure established in Charter Section 8.105
that prevents an official with a conflict from
acting out of potentially divided loyalties
while allowing that official to continue to
serve both the public and the nonprofit entity 87-14
Remote interests identified by Charter
Section 8.105 include "a nonsalaried
officer of a nonprofit corporation" 87-14
Voting on decisions affecting tenant
organizations when the trustee is a member
of the Board of the War Memorial and also
the tenant organization 87-14
War Memorial Board of Trustees may not
adopt a blanket rule authorizing trustees
to abstain from voting on matters that affect
tenant organizations for which they serve
as directors 87-14
"CONTRACT"
Defined in SF Administrative Code
Chapters 12B and 12D 87-18
CONTROLLER
Budget calculations for the Office of
Citizen Complaints are the responsibility
of the Controller 87-4
Gifts of $5,000 or less. Controller to
establish procedures for setting up special
accounts and disbursements from these accounts 87-19
Gifts to the city and procedures to be
followed for receiving, accepting and
administering them 87-19
10
CORTINES, RAMON, SUPERINTENDENT OF SCHOOLS,
SAN FRANCISCO UNIFIED SCHOOL DISTRICT, ADDRESSEE
Duty of the San Francisco Unified School District
to provide medical examinations to employees
when asbestos is found in school buildings 87-15
DEFINITION
"Cominercial speech has but one purpose
— to advance an economic transaction'" 87-8
"Commercial speech" includes "speech which
does no more than propose a commercial
transaction" 87-8
"Contract" defined in SF Administrative
Code Chapters 12B and 12D 87-18
"Employee" in Labor Code Sections 6304.1 for
CAL/OSHA application 8 CAC 5208 87-15
"Employer" covered by CAL/OSHA regulations
Labor Code Section 3300 8 CAC 5208 87-15
"Employment" in Labor Code Section 6303(b)
for CAL/OSHA application 8 CAC 5208 87-15
"[Food] vending machine" in San Francisco
Health Code Section 467 and Health and
Safety Code Section 27541 87-13
"Hazardous" as used in term "conditions
hazardous to health" Salary Standardization
Ordinance, 1986-87, Section IV. M 87-15
"Members" of the Health Service System
Charter Section 8.420 87-10
"Noncomplying structure" in City Planning
Code Section 180 87-16
"Nonconforming use" City Planning
Code Section 180 87-16
"Peace officers" Penal Code Section 830 et seq. 87-5
"Place of Employment" in Labor Code Section
6303(a) for CAL/OSHA application 8 CAC 5208 87-15
"Potentially hazardous food" defined in
Health and Safety Code Section 27531 87-13
11
"'Retired person' . . . means a former member
of the health service system retired under
the San Francisco City and County Employees'
Retirement System . . ." Charter Section 8.428 87-1
"EMPLOYEE"
Defined in Labor Code Section 6304.1 for
CAL/OSHA application 8 CAC 5208 87-15
EMPLOYEE, CIVIL SERVICE EMPLOYEE, RETIRED
Lifetime health service benefits for retired
employees Charter Section 8.428 87-1
"EMPLOYER"
Defined in Labor Code Section 3300 for
CAL/OSHA application 8 CAC 5208 87-15
"EMPLOYMENT"
Defined in Labor Code Section 6303(b) for
CAL/OSHA application 8 CAC 5208 87-15
FEINSTEIN, THE HONORABLE DIANNE, MAYOR, ADDRESSEE
Marina Small Craft Harbor revenues and
limitations on the expenditures thereof 87-17
"[FOOD] VENDING MACHINE"
Defined in San Francisco Health Code
Section 467 and Health and Safety Code
Section 27541 87-13
FOOD VENDING MACHINE
see also
VENDING MACHINE
GIFTS
see also
CASH GIFTS
Acceptance distinguished from receipt
Charter Section 3.500 87-19
Berth fees at the San Francisco Yacht Harbor
cannot have a dual fee structure or the
differential will be a gift of public funds 87-12
Cash gifts of $5,000 or less to the Library
and procedure for acceptance and expenditure 87-19
Cash gifts of over $5,000 to the Library
and procedure for acceptance and expenditure 87-19
12
Expenditure of cash gifts subject to
Charter Section 6.302 and 6.303 • 87-19
Receipt distinguished from acceptance
Charter Section 3.500 87-19
"HAZARDOUS"
Defined as used in term "conditions
hazardous to health" Salary Standardization
Ordinance, 1986-87, Section IV. M 87-15
HEALTH SERVICE BENEFITS
Judges of the superior and municipal
courts are entitled to participate in the
Health Service System 87-2
Municipal court judges may participate in
both the state health care system and the
San Francisco Health Service System
simultaneously 87-2
Retired short term employees are entitled
to lifetime health benefits 87-1
Superior court judges may participate in
both the state health care system and the
San Francisco Health Service System
simultaneously 87-2
Surviving spouses right to enroll in the
Health Service System and to receive a
subvention from the city is derivative of
the right of the retiree to the benefit
Charter Section 8.428 87-10
HEALTH SERVICE BOARD
Lacks power to adopt or enforce rules
which are not supported by charter provisions 87-1
Power to promulgate rules which are
consistent with the rights of members and
beneficiaries created by the Charter
Charter Section 3, 681(e) 87-10
Responsible for interpretation of the Charter
and for the promulgation of rules and
regulations for the administration of these
benefits to employees, retirees and
surviving spouses Charter Section 3.681 87-1
13
HEALTH SERVICE SYSTEM
"Members" defined in Charter Section 8.420 87-10
Municipal court judges may participate in
both the state health care system and the
San Francisco Health Service System
simultaneously 87-2
Superior court judges may participate in
both the state health care system and the
San Francisco Health Service System
simultaneously 87-2
Surviving spouse of a retired employee
who was exempt during his entire time of
service with the city is not entitled to
surviving spouse benefits 87-10
Surviving spouse of an exempt employee
who was still employed at the time of
death may become a member of the Health
Service System Charter Section 8.428 87-10
Surviving spouse may enroll if the
retired employee-spouse had been a
member at some time prior to retirement
or spouse was an active employee of the
city at the time of death 87-10
Surviving spouse of active or retired
employee-spouses are entitled to health
service benefits even though never
previously enrolled in the health service
system as a dependent Charter Section 8.428 87-10
Surviving spouse right to enroll in the
Health Service System and to receive a
subvention from the city is derivative of
the right of the retiree to the benefit
Charter Section 8.428 87-10
Surviving spouse who were not allowed to
continue in the health service system
prior to 1972 may be reinstated if otherwise
qualified to participate 87-10
HONGISTO, RICHARD, MEMBER, BOARD OF
SUPERVISORS
Berth fees at the San Francisco Yacht Harbor 87-12
14
HUMAN RIGHTS COMMISSION
Lacks jurisdiction to mediate, investigate
or adjudicate the charge of discrimination
against the American Legion War Memorial
Commission 87-11
JARMAN, CLAUDE M, , JR., PRESIDENT, WAR
MEMORIAL BOARD OF TRUSTEES, ADDRESSEE
Authority of War Memorial Board of Trustees
to act upon a complaint of discrimination
against the American Legion War Memorial
Commission 87-11
JORDAN, FRANK M., CHIEF OF POLICE,
ADDRESSEE
Patrol Special Police Officers,
legal status 87-5
JUDGES
Municipal and superior court judges may-
participate in both the state health care
system and the San Francisco Health
Service System simultaneously 87-2
Superior and municipal court judges may
participate in both the state health care
system and the San Francisco Health
Service System simultaneously 87-2
LEGISLATIVE INTENT
SF Administrative Code Chapter 12B 87-18
LIBRARY
Cash gifts to the Library for library purposes
and procedures for acceptance and expenditure 87-19
LIBRARY COMMISSION
Gifts to Library and procedures for the
Library Commission to follow 87-19
MARINA SMALL CRAFT HARBOR
Revenue expenditures limited by terms
of the loan from the state 87-17
Revenue expenditures limited by the
granting statute 87-17
Revenue expenditures limited by the
tidelands trust 87-17
15
Revenue expenditures restricted by the
granting statute, the tidelands trust *
doctrine and terms of the existing
outstanding loan from the state 87-17
"MEMBERS"
Health Service System "members" defined
Charter Section 8.420 87-10
MICKINS, GRANT S., DIRECTOR, HUMAN RIGHTS
COMMISSION, ADDRESSEE
Papal Mass at Candlestick Park and
Administrative Code Chapters 12B and 12C
do not apply to the agreement 87-18
MOLINARI, JOHN L., MEMBER, BOARD OF
SUPERVISORS, ADDRESSEE
Police Code Section 685 is unconstitutional 87-8
MOTOR VEHICLES FOR HIRE
Insurance provisions of Police Code Section
1080.1 and 1080.2 interpreted; unworkable
under current insurance industry practice 87-3
MUNICIPAL COURT
Judges may participate in both the state
health care system and the San Francisco
Health Service System simultaneously 87-2
NELDER, ALFRED J., VICE PRESIDENT, POLICE
COMMISSION, ADDRESSEE
Insurance provisions of Police Code Section
1080.1 and 1080.2 interpreted 87-3
"NONCOMPLYING STRUCTURE"
Defined in City Planning Code Section 180 87-16
"NONCONFORMING USE"
Defined in City Planning Code Section 180 87-16
PAPAL MASS
Candlestick Park use for a papal mass and
Administrative Code Chapters 12B and 12C
do not apply to the agreement for use 87-18
PASSMORE, ROBERT, ZONING ADMINISTRATOR, DEPARTMENT
OF CITY PLANNING, ADDRESSEE
Permit Appeals Board may not legalize dwelling
units that are in violation of the Planning
Code and were built without a building permit
irrespective of whether they complied with
the Code at the time of construction 87-16
16
PATROL SPECIAL POLICE OFFICERS
Appointed by the Police Commission but do
not hold ranks or positions within the
Department Charter Section 3.536 87-5
City employees for purposes of worker's
compensation but entitled to such benefits
only if injured while performing regular
city and county police duties
Charter Section 8.515 87-5
Legal status of patrol special police
officers appointed pursuant to
Charter Section 3.536 87-5
PAY EQUITY ADJUSTMENTS
Community College District classified
employees are entitled to pay equity
adjustments of Charter Section 8.407-1 87-9
"PEACE OFFICERS"
Defined Penal Code Section 830 et seq. 87-5
PEACE OFFICERS
Persons specifically authorized to
exercise law enforcement powers over
other citizens 87-5
POST training is required for every
person defined by state law as a peace officer
Penal Code Section 832 87-5
PERMIT APPEALS, BOARD OF
Authority is limited by provisions of
the Municipal Code and the Board must act
within its jurisdiction and in accordance
with existing zoning ordinances 87-16
Lacks power to authorize a use or structure
which is prohibited by current zoning
restrictions even if the property owner
could have obtained a permit at the time
of construction 87-16
Lacks power to legalize dwelling units that
are in violation of the Planning Code and
were built without a building permit
irrespective of whether they complied with
the Planning Code at the time of construction 87-16
17
"PLACE OF EMPLOYMENT"
Defined in Labor Code Section 6303(a)
for CAL/OSHA application 8 CAC 5208 87-15
POLICE COMMISSION
Authority to appoint Patrol Special
Police Officers and designate them as
owners of certain "beats" or territories
within the city 87-5
Disciplinary charges and the formal complaint
or statement of charges filed against a
police officer is a public record that the
Commission must disclose prior to the
disciplinary hearing 87-7
Meetings open to the public [Charter Section
3.500(f)] and are also subject to the open
meeting provisions of the Brown Act 87-7
Personnel matters may be public if the
employee so compels but the employee cannot
force the Commission to hold a closed session 87-7
Power to appoint Patrol Special Police
Officers Charter Section 3.536 87-5
Power to delineate the powers and duties of
Patrol Special Police Officers including such
powers and duties as would make them city
police officers with peace officer status 87-5
Power to regulate and discipline
Patrol Special Police Officers 87-5
POLICE DEPARTMENT
Disciplinary charges and the formal complaint
or statement of charges filed against a
police officer is a public record that the
Commission must disclose prior to the
disciplinary hearing 87-7
POLICE DEPARTMENT, CITIZEN COMPLAINTS OFFICE
Budget cap imposed by Charter Section 3.530-2
to be enforced by the Controller 87-4
Budget cap imposed by Charter Section 3.530-2
to be recalculated to include previously
unidentified and excluded charges incurred
in operating the Internal Affairs Bureau 87-4
POLICE DEPARTMENT EMPLOYEES
Disciplinary charges and the formal complaint
or statement of charges filed against a
police officer is a public record that the
Commission must disclose prior to the
disciplinary hearing 87-7
POLICE DEPARTMENT PERSONNEL
Public disclosure of the statement of
charges against a police officer would
not constitute an unwarranted invasion of
personal privacy and the public interest
in access to those charges is of a
compelling dimension 87-7
POLICE POWER
Constitutional authority for local exercise
of police power California Constitution
Article XI Section 7 87-13
Vending machine regulation 87-13
POST
Peace officers as defined by state law
must receive a course of training
prescribed by the California Commission on
Peace Officer Standards and Training 87-5
"POTENTIALLY HAZARDOUS FOOD"
Defined in California Health and Safety
Code Section 27531 87-13
PREEMPTION
Vending machine regulations of San Francisco
Health Code Section 467 are preempted by
California Health and Safety Code Section 27541 87-13
PROPOSITION E, ELECTION OF NOVEMBER 5, 1984
Surviving spouse to receive the same
health service subvention as active or
retired employees Charter Section 8.428 87-10
PUBLIC EMPLOYEES MEDICAL AND HOSPITAL CARE ACT
see
GOVERNMENT CODE SECTION 22751 et seq. 87-2
PUBLIC RECORDS ACT
Police Department disciplinary charges
and public disclosure of the formal
complaint or charges against a police officer 87-7
19
Public disclosure of the formal complaint
or charges against a police officer , 87-7
PUBLIC SAFETY OFFICERS' PROCEDURAL BILL
OF RIGHTS
see
GOVERNMENT CODE SECTION 3300 et seq. 87-7
Public disclosure of formal disciplinary
charges filed against a police officer
is not addressed 87-7
RALPH M. BROWN ACT
Police Department disciplinary charges and
public disclosure of the formal complaint
or charges against a police officer 87-7
Public disclosure of the formal complaint
or charges against a police officer 87-7
RECREATION AND PARK COMMISSION
Art Commission jurisdiction over
Recreation and Park Commission projects 87-6
Candlestick Park made a public forum by
practice and policy of the Recreation
and Park Commission 87-18
Candlestick Park use for a papal mass and
Administrative Code Chapters 12b and 12C
do not apply 87-18
Candlestick Park use for other than Giants
and 49ers athletic and nonathletic events 87-18
Lacks power to set differential berth fee
structure at the San Francisco Yacht Harbor
based upon residence 87-12
Papal mass at Candlestick Park and
Administrative Code Chapters 12b and 12C
do not apply 87-18
RECREATION AND PARK DEPARTMENT CANDLESTICK PARK
Open to use by anyone year round except
during baseball season and days when the
San Francisco 49ers play football 87-18
Papal mass at Candlestick Park and
Administrative Code Chapters 12b and 12C
do not apply 87-18
20
Public forum by practice and policy of
the Recreation and Park Commission 87-18
Use for other than Giants and 49ers
athletic and nonathletic events 87-18
RECREATION AND PARK DEPARTMENT SAN FRANCISCO
YACHT HARBOR
Berth fee structure at the San Francisco
Yacht Harbor cannot be set by the Recreation
and Park Commission to vary depending
upon residence 87-12
RESIDENCE
Berth fee structure at the San Francisco
Yacht Harbor cannot be set by the Recreation
and Park Commission to vary depending
upon residence 87-12
"RETIRED PERSON"
Defined to mean "a former member of the
health service system retired under the
San Francisco City and County Employees'
Retirement System. . ." Charter Section 8.428 87-1
RETIRED PERSONS
Lifetime health service benefits for
retired employees Charter Section 8.428 87-1
RISK MANAGER
Insurance provisions of Police Code Section
1080.1 and 1080.2 are unworkable under
current insurance industry practices 87-3
SALARY PROCEDURE
Part of the Civil Service Merit system
and applies to Community College District
classified employees 87-9
SAN FRANCISCO UNIFIED SCHOOL DISTRICT
Asbestos in SFUSD school buildings and the
SFUSD has a duty to provide free medical
examinations to present but not
former employees exposed to asbestos 87-15
Asbestos worker protection provisions of
8 CAC 5208 do not extend to past employees
of the San Francisco Unified School District
or past or present students attending SFUSD
schools but not employed by the SFUSD 87-15
21
Duty to provide a safe place of employment
only to persons who are engaged in
employment at a SFUSD location 87-15
Duty to provide a safe work environment to
a student only if the student works for hire
for the SFUSD in addition to attending school
and only to locations where the student engages
in employment 8 CAC 5208 87-15
Duty to provide free medical examinations to
present but not former employees exposed
to asbestos 87-15
SAN FRANCISCO YACHT HARBOR
see also
YACHT HARBOR
Berth fee structure cannot vary based
on residence 87-12
Located on tidelands and berth fee
structure cannot vary based upon residence 87-12
SANCHEZ, DR. DAVID J., JR., PRESIDENT,
SAN FRANCISCO POLICE COMMISSION, ADDRESSEE
Public disclosure of the formal complaint
or charges against a police officer 87-7
SCHOBER, FRANK J., JR., DIRECTOR,
OFFICE OF CITIZEN COMPLAINTS, ADDRESSEE
Citizen Complaints Office budget cap
imposed by Charter Section 3.530-2 to
be recalculated 87-4
SCHWABACHER, PAUL, DIRECTOR, BUREAU OF
ENVIRONMENTAL HEALTH SERVICES, ADDRESSEE
Vending machine permits and sanitation
requirements 87-13
SHELLEY, THELMA, EXECUTIVE DIRECTOR,
SAN FRANCISCO WAR MEMORIAL, ADDRESSEE
War Memorial Board of Trustees may not
adopt a blanket policy regarding abstention
in voting on decisions affecting tenant
organizations when the trustee also is a
member of the board of directors of the
tenant organization 87-14
22
SMITH, RANDALL B., DIRECTOR,
HEALTH SERVICE SYSTEM, ADDRESSEE
Health service benefits for surviving
spouses 87-10
Health Service benefits for the lifetime of
retired city employees Charter Section 8.428 87-1
SPEECH
Commercial and non-commercial speech are
both protected by the First Amendment and
Article I, Section 2, California Constitution 87-8
Commercial speech regulations by
government may relate to time, place
or manner of the speech but the
regulation must pass four-part test to
determine if constitutional 87-8
Non-commercial and commercial speech are
both protected by the First Amendment and
Article I, Section 2, California Constitution 87-8
Prohibition of Police Code Section 685
against the distribution of circulation
of advertising materials unconstitutionally
restricts advertisers' freedom of speech 87-8
STATE LANDS COMMISSION
Agency charged with administration of
the granted lands program 87-12
Agency charged with administration of
the granted tidelands program 87-12
STATUTORY CONSTRUCTION
Employee benefit statutes generally
receive a liberal construction 87-1
Fundamental rule is to give effect to
statutes according to the usual, ordinary
import of the language used 87-9
Implied negative in grant of power and
regulation of the mode of exercise 87-6
Plain meaning 87-4
Reconciliation of apparent inconsistencies 87-7
23
Remedial or protective statute should be
liberally construed to achieve its intended
purpose and to protect the persons within
its purview 87-3
Rules to be applied only if the language
is ambiguous or if a literal interpretation
would lead to absurd results unintended
by the legislators 87-3
SUPERIOR COURT
Judges may participate in both the state
health care system and the San Francisco
Health Service System simultaneously 87-2
SUPERVISORS, BOARD OF
Gifts to the city and the Board of Supervisors
is the appropriate body to receive gifts
and to authorize acts to carry out the purposes
of such gifts unless the charter specifies
otherwise 87-19
Power to accept gifts valued in excess
of $5,000 87-19
TAYLOR, JOHN L., CLERK, BOARD OF SUPERVISORS, ADDRESSEE
Berth fees at the San Francisco Yacht Harbor 87-12
TIDELANDS
Public trust doctrine prohibits a dual fee
structure for berths at the San Francisco
Yacht Harbor 87-12
Public trust purposes which promote
statewide purposes and all revenues must
be used to further trust purposes and
benefits statewide 87-12
Trust doctrine imposes specific limitations
and conditions upon the use of tidelands 87-12
TIDELANDS TRUST
Public uses expanded by the courts 87-17
TIDELANDS TRUST DOCTRINE
Marina Small Craft Harbor 87-17
San Francisco Yacht Harbor 87-12
TREASURER
Gifts to the city and procedures for
receiving, accepting and administering them 87-19
24
"VENDING MACHINE"
Defined in San Francisco Health Code
Section 467 and Health and Safety
Code Section 27541 87-13
VENDING MACHINES
Permit procedure of the city should be
amended to conform with state provisions 87-13
Regulation by San Francisco Health Code
Section 467 is preempted by California
Health and Safety Code Section 27541 87-13
VOTING
War Memorial Board of Trustees member who is
also on the Board of Directors of a tenant
organization must disclose the positions,
ask that the dual status be noted in the
official records and abstain from voting on
a matter affecting the tenant organization 87-14
WALKER, THE HON. NANCY G., PRESIDENT,
BOARD OF SUPERVISORS, AND NATALIE BERG, DIRECTOR,
PERSONNEL RELATIONS, SAN FRANCISCO COMMUNITY
COLLEGE DISTRICT, ADDRESSEES
Salary Standardization Ordinance applies to
the Community College District 87-9
WALSH, RICHARD, LIBRARY COMMISSION MEMBER,
ADDRESSEE
Cash gifts to the Library and procedures for
receiving, accepting and administering them 87-19
WAR MEMORIAL
History, 1921 Trust Agreement, charter
provisions and various other relevant laws
and resolutions creating the War Memorial 87-11
WAR MEMORIAL BOARD OF TRUSTEES
Charter Section 3.610 87-11
Duties and responsibilities imposed by the
Charter, the Board of Supervisors, the 1921
Trust Agreement and as trustees of a
charitable trust 87-11
Lack power to adopt a blanket policy which
allows members to abstain from voting on
decisions affecting tenant organizations of
which the trustee is also a director 87-14
25
Power of complete control of and ultimate
responsibility for the War Memorial which
necessarily includes authority over allocation
and reallocation of space 87-11
Member of the Board owes a duty of undivided
loyalty to the War Memorial Board 87-14
Member who is also on the Board of Directors
of a tenant organization must disclose the
positions, ask that the dual status be noted
in the official records and abstain from voting
on a matter affecting the tenant organization 87-14
WAR MEMORIAL COMMISSION, AMERICAN LEGION
Human Rights Commission lacks jurisdiction
to mediate, investigate or adjudicate the
charge of discrimination against the American
Legion War Memorial Commission 87-11
WAR MEMORIAL VETERANS BUILDING
American Legion War Memorial Commission
represents San Francisco Posts of the American
Legion with respect to the War Memorial
Veterans Building for over 50 years to
the present 87-11
Space to be shared equitably and the Board
of Trustees has a nondelegable responsibility
to so ensure 87-11
WORK STUDY PROGRAM
Community College District College Aides are
not part of the classified service and are
paid pursuant to state and federal law 87-9
WORKER'S COMPENSATION
Patrol Special Police Officers are city
employees for purposes of worker's compensation
but entitled to such benefits only if injured
while performing regular city and county
police duties 87-5
4258t
26
#ity and County of San Francisco:
Louise H. Renne,
City Attorney
Office of City Attorney
January 13, 1987
OPINION NO. 87-1
SUBJECT ;
REQUESTED BY:
PREPARED BY:
Qualification of Retired Employees
For Lifetime Health Service Benefits
Randall B. Smith
Director, Health Service System
Burk E. Delventhal
Deputy City Attorney
Terry J. Mollica
Student Intern
DOCUMENTS DEPT.
JAN 2 3 1987
SAN FRANCISCO
PUBLIC LIBRARY
QUESTION PRESENTED
What are the requirements for retiring employees to qualify
for lifetime health care subvention in the Health Service System
under Charter Section 8.428?
CONCLUSION
The Charter requires that a retiring employee have been a
member of the Health Service System at some time during his or
her employment and that he or she retire under any provision of
the Retirement System.
INTRODUCTION
Employees who retire from service with the City and County
may qualify for lifetime health care benefits under the Health
Service System. To qualify, the retiree must be a "retired
person" as defined in Charter Section 8.428. That section
provides, in part.
OPINION NO. 87-1
Randall B. Smith - 2 - January 13, 1987
A retired person as used in this section means a
former member of the health service system
retired under the San Francisco City and County
Employees' Retirement System . . .
Once a retiree qualifies, he or she is entitled to
participate in the Health Service System and to receive
subvention from the City and County towards the System premiums.
Section 8.428 of the Charter provides:
The costs of the health service system shall be
borne by the members of the system and retired
persons, the City and County of San Francisco
because of its members and retired persons and
because of members and retired persons of the
parking authority of the City and County of San
Francisco, the San Francisco Unified School
district because of its members and retired
persons and the San Francisco Community College
District because of its members and retired
persons. [Emphasis added.]
Section 8.428, subd. (c), provides that the City and County
shall further subsidize "retired persons" in order that they not
be required to pay any greater percentage of their premiums than
that paid by active employees (or "members"):
Monthly contributions required from retired
persons . . . shall be equal to the monthly
contributions required from members in the
system, except that the total contributions
required from retired persons who are also
covered under medicare shall be reduced by an
amount equal to the amount contributed monthly by
such persons to medicare; provided, however, that
for the fiscal year commencing July 1, 1973, and
for each fiscal year thereafter, the city and
county, the school district and the community
college district shall contribute funds
sufficient to defray the difference in cost to
the system in providing the same health coverage
to retired persons ... as is provided for
active employee members. [Emphasis added.]
OPINION NO. 87-1
Randall B. Smith - 3 - January 13, 1987
This subvention is essentially a lifetime health care
benefit. Once an employee qualifies, he or she can look forward
to a contribution by the City and County for the rest of his or
her life.
The Health Service Board has the responsibility for
interpretation of the Charter and for the promulgation of rules
and regulations for the administration of these benefits to
employees, retirees and surviving spouses. Charter Section
3.681. Two questions have been presented respecting the Board's
current interpretation of the Charter.
The first question relates to the interpretation of Charter
Section 8.428 in light of recent changes in the Retirement
System. As already mentioned. Section 8.428 provides for a
lifetime health benefit from the City and County when an employee
retires under the Retirement System. You have informed this
office by your memo of May 23, 1986, that changes in the
requirements of the Retirement System over the years have led to
situations where employees with as little as five years of
service have been able to retire under the Retirement System.
Employees who retire under these rules are eligible for the
lifetime health benefit because they are "retired persons" as
defined by Charter Section 8.428. You have expressed concern
over the inequity of extending the same lifetime health benefit
to these short-term employees as is afforded to long-term
employees, and have inquired whether this practice is consistent
with the intent of the Charter.
The second question relates to the propriety of a current
rule of the Health Service System. Rule 3(c) of Part II of the
Health Service Board's Rules and Regulations requires that a
retiring employee achieve retired status within thirty days of
resignation in order to qualify for the health benefit. That
rule states:
A member who is resigned and thereafter receives
a retirement allowance from the Retirement System
may continue coverage by the System at the rate
established for retired employees, provided his
retirement is effective not later than thirty
days after such resignation . . . [Emphasis
added. ]
This rule is designed to deal with the problem of employees
who resign early but leave their retirement contributions in the
Retirement System to mature. Under the Retirement System, an
OPINION NO. 87-1
Randall B. Smith - 4 - January 13, 1987
employee can resign and leave his or her retirement contributions
in the Retirement System until he or she reaches the age at which
employees normally become eligible to receive retirement
benefits. These individuals frequently achieve retired status
years after they have resigned. Once they achieve retired
status, they qualify as "a retired person" under the Health
Service System. They then become entitled to the lifetime health
benefit of the Health Service System even though they have been
resigned for many years.
The Health Services Board interprets the Charter as not
being intended to provide the health benefit to employees who
resign early under the rules of the Retirement System. The Board
has interpreted the Charter as providing the health benefit only
to employees who make an immediate transition into retirement and
has therefore promulgated Rule 3(c). The Rule prevents employees
who resign early from obtaining the health benefit of the Health
Service System unless they achieve retired status within thirty
days after resignation. The second question presented is,
therefore, whether the Health Service Board is empowered to adopt
such a rule.
ANALYSIS
Are Retired Short Term Employees
Entitled to Lifetime Health Benefits?
The Charter is clear on its face regarding what is required
of retirees in order to qualify for lifetime health benefits. As
already mentioned, to qualify for the benefit an employee must be
"a retired person" as defined by Charter Section 8.428. That
section requires that the employee: (1) be both a "former member
of the health service system"; and, (2) "retired under the San
Francisco City and County Employees' Retirement System." Neither
requirement is ambiguous. Neither is therefore subject to
interpretation. Braun Bryant & Austin v. McGuire (1927) 201 Cal.
134; Squire v. City and County of San Francisco (1970) 12
Cal.App.3d 974. Each must be given the plain meaning which its
words import. The plain meaning of Section 8.428 is that anyone
who at any time was a member of the health service system, for
whatever length of time, and who retires under the Retirement
System qualifies for lifetime health benefits. Thus, employees
who earn the right to retire under the Retirement System, after
having been members of the health service system at any time,
have also earned the right to the benefits of the Health Service
System.
OPINION NO. 87-1
Randall B. Smith - 5 - January 13, 1987
Even if Charter Section 8.428 were ambiguous, it would
likely be given a liberal construction favoring the extension of
benefits. Such liberal construction is generally applied to
statutes interpreting employee benefits. Adams v. City of
Modesto (1960) 53 Cal.2d 833. In Adams, the court adopted the
rule of liberal construction from cases construing pension
benefits and applied it to the interpretation of a statute
providing compensation to police officers for overtime worked on
holidays. The court reasoned that the adoption of the rule was
appropriate because both pensions and overtime benefits are
"reasonable and proper inducement [s] to competent persons to
enter and remain in public employment". Adams v. City of
Modesto, supra, 53 Cal.2d at 841. Health Service benefits are
also an inducement for employees to enter City service, and
therefore the rule would also likely be applied here.
Giving Section 8.428 a liberal construction leads to the
conclusion that lifetime health benefits are to be extended to
any employee who retires under the Retirement System. To suggest
that some employees who retire under that system are not entitled
to lifetime health care benefits is inconsistent with a liberal
interpretation; it is unlikely that a court would uphold such a
construction of the Charter.
Similarly, the Charter does not reguire that retired City
employees have been members of the health service system for any
specific length of time. The Health Service Board's rule-making
authority, as discussed infra, does not authorize it to abridge
the rights of City employees. Given that the Charter does not
restrict participation by retired persons based on the length of
time the retiree was a member of the health service system, it
cannot be argued that an employee who was a member of the health
service system for one month at the time he or she retired is
somehow "more entitled" to lifetime health service benefits than
an employee who was a member for a year at the start of his or
her career with the City.
May the Health Service Board Adopt A
Rule Abridging the Right of Employees to
Receive Lifetime Health Care Benefits?
Having concluded that any employee who retires under the
Retirement System is entitled to lifetime health care benefits
provided by Charter Section 8.428, the question remains whether
employees who resign early and sometime thereafter receive
retirement benefits are entitled to such benefits. As already
discussed. Rule 3(c) of Part II of the Health Service System's
OPINION NO. 87-1
Randall B. Smith - 6 - January 13, 1987
Rules and Regulations prevents resignees from receiving continued
health benefits unless their retirement is effective within
thirty days of resignation. The question is therefore whether
the Health Service Board may adopt such a rule under the
Charter.
The Charter provides the Health Service Board with the
authority to "make rules and regulations for the transaction of
its business." Charter Section 3.681, subd. (e) . The Charter
does not grant the Board the power to alter or modify the rights
of employees as granted by the Charter; Section 3.681 does not
give the Board discretion to allow or withhold benefits. Rather,
the Section simply authorizes the Board to create procedures for
the implementation of its business transactions. These
procedures must be consistent with the Charter-granted rights of
employees .
Rule 3(c) purports to prevent retiring employees from
continuing in the Health Service System unless they achieve
retired status within thirty days of resignation. This
requirement is not one that is created by the Charter. The
Charter only requires that an employee retire under the
Retirement System. Despite their early resignation, these
retirees nevertheless "retire under the Retirement System" for
the purposes of the Health Service System. They are therefore
entitled to the benefits of the Health Service System and no rule
of the system may abridge that right. Rule 3(c) requiring
immediate transition into retirement is therefore contrary to the
vested rights of retirees and is beyond the authority of the
Health Service Board to adopt.
CONCLUSION
Retiring employees must comply with the requirements of the
Charter in order to qualify for lifetime health care subvention
under the Health Service System. Specifically, a retiree is
entitled to benefits when he or she is: (1) a "former member" of
the Health Service System; and, (2) retires under the Retirement
System. Assuming "former membership", a retiree qualifies for
lifetime health care benefits when he or she retires under any
provision of the Retirement System. This is true regardless of
the fact that the Retirement System has adopted rules in recent
years curtailing its tenure requirements. So long as an employee
may be characterized as having retired under that system, that
retiree is entitled to lifetime health care benefits from the
Health Service System. We emphasize at this point that City
employees who resign upon "vesting" of their pension rights are
Randall B. Smith
OPINION NO. 87-1
- 7 -
January 13, 1987
not eligible for health benefits until they actually retire from
City service.
Further, the Health Service System may not adopt or enforce
rules which would unduly restrict the rights of retirees to
receive such benefits. The intent of the voters in enacting the
relevant provisions of the Charter cannot be frustrated by rules
of administration adopted by the Health Services Board. Rule
3(c) imposes additional qualifications upon retirees seeking
lifetime health care benefits. It requires that the retiree make
the transition to retired status within thirty days of
resignation. This policy is not supported by the Charter
provisions. The rule therefore is invalid.
APPROVED :
LOUISE H. RENNE
City Attorney
Respectfully submitted,
LOUISE H. RENNE
City .Atto^iP^y
BORK E. DELVENTHAL
Deputy City Attorney
'T^i^
TERR-^^J. MOLLICA
Student Intern
ity and County of San Francisco:
Office of City Attorney
Louise H. Renne,
City Attorney
January 13, 1987
OPINION NO. 87-2
SUBJECT :
REQUESTED BY:
PREPARED BY:
Simultaneous Participation By Superior
Judges In State and Local Health Care Systems
Randall B. Smith
Director, Health Service System
Burk E. Delventhal
Deputy City Attorney
Terry J. Mollica
Student Intern
DOCUMENTS DEPT.
JAN 23 1987
SAN FRANCISCO
PUBLIC LIBRARY
QUESTION PRESENTED
May superior court judges participate in both the State
health care system and the City and County Health Service System
simultaneously?
CONCLUSION
Yes.
The Meyer
Care Act, commo
and Hospital Ca
health care sys
is codified in
of the statute
the State and t
competitive bas
private sector.
INTRODUCTION
s-Geddes State Employees' Medical and Hospital
nly referred to as "the Public Employees' Medical
re Act" (hereinafter "PERSMHCA"), established a
tem for state officials and employees. PERSMHCA
Government Code Section 22751 et seq . The purpose
is to promote good health care among employees of
o provide health benefits to public employees on a
is with the benefits offered to employees in the
5) 554-4283
Room 206 City Hall
San Francisco 94102-4682
OPINION NO. 87-2
Randall B. Smith - 2 - January 13, 1987
The Legislature also authorized the counties of the State
to establish health care systems for county employees.
Government Code Sections 53200 et seq. The counties are
authorized to contribute toward all or part of the health care
premiums of its employees. Government Code Section 53205.
Superior court judges, even though they are not generally
considered "county employees," are included in the definition of
"county employees" under Section 53200.3 for the purpose of
permitting their participation in the county health care
systems. Section 53200.3 provides:
For the limited purpose of the application of
this article, judges of the superior and
municipal courts whose salaries are paid either
in whole or in part from the salary fund of the
county are county employees and shall be subject
to the same or similar obligations and be granted
the same or similar employee benefits as are now
required or granted to employees of the county in
which the court of said judge, officer, or
attache is located.
The City and County of San Francisco provides health care
benefits through the Health Service System for all municipal
employees in Charter Section 8.420 et seq. By a memorandum of
this office dated December 10, 1985, you were advised that judges
of the superior and municipal courts were entitled to participate
in the Health Service System based upon the language of
Government Code Section 53200.3. — '' You now inquire whether
superior court judges may participate in both PERSMHCA and the
Health Service System simultaneously. The answer to this inquiry
depends upon the provisions of both the Health Service System and
of PERMSCHA.
-^ The Attorney General has opined that Government Code
Section 53200.3 is an unconstitutional delegation of the
Legislature's duty to prescribe the compensation of judges under
Article VI, Section 19, of the California Constitution. 61
Ops.Cal .Atty.Gen. 388 (1978). Since the statute only requires
the county to provide the same or similar benefits as granted to
county employees, the Attorney General argues, the legislation
allows counties to determine if, and in what form, and to what
extent judges will be compensated with county-sponsored health
insurance benefits, in violation of the Constitution. (cont.)
OPINION NO. 87-2
Randall B. Smith - 3 - January 13, 1987
ANALYSIS
Provisions of the Health Service System
The Health Service System is established by San Francisco
Charter Section 8.420 et seq. The Charter does not specifically
provide for the exclusion of employees who already carry other
health insurance. Rather, Section 8.420 provides.
The health service board shall have the power to
exempt any person whose compensation exceeds the
amount deemed sufficient for self coverage and
any person who otherwise has provided for
adequate medical care.
This provision is the only portion of the Charter which
relates to members of the Health Service System who have other
health and medical care coverage. It empowers the Health Service
Board to exempt members of other health plans, but no current
rule or regulation of the Health Service Board exempts employees
who have other health and medical coverage. Therefore, superior
court judges may, under the existing provisions of the Health
Service System, participate in the program simultaneously with
other health programs.
Provisions of PERSMCHA
Superior court judges are state employees and are generally
eligible for participation in PERSMHCA. See 39 Ops. Cal. Atty.
Gen. 60, 64 (1962). But Government Code Section 22754, subd. (b)
limits the definition of state employees as follows:
This office respectfully declines to adopt the Attorney
General's conclusion. It is clearly the Legislature's duty to
"prescribe" the compensation of judges. But the provisions of
the Government Code adequately prescribe this compensation.
Under the provisions of Section 53200 et seq. , the Legislature
has specified that superior court judges shall have the same
compensation in this respect as other county employees. This
provision does not give the county the authority to determine
whether judges, as a class of employees, will receive health care
coverage; a county must provide these benefits to judges if the
county has an employee health care system. The county has no
discretion to determine the amount of the judges' compensation,
and no influence over judges as a result of the law, as intended
by Article VI, Section 19.
OPINION NO. 87 - 2
Randall B. Smith - 4 - January 13, 1987
"Employee" means any officer or employee of the
State of California or of any agency, department,
authority, or instrumentality of the state . . .
except persons employed on an intermittent,
irregular or less than half-time basis, or
employees similarly situated, or employees in
respect to whom contributions by the state for
any type of plan or program offering prepaid
hospital and medical care are otherwise
authorized by law. [Emphasis added.]
This section could be interpreted as the basis for
excluding from coverage under PERSMHCA those superior court
judges already participate in other public health care programs.
But the contributions of the City and County towards the
participation of superior court judges in the Health Service
System cannot be characterized as "contributions by the state."
Therefore, this provision standing alone does not preclude the
simultaneous participation of superior court judges in PERSMHCA
and the Health Service System.
Nor do any other provisions of PERSMHCA make superior court
judges ineligible to participate in both the State and local
health programs simultaneously. Government Code Section 22810
provides for the exclusion of certain employees covered by the
state system, but only based upon their short-term, seasonal or
intermittent employment. No provision of PERSMHCA excludes
employees participating in any county health system from
simultaneously participating in the State health system.
CONCLUSION
No provision of either the City and County Health Service
System or the State PERSMHCA health system precludes employees
from participating in both systems simultaneously. The Health
Service Board has the power under Charter Section 8.420 to
exclude employees who already have adequate health care coverage,
but the Board has not to date promulgated such a regulation. The
statutory provisions of PERSMHCA do not provide any basis upon
which employees who already participate in county programs may be
excluded from simultaneous participation in the State health
/ / /
Randall B. Smith
OPINION NO. 87-2
- 5 -
January 13, 1987
system. Therefore, superior court judges may participate in both
the City and County Health Service System and the State PERSMHCA
health system simultaneously.
APPROVED :
LOUISE H. RENNE
City Attorney
Respectfully submitted,
LOUISE H. RENNE
Cijur Attorney
JRK E. DELVENTHAL
Deputy City Attorney
TER^'G. MOLLICA
Student Intern
City and County of San Francisco:
Louise H. Renne,
City Attorney
Office of City Attorney
Januiry 15, 1987
^ OPINION NO. 87-3
SUBJECT:
REQUESTED BY;
PREPARED BY:
Interpretation of Self-Insurance Provisions of
Police Code Section 1080.2
ALFRED J. NELDER, Vice President
San Francisco Police Commission DOCUMENTS DEPT
BURK E. DELVENTHAL IflW 9 9 1007
JUDITH A. BOYAJIAN JHINtftJiaO/
Deputy City Attorneys san rKANCISCO
fUtJLIC LIBRARY
QUESTIONS PRESENTED
1. Does Police Code Section 1080.2 permit owners of
motor vehicles for hire to self-insure up to the minimum amounts
required by Section 1080.1, with excess insurance coverage above
those amounts up to $1,000,000?
2. Does Police Code Section 1080.2 require excess
t!^o^^^"f^ coverage above the minimum amounts set forth in Section
16056 of tne California Vehicle Code?
CONCLUSIONS
For the reasons set forth below, we conclude that Police
Code Section 1080.2 authorizes self-insurance in the minimum
amounts set forth in California Vehicle Code Section 16056 —
1^., not less than $15,000 for bodily injury to or death of one
person in any one accident, and (subject to the limit for one
person) not less than $30,000 because of bodily injury to oi
?!^*^'^jc^.^^° °^ ^^°^^ persons in any one accident, and not U
than $5,000 for property damage — and requires excess insurance
above those amounts to $1,000,000.
)r
Less
However, upon conferring with the City's Risk Manager, we
have further concluded that the present statutory scheme is
unworkable under current insurance industry practices. The
insurance policy or in-lieu bond required by Section 1080.1, as
well as the excess insurance coverage above $15,000/30,000/5,000
required oy Section 1030.2, are either unavailable or
prohibitively expensive. In addition, insurance industry
practices are in a constant state of flux. We therefore submit
that the only long-range solution to the problem of ensuring
1.R") '^^A-aOR'i
Alfred J. Nelder -2- January 15, 1987
adequate protection of the public at an affordable cost is
amendment of the legislative scheme to give the Commission more
flexibility in approving forms of insurance or alternative
programs of self-insurance.
ANALYSIS
Owners and operators of motor vehicles for hire
(hereinafter referred to as "operators") are regulated by Article
16, Sections 1075 et seq. , of the San Francisco Police Code.-^
Section 1080 provides:
Unless otherwise provided by ordinance, no
person, firm or corporation, after the 24th day
of February, 1932, shall operate any motor
vehicle for hire unless and until such person,
firm or corporation shall comply with the
provisions of either Section 1080.1 or 1080.2 of
this Article.
Section 1080.1 requires operators to:
file with the Police Commission and thereafter
keep in full force and effect a policy of
insurance in such form as the Commission may deem
proper and executed by a Company approved by the
said Commission insuring the public against any
loss or damage that may result to any person or
property from the operation of such vehicle or
vehicles . . .
The minimum amounts of recovery in such policy of insurance for
any one occurrence must be not less than $100,000 for each person
injured or killed, and (subject to the limit for one person)
$450,000 for injury to or death of two or more persons, and
$10,000 for property damage. However, for vehicles having a
seating capacity of more than ten persons, the minimum amounts of
recovery in the policy of insurance shall be not less than
$50,000/100,000/10,000.
In lieu of the insurance policy described above. Section
1080.1 permits operators to file with the Commission a surety
bond in the amount set forth in that section, which depends on
the number of vehicles owned or offered for hire. An additional
alternative is authorized by Section 1080.2, which provides:
— ^ All references to section numbers in this opinion
refer to the San Francisco Police Code, unless otherwise stated,
Alfred J. Nelder -3- January 15, 1987
Any person, firm, corporation, association or
organization of owners of vehicles for hire who
have [sic] a certificate of self-insurance from
the State of California pursuant to Sections
16500 and 16056 of the Vehicle Code may file said
certificate together with a policy of insurance
providing excess insurance over self-insurance
retention for single limit of not less than
$1, OOP, 000 applying to bodily injuries or
property damage or a combination thereof, with
the Police Commission, and shall thereupon be
deemed in compliance with the provisions of
Section 1080.1 of this Article. (Emphasis added.)
In order to obtain a certificate of self-insurance from the
State of California, an operator must meet the requirements of
Vehicle Code Section 16503 (formerly Section 16056), which
provides (in part) as follows:
(a) The department may in its discretion,
upon application, issue a certificate of
self-insurance when it is satisfied that the
applicant in whose name more than 25 vehicles are
registered is possessed and will continue to be
possessed of ability to pay judgments obtained
against him in amounts at least equal to the
amounts provided in Section 16056. . . .
(Emphasis added.)
The amounts provided in Vehicle Code Section 16056 for any one
accident are not less than $15,000 because of bodily injury or
death of one person, and (subject to the limit for one person) at
least $30,000 for injury or death to two or more persons, and at
least $5,000 for property damage.
In summary, in lieu of complying with the insurance policy
requirements of Section 1080.1, Section 1080.2 authorizes an
operator to obtain a certificate of self-insurance from the State
of California and excess insurance coverage "over self-insurance
retention" for a single limit per occurrence of not less than
$1,000,000. A question has arisen concerning the proper
interpretation of the phrase "over self-insurance retention"
contained in Section 1080.2.
Two possible constructions of Section 1080.2 have been
presented to the Commission. One interpretation is that the
reference in Section 1080.2 to specific sections of the
California Vehicle Code establishing minimum limits of
self-insurance requires operators electing the provisions of
Section 1080.2 to obtain excess insurance coverage over the
$15,000/30,000/5,000 limits specified in those Vehicle Code
sections. The other interpretation is that, since the
self-insurance provision of Section 1080.2 is an alternative to
Alfred J. Nelder -4- January 15, 1987
the insurance policy requirements of Section 1080.1, an operator
is permitted to self-insure up to the $100,000/450,000/10,000
amounts of coverage set forth in Section 1080.1, with excess
insurance coverage between these limits and $1,000,000.
It is settled that if the language of a statutory provision
is free of ambiguity, it must be given its plain meaning. (Sand
V. Superior Court (1983) 34 Cal.3d 567, 570; Castaneda v. Holcomb
(1981) 114 Cal.App.3d 939, 942.) Hence, rules of statutory
contruction are applied only if the language is ambiguous or if a
literal interpretation would lead to absurd results unintended by
the legislators. (Castaneda v. Holcomb, supra. )
Here, there is no apparent ambiguity. Section 1080.2
expressly provides that, in lieu of complying with the insurance
policy or bond provisions of Section 1080.1, an operator may
obtain a certificate of self-insurance (pursuant to Vehicle Code
Sections 16500 and 16056) together with a policy of insurance
"providing excess insurance over self-insurance retention for
single limit of not less than $1,000,000" for bodily injuries,
property damage, or both. The phrase "self-insurance retention"
clearly refers to the amounts set forth in the Vehicle Code
sections specified in Section 1080.2 — i.e.,
$15,000/30,000/10,000 for each accident.
However, even were we to conclude that the meaning of
Section 1080.2 is ambiguous, application of established rules of
statutory construction leads to the same conclusion. The
fundamental principle of statutory construction is that the
intent of the legislators be ascertained so as to give effect to
the purpose of the law. (Select Base Materials v. Board of
Equalization (1959) 51 Cal.2d 640, 645.) Hence, a law should be
given a reasonable interpretation which promotes, rather than
defeats, the statutory objective. (Massachusetts Mutual Life
Insurance Co. v. City and County of San Francisco (1982) 129
Cal.App.3d 876, 880.) In particular, a remedial or protective
statute should be liberally construed to achieve its intended
purpose and to protect the persons within its purview. (Fitch v.
Pacific Fid. Life Ins. Co. (1975) 54 Cal.App.3d 140, 148; Alford
V. Pierno (1972) 27 Cal.App.3d 682, 688.)
If there is uncertainty as to the meaning of statutory
language, consideration should be given to the consequences which
will be produced by a particular construction. (County of San
Mateo V. Booth (1982) 135 Cal.App.3d 388, 396.) Statutory
language should not be read in isolation but rather should be
construed in context and with reference to the entire scheme of
which it is a part. (Select Base Materials v. Board of
Equalization, supra . ) Moreover, whatever is necessarily implied
in a statute is as much a part of it as that which is expressed.
(Younger v. Superior Court (1978) 21 Cal.3d 102, 113; Bruce v.
Gregory (1967) 65 Cal.2d 666, 673-76; Currieri v. City of
Roseville (1970) 4 Cal.App.3d 997, 1001.)
Alfred J. Nelder -5- January 15, 1987
Application of these well-established principles leads us
to conclude that Section 1080.2 authorizes self-insurance in the
minimum amounts set forth in California Vehicle Code Section
16056 — i.e. , $15,000/30,000/5,000 for any one accident. An
operator must obtain excess insurance between those amounts and
$1,000,000.
The provisions of Sections 1080, 1080.1 and 1080.2 must be
read together as one statutory scheme whose express objective is
to "insur[e] the public against any loss or damage that may
result to any person or property from the operation of" motor
vehicles for hire. Such protective legislation must be liberally
interpreted to accomplish its purpose.
Compliance with the self-insurance provisions of Section
1080.2 involves two steps: (1) obtaining a certificate of
self-insurance from the State of California and (2) obtaining
excess insurance coverage "over self-insurance retention" for a
single limit per occurrence of not less than $1,000,000 for
personal injury or property damage. With respect to the first
step, under Vehicle Code Section 16053, supra, the Department of
Motor Vehicles may issue a certificate of self-insurance if it is
satisfied that a qualifying applicant can respond in damages in
amounts "at least equal to the amounts provided in Section
16056"; those limits are $15,000/30,000/5,000 for any one
accident.
Title 13, Sections 100.50 et seq. of the California
Administrative Code requires that the applicant for a certificate
of self-insurance must submit audited financial statements for
the previous three years reflecting a net worth of not less than
$575,000. We understand that the certificate of self-insurance
issued by the State of California does not set forth a specific
amount of state approved self-insurance, but merely states that
the applicant has been approved as a self-insurer under the
Compulsory Financial Responsibility Law and is exempt from the
reporting provisions of the law. The Department of Motor
Vehicles' Financial Responsibility Area has further informed us
that to receive the State's approval to self-insure, an applicant
must be able to respond in damages up to an aggregate amount of
$575,000 for all accidents. Since some operators have more than
100 vehicles, a capacity to respond up to $575,000 in damages is
quite minimal.
Accordingly, if Section 1080.2 were interpreted to permit
an operator to self-insure up to the $450,000 figure in Section
1080.1, there would be no assurance that the self-insured
operator could in fact respond in damages up to the
$100,000/450,000/10,000 minimum limits for each accident required
by Section 1080.1. In fact, the City would have to rely solely
on the operator to protect the public in the manner intended by
Sections 1080 et seq . Since the express objective of the
legislative scheme is to protect the public by insuring that
Ifred J. Nelder
-6-
January 15, 1987
operators can respond in damages in an adequate amount, we cannot
presume that the legislators intended this result. Hence, we
have concluded that Section 1080.2 authorizes self-insurance in
the minimum amounts for each accident set forth in California
Vehicle Code Section 16056, and requires excess insurance between
those amounts and $1,000,000.
In reaching this conclusion, we are mindful of the
principle that constructions of a statute or ordinance which
render some portions surplusage or lead to absurd results not
intended by the legislators are to be avoided. (California Mfrs.
Assn. V. Public Utilities Com. (1979) 24 Cal.3d 836, 844.) We
further recognize that our interpretation of Section 1080.2 is
likely to make the self-insurance alternative so much more
expensive than the insurance policy requirement of Section 1080.1
as to render it an impractical alternative. Nevertheless, faced
with two possible constructions of Section 1080.2, we must choose
the interpretation promoting the legislative objective over the
one defeating the purpose even though it may lead to unforeseen
or unintended consequences.
Upon conferring with the City's
further concluded that the present sta
under current insurance industry pract
the insurance policy or in-lieu bond r
as well as the excess insurance covera
$15,000/30,000/5,000 required by Secti
unavailable or prohibitively expensive
practices are in a constant state of f
that the only long-range solution to t
adequate protection of the public at a
amendment of the legislative scheme to
flexibility in approving forms of insu
programs of self-insurance. If asked,
to assist in drafting such legislation
Risk Manager we have
tutory scheme is unworkable
ices. We are informed that
equired by Section 1080.1,
ge above
on 1080.2, are either
Also, insurance industry
lux. We therefore submit
he problem of ensuring
n affordable cost is
give the Commission more
ranee or alternative
this office would be happy
Very truly yours.
APPROVED :
LOUISE H. RENNE
City Attorney
^JUDITH A. BOYAJIAN
Deputy City Attorney
lA- L^^-VKA.^
LOUISE H. RENNE
City Attorney
^ity and County of San Francisco:
Office of City Attorney
'7- a
Louise H. R3nne,
CJity Attorney
S'J3J£Cr
RijUEST":::^ Bf;
PRi::PARh;D 6i
Feoruary 23, 1^87
-:s.' OPIWIO.N iW. 61- i
DOCUMENTS DEPT.
MAR 4 1987
SAN FRANCISCO
Pi'BLIC LIBRARV
Recaicaiation or Cnarter Section 3.5iU-2
buuget "Jap" tor Office of Citizens Complaints
FRrti-^K J. SCriOi3h;H, JR.
Director, Office of Citizens Couipiaints
Ju'DITH A. liOYAJIA;^!
Jeputy City Attorney
sJJESTION ?R£:3£.>ir£D
May tne costs incurred oy tne Police Depar t.nent ' s Internal
Affairs Bureau ("IAj") for tne fiscal year ending June 3U, li^bl
{"oase year") oe recalculated to include tne costs of proviaing
services or facilities tnat previously were excluded oecause tney
were not separately identified and cnarged to the Lt\ii in the oase
year?
CO-njCljUSION
Yes, providea it can oe snown tnat tnese previously
unidentified ana excluded costs were actually incurred oy tne
City in operating the lAB during the uase year.
San Francisco Charter Section 3.530-2, adopted oy the
voters in the election nela on Novemoer 2, lya2, estaolisnes an
Office of Citizens Complaints ("OCC") witnin the Police
Department {"Department") . The last paragraph provides:
The annual appropriations for all costs of the
office of citizens complaints shall not exceed
sixty percent of the costs incurred oy tne police
department internal affairs oureau for tne fiscal
year ending June 3U, lydl, adjusted annually
tnerefore [sic] for inflation. (iiimpnasis added.)
415) 554-4283
Room 206 City Hall
San Francisco 94102- 682
Mr. FranK J. Scnooer , Jr. -2- February 23, 1987
Hence, there is a Cnar ter- imposed ceiling (or "cap") on the OCC ' s
annual budget. This "cap" is tied to the costs incurred oy the
lAB in the oase year, ad;]usted annually for inflation.
From time to time, questions have arisen concerning tne
proper interpretation of the OCC ' s oudgetary cap. In City
Attorney Opinion No. 83-18, issued on Marcn 15, 1983, we advised
that the phrase "all costs of tne office of citizens complaints"
means precisely wnat it says: namely, every cost incurred in
operating the OCC. Tnerefore, tne ceiling on tne OCC ' s annual
Dudget cannot reasonably oe interpreted to apply only to the
OCC ' s personnel costs, or to any other portion of all costs.
fou now inquire whether tne ceiling on the OCC ' s Dudget for
fiscal year 1987-88 can oe raised oy recalculating tne costs of
operating tne lAB in tne base year. Specifically, you have
informed us that certain "indirect" costs (such as rent, heat,
electricity, water, security services, and tne liKe) actually
incurred by tne City in operating the lAB in tne oase year were
not separately identified and charged to tne IA!i. Ratner , they
were included in tne Department's overall oudget. Hence, tnese
costs were not considered when the initial lAii oase-year
calculations were made in 1983 or in any suosequent
recalculations.
Tne OCC will soon move to a new location. As a result,
tnese previously unidentifieo and uncounted indirect costs will
oecome identif iaole , direct costs of operating tne OCC. ifou asK
whether tne oase-year figures can now oe recomputed to incluae
tnese costs. Tne effect will oe to raise the ceiling on tne
OCC ' s oudget for fiscal year 1987-88.
It is settled that if the language of a statutory provision
is free of amoiguity, it must be given its plain meaning. (Sand
V. Superior Court (1983) 34 Cal.3d 567, 570; Castaneda v. Holcomo
(l98l) 114 Cal.App.3d 93y, 942.) It is equally well established
that whatever is necessarily implied in a statute is as much as
part of it as that wnich is expressed. (Welfare Rignts
Organization v. Crisan (1983) 33 Cal.3d 766, 771; Johnston v.
BaKer (i9l4) 167 Cal. 260, 264.)
Here, there is no ambiguity. The intent expressed by tne
voters in Cnarter Section 3.530-2 is that all costs of operating
the OCC be no greater than 60 percent of the costs of operating
the lAB in the base year, with annual adjustments for inflation,
vve previously have advised that the Charter requires all costs in
operating the OCC oe included in determining wnether the OCC has
exceeded its budget cap. This cap is tied specifically to the
costs incurred in operating tne Department's lAB in tne oase
year. Tiierefore, it is necessarily implied that in calculating
tne oase-yeai costs, all costs actually incurred by the City lu
operating the lAB must be included, regardless of whetner these
costs were separately identified and charged to tne lAB or were
included in tne Department's overall budget.
Mr. Frani^ J. Scnooer , Jr. -3- February 23, ly87
Hovi^ever , as we aavised m City Attorney Opinion Ao . 83-18,
the Controller is responsiole for enforcing the Char ter- imposed
cap on the OCC oudget. Ultimately he must determine wnether the
actual expenditures by the OCC for fiscal year 1987-88 are below
the ceiling set by Section i. 530-2. Therefore, tne Controller
exercises final autnority over the metnodology and aata to oe
usea in calculating the lAB's oase-year budget, tne annual
adjustments for inflation, and tne OCC ' s current operating
costs. Incluaed witain tnis authority is the responsioility for
determining whetner and to wnat extent costs that were actually
incurred in operating tne lAB in the base year, out were not
separately identifiea as lAB costs snoula oe used to recompute
the OCC cap.
Althougn tne Controller's exercise of discretion in
interpreting nis mandate under Cnarter Section 3.530-2 is
ordinarily entitled to great weight, he may not override tne
express legislative intent. (Organization of Deputy Sheriffs v.
County of San Mateo (1975) 43 Cal.App.3d 331, 341.) Tne express
intent of Section 3.530-2 is to assure that all costs of
operating the OCC not exceed oO percent of tne resources expended
oy the City in operating tiie lAB in the base year, with annual
adjustments for inflation. Tne voters' intent would not oe
acnieved if some of the costs actually incurred oy tne City m
operating tne Iab in tne base year were excluded from tne
oase-year calculations.
Very truly yours,
LOUISE ri. RENi>JE
City Attorney
//
JUOITH A. BOl^AJIAW
c
Deputy City Attorney
APPi^OVED;
LOUISE H. RE.>)N2
City Attorney
oll9F
City and County of San Francisco:
Office of City Ai>.orney
Louise H. Renne,
City Attorney
March 9, 1987
•St OPINION NO. 87-5
SUBJECT;
REQUESTED BY;
PREPARED BY:
Legal Status of Patrol Special Police Officers
Appointed Pursuant to Section 3.536 of the
San Francisco Charter
FRANK M. JORDAN
Chief of Police
BURK E. DELVENTHAL
JUDITH A. BOYAJIAN
Deputy City Attorneys
DOCUMENTS DEPT.
!V'iA^2 4 1987
BAN FRANCISCO
PUBLIC LIBBADV
QUESTIONS PRESENTED
1. Are patrol special police -officers ("Patrol
Specials") appointed pursuant to San Francisco Charter Section
3.536 peace officers under state law, and hence entitled to the
training prescribed by the California Commission on Peace Officer
Standards and Training ("POST")?
2. May the Police Commission ("Commission") alter the
peace officer status of Patrol Specials by amending the existing
Rules and Regulations ("Rules") of the Police Department
("Department") to circumscribe their powers and duties?
Yes
Yes
CONCLUSIONS
INTRODUCTION
In opinions dating back to 1966, the City Attorney has
advised that Patrol Specials are peace officers under state law.
In Letter Opinion Nos . 66-73-A and 69-55, City Attorney Thomas
O'Connor advised that Patrol Specials are peace officers as
defined by the California Penal Code, regardless of the fact that
the officers are not paid by the City and County of San Francisco
Room 206 City Hall
San Francisco 94102-4682
Frank M. Jordan -2- March 9, 1987
Chief of Police
("City"). In Opinion Nos. 80-66 and 85-16, City Attorney George
Agnost advised that under the Charter and existing Department
Rules, Patrol Specials are peace officers under either Penal Code
Section 830.1 (city police officers and sheriffs) or 830.6
(reserve or auxiliary city police officers and sheriffs).
Accordingly, the former City Attorney advised that Patrol
Specials have full police powers within City boundaries and are
entitled to POST-prescribed training and certification. You have
requested us to reconsider these prior City Attorney opinions.
We affirm their conclusions, although we reject some of the
reasoning supporting those opinions. Specifically, we affirm the
following: (1) The City has plenary power under the California
Constitution to provide in its Charter for the composition and
regulation of its police force; (2) the Charter empowers the -
Commission to delineate the powers and duties of Patrol Specials,
including such powers and duties as would make them City police
officers with peace officer status; and (3) by adopting the
existing Rules, the Commission has given Patrol Specials powers
and duties that render them peace officers within the meaning of
state law. With respect to this final point. Commission Rule
2.01 grants Patrol Specials the express power and duty to prevent
crime, protect life and property, detect and arrest offenders,
preserve the public peace, and enforce all penal laws and
ordinances.
However, we reject the dicta contained in Opinion No. 80-66
that Charter Section 3.536 manifests an intent to invest Patrol
Specials with peace officer status. In fact, the Charter is
silent with respect to the powers, duties and functions of Patrol
Specials. Therefore, we conclude that the Charter's description
of Patrol Specials as "special police officers" is not
determinative. Rather, Patrol Specials are presently peace
officers by virtue of the powers and duties conferred upon them
by existing Department Rules and the level of supervision and
control exercised over them by the Department and the Commission.
Because the Charter does not invest Patrol Specials with
peace officer status, we conclude that the Commission may alter
that status by amending the Department's Rules to remove the
provisions that give peace officer status to Patrol Specials.
However, without an amendment to the Charter, the Commission may
not eliminate Patrol Specials entirely. Similarly, without a
Charter amendment, the Commission may not accomplish a de facto
elimination of Patrol Specials by so circumscribing their powers
and duties as to render their services worthless.
For the reasons stated below, we further advise that an
amendment to the Charter is the preferred approach to resolving
the questions concerning the peace officer status of Patrol
Frank M. Jordan -3- March 9, 1987
Chief of Police
Specials. - In addition, until the present status of Patrol
Specials as peace officers is altered by either amendment of the
Charter or of the Department's Rules, Patrol Specials must
receive the level of training prescribed by POST.
ANALYSIS
Applicable Provisions of State Law
Penal Code Section 830 provides:
Any person who comes within the provisions of
this chapter and who otherwise meets all
standards imposed by law on a peace officer is a
peace officer, and notwithstanding any other
provision of law, no person other than those
designated in this chapter is a peace officer.
The restriction of peace officer functions of any
public officer or employee shall not affect his
status for purposes of retirement. (Emphasis
added. )
Penal Code Section 830.1 provides that any police officer
of a city is a peace officer. Penal Code Section 830.6 provides
that peace officer status is also conferred upon a qualified
person who is (1) deputized or appointed by the proper authority
as a reserve or auxiliary city police officer or deputy sheriff,
(2) "assigned to the prevention and detection of crime and the
general enforcement of the laws of this state by such authority,"
and (3) POST-trained or supervised by a peace officer. State law
grants peace officers greater authority to make arrests than it
does private citizens.—^
— ^ A peace officer may make an arrest under the
following circumstances
believe that the person
offense in his presence
(1) when he has reasonable cause to
to be arrested has committed a public
(2) when a person arrested has committed
a felony, although not in his presence; and (3) when he has
reasonable cause to believe that the person arrested has
committed a felony, whether or not a felony has been committed.
(Penal Code Section 836.) On the other hand, a private citizen
may make an arrest only if a public offense has been committed or
attempted in his presence or if a felony has, in fact, been
committed and he has reasonable cause for believing that the
person arrested has committed ic. (Penal Code Section 837.)
Frank M. Jordan -4- March 9, 1987
Chief of Police
Hence, under state law, peace officers are those persons
specifically authorized to exercise law enforcement powers over
other citizens. Penal Code Section 832 requires that every
person defined by state law as a peace officer receive a course
of training prescribed by POST.
Article XI, Section 3(a), of the California Constitution
provides in part:
For its own government, a county or city may
adopt a charter by majority vote of its electors
voting on the question. , . County charters
adopted pursuant to this section shall supersede
any existing charter and all laws inconsistent
therewith. The provisions of a charter are the
law of the State and have the force and effect of
legislative enactments.
Article XI, Section 5(b), of the California Constitution provides
in part:
It shall be competent in all city charters to
provide . . . for . . . the constitution,
regulation, and government of the city police
force.
Hence, while state law determines that persons vested with
certain law enforcement duties are peace officers, the City is
empowered to determine which persons will perform those duties.
The San Francisco Charter
San Francisco Charter Section 3.530-^ provides, in part:
The police department shall consist of a
police commission, a chief of police, a police
force, an office of citizen complaints and such
clerks and employees as shall be necessary and
appointed pursuant to the provisions of this
charter, and shall be under the management of a
police commission ....
Section 3.531 specifies the various ranks or positions in the
Department as:
chief of police, captains, criminologists,
lieutenants, inspectors, sergeants, assistant
— ^ All references in this opinion to sections refer to
the San Francisco Charter unless otherwise noted.
Frank M. Jordan -5- March 9, 1987
Chief of Police
inspectors, police surgeon, police officers,
police patrol drivers and women protective
officers, and such other ranks or positions as
the police conunission may from time to time
create as provided for in Section 3.530 of this
charter. . .
Patrol Specials do not hold ranks or positions within the
Department as described in Sections 3.530 and 3.531, Rather, the
Commission appoints Patrol Specials pursuant to Section 3.536.
This section has been in the Charter since at least 1932. It
provides in pertinent part:
The police commission may appoint patrol
special officers and for cause may suspend or
dismiss said patrol special police officers after
a hearing on charges duly filed with the
commission and after a fair and impartial trial
. . . . Patrol special police officers who are
designated by the police commission as the owners
of a certain beat or territory as may be fixed
from time to time by said commission or the legal
heirs or representatives -e#- said owners, may
dispose of their interest in said beat or
territory to a person of good moral character,
approved by the police commission and eligible
for appointment as a patrol special police
officer.
Hence, the Charter authorizes (but does not mandate) the
Commission to appoint Patrol Specials and designate them as the
owners of certain "beats" or territories within the City. The
Commission regulates and disciplines Patrol Specials. The
Charter does not limit the Commission's authority to delineate
the powers and duties of Patrol Specials.
Patrol Specials are City employees for purposes of workers*
compensation. However, they are entitled to such benefits only
if injured while performing "regular city and county police
duties." (Section 8.515; People v. Melchor (1965) 237 Cal.App.2d
685, 692.) In addition, although Patrol Specials contract with
private employers to provide security services within specified
"beats" and are paid by those private employers, they are deemed
"quasi-public" officials when they are performing police
functions on the City's behalf. (Maggi v. Pompa (1930) 105
Cal.App. 496, 498, and cases cited therein.)
Frank M. Jordan
'"hi' •' . Police
-6-
March 9, 1987
Patrol Specials differ from private security guards in that
they are exempt from the licensing requirements of state law.
(Business and Professions Code Section 7522(e).) They are also
specially authorized by state law to carry a loaded firearm in a
vehicle or public area. (Penal Code Section 12031(c) (1) . )-^
The Department's Rules
Section 3.536, which authorizes the appointment of Patrol
Specials, does not specify the powers and duties of a "special
police officer." However, In 1970, the Commission adopted Rules
governing Patrol Specials. While there are some provisions of
the Rules that suggest Patrol Specials have peace officer powers
and duties, other provisions suggest they do not. We highlight
the most important ones below:
Patrol Specials Are
Peace Officers
Patrol Specials Are Not
Peace Officers
1. The Rules define Patrol
Specials as "members" of the
Department, subject to all
applicable rules and regulations
of the Department. (Definition
No. 6; Rules 1.11 and 3.403)
2. Patrol Specials have the
express power and duty to
prevent crime, protect life
and property, detect and arrest
offenders, preserve the public
peace, and enforce all penal
laws and ordinances. The
Commission may discipline them
for their failure to do so.
(Rules 2.01, 3.401 and 9.39)
1. Patrol Specials must summon
a "regular" (or sworn) member
to perform certain police
functions. (Rules 3.411 and
12 .03 et seq. )
2. In advertising their
services. Patrol Specials must
affirmatively state that they
not members of the "regular"
Department and their services
are in addition to those pro-
vided by "regular" members; they
are expressly prohibited from
implying there are any crime
conditions beyond the ability of
the "regular" Department to
control. (Rule 1.80)
— '' We note that those persons defined as peace officers
in the Penal Code are authorized to carry a loaded firearm in a
vehicle or public area pursuant to Penal Code Section
12031(b)(1). Hence, at least in this respect, state law
distinguishes between "peace officers" and Patrol Specials.
Frank M. Jordan
Chie= '-^
-7-
March 9, 1987
3. Patrol Specials must
report to the district station
when they arrive and leave
duty. While on duty, they
must report to the district
station once every two hours
through the police signal box
system. (Rules 3.419 and 9.41)
4. Patrol Specials carry
police equipment and wear
uniforms almost identical to
those of "regular" members;
they are required to carry
firearms on duty; they have
the same general authority to
arrest and seize evidence as
"regular" members. (Rules 7.01
et seq. , 3.423, 2.01, 2.73 and
12.00)
5. Patrol Specials must
participate in— training
functions ordered by the Chief,
and arguably may be assigned
to perform police duties in
areas of the City other than
their regular "beats."
(Rules 3.431 et se^. and 9.29)
3. Patrol Specials are
expressly required to observe
the terms of their contractual
relationship with their
clients. (Rule 3.407)
4. Patrol Specials may carry
firearms off duty only within
the City limits. (Rule 3.423)
"Regular" members may carry
them anywhere in the state.
5. Patrol Specials exercise
police functions only on their
regular "beats" except under
specified circumstances.
(Rule 9.29) There is no
provision for off-duty Patrol
Specials to be called in to
perform general police duties.
Thus, while there are factors going both ways, on balance
the similarities between Patrol Specials and sworn police
officers outweigh the differences. Importantly, in those
sensitive areas involving the exercise of law enforcement powers
over private citizens, the distinctions are relatively
insignificant. Under the Department's Rules, Patrol Specials
have substantially the same powers of arrest as regular police
officers, can carry loaded firearms both on and off duty, wear
police uniforms, carry police equipment, use police radio
frequencies and call-boxes, and are under the supervision and
control of district commanders. Arguably, the Department may
call upon Patrol Specials to perform law enforcement functions in
areas of the City other than their regular "beats." Finally,
Rule 2.01 mandates Patrol Specials to "prevent crime, protect
life and property, detect and arrest offenders, preserve the
public peace, and enforce all penal laws and ordinances." Hence,
Patrol Specials clearly are "assigned to the prevention and
detection of crime and the general enforcement of the laws of
Frank M. Jordan -8- March 9, 1987
Chief of Police
this state" by the proper authority. (Penal Code Section
830.6.) Accordingly, they are peace officers within the meaning
of state law. (Ibid.)-''
As the above analysis makes clear, it is not the Charter
but rather the powers and duties conferred by the Department's
Rules which invest Patrol Specials with peace officer status.
The level of supervision and control exercised over Patrol
Specials by the Department and the Commission under the Rules
also supports the conclusion that Patrol Specials have peace
officer status. (See 56 Ops. A.G. 390, 393.) Absent such powers
and duties and Departmental supervision. Patrol Specials would
not have peace officer status. Accordingly, the Commission may
alter that status by amending the Rules to remove those
provisions that confer it.
We close with two words of caution. First, while the
Commission may limit the powers and duties of Patrol Specials so
that they are no longer peace officers, it may not eliminate
Patrol Specials entirely without a Charter amendment. Nor may
the Commission accomplish a de facto elimination of Patrol
Specials by so limiting their powers and duties as t«-render
their services worthless.
This first caveat is based on the fundamental,
constitutional principle that the government may not deprive a
person of property without due process. Section 3.536 provides
that Patrol Specials who have been appointed by the Commission
"own" certain beats or territories within City limits. Such
-^ We note, however, that there appears to be some
discrepancy between the powers and duties of "Patrol Specials
which the Rules prescribe and the powers and duties which Patrol
Specials actually exercise. For example, we understand that
Patrol Specials are rarely (if ever) called off their beats to
perform general law enforcement duties in areas of the City
outside their normal "beats." In addition, the powers exercised
and duties performed by Patrol Specials often depend on the
aggressiveness of the Patrol Special, the area of the City in
which his or her beat is located, and the attitude of the
district commander. We also note that many of the Rules
applicable to Patrol Specials have been modified and are no
longer applicable to sworn members. (See, for example. Rules
3.405, 12.01, 12.03 and 12.05.)
Frank M. Jordan -10- March 9, 1987
Chief of Polict
recommending to the Board of Supervisors that a Charter amendment
be submitted to the voters. In any event, until the present
status of Patrol Specials as peace officers is altered by either
amendment of the Charter or of the Rules, Patrol Specials must
receive the level of training prescribed by POST.
Very truly yours,
LOUISE H. RENNE
City Attorney
BURK E. DELVENTHAL
JUDITH A. BOYAJIAN
Deputy City Attorneys.
/Deputy City Attorff^/'
APPROVED :
LOUISE H. RENNE
City Attorney
City and County of San Francisco:
Office of City Attorney
Louise H. Renne,
- City Attorney
March 27, '987
OPINION NO. 87-6
t>OC;UWENT3 DEPT.
MAR 3 1 1987
SAN FRANCISCO
PUBLIC LIBRARV
SUBJECT;
Jurisdiction of the Art Commission Over
Recreation and Park Commission Projects.
REQUESTED BY: Mary E. Burns
General Manager
Recreation and Park Department
PREPARED BY;
Mara Resales
Deputy City Attorney
QUESTIONS PRESENTED
1. Does the Art Commission have jurisdiction to review the
installation of a fence proposed by the Recreation and Park
Commission as part of a park development plan?
2. Does the Art Commission have jurisdiction to review play
area apparatus designed by a landscape architect as part of a
landscape improvement plan approved by the Recreation and Park
Commission?
3. Does the Art Commission have jurisdiction over those
elements of a park development plan proposed by the Recreation
and Park Commission pertaining to the landscaping and grading of
property placed within its charge?
CONCLUSIONS
1. The Art Commission has jurisdiction to approve or
disapprove the design of a proposed fence, but does not have
jurisdiction to disapprove the decision of the Recreation and
Park Commission to install a fence.
2. The Art Commission has jurisdiction to review the design
of the proposed play area rehabilitation structure, but does not
have the jurisdiction to disapprove the landscape improvement
plan.
3. The Art Commission has jurisdiction only to review and
make recommendations regarding landscaping and grading.
r>^^«« orvC r^;
ar./^io/-o QA ^r.^?-Alnfi >
Mary E. Burns -2- March 27, 1987
INTRODUCTION
You have asked whether the Art Conunission has the authority
to review elements of a park development plan concerned with
landscaping and grading. You also inquire about the jurisdiction
of the Art Commission to approve the design of structures such as
a fence proposed as part of a park development plan and a play
area apparatus as part of a landscape improvement plan.
ANALYSIS
San Francisco Charter Section 3.552-^ provides in
relevant part as follows:
The recreation and park commission shall have the
complete and exclusive control, management, and
direction of the parks, playgrounds, recreation
centers, and all other recreation facilities,
squares, avenues and grounds which are in the charge
of the commission ....
It shall also have power to construct new parks,
playgrounds, recreation centers, recreation
facilities, squares and grounds, and to erect and
maintain buildings and structures on parks,
playgrounds, squares, avenues and grounds . . .
The powers of the Art Commission are contained in Charter
Section 3.601, which provides in relevant part as follows:
No work of art shall be contracted for or placed
or erected on property of the city and county or
become the property of the city and county by
purchase, gift, or otherwise, except for any museum
or art gallery, unless such work of art, or a design
or model of the same as required by the art
commission, together with the proposed location of
such work of art, shall first have been submitted to
and approved by the commission. The term "work of
art" as used in this charter, shall comprise
paintings, mural decorations, stained glass,
statues, bas reliefs, or other sculptures;
monuments, fountains, arches, or other structures of
a permanent or temporary character intended for
- All section references are to the San Francisco
Charter, unless otherwise noted.
Mary E. Burns -3- March 27, 1987
ornament or commemoration. , . The commission shall
have similar power with respect to the design of
buildings, bridges, viaducts, elevated ways,
approaches, gates, fences, lamps or other structures
erected or to be erected upon land belonging to the
city and county . . . Said commission shall so act
and its approval shall be required for every such
structure which shall hereafter be erected or
contracted for, and may advise in respect to lines,
grades, and platting of public ways and grounds.
(Emphasis added.)
The authority of the Art Commission—'' to review works of
art is set forth in Section 3.601. The Commission must approve
any work of art as well as its location before the work is
contracted for, acquired by the City, or placed or erected on
City property.
Less clear is the authority of the Art Commission over
structures which the term "work of art" does not encompass.
Section 3.601 first considers in detail the Art Commission's
authority over works of art. It then provides that the
commission shall have similar power with respect to
the design of buildings, bridges, viaducts, elevated
ways, approaches, gates, fences, lamps or other
structures . . ..(Emphasis Added.)
The issue raised by this portion of Section 3.601 is
whether the term "similar power" was intended to grant the
Commission the same authority over structures other than works of
art that the Commission has over works of art, A close reading
of section 3.601 reveals that the former authority is more
limited than the latter.
As to works of art, the Commission's power is virtually
unlimited. Section 3.601 specifically empowers the Commission to
disapprove the proposed acquisition or erection of a work of
art. In addition, the section authorizes the Commission to
disapprove the proposed location. As to structures other than
works of art. Section 3.601 permits the Commission to consider
— '' All references to "Commission" are to the Art
Commission, unless otherwise noted.
Mary E. Burns -4- March 27, 1987
their design. However, the section gives the Commission no
authority to veto either (a) the proposal to erect the structure
or (b) the location of th'? structure.
Settled principles of statutory construction make clear
that the Commission's authority to review the "design" of a
structure does not include its location as well as its style. As
noted in Martello v. Superior Court (1927) 202 Cal. 400, 405:
In the grants [of powers] and in the regulation of
the mode of exercise, 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 . . .
(See also Wildlife Alive v. Chickering (1976) 18 Cal. 3d 190,
196.) Section 3.601 specifies the Commission's authority to
determine the location of works of art but omits such authority
with respect to non works of art. Accordingly, under the rule of
Martello, the Commission has no such authority.
This conclusion also comports with sound public policy.
The term "works of art," as used in Section 3.601, includes
specifically enumerated items and "other structures . . .
intended for ornament or commemoration." The City acquires and
builds works of art to contribute to the public's aesthetic
enjoyment. The Charter entrusts the Art Commission with
responsibility for establishing aesthetic standards for public
property. (See Section 3.601.) Accordingly, it is appropriate
that the Art Commission should have broad power to review the
proposed acquisition and use of any work of art.
On the other hand, structures other than works of art are
intended for more than "ornament or commemoration." They serve a
particular function. The function may relate to transportation
(e.g. , a bridge over which City buses will run) or recreation
(e.g. , a bandshell). The City agencies entrusted with the
responsibility for these functions (e.g . , the Public Utilities
Commission and the Recreation and Park Commission) have
experience and expertise with respect to these functions.
Therefore, these agencies are best able to determine whether a
proposed structure which is not primarily ornamental or
commemorative will serve the public interest and where to locate
such a structure.
Prior legal opinions of this office support this
conclusion. In City Attorney Opinion No. 71-47, we stated:
The language of Charter Section 3.601
distinguishes between the jurisdiction of the Art
Mary E. Burns -5- March 27, 1987
Commission over "works of art" where the power of
the Art Commission extends to placement and location
and "buildings" where jurisdiction is specifically
concerned only with "design." There may be special
circumstances where unsuitability of a design of a
building is related to its proposed placement on a
particular site. Absent such special circumstances
and as a general rule, the Art Commission has no
jurisdiction over the selection of a particular site
for the construction of a building on property under
the jurisdiction of the Recreation and Park
Commission.
In addition to works of art and other structures, section
3.601 authorizes the Art Commission to review a third category of
projects The Art Commission "may advise in respect to lines ,
grades and platting of public ways and grounds." (Section 3.601,
emphasis added.)
The word "advise" means to "recommend (a course of
action)". (Webster's New International Dictionary, (1961) 3rd
Ed., ("Webster ' s") . As noted in State v. Downing (Idaho 1913)
130 P. 461, 462, "under the meaning given to the word 'advise,'
it is left optional with the person advised as to whether he will
act on such advice or not." (See also People v. Horn (1886) 70
Cal. 17 and People v. Tullos (1943) 57 Cal.App.2d 233, 238.)
Since Section 3.601 provides that the Art Commission may
"advise" with respect to "lines, grades and platting," it is
clear that the Art Commission's role with respect to "lines,
grades and platting" is considerably different from its role with
respect to works of art and structures. As to this third
category, the Art Commission plays an advisory role only and its
recommendations are not binding. It is necessary, therefore, to
determine what activities or projects the words "lines, grades
and platting" encompass.
Webster ' s includes the following definitions for the word
"line": (1) "A mark of division or demarcation, of outline or
contour, as on a map, hence, a boundary . . .," and (2) "a series
of related positions which are or may be represented by a line."
Webster ' s defines "plat" as follows: "a plan, map, or chart;
esp. a plan of a. town site, a division of land, or the like," and
"plan, scheme, or outline as a course of action . . .
arrangement; design." The term "grades" refers to a change in
the topographical features of the ground with respect to height.
(Ibid.)
Mary E. Burns -6- March 27, 1987
We now consider the specific examples of projects or
structures in your questions. Your first question refers to a
fence proposed by the Recreation and Park Commission as a part of
a park development plan. Your second question refers to a play
area apparatus designed by a landscape architect as part of a
landscape improvement plan. Both of these items are structures
and not works of art. Thus, the Art Commission has jurisdiction
only to review the proposed design of such structures.
As noted above, the Recreation and Park Commission is the
City agency entrusted with the "complete and exclusive control,
management and direction" of the City's parks and with the
authority to construct new parks and playgrounds. (Section
3.552.) The Recreation and Park Commission has had considerable
experience in balancing the public interest in recreation against
the need to make recreational facilities safe for public use. As
such, the Recreation and Park Commission is the appropriate
agency to determine whether a fence or play area apparatus is
necessary and where they should be placed to best serve their
purpose.
The Art Commission "may advise in respect to . . .
grades." (Section 3.661.) Hence, although the Commission is
authorized to review an element of a park development plan
pertaining to grading of property, its recommendation regarding
that element is not binding on the Recreation and Park Commission.
We turn, finally, to the authority of the Art Commission
over landscaping. Charter Section 3.601 does not refer to
landscaping. However, Section 3.600 requires that a landscape
architect be appointed as a member of the Commission. Webster ' s
defines the word "landscape architect" as follows: "One whose
profession is to so arrange and modify the effects of natural
scenery over a given tract as to produce the best aesthetic
effect considering the use to which the tract is to be put."
Arguably, the requirement that a landscape consultant be
appointed to the Commission reveals an intent by the framers of
these sections to empower the Commission to approve landscaping
proposals. Nonetheless, several considerations compel the
conclusion that the jurisdiction of the Commission over
landscaping is limited to review and recommendation.
First, Section 3.601, which sets forth the authority of the
Commission, consistently uses the term "structure" to describe
those projects over which the Commission exercises approval
authority. Webster ' s defines "structure" as "something
constructed or built, as a building, a dam, a bridge, esp. a
building of some size; and edifice." Landscaping is not a
structure.
Mary E. Burns -7- March 27, 1987
Rather, landscaping falls more closely within the range of
activities contemplated in the use of the terms "lines, grades
and platting." Webster's New Collegiate Dictionary (1979
Edition), defines the word "landscaping" as follows: "To modify
or ornament (a natural landscape by altering the plant
cover). ..." Since the terms "lines, grades and platting"
refer broadly to "demarcations," "topographical features" and
"plans or designs," they are applicable to the designed planting
and management of vegetation. The terms also apply to the
allocation of a piece of property for uses such as setting aside
a portion of a park site for grassy open space, for unimproved
paths, for sidewalks or for roller skating surfaces. In light of
their breadth, the terms "lines, grades and platting" provide the
Commission with the power to review and advise a wide variety of
land development projects, including landscaping.
The conclusion that the Commission acts only in an advisory
capacity as to landscaping is also supported by policy
considerations. The Recreation and Park Department, Department
of Public Works and other City departments engage in a multitude
of landscaping projects. It certainly was not the intent of the
framers of Section 3.601 to require Commission approval for the
planting of trees, bushes and flowers throughout the City.
The conclusion is also supported by City Attorney Opinions
Nos. 59-1402 and 73-124. The former opinion advised that the Art
Commission does not have jurisdiction to review the removal or
alteration of Portsmouth Square. The opinion reasoned, in part,
that the "only authority that the Art Commission has insofar as
public grounds are involved is the right to advise with respect
to the planting thereof. Opinion No. 73-124 advised that the
Commission has no jurisdiction to approve landscaping projects.
CONCLUSION
The Art Commission has the jurisdiction and authority to
review works of art, structures other than works of art, and
projects concerning landscaping and grading. As to works of art,
the Art Commission must grant its approval before the work of art
is contracted for, acquired by the City or placed upon City
property. The Art Commission also has the authority to approve
the proposed location of the work of art.
Mary E. Burns
•8-
March 27, 1987
The design of structures that are other than works of art
are subject to the Art Comniission ' s review and approval.
However, as to landscaping and grading projects, the Art
Corranission may only review and make recommendations. These
recommendations are not binding.
Very truly yours,
LOUISE H, RENNE
City Attorney
&/^
MARA E. ROSALES
Deputy City Attorneys
APPROVED;
LOUISE H. RENNE
City Attorney
#ity and County of San Francisco:
Louise H. Renne,
City Attorney
April 20, 1987
OPINION NO. 87 - 07
Office of City Attorney
DOCUMENTS DtPT.
APR 2 2 1987
i;^.j FRANCISCO
i-. . r. < IRPARV
SUBJECT:
Disclosure of Departmental
Disciplinary Charges
REQUESTED BY: Dr. David J. Sanchez, Jr., President
San Francisco Police Commission
PREPARED BY;
Burk E. Delventhal
Thomas J. Owen
Deputy City Attorneys
QUESTIONS PRESENTED
(1) Is the formal complaint or statement of charges filed
by the Chief of Police against a police officer a puolic record
within the meaning of the Public Records Act and the Brown Act
that the Commission must disclose prior to the disciplinary
hear ing?
(2) Does any other enactment impose any limitation on the
duty of the Police Commission under tne Public Records Act to
disclose a formal complaint or statement of charges filed against
a police officer?
CONCLUSIONS
(1) Yes,
(2) No.
ANALYSIS
Tne San Francisco police department is managed by the
police commission. See San Francisco Charter Section 3.530.
commission's management authority includes the power to
discipline police officers for misconduct under procedures set
The
15) 554-4283
Room 206 City Hail
San Francisco 94102-4682
OPINION NO. 87 - 07
Dr. David J. Sanchez, Jr. - 2 - April 20, 1987
forth in Charter Section 8.343. That section provides, in
relevant part, as follows:
Subject to the foregoing members of the
uniformed ranks of either department shall not be
subject to dismissal, nor to punishment for any
breach of duty or misconduct except for cause,
nor until after a fair and impartial trial before
the commissioners of their respective
departments, upon a verified complaint filed with
such commission setting forth specifically the
acts complained of, and after such reasonable
notice to them as to time and place of hearings
as such commission may, by rule, prescrioe. The
accused shall be entitled, upon hearing, to
appear personally and by counsel; to have a
public trial; and to secure and enforce, free of
expense, the attendance of all witnesses
necessary for his defense.
This provision includes two important points: (1) the officer is
entitled to a public trial, (2) upon a verified complaint filed
with the commission setting forth specifically the acts
complained of by the department. We must therefore determine
whether that complaint, once filed, is a public record which must
be disclosed.
The police commission is subject to tne provisions of
Charter Section 3.500. Section 3.500, subd. (f), requires the
commission
[t]o hold meetings at regular fixed dates and
at regular meeting places, v/hich dates or places
shall not be changed except as in the manner
provided by Section 2.200 for the meeting times
and places of the board of supervisors. All such
meetings and all special meetings and all
meetings of all committees, whether composed of
more than or less than a majority of the parent
board of commission, shall be open and public;
provided, however, that nothing contained in this
suDsection shall be construed to prevent any
board or commission or committee tnereof,
respectively, from holding executive sessions
during a regular or special meeting to:
OPINION NO. 87 - 07
Dr. David J. Sanchez, Jr. - 3 - April 20, 1987
(1) consider the appointment, employment or
dismissal of a public officer or employee or to
hear complaints or charges brought against such
officer or employee by another officer, employee
or person unless such officer or employee
requests a public hearing;
Under these provisions, police commission meetings are open to
the public. The commission may go into closed session to
consider disciplinary action against an employee, unless the
employee requests a public hearing. Tne commission is not
required to go into executive session on a personnel matter; the
decision rests in the commission's sound discretion. The
commission cannot go into executive session on a personnel matter
if the employee exercises his or her right to a public hearing.
But the employee cannot force the commission to hold a closed
session on a disciplinary matter.
Meetings of the police commission are also subject to the
open-meeting provisions of the Brown Act (Government Code
Sections 54950 et seq. ) . See 61 Ops .Cai. Atty .Gen . 220 (May 4,
1978) (advising that Brown Act applies to board of police
commissioners of a chartered city) . Government Code Section
54953 requires that all meetings of a local agency as defined in
the Act be open and public; Section 54957 creates an exception
that allows, but does not require, the governing body of the
local agency to hold closed sessions on personnel matters,
"unless such employee requests a puolic hearing."—/ Again, as
under Charter Sections 3.500 and 8.343, the employee may compel a
public hearing, but cannot force the commission to hold a closed
session.
1./ The language of these two statutes makes clear that
closed meetings are permitted but not compelled when
agencies consider personnel matters. Section 54953
mandates that "all meetings of the legislative body . . .
be open and public, and all persons ... be permitted to
attend . . . except as otherwise provided in this
chapter." Section 54957 provides in relevant part that
"nothing contained in this chapter shall be construed to
prevent any board . . . from holding closed sessions to
consider [personnel matters]. ..."
OPINION NO. 87 - 07
Dr. David J. Sanchez, Jr. - 4 - April 20, 1987
This conclusion is reinforced by the expressed intent of
the Legislature that the open meeting provisions of the Brown Act
are minimum requirements. Government Code Section 54953.7
provides that a local agency may adopt rules and procedures
guaranteeing even greater access to meetings than those set forth
in the Brown Act. Thus, consistent with tne Brown Act, the
Police Commission could decide to conduct all disciplinary
hearings in public and never go into closed session to consider
personnel matters.
In Government Code Section 54957.5, subd. (a), the Brown
Act further provides that all writings distriouted to the
commission are public records under the California Puolic Records
Act (Government Code Section 6250 et seq. ) . Such records, if
distributed before the meeting, shall also be made available upon
request before the meeting. Government Code Section 54957.5,
subd. (b) . As mandated by Charter Section 8.343, disciplinary
hearings must be based upon a specific, verified complaint.
Under the Brown Act, that complaint becomes a public record upon
filing with the commission.
The Brown Act does provide that writings distriouted at a
public meeting do not become public records if they are otnerwise
exempt from disclosure under Government Code Sections 6253.5,
6254 or 6254.7. Sections 6253.5 (dealing with initiative ana
referendum petitions) and 6254.7 (dealing with air pollution
data) are not relevant to this discussion. Section 6254 sets
forth a series of exemptions from the Public Records Act. Two of
those exemptions must be considered.
Section 6254, subd. (c) , allows (but does not require) the
agency to withhold " [p] ersonnel , medical, or similar files, the
disclosure of which would constitute an unwarranted invasion of
personal privacy." Subdivision (k) similarly allows withholding
of "[r]ecord3 the disclosure of which is exempted or prohibited
pursuant to provisions of federal or state law, including, but
not limited to, provisions of the Evidence Code relating to
privilege . "
The first question is whether public disclosure of the
charges brought against a police officer constitutes an
unwarranted invasion of personal privacy. Disclosure of the
charges does have the potential to embarrass or stigmatize an
officer. But the charges are limited to allegations regarding
the officer's fitness to occupy a special position of public
OPINION NO. 87 - 07
Dr. David J. Sanchez, Jr. - 5 - April 20, 1987
trust. Recognizing that peace officers hold a peculiar and
delicate position in society requiring a high degree of public
respect and confidence, the courts have historically applied very
strict standards in reviewing the conduct of peace officers. See
Christal v. Police Commission of City and County of San Francisco
(1939) 33 Cal.App.2a 564, 567-68; McCain v. Sheridan (1958) 160
Cal.App.2d 17 4,177; LuKin v. City and County of San Francisco
(1986) 187 Cal.App.3d 807, 817; Ludoph v. Board of Police
Commissioners (1938) 30 Cal.App.2d 211, 217. The public interest
in the proper application of those high standards and in the
operation of the police commission outweighs any potential
embarrassment to the officer. Hence, we conclude that disclosure
of the statement of charges would not constitute an unwarranted
invasion of the police officer's privacy. Rather, the public
interest in access to those charges is of a compelling
dimension.
The remaining question is whether public disclosure of
charges brought against a police officer is pronibited by any
provisions of state law. Two possible sources of such a
prohibition are the Public Safety Officers' Procedural Bill of
Rights (Government Code Sections 3300 e_t seq. ) and Penal Code
Sections 832.5 et seq.
The Public Safety Officers' Procedural Bill of Rights does
not address, let alone prohibit, public disclosure of formal
disciplinary charges filed against a police officer. The only
relevant provision requires that an officer oe allowed the
representative of his or her choice in two circumstances: (1)
during questioning after the filing of charges, or (2) whenever
an interrogation focuses on matters which are likely to result in
punitive action. Government Code Section 3303, subd. (h) .
Penal Code Section 832.7 requires that all police officer
personnel records and citizen complaint records be kept
confidential. "Personnel records," as defined in Penal Code
Section 832.8, include files "maintained under that individual's
name by his or her employing agency and containing records
relating to: . . . complaints, or investigation of complaints,
concerning an event or transaction in which he participated, or
which he perceived, and pertaining to the manner in wnich he
performed his duties. ..."
In reconciling the confidentiality provisions of Section
832.7 with the open meeting and puDlic records requirements of
OPINION NO. 87 - 07
Dr. David J. Sanchez, Jr. - 6 - April 20, 1987
the Charter and state law, we are mindful of several principles
of statutory construction. Legislative enactments are to be
interpreted in a reasonaole and workable manner (City of Santa
Clara v. Von Raesfeld (1970) 3 Cal.3d 239, 248), consistent with
the legislative purpose (Select Base Materials v. Board of
Equalization (1959) 51 Cal.2d 640,645). "Interpretive
constructions which render some words surplusage, defy common
sense, or lead to mischief or absurdity, are to be avoided."
California Manufacturers Assn. v. Public Utilities Commission
(1979) 24 Cal.3d 836, 844.
A court should construe a statute with regard to the whole
scheme of laws of which it is a part for the purpose of
harmonizing and giving effect to all parts of the law. Select
Base Materials Inc. v. Bd . of Equalization, supra , 51 Cal.2d at
64 5 ; Clean Air Constituency v. California State Air Resources Bd .
(1974) 11 Cal.3d 801, 814. Hence, all enactments having the same
general purpose or relating to the same subject should be read
together as if one law, and harmonized if possible. County of
Placer v. Aetna Casualty and Surety Co. (1958) 50 Cal.2d 182,
188-89. These principles apply even though apparent
inconsistencies may appear in separate codes. Tripp v. Swoap
(1976) 17 Cal.3d 671, 679; Sacramento Newspaper Guild v.
Sacramento County Bd . of Supervisors (1968) 263 Cal.App.2d 41,
54. For the purpose of statutory construction, all codes are
regarded as consisting of a single statute. Pesce v. Dept. of
Alcoholic Beverage Control (1958) 51 Cal.2d 310, 312; Proctor v.
Justice's Court of BerKeley (1930) 209 Cai. 39, 43.
The rule of confidentiality in Penal Code Section 832.7 can
be harmonized with tne public meeting and public record
provisions of the Brown Act, in a reasonable and workaole
manner. In reconciling the relevant provisions of law, we must
look to the purposes behind the applicable laws.
Though there are no cases interpreting the legislative
intent behind Penal Code 832.7, its manifest purpose is to
protect the privacy of individual officers from unwarranted
public inquiry into their personnel records. The term "records"
is used in §832.7 in conjunction with the term "information."
These terms support the conclusion that the Legislature was
seeking to provide some protection for the privacy of police
officers. See City of San Diego v. Superior Court (1981) 136
Cal.App.3d 236, 237 (holding that statutes which protect from
discovery personnel records of police officers and information
OPINION NO. 87 - 07
Dr. David J. Sanchez, Jr. - 7 - April 20, 1987
from such records also protect the identical information about
personnel history which is within an officer's personal
recollection). Further, immediate public scrutiny of complaints
could discourage citizens from filing such complaints in the
future. Such a result would be inconsistent with the
Legislature's intent in Penal Code Section 832.5 that citizens be
encouraged to report misconduct of police officers.
The legislative intent behind the Brown Act is explicit.
Section 54950 expresses the Legislature's intent that the actions
of public bodies
. . . be taken openly, and that their
deliberations be conducted openly ....
The people insist on remaining informed so
that they may retain control over the instruments
they have created.
See also Carlson v. Paradise Unified School District (1971) 18
Cal.App.3d 196, 199-200. Government Code Section 54953
reinforces this intent by requiring that all meetings be public
except as otherwise provided.
The question, then, is whether these two provisions must
necessarily conflict. Penal Code Section 832.5 requires all
police agencies, including the San Francisco Police Department,
to receive and investigate charges of police misconduct. These
charges may or may not have merit. The Chief of Police
eventually evaluates the evidence collected and determines
whether there is a reasonable basis for concluding that the
officer may have engaged in wrongdoing. If the Chief of Police
concludes that the complaint is without foundation, he terminates
the investigation and that is the end of the matter. In those
cases where the Chief of Police concludes that the officer may
have engaged in misconduct, the Chief embodies that conclusion in
formal, written charges filed with the Police Commission.
Thereafter, tne Police Commission determines whether the police
officer engaged in wrongdoing and, if so, what sanction is
appropr iate .
The latter proceeding ensues only upon the considered
decision of the Chief of Police that there is reasonable cause to
believe that the officer is guilty of misconduct. It is that
determination, based upon an independent and individual review of
OPINION NO. 87 - 07
Dr. David J. Sanchez, Jr. - 8 - April 20, 1987
the evidence, that both (1) justifies the decision to file a
public statement of charges and (2) protects the officer from
unwarranted invasions of privacy.
The public's interest in the contents of a mere complaint
that the Chief of Police has determined to be without merit is
outweighed by the officer's privacy interest in curtailing the
further disclosure of frivolous allegations. But once the Chief
is satisfied that sufficient evidence exists to justify a hearing
before the Commission, the public interest in the conduct of its
police officers becomes preeminent.
The officer may, of course, oe completely exonerated in the
course of a disciplinary proceeding. Clearing the name of
innocent officers is of equal importance as punishing an officer
who has engaged in misconduct. The significant concern in this
analysis is not whether discipline is imposed in a particular
case, but whether the public may satisfy itself that the decision
was made fairly and honestly.
The Brown Act makes clear that the Police Commission may
conduct such disciplinary proceedings in public. There is no
reason to conclude that the Legislature intended to allow the
Police Commission to hear the charges in public while not
allowing the public to see a copy of the charges upon which the
Commission is deliberating. In such a disciplinary proceeding,
all the evidence that would be presented against the police
officer would be available for puolic scrutiny. It would defy
common sense to conclude that the public is entitled to witness
the proceedings and hear all the evidence without knowing the
charges. Accordingly, we conclude that the Legislature did not
intend to preclude public access to the formal charges of
wrongdoing .
CONCLUSION
The Brown Act and the Charter require tne police
commission, with certain exceptions, to act in public. These
requirements make explicit what is essential to the democratic
social contract -- "The people, in delegating authority, do not
give their public servants tne right to decide what is good for
the people to know and what is not good for them to know."
Government Code Section 54950.
OPINION NO. 87 - 07
Dr. David J. Sanchez, Jr. - 9 -
April 20, 1987
When the Police Commission holds a public hearing to
consider disciplinary action against a police officer, it must do
so based upon a specific, verified complaint filed with the
commission. The Brown Act provides that a document distributed
to the Commission at a puolic meeting is a public record.
Therefore, the forinal complaint or statement of charges filed by
the Chief of Police against a police officer must oe disclosed.
APPROVED:
LOUISE H. RENNE
City Attorney
6589F/1-8
Respectfully submitted,
LOUISE H. RENNE
City Attorney
BlMK E. DELVENT^liAL
Deputy City Attorney
THOMAS on OWEN '""^
Deputy City Attorney
City and County of San Francisco:
Louise H. Renne,
"' City Attorney
OPINION NO. 87-8
Office of City Attorney
DOCUMENTS DEFT.
MAY 111987
SAN FRANCISCO
PUBLIC LIBPAPV
May 6 , 1987
SUBJECT: Constitutionality of Police Code Section 685
REQUESTED BY: JOHN L. MOLINARI
Member, Board of Supervisors
PREPARED BY: BUCK E. DELVENTHAL
Deputy City Attorney
CARLA OAKLEY
Law Student
QUESTION PRESENTED
Is the San Francisco Police Code Section 685 prohibition
against the distribution of commercial advertising an
unconstitutional restraint of First Amendment activity?
ANSWER
Yes, the existing prohibition against circulation or
distribution of advertising materials unconstitutionally
restricts advertisers' freedom of speech.
DISCUSSION
I. Provision at Issue. San Francisco Police Code Section
685 provides in pertinent part as follows:
(a) It shall be unlawful for any person, firm,
association or corporation, upon any street,
sidewalk or park ... to circulate or distribute
. . . any handbill, dodger, book, pamphlet,
picture, card, print, paper, writing, mold,
device or emblem for the purpose of advertising
any merchandise, commodity, property, trade,
business, service, art or skill, offered, sold or
rendered for hire, reward, price, trade or profit.
II. First Amendment Freedom of Speech. The First
Amendment to the United States Constitution prohibits the
government from making any law abridging the freedom of speech.
15) 554-4283
Room 206 City Hall
San Francisco 94102-4682
OPINION NO. 87-8
Hon. John L. Molinari - 2 - May 6 , 1987
This prohibition is made applicable to the states by
incorporation under the due process clause of the Fourteenth
Amendment. Near v. Minnesota (1931) 283 U.S. 697. Application
of Schillaci (1961) 196 Cal.App.2d 591. The California
Constitution also protects free speech:
(a) Every person may freely speak, write and
publish his or her sentiments on all subjects,
being responsible for the abuse of this right. A
law may not restrain or abridge liberty of speech
or press.
(Article I, Section 2, California Constitution,
hereinafter Article I).
Although at least one United States Supreme Court case
characterized the state constitution's free speech and press
provisions as "more expansive than those conferred by the Federal
Constitution," Pruneyard Shopping Center v. Robins (1980) 447
U.S. 74, 81. California courts generally refer to the First
Amendment and Article I interchangeably and apply the same test
when making an analysis under either provision. See, e.g . ,
Spiritual Psychic Science Church v. City of Azusa (1985) 39
Cal.3d 501, 513, Hirsch v. City and County of San Francisco
(1956) 143 Cal.App.2d 313, 323.
In construing the breadth of First Amendment and Article I
protections, courts make a distinction between commercial and
noncommercial speech. Commercial speech includes "speech which
does no more than propose a commercial transaction." Posadas de
Puerto Rico Assoc, v. Tourism Co. (1986) U.S. , 106 S.Ct.
2968, 2976, citing Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council (1976) 425 U.S. 748, 762. The
California Supreme Court has said that commercial speech "has but
one purpose -- to advance an economic transaction." Spir itual
Psychic Science Church, 39 Cal.3d at 510-511, (holding that
f ortunetelling for consideration is not commercial speech)
(emphasis added) .
Courts historically held that commercial speech was not
entitled to First Amendment or Article I protection. See , e.g.,
Valentine v. Chrestensen, (1942) 316 U.S. 52; People v. Uffindell
(1949) 90 Cal.App.2d Supp. 881; Pittsford v. City of Los Angeles
(1942) 50 Cal.App.2d 25. Today, however, it is well-settled that
the First Amendment and Article I apply to commercial speech as
well as noncommercial speech. See, e.g., Metromedia, Inc. v. San
Diego (1981) 453 U.S. 490, 505 (upholding a ban on commercial
OPINION NO. 87-8
Hon. John L. Molinari - 3 - May 6 , 1987
billboards because it advances the significant governmental
interest in traffic safety) and cases cited therein.
The protection of commercial speech, like that of
noncommercial speech, is not absolute. The government may impose
regulations relating to the time, place or manner of the speech.
In Central Hudson Gas and Electric Corp. v. Public Services
Commission (1980) 447 U.S. 557, the Supreme Court set forth a
four-part test for determining whether government regulation of
commercial speech violates the First Amendment: (1) Is the speech
protected by the First Amendment (i.e. is it lawful and not
misleading) pi/ If so, then the following questions must be
answered affirmatively for the regulation to stand; (2) Is a
substantial governmental interest advanced by the regulation?
(3) Does the regulation directly advance the governmental
interest? (4) Is the regulation the least drastic means
available to advance the governmental interest? 447 U.S. at
563-566.
Using the Central Hudson analysis, the Supreme Court has
upheld a ban on commercial billboard advertisements since the
regulation directly advanced the governmental interest in
promoting safe traffic. Metromedia, Inc. 453 U.S. 490.
Similarly, the Supreme Court held that a state can require full
disclosure of information in advertising provided full disclosure
reasonably relates to the state interest in preventing deception
and fraud. Zauderer v. Office of Disciplinary Council (1985) 471
U.S. 626 (upholding regulation requiring attorneys who advertise
contingency fees to specify whether clients who lose must pay
fees or expenses themselves) .
Most recently, however, tne U.S. Supreme Court has held
that government can regulate advertisements promoting an activity
if it has the power to regulate the activity itself. Posadas de
Puerto Rico, U.S. , 106 S.Ct. 2968, 2979. In Posadas,
the Puerto Rican government banned advertisements promoting
gambling that would reach territory residents, although it
allowed gambling advertisements aimed at tourists. Gambling is
legal for residents and nonresidents in Puerto Rico. The Court,
in a 5-4 decision, held the government power to prohibit gambling
i/ If the speech is unlawful or misleading, the regulation
need only be rationally related to a governmental purpose
to satisfy constitutional requirements.
OPINION NO. 87-8
Hon. John L. Molinari - 4 - May 6, 1987
must include the lesser power to ban gambling advertisements—' .
III. Applying the Law to the Police Code. Assuming the
Police Code's blanket prohibition here is a prohibition against
commercial speech, one must analyze the ordinance under the
Central Hudson four-part test:
1. Are the prohibited handbills and advertisements
constitutionally protected?
Analysis: Yes. The ordinance broadly prohibits sidewalk
advertisements including advertisements of lawful and
non-fraudulent business activity. Therefore, the ordinance
affects constitutionally protected commercial speech under
Central Hudson.
2. Does the ordinance further an important governmental
interest?
Analysis; Yes. There are at least three substantial
governmental interests at stake. First, there is an interest in
preventing litter in the sidewalks and streets. Second, the
government has an interest in preventing interference with
pedestrians ana blocking tnorougnf ares. Third, there is an
interest in controlling advertising that promotes materials that
are not legally available to minors. Each of these interests is
substantial enough to support some cype of governmental
regulation. See Pittsford v. City of Los Angeles (1942) 50
Cal.App.2d 25; National Delivery Systems, Inc. v. City of
Inglewood (1974) 43 Cal.App.3d 573, 579.
3. Is the ordinance directly aimed at the interests it is
meant to protect?
Analysis: Yes. The ordinance would help prevent litter by
limiting the type of handouts on the street, and thereby limiting
the volume of distributions on the sidewalks. It could also help
decrease congestion on thoroughfares by allowing fewer people to
stand on sidewalks to distribute information. Lastly, the
ordinance would help prevent minors from gaining access to
materials that they are prohibited from possessing by limiting
minors' opportunity to receive the information in an uncontrolled
setting .
?7 To some commentators, Justice Rehnquist's Posada"!
opinion reflects a shift by the court, affording the
legislature broader power to regulate commercial speech.
See e.g., Kotler, "Commercial Speech Up In Smoke," (1986)
California Lawyer, Vol-6, No. 12, pp 21-22.
OPINION NO. 87
Hon. John L. Molinari - 5 - May 6 , 1987
4. Is the ordinance narrowly drawn so that it is the least
drastic means available to advance the governmental interest
protected?
Analysis: No. The ordinance fails this prong of the test
since there are narrower means to achieve the ends identified.
To address litter, the Board of Supervisors has adopted an
ordinance prohibiting littering. See Police Code Sections 33
through 37. The Board could further adopt an ordinance requiring
those who circulate handbills to pay a fee to cover the cost of
clean-up. A fee collection ordinance would have to be drawn
narrowly so that it does not infringe on First Amendment rights
of those who cannot afford to pay such a fee. There may be other
First Amendment limitations upon such fees. To advance the
interest in uncongested thoroughfares, an ordinance already
exists that penalizes those who willfully or substantially block
sidewalks. San Francisco Police Code Section 22; see also San
Francisco Public Works Article 5.5 (prohibiting distribution of
free merchandise without first acquiring a permit). Lastly, the
interest in protecting minors could be advanced by a more
narrowly-drawn ordinance prohibiting specific types of
advertising similar to regulations that prohibit the sale of
various items to minors.
If the ordinance at issue is deemed to be aimed at more
than purely commercial speech, then the analysis must follow the
Spiritual Psychic Science Church test. In that case, the Court
distinguished whether the regulation at issue was aimed at the
communicative or noncommunicative impact of the act that is
regulated. 39 Cal.3d at 513. If aimed at the former, the
regulation is unconstitutional unless the communication being
suppressed falls into one of the four categories of speech not
entitled to First Amendment protection. These are speech that
carries a "clear and present danger", speech that constitutes a
defamatory falsehood, obscenity and fighting words. If the
ordinance is aimed at a noncommunicative impact, the regulation
is constitutional so long as it does not unduly restrict the flow
of information and ideas. To determine whether the regulation is
too restrictive, a court follows a balancing test similar to that
in Central Hudson. Id.
Regardless of whether this regulation has a communicative
or noncommunicative impact, it will not pass constitutional
muster. If tne regulation is aimed at the communicative impact
of distributing handbills, then it clearly is unconstitutional as
the handbills affected do not pose a "clear and present danger"
OPINION NO. 87-8
Hon. John L. Molinari
6 -
May 6 , 1987
and cannot be characterized as falsehoods, obscenity or fighting
words. If the regulation is aimed at noncommunicative impacts of
handbill distribution, it is unconstitutional because it is not
the least drastic means to address the impacts to which it is
aimed. See our discussion of part 4 of the Central Hudson test
analysis .
Lastly, the ordinance cannot be saved under the reasoning
of Posadas de Puerto Rico. If the subject of the advertising is
an area which the government has a right to prohibit, then the
government can take the lesser step of prohibiting advertising of
that subject. The ordinance here, however, applies broadly to
lawful business activities which the government has no power to
prohibit. Accordingly the rationale of Posadas does not apply.
CONCLUSION
The broad prohibition in Section 685 against all commercial
handbilling on sidewalks does not pass constitutional muster. It
is well-settled that commercial speech is afforded protection
under the First Amendment and Article I. Since the ordinance
acts as a restraint on commercial speech, the ordinance must pass
the Central Hudson four-prong test in order to be valid. We
conclude that the ordinance fails to meet the fourth prong of the
test since there are narrower means to achieve the governmental
purposes behind the ordinance.
Moreover, the ordinance must also fail under Spiritual
Psychic Science Church. The regulation is aimed at protected
speech and does not use the least restrictive means to regulate
the conduct in question.
Respectfully submitted.
LOUISE H. RENNE
7\ttorney_i. —
BUp^ eC^ELVENTHAL
Deputy City Attorney
CARLA OAKLEY
Law Student
APPROVED;
LOUISE H. RENNE, City Attorney
2628F/1-6
City and County of San Francisco:
Louise H. Renne,
^ City Attorney
Office of City Attorney
OPINION NO. 87 - 09
May 7, 1987
SUBJECT:
REQUESTED BY:
PREPARED BY;
Applicability of Salary
Standardization Ordinance
to Community College
The Hon. Nancy G. Walker
President, Board of Supervisors
DOCUMENTS DEPT.
MAY 12 1987
ijni't rtN./-VI>4OI«>«-;0
Puwi,(C LtBRARY
Natalie Berg
Director, Personnel Relations
San Francisco Community College District
Mark B. Kertz
Deputy City Attorney
QUESTIONS PRESENTED
(1) Whether compensation for the classified employees of
the San Francisco Community College District is established
pursuant to the City Charter Section 8.407?
(2) Whether the classified employees of the San Francisco
Community College District are entitled to pay equity adjustments
pursuant to City Charter Section 8.407-1?
(3) Whether the San Francisco Community College District
must provide compensation to its College Aides pursuant to
Charter Section 8.407?
(1) Yes.
(2) Yes.
(3) No,
CONCLUSIONS
415) 554-4283
Room 206 City Hall
San Francisco 94102-4682
OPINION NO. 87 - 09
Hon. Nancy G. Walker - 2 - May 7, 1987
Natalie Berg
ANALYSIS
The Honorable Nancy G. Walker, President of the Board of
Supervisors, and the San Francisco Community College Board ask
whether the San Francisco Community College District (Community
College) "is obligated to follow the provisions of the Salary
Standardization Ordinance for its classified employees." They
also ask whether Charter Section 8.407 is part of the City's
merit (civil service) system, and if so, whether the merit system
includes pay equity adjustments. The Community College also asks
whether it must provide compensation to its College Aides
pursuant to Charter Section 8.407.
The first three questions are answered by provisions of the
State Education Code. The fourth question requires review of
both the federal college Work-Study Programs, 42 U.S.C. 2751, its
applicable administrative regulations, and the state Education
Code.
Applicability of Charter Section 8.407
The San Francisco Community College is part of the
California public school system. i/ State Constitution,
Article 9, Section 14. Such public school system is matter of
State-wide not local concern. State Constitution Article 9,
Sections 5 and 6; Kennedy v. Miller (1893) 97 Cal. 29; Esberg v.
Badaracco (1927) 202 Cal. 110; Butler v. Compton Junior College
District (1947) 77 Cal.App.2d 719.
The internal operations of the public schools are subject
only to state law. Hall v. City of Taft (1956) 47 Cal. 2d 177.
State law controls because although a school district may
comprise the same territory as the City, each derives its power
from, and is subject to, a different body of law. Id^. ; Esberg v.
Badaracco, supra. The foundational body of law for the City is
the Charter, the foundational body of law for the public schools
is the State Education Code. Los Angeles School District v.
Longden (1905) 148 Cal. 380. When the state engages in sovereign
1/ Prior to 1968, the Community Colleges were known as Junior
Colleges. The term "Community College" will be used in this
opinion for Junior College whenever the context permits.
OPINION NO. 87 - 09
Hon. Nancy G. Walker - 3 - May 7, 1987
Natalie Berg
activities it is not subject to local regulation unless the
Constitution declares that it is, or the Legislature has
consented to such regulation. Hall v. City of Taft, supra. The
Community College is a state entity separate from the City and it
enjoys only those powers delegated to it by the Legislature. The
rights and benefits of the Community College employees,
therefore, are determined by state law.
The rights of Community College classified employees are
promulgated in Title 3, Division 7, Part 51, Chapter 4,
Sections 88000 - 88263 of the Education Code. Those sections
detail, inter alia, a merit system (§§88050, 88050) and a salary
setting procedure. (§88160). Education Code Section 88000,
"Application of Provisions to Classified Employees", provides, in
relevant part, that:
These provisions [including sections on the merit
system and salary procedures] shall not apply to
employees of a community college district lying
wholly within a city and county which provides in
its charter for a merit system of employment for
employees employed in positions not requiring
certification qualifications.
Education Code Section 88137 provides:
In every community college district coterminous
with the boundaries of a city and county,
employees not employed in positions requiring
certification qualifications shall be employed,
if the city and county has a charter providing
for a merit system of employment, pursuant to
the provisions of such charter providing for
such system and shall, in all respects, be
subject to, and have all rights granted by, such
provisions; provided, however, that the
governing board of the district shall have the
right to fix the duties of all of its
noncertif icated employees.
Section 88000 expressly provides that the classified
employees of the Community College are excluded from the
employment provisions of Part 51, Chapter 4 of the Education
Code. Section 88137 provides that classified employees of the
OPINION NO. 87 - 09
Hon. Nancy G. Walker - 4 - May 7, 1987
Natalie Berg
San Francisco Community College shall in all respects be entitled
to all rights and benefits granted by the Charter's merit (civil
service) system.
Article VIII of the Charter sets forth such rights and
benefits of employment. Article VIII covers sections 8.100
through 8.588-15. These sections detail (1) a method of job
classification, (2) rules regarding discipline, and (3)
procedures for setting salaries and retirement benefits. As an
integrated whole. Article VIII establishes the rights of
employees to be classified according to their duties, be
protected from improper discipline or termination, and be
compensated according to their classification. That is the
scheme of employee rights under the Charter civil service (merit)
system.
Education Code Sections 88000 and 88137 expressly exclude
the San Francisco Community College classified employees from the
employment provisions of Part 51, Chapter 4 of that Code.
Instead, under Sections 88000 and 88139, these employees are
subject to the City Charter. The language of sections 88000 and
88137 is direct and certain. The fundamental rule of statutory
construction is to give effect to statutes according to the
usual, ordinary import of the language employed in framing them.
Rich V. State Board of Optometry (1965) 235 Cal.App.2d 591. "If
the words of the statute are clear, the court should 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. People v.
Knowles (1950) 35 Cal.2d 175, 183.
The Community College, however, argues that Section 88137
is ambiguous. If a statute is ambiguous, the fundamental
objective is to ascertain and give effect to the Legislature's
intent. Select Base Materials v. Board of Equalization (1959) 51
Cal.2d 640, 645; California Teachers Assn. V. San Diego Community
College Dist. (1981) 28 Cal.3d 592; Code of Civil Procedure
Section 1859; County of Ventura v. Stark (1984) 158 Cal.App.3d
1112. The derivation and legislative history of Education Code
Section 88137, therefore, must be considered.
Education Code Section 88137 is derived from, and is
identical in all relevant respects to, the earlier enacted
Education Code Section 45318. Section 45318 pertains to the San
OPINION NO. 87 - 09
Hon. Nancy G. Walker - 5 - May 7, 1987
Natalie Berg
Francisco Unified School District. A proper interpretation of
Section 88137 requires an examination of the legislative history
of Section 45318 and the Community College's relationship with
the school district.
California's public system of higher education consists of
the University of California, the California State University and
the California Community College. The University and the State
University were independent when formed. The Community College
was originally a division of the State Department of Education.
See e.g. "Inadequate Financial Accountability in California's
Community College System", Commission on California State
Government Organization and Economy, February 1986.
In response to the need for post-high school vocational and
academic training on a local level, in 1907 the Legislature
authorized high school districts to offer some college level
courses. Tyler, H. "Full Partners in California's Higher
Education," Junior Colleges: 50 States/5Q Years, (1969). The
first two-year college program was established in 1910. Simpson,
R. "The Neglected Branch: California Community College", Senate
Office of Research, January, 1984. In 1921, the Legislature
authorized the formation of junior college districts. Statutes
1921, Chapter 495, p. 756; see also. Statutes 1925, Chapter 96,
p. 232; Chapter 97, p. 233; Chapter 215, p. 431.
In November of 1926, Article 9, Section 14 was added to the
California Constitution providing for the establishment of public
school districts including community college districts. In
response to that constitutional amendment the Legislature enacted
the predecessor to Education Code Section 35010 requiring that
school districts be governed by their own boards. Prior to 1926,
all public schools in the City and County were under the School
Department. 1929 Charter, Article VII, Chapter II, Section I.
There was a Board of Education, but its members were appointed by
the Mayor. 1929 Charter, Article VII, Chapter I, Section 1.
Salaries "for teachers and all employees of the School Department"
were set by the Board of Education. 1929 Charter, Article VII,
Chapter III, Section 4.
By the time of the adoption of the 1932 Charter, a separate
Board of Education for the Unified School District was
OPINION NO. 87 - 09
Hon. Nancy G. Walker - 6 - May 7, 1987
Natalie Berg
established. State law delineated the powers, duties and
limitations of the school district. Still, Section 135 of the
1932 Charter provided that the classified employees of the School
District "shall be employed under the civil service provisions of
this charter and the compensations of such persons shall be fixed
in accordance with the salary standardization provisions of this
Charter."
The establishment of a separate school board placed in
doubt the status of the classified school district employees.
Were they subject only to state law or also to Charter
Section 135? In response to the confusion and uncertainty, in
1945 Assembly Bill 1488 was presented to the State Legislature
through the joint efforts of the San Francisco Municipal
Employees Association, San Francisco Civil Service Commission and
the San Francisco Board of Education. That bill is now codified
as Education Code Section 45318.
Education Code Section 45318 was enacted to ensure civil
service coverage for noncer tif icated school employees of the San
Francisco Unified School District. In interpreting that section,
we must consider the object in view, evils to be remedied,
legislative history and public policy. People v. Aston (1985) 39
Cal.3d 481. Although statements of the author are not definitive
in the interpretation of legislation [California Teachers Assn.
v. San Diego Community College Dist. (1981) 28 Cal.3d 692] they
can be instructive. San Diego County v. Superior Court (1986)
176 Cal.App.3d 1009. In a letter from the San Francisco Board of
Education to then Governor Earl vvfarren, dated April 11, 1945, the
School Board said:
This bill [AB 1488, now Education Code Section
45318] was originated by the concurrent agreement
of the San Francisco Municipal Employees
Association, the San Francisco Civil Service
Commission and the San Francisco Board of
Education, in order definitively to clarify tne
status of the noncertif icated employees of the
San Francisco Unified School District as to
whether or not such employees came within the
provisions of the merit system as set up by the
City Charter .... All of the interested
parties, therefore, in the interest of harmony.
OPINION NO. 87 - 09
Hon. Nancy G. Walker - 7 - May 7, 1987
Natalie Berg
prepared the present bill, which definitely
places these employees under the Civil Service
protection of the Charter and at the same time,
reserves to the Board of Education the right to
fix the duties of these employees ....
By letter dated April 13, 1945, the State Department of
Education wrote to Governor Earl Warren stating:
. . . [The] effect of [AB 1488] ... is to
affirm and make certain the present control of
the Civil Service Commission of the City and
County of San Francisco over those employees of
the San Francisco Unified School District who are
not employed in positions requiring certification
qualifications. The bill means that the Board of
Education in the City and County of San Francisco
relinquishes all jurisdiction over such employees
and has only the right to fix their duties ....
. . . in view of the conditions which I know
brought about the introduction of [AB 1488] , I
believe that its enactment into law will do much
to bring about a measure of the peace and harmony
which has long been absent in the affairs of the
San Francisco Unified School District with
obvious ill effects upon the public schools of
San Francisco and the pupils and employees of the
district. . . .
The plain purpose of AB 1488 was to "affirm and make
certain" that San Francisco Unified School District classified
employees would derive the same benefits as the miscellaneous
employees of the City for Civil Service purposes.
The letters make obvious that the intent of the City, the
School Board, interested labor organizations and the State Board
of Education, was to clarify and affirm the existing status of
the classified employees. There is nothing in those letters that
speaks to changing the status or rights of the classified
employees. Under Education Code Section 45813, the Legislature
OPINION NO. 87 - 09
Hon. Nancy G. Walker - 8 - May 7, 1987
Natalie Berg
decided that the rights and benefits of the school district
classified employees is to be determined by the Charter.
By the late 1950s, the California State Legislature
believed that education was better served by having separate
boards for community college districts. The division was
understood to be necessary as the needs of older students and
adults are different from that of children.
In 1959, the Legislature adopted a resolution directing the
Liaison Committee between the Regents of the University of
California and the State Board of Education to develop a Master
Plan for the expansion and coordination of higher education in
the state. The basic principles of the Master Plan, codified in
the Donahoe Higher Education Act of 1960, identified community
colleges as full partners in higher education.
Despite the recognition of the Community College's unique
mission, the responsibility for coordinating the Community
Colleges remained in the State Board of Education until July of
1968. In August of 1967, Senate Bill 669 (Stiern) was approved
establishing an independent governing board at the state level.
In 1968 the Legislature also amended the Education Code to
provide that "no district, except a junior college district,
shall maintain a junior college on and after July 1, 1970." See
Statutes 1968, Chapter 705, p. 1404.
The 1968 State Code provided there could either be separate
governing boards or a single common governing board. Individuals
served as the governing board for both the Unified and the
Community College districts. State law also provided that a
school board could on its own initiative establish a separate
community college board. See 1959 Education Code
Section 25451.9. A Charter amendment was required to permit the
creation of a separate governing board for the Community College
District in San Francisco.
In November of 1972 the electors of the City and County
adopted Proposition "L" adding Section 136.1 (now, §5.104] to the
Charter permitting a separate Community College District. Prior
to the adoption of Charter Section 136.1 the Community College
was subject to the rules of the school district. Included among
such rules was Education Code Section 45318, discussed above.
OPINION NO. 87 - 09
Hon. Nancy G. Walker - 9 - May 7, 1987
Natalie Berg
As noted above, the legislative origin of the Community
College District is the Unified School District. The creation of
a separate community college district raised the same issues
regarding classified employees faced by the School District when
it was made an entity separate from the City. In 1976 (operative
1977), in response to those identical issues. Education Code
Section 88137 was added to provide that the classified employees
of the San Francisco Community College District would be employed
pursuant to, and in all respects have rights granted by, the
merit system provisions of the City Charter. Education Code
Section 88137 is in all applicable respects identical to
Education Section 45318 regarding classified employees of the
school district. When faced with the problem of the Community
College classified employees, the Legislature took the same
action as it did with regard to the classified employees of the
school district. In construing a statute, a court may consider
other statutes that bear on the meaning of the statute at issue.
People V. Corey (1978) 21 Cal.3d 738. As the language of the two
sections, the circumstance, and the purpose are in all relevant
respects identical, their meanings must be identical.
Charter Salary Procedure As Part of Merit System
Community College contends that even if Education Code
Section 88137 applies, the City's salary setting procedure
(Charter §8.407) is outside of the City's merit system.
Community College bases this theory on the fact that
Section 8.407 appears in a different chapter of the Charter,
albeit the same article, from those sections on classification,
examination and discipline.
The Community College's contention is not persuasive for a
simple reason: the Charter necessarily governs the salaries of
these employees because there is no other provision of law which
does so. As noted above, Education Code Section 88000 provides
that Articles 1 through 4 of Chapter 4, Part 51 (§§88000-88263)
do not apply to the classified employees of the San Francisco
Community College. Article 4 contains the provisions for the
setting of salaries. Since the Education Code's provisions for
setting salaries do not apply to employees of the San Francisco
City College, the Legislature has implicitly left such salary
setting to the San Francisco Charter. Otherwise, tnere would be
OPINION NO. 87 - 09
Hon. Nancy G. Walker - 10 - May 7, 1987
Natalie Berg
no provision for setting of salaries and classified employees
would not be paid. To construe the provisions at issue here in
such a manner would be unreasonable and would produce an absurd
result. In Re Atiles (1983) 33 Cal.3d 805; Lampley v. Alvares
(1975) 50 Cal.App.3d 124.
Community College has referred this office to Pacific Legal
Foundation v. Brown (1981) 29 Cal.3d 168 as holding that salary
setting is not part of a merit system. There, petitioners sought
a writ of mandate to invalidate the State Employer-Employee
Relations Act (SEERA) [Gov. Code §3512 et. seq.] because SEERA
establishes collective bargaining within the State's merit system
of employment.
Pacific Legal Foundation stands for the settled rule that
(1) there is "no conflict between the general collective
bargaining process . . . and the merit principle civil service
employment . . .". [Id. at 186.] and (2) an administrative
agency's power to set job classifications does not include the
legislative power to set salaries. Id. at 188.
The issues in Pacific Legal Foundation v. Brown are not
relevant here. The issue here is not whether the City, can have
both a civil service system and a collective bargaining process
in the absence of an express Charter prohibition. Nor is the
issue here whether compensation should be set by the Civil
Service Commission or the Board of Supervisors. Rather, the
question in this opinion concerns the Legislature's intent in
providing that classified employees of the Community College
shall have all the rights granted by the Charter's "merit"
system. What is dispositive here is that Education Code
Section 88000 expressly excludes the classified employees of the
San Francisco Community College District from the salary setting
provisions of the Education Code, while granting them all rights
to the "merit provisions" of the Charter. If Charter
Section 8.407 did not apply to the classified employees, there
would be no provision in law for setting of their salaries.
Pay Equity
Community College next argues that Charter Section 8.407-1,
the recently enacted pay equity Charter amendment, does not apply
to it. The Community College contends that since pay equity
OPINION NO. 87 - 09
Hon. Nancy G. Walker - 11 - May 7, 1987
Natalie Berg
adjustments derive from collective bargaining agreements, and not
from the salary survey of Section 8.407, the pay equity
adjustments are not part of the "merit system" to which Community
College employees are subject.
The argument fails for two reasons. First, the fact that
salary adjustments result from collective bargaining does not
take them outside the scope of the merit system. That conclusion
is clear from the pertinent legislative history. As discussed
above, Education Code Section 88137 mandates the setting of San
Francisco City College employees' salaries under the San Francisco
merit system. Section 88137 was approved by the Governor before
enactment of Charter Section 8.407. At that time, salaries of
employees within the merit system could be set as a result of ;•
collective bargaining.—/ In light of this history, it is clear
that in enacting Section 88137, the Legislature did not intend
that salary adjustments which derive from collective bargaining
be outside the scope of San Francisco's merit system.
Second, the language of Section 88137 makes clear that City
College classified employees are entitled to pay adjustments if
other employees in the merit system regardless of the source of
those pay adjustments. Education Code Section 88137 provides
that classified employees are entitled to the rights available
"pursuant to the provisions of [the] Charter . . . and shall, in
all respects, be subject to, and have all rights granted by, such
provisions . . . ." (Emphasis added.) Charter Section 8.407-1
grants miscellaneous City employees the right to pay equity
adjustments as determined by the Mayor and the Board of
Supervisors. Under Section 88137, classified City College
employees are entitled to have those same rights "in all
respects. "
2./ Before Section 8.407 was enacted, the City set salaries
under Charter Sections 8.400 and 8.401. Under 8.401, the Civil
Service Commission annually transmitted a proposed salary
schedule to the Board of Supervisors. The Board of Supervisors
could then amend the proposed schedule as a result of collective
bargaining .
OPINION NO. 87 - 09
Hon. Nancy G. Walker - 12 - May 7, 1987
Natalie Berg
College Aides
The Community College next asks "can the San Francisco
Community College District remove the College Aide Classification
3591 from the provisions of the Salary Standardization Ordinance
and the Pay Equity Adjustments?" Such student-employees are
employed pursuant to Education Code Section 88076 and the federal
college Work-Study Program. 42 U.S.C. §§2751 et. seq.
Education Code Section 88076 specifically exempts from the
classified service full-time students employed part-time
(Ed. Code §88076 (b) (2) ) and part-time students employed part-time
in certain college work-study program. Education Code
Section 88076(b) (4) . ;•
Under the Federal College Work-Study Program, the federal
government enters into agreements with eligible institutions to
assist in the operation of College Work Study Programs ("CWS").
Federal administrative regulations 34 CFR Sections 675 e_t seq.
contain the general provisions which regulate such agreements.
Section 675.24 establishes the minimum wage rate for a student
employee under the CWS program as the minimum wage required under
The Fair Labor Standards Act of 1938. Section 675.27(a)(1) sets
forth the federal share limitation for a CWS student's wage as
follows:
The federal share of CWS compensation paid for a
student may not exceed 80%, unless the Secretary
approves a higher share.
The federal regulations require that an institution pay its
CWS students at least minimum wage and the regulations limit what
the federal government will contribute to that wage They do not,
however, limit what an institution may set as a maximum hourly
wage for work study students.
For the reasons above, the Community College is a state
entity subject only to state law. Where the Community College
operates pursuant to provisions of the City Charter, it does so
as a requirement of state law. The state Education Code provides
that the student employee is not part of the classified service.
The Education Code also provides that the rights of the
classified employees are those promulgated in the Charter. As
OPINION NO. 87 - 09
Hon. Nancy G. Walker
Natalie Berg
- 13 -
May 7, 1987
the student-employee is not part of the classified service, his
or her compensation is set according to state and federal law,
not Charter Section 8.407.
Respectfully submitted,
LOUISE H. RENNE
City Attorney
/-^-^
MARK B. KERTZ
Deputy City Attorney
APPROVED;
LOUISE H. RENNE
City Attorney
1199F
City and County of San Francisco:
Office of City Attorney
Louise H. Renne,
City Attorney
May 20, 1987
OPINION NO. 87 - 10
SUBJECT: Health Service Benefits
For Surviving Spouses
REQUESTED BY: Randall B. Smiti:i
Director, Health Service System
PREPARED BY: Burk E. Delventhal
Deputy City Attorney
Terry J. Mollica
Student Intern
DOCUMEfNlTS DEPT.
MAr 2 7 1987
SAIM FRANCISCO
P>-'BLIC LIBRAPV
QUESTIONS PRESENTED
1. Are surviving spouses who were never enrolled in the
Health Service System prior to the death of their employee-spouse
entitled to enroll in the Health Service System?
2. Do surviving spouses who were not allowed to continue
in the Health Service system prior to 1972 have a right to
reinstatement into the Health Service System?
CONCLUSIONS
1. Yes, if the individual survives (a) a spouse who had
retired from City service and who had been a member of the Health
Service System at some time prior to his retirement; or, (b) a
spouse who was an active employee of the City at the time of his
death.
2. Yes, if the individual is otherwise qualified to
participate in the Health Service System.
[415) 554-4283
Room 206 City Hall
San Francisco 94102-4682
k
OPINION NO. 87 - 10
Randall B. Smith - 2 - May 20, 1987
QUESTION NO. 1; INTRODUCTION
The Health Service System is established by San Francisco
Charter Section 8.420 et seq. The Health Service System provides
health care benefits for permanent employees, retired employees
and surviving spouses of active and retired employees.
All permanent employees are eligible to be "members" in the
system. Charter Section 8.420 defines "members" as:
. . . all permanent employees, which shall
include officers of the city and county, of the
San Francisco Unified School District, and of the
Parking Authority of the City and County of San
Francisco and, such other employees as may be
determined by ordinance, subject to such
conditions and qualifications as the board of
supervisors may impose. [Emphasis added.]
Permanent employees may be exempted from membership in the system
under Charter Section 8.420 if their religious beliefs so
require, or if they earn an "amount deemed sufficient for self
coverage [or] otherwise [have] provided for adequate medical
care." Though not "members" of the system, retired employees are
eligible to participate in health service benefits. Charter
Section 8.428.
All non-exempted employees and retirees receive a health
service subvention from the City, i.e., the City pays part of
their health insurance premiums. Charter Section 8.428 provides:
The costs of the health service system shall be
borne by the members of the system and retired
persons, the City and County of San Francisco
because of its members and retired persons and
because of members and retired persons of the
parking authority of the City and County of San
Francisco, the San Francisco Unified School
district because of its members and retired
persons and the San Francisco Community College
District because of its members and retired
persons.
The amount of the subvention paid by the City and County towards
employee premiums is equivalent to the average of the
OPINION NO. 87 - 10
Randall B. Smith - 3 - May 20, 1987
contr ibut.ions made to employee medical care programs by the ten
most populated California counties. Charter Sections 8.423,
8.428(a) .
Prior to July of 1985, spouses of members or retired
employees could only enroll in the system as dependents during
the lifetime of the employee or retiree. Though all individual
plans offered through the System made provision for continuing
coverage of the surviving spouse after the death of the employee
or retiree, the premiums had to be paid entirely by the surviving
spouse. In 1984, .the voters of San Francisco approved an
amendment to the Charter (Proposition "E", effective July 1,
1985) which permitted surviving spouses to receive a subvention
from the City under Section 8.428 after the death of the employee
or retiree.
In San Francisco City Attorney Opinion No. 85-25, this
office reviewed the purposes of Proposition "E" and concluded
that the amendment was intended, inter alia, to provide benefits
to surviving spouses of employees or retirees who had died prior
to its adoption. This opinion did not, however, distinguish
between surviving spouses who had at one time been enrolled in
the Health Service System as a dependent of an employee or
retiree and those surviving spouses who had never been enrolled
in the program at any time.
By your memorandum of May 23, 1986, you have requested
clarification as to whether Section 8.428 is intended to allow
surviving spouses who were not "in the system" prior to the death
of their spouse -employee or -retiree to receive a subvention
from the City and County. More specifically, the question
presented is whether this subvention should oe available to all
surviving spouses or only to those surviving spouses who were
enrolled in the Health Service System as dependents before the
death of the employee or retiree.
ANALYSIS
For the purpose of this discussion, it is useful to
distinguish between two situations in which an employee's spouse
would not be enrolled as a dependent in the Health Service
System. In the first category are the surviving spouses who
never enrolled as a dependent even though their spouse -employee
or -retiree was a member in the system. This category includes
any person who could have elected to enroll as a dependent of an
employee but chose not to do so. The second category includes
OPINION NO. 87 - 10
Randall B. Smith - 4 - May 20, 1987
surviving, spouses who could not enroll as dependents because
their spouse -employee or -retiree was exempt from membership in
the system under the provisions of Section 8.420 of the Charter.
Each category is discussed separately below.
Surviving Spouses of Members and Former Members
In 1984, surviving spouses were added to the Health Service
System by including them in the definition of "a retired
person." As already mentioned, under Section 8.428 of the
Charter the City and County pays a subvention on behalf of "its
members and retired persons." By adding surviving spouses to the
definition of "a retired person", Proposition "E" enabled
surviving spouses to receive the same subvention paid by the City
and County on behalf of active or retired employees. The amended
Charter section now reads:
A retired person as used in this section means a
former member of the health service system
retired under the San Francisco City and County
Employees' Retirement System, and the surviving
spouse of an active employee and the surviving
spouse of a retired employee, provided that the
surviving spouse and the active or retired
employee have been married for a period of at
least one year prior to the death of the active
or retired employee"! "^ [Emphasis added . ]
A surviving spouse under this section becomes entitled to a
subvention in one of two ways: (1) by surviving an active
employee; or, (2) by surviving a retired employee. The Charter
does not distinguish surviving spouses who were formerly enrolled
in the system as dependents from those who v/ere not. The Charter
clearly states that to qualify for benefits the spouse need only
survive his or her active or retired employee-spouse. Since the
Charter is not ambiguous here, it must be given its plain
meaning. California Teachers Association v. San Diego Community
College Dist. (1981) 28 Cal.3d 692; Squire v. City and County of
1./ For the purposes of this discussion, it will be assumed
throughout that the surviving spouse and the employee or retiree
had been married for at least one year.
OPINION NO. 87- - 10
Randall B. Smith - 5 - May 20, 1987
San Francisco (1970) 12 Cal.App.3d 974. Therefore, surviving
spouses are entitled to benefits even tnough they were never
previously enrolled in the Health Service System as a dependent.
Surviving Spouses of Exempt Employees and Retirees
The critical question, however, relates to the second
category of surviving spouses: the surviving spouse who was
never enrolled in the system as a dependent because his or her
spouse was exempt from membership. It is unclear from the
language of the Charter whether a surviving spouse of an active
or retired employee can receive the subvention even if the
employee or retiree was never entitled to it. Because the
Charter has different requirements for surviving spouses of
retired employees than it does for surviving spouses of active
employees, the two categories are discussed separately in the
following analysis.
We conclude that the surviving spouse of the retired
employee who was exempt during his entire time of service with
the City is not entitled to surviving spouse benefits. A retired
employee who was exempt during his entire time of service with
the City is not entitled to become a member of the Health Service
System after his retirement. After his death, his spouse has no
greater right to enroll than he did.
The surviving spouse of the exempt employee who was still
working for the City and County at the time of his death is in a
different situation. Though that employee was exempt at the time
of his death, he had a right to become a member of the Health
Service System voluntarily. Since the Charter gives the same
rights to surviving spouses as the employees themselves enjoyed,
the surviving spouse of a City employee in active service at the
time of his death is entitled to participate in the Health
Service System.
Surviving Spouses of Exempt Retired Employees
As already mentioned. Charter Section 8.428 provides a
health service subvention for "retired persons" and for "the
surviving spouse of a retired employee [emphasis added]." The
use of the two terms "retired employee" and "retired persons"
raises the question whether any difference was intended. Under
Section 8.428, "retired person" means a person who was both a
"former member" of the Health Service System and retired under
OPINION NO. 87 - 10
Randall B. Smith - 6 - May 20, 1987
the Retirement System. The Charter does not define a "retired
employee". If the voters intended the term "retired employee" to
include the surviving spouse of any employee, regardless of
whether that employee was also a "former member" of the Health
Service System, then surviving spouses of retirees would oe
entitled to a subvention from the City and County even under
circumstances where the retiree himself or herself would not have
been entitled.
But Charter Section 8.428(c) further provides:
Monthly contributions required from retired
persons and the surviving spouses of active
employees and retired persons participating in
the system shall be equal to the monthly
contributions required from members in the system
. . . [Emphasis added.]
This subdivision of the Charter reverts to the defined term
"retired person." The use of this term interchangeably v;ith the
term "retired employee" supports the conclusion that no
difference in meaning was intended.
Application of accepted rules of statutory construction
also supports this conclusion. The provisions of the Charter
must be given a reasonable and common sense interpretation
consistent with the apparent purpose and intention of the
lawmakers. DeYoung v. City of San Diego, (1983) 147 Cal.App.3d
11; United Business Comm. v. City of San Diego, (1979) 91
Cal.App.3d 156; City of Costa Mesa v. McKenzie, (1973) 30
Cal.App.3d 763. In construing the intent of the people in
enacting Charter provisions, we may look to the voter information
pamphlet and the summary and arguments contained therein. See
Amador Valley Joint Union High School District v. State Board of
Equalization (1978) 22 Cal.3d 2U8.
The voter pamphlet which presented Proposition "E" to the
electorate in 1984 posed the question as follows:
Shall the City subsidize the surviving spouse
of active [or] retired employees on the same
basis that the City subsidizes the active or
retired employees in the health service system?
[Emphasis added.]
OPINION NO. 87- - 10
Randall B. Smith - 7 - May 20, 1987
The "same basis" language conveys the intent of the voters
that surviving spouses would have a right to the subvention
benefit only when the spouse -employee or -retiree was so
entitled. The right of the surviving spouse to enroll in the
Health Service System and to receive a subvention from the City
and County is therefore derivative of the right of the retiree to
the benefit. This rule means that if a retired employee was not
entitled to benefits because he or she was not a "former member"
of the Health Service System, then that employee's surviving
spouse would also not be entitled to those benefits. In other
words, neither retired employees who were exempt from membership
in the Health Service System under the provisions of Section
8.428 nor their surviving spouses would be eligible to receive
the subvention. This construction avoids the unreasonable result
of giving the surviving spouse of a retired employee benefits to
which the retired employee was not entitled.
Surviving Spouses of Exempt Active Employees
The Charter also provides for the subvention of the
"surviving spouse of a[n] active employee." Charter Section
8.428. There is no ambiguity in the Charter regarding the term
"active employee" similar to that for "retired employee." The
term "active employee" is consistently used throughout Section
8.428. Its meaning is also clear on its face. The term means
any employee, regardless of whether the employee was exempt from
membership in the Health Service System. Because it is not
ambiguous, the provision must be given its plain meaning.
California Teachers Association v. San Diego Community College
Dist. (1981) 28 Cal.3d 692; Squire v. City and County of San
Francisco (1970) 12 Cal.App.3d 974. The plain meaning of the
provision is that the surviving spouse of any active employee is
entitled to enroll in the Health Service System and to receive a
subvention from the City and County. Had the voters intended
that only the surviving spouses of non-exempt active employees
should receive subvention, the term "member" could have been used
instead of "active employee." Use of the term cannot be presumed
to be merely surplusage. California Manufacturer's Association
V. Public Utilities Commission (1979) 24 Cal.3d 836. It must be
presumed that the use of a broader term was intended and that it
is to serve a particular purpose.
This construction is in accord with the intent of the 1984
amendment that the surviving spouse enjoy the same rights as the
employee. Although the employee was exempt at the time of his
death, he had a right to become a member of the Health Service
OPINION NO. 87- - 10
Randall B. Smith - 8 - May 20, 1987
System voluntarily. Therefore, the surviving spouse enjoys the
same right.
QUESTION NO. 2; INTRODUCTION
A substantial number of individuals who became surviving
spouses prior to 1972 were excluded from continued membership in
the Health Service System because then valid rules prevented
spouses from continuing in the system after the death of the
employee. These rules were valid because the Charter at that
time did not entitle surviving spouses to participate in the
Health Service System. The subsequent amendment of the Charter
permitted surviving spouses to participate in the Health Service
System. This change has given rise to inquiries from individual
who were excluded under the old rules as to whether they are now
entitled to reenter the system and receive subvention from the
City and County.
s
The current Rules and Regulations of the Health Service
System provide that once a participant leaves the system he or
she may not reenter it. Rule No. 3(g) of Part 11(A) states:
Coverage of a retired or resigned laember must be
continuous and if lapsed may not be reinstated
without Board approval.
Because surviving spouses are "retired persons" as defined by
Section 8.428 of the Charter, this rule operates to prevent many
of these individuals from being reinstated.
The Health Service Board is charged with the responsibility
of hearing appeals from its members. Under Charter Section
3.681, the Board is authorized to "make rules for the transaction
of its business." Under this authority, the Board has
promulgated rules for the submission of appeals by members of the
system having grievances. Some of the surviving spouses in
question have sought review by the Health Service System under
these appeals procedures. You have asked by your letter of June
4, 1985 whether these surviving spouses are entitled to be
readmitted to the system and whether the Board should hear their
appeals.
OPINION NO. 87 - 10
Randall B. Smith - 9 - May 20, 1987
ANALYSIS
In Question No. 1 of this opinion and in San Francisco City
Attorney Opinion No. 85-25, this office has advised that the
amendment to the Charter which provided health care benefits to
surviving spouses was to have "retroactive" effect, applying to
all surviving spouses. This advice includes those who were
forced to leave the system under the old rules and regulations.
These individuals have a right under the Charter to participate
in the Health Service System and to receive a subvention from the
City and County.
As mentioned, the Charter empowers the Health Service Board
to "make rules and regulations for the transaction of its
business." Charter Section 3.681(e). This grant of power
includes the authority to promulgate rules which are consistent
with the rights of members and beneficiaries created by the
Charter. When the rules prohibiting surviving dependents from
remaining in the system were promulgated, they constituted a
permissible interpretation of the Charter prior to the 1984
amendment. Since the Charter has been amended, however, those
rules conflict with the policy of the Charter amendment. Even
though the surviving spouses could be excluded from the benefits
of the system prior to the amendment, under the new amendment
surviving spouses have a right to a subvention and cannot be
excluded.
The continued application of Rule 3(g) would prevent some
surviving spouses from receiving benefits to which the Charter
amendment entitles them. Rule 3(g) is intended to prevent
complications in the administration of the system caused by
repeated withdrawals and reinstatements of retirees and
resignees. While such a regulation may fall within the Board's
authority to make rules "for the transaction of its business," it
/ / /
/ / /
/ / /
/ / /
/ / /
OPINION NO. 87 - 10
Randall B. Smith
- 10 -
May 20, 1987
conflicts- with the rights of these surviving spouses who await
appeal. The Board therefore must make provision for these
surviving spouses who are otherwise qualified to participate in
the Health Service System.
Respectfully submitted.
APPROVED:
^^% f~
LOUISE H. RENNE
City Attorney
LOUISE H. RENNE
Cit^' Attorney
BU1[^K £. OELVENTHAL
Deputy City Attorney
/^ /^-'^.
TERRY J. MOLLICA
Student Intern
1932F
LOUISE H. RENNE
j;iTY ATTORNEY
CITY HALL
CITY AND COUNTY OF SAN FRANCISCO
June 1, 1987
"f? OPINION NO. 87-11
UOCUMEr^iTSDEPT.
JUN ^ iss/'
SAN FRANCISCO
PUBLIC IJBRARV
SUBJECT:
REQUESTED BY:
PREPARED BY:
War Memorial Board of Trustees' Hearing on
Charges of Discrimination Against the American
Legion War Memorial Commission Filed by-
Alexander Hamilton Post 448 of the American
Legion
CLAUDE M. JARMAN, JR.
President, War Memorial Board of Trustees
BURK E. DELVENTHAL
KATHRYN A. PENNYPACKER
MARA E. ROSALES
Deputy City Attorneys
I
QUESTIONS PRESENTED
May the War Memorial Board of Trustees order that the
American Legion War Memorial Commission be dismantled and
no longer act as agent for the San Francisco Posts of the
American Legion with respect to use of space in the War
Memorial Veterans Building dedicated to the Posts by the
Board?
May the War Memorial Board of Trustees order an inventory
of all space presently available to veterans in the War
Memorial Veterans Building?
May the War Memorial Board of Trustees order the American
Legion War Memorial Commission to account for all revenues
collected and expended for the past two years?
May the War Memorial Board of Trustees order that projects
of the American Legion War Memorial Commission be approved
by the Board?
May the War Memorial Board of Trustees order that the
American Legion War Memorial Commission pay attorneys' fees
to Alexander Hamilton Post 448 of the American Legion with
respect to the complaint of discrimination heard by the
Board's Special Ad Hoc Committee?
Does the Human Rights Commission have jurisdiction over a
complaint of discrimination against the agent of a
beneficiary of the 1921 War Memorial Trust Agreement?
Claude M. Jarman, Jr. 2 June 1, 1987
t
OPINION NO. 87-11
CONCLUSIONS
1. The War Memorial Board of Trustees may not order that the
American Legion War Memorial Commission be dismantled.
However, the Board may require the Commission to cease
unlawful discrimination, if any be found, in the allocation
of space dedicated by the Board for the use of the San
Francisco Posts of the American Legion.
2. Yes.
3. Yes, provided that the accounting is limited to City funds.
4. No. However, if the Board determines that the American
Legion War Memorial Commission is engaging in a project in
connection with the War Memorial which is inconsistent with
the Trust purposes, the Board may order the Commission to
cease the project.
5. No.
6. No.
GENERAL BACKGROUND
You have informed us that a Special Ad Hoc Committee of the
War Memorial Board of Trustees has conducted several hearings on
a complaint of discrimination against the American Legion War
Memorial Commission. This complaint, which was filed with the
Human Rights Commission on behalf of Alexander Hamilton Post 448
of the American Legion, alleged discrimination on the basis of
sexual orientation and race.
You have requested our advice with respect to the relief
that the Board of Trustees may afford as a result of the Special
Ad Hoc Committee hearings. We conclude that the Board may grant
certain relief sought by the Alexander Hamilton Post if the facts
adduced at the hearings support the remedies. You may also grant
certain relief as a function of your duties and obligations as
trustees of the San Francisco War Memorial.
In responding to your letter, we have made a careful review
of the 1921 Trust Agreement, Charter provisions and various other
relevant laws and resolutions creating the War Memorial and
establishing your duties as trustees of that memorial. We begin
with a review of certain key aspects of the history of the War
Memorial. This review is essential for the purpose of
determining the scope of your authority to afford the relief
requested by the Alexander Hamilton Post.
Claude M. Jarman, Jr. 3 June 1, 1987
OPINION NO. 87-11
On August 19, 1921, the Regents of the University of
California and certain private citizens named as "Trustees"
entered into a trust agreement for the construction and
maintenance of a San Francisco war memorial. The Trust Agreement
was intended to honor the memory of the soldiers, sailors,
marines and war workers who had contributed to winning World War
I (Trust, first "Whereas" clause). The War Memorial was to
consist of
". . .a Memorial Court enclosed or partially
enclosed by a building or group of buildings,
viz.: a theatre or auditorium building, a
building to be used by the San Francisco Art
Association , also called the San Francisco
Institute of Art (and sometimes known as the Mark
Hopkins Institute of Art) and a building to be
used by the San Francisco Posts of the American
Legion, an organization composed of veterans of
the late World War, all for the purpose of
commemorating in perpetuity the victory achieved
by the United States of America and it is
contemplated that said group of buildings, or a
part thereof, will be used for educational
purposes in connection with the University Work
and University Extension Work of the University
of California . . . ." (Trust, second "Whereas"
clause, emphasis added).
The initial trustees were persons who specifically
represented the San Francisco Art Association, the Musical
Association of San Francisco and the San Francisco Posts of the
American Legion (Posts). In the event of a vacancy occuring in
this number, the remaining trustees were to "appoint a successor
from the particular organization from which the vacancy occurs .
. ." (Trust, par. 1). Thus the Trust insured that the interests
of the three beneficiaries—^ would always be represented. (See
also Article XIV-D, 1928 Charter Amendment and Charter Section
3.610. )
The Trust clearly contemplated that three buildings would
be built to house the beneficiaries - the Art Association, the
Musical Association and the Posts (Trust, second "Whereas"
clause; par. 6, 7, 9 and 10). The Trustees were to equip the
—^ The San Francisco Posts of the American Legion
constitute a single, collective beneficiary under the Trust
Claude M. Jarman, Jr. 5 June 1, 1987
OPINION NO. 87-11
"(2) The said building to be occupied by the
San Francisco Posts of the American Legion shall
be used by them as club and meeting-rooms and for
executive offices and auditorium purposes.
"(3) Should said San Francisco Posts of the
American Legion or their successor by
consolidation or merger cease to exist, then said
building may be used by said Regents for any
purpose the Regents may determine." (Trust, par.
lOC)-^
The Trust required that the occupation of the respective
buildings to be used by the Posts and the San Francisco Art
Association be subject to certain covenants. (Trust, par. 9.)
These beneficiaries were required, for example, to
"... comply with all laws, rules, orders,
ordinances and regulations. Federal, State,
County and Municipal, or any of their
departments, which shall impose any duty upon the
occupants with respect to the premises, including
health, police and fire regulations." (Trust,
par. 9(c).)
In order to raise sufficient additional funds to complete
the War Memorial, the voters of San Francisco approved a $4
million bond issue for the project in 1927. The ballot measure
-^ Under the heading, "General Provisions," the 1921
Trust Agreement also provides:
"(3) In case the San Francisco Posts of the
American Legion should cease to exist and there
be no similar patriotic organization of like
membership in existence at that time, the
building to be erected for use by the San
k Francisco Posts of the American Legion shall
hereafter be under the exclusive direction and
control of the Regents."
By Trust Amendment of June 1928, the Regents were limited to
using any unused portion of the Posts' building for "charitable
or patriotic purposes."
I
Claude M. Jarman, Jr. 6 June 1, 1987
OPINION NO. 87-11
described the project as follows:
"The construction, completion and equipment of
permanent buildings in or adjacent to the Civic
Center in the City and County of San Francisco,
to be used as a memorial hall for war veterans
and for educational, recreational, entertainment
and other municipal purposes and the purchase of
all equipment and furnishings necessary for said
building" (June 14, 1927 Ballot Propositions, p.
7, Ordinance No. 7516, Section 1, emphasis added).
The following year, the voters approved a Charter amendment
creating a City War Memorial Board of Trustees. The amendment
provided, in pertinent part:
"Section 1. There shall be a Board of
Trustees of the San Francisco War Memorial to be
erected and maintained in the Civic Center in the
City and County of San Francisco, which said
Board shall be known as the "Board of Trustees of
the War Memorial."
Sec . 2 . The Trustees of the War Memorial
shall , under such ordinances as the Board of
Supervisors may from time to time adopt, have
charge of the construction, administration,
management, superintendence and operation of the
War Memorial to be constructed in the Civic
Center, and of the grounds set aside therefor,
and of all of its affairs.
Sec. 3. The Trustees of said War Memorial
shall consist of eleven members, who shall be
appointed by the Mayor, subject to confirmation
by the Board of Supervisors. The terms of said
eleven members shall be for six years each;
provided, that those first appointed shall so
classify themselves by lot that the term of four
of said Trustees shall expire on the 2nd day of
January, 1931; four on the 2nd day of January,
1933, and three on the 2nd day of January, 1935.
Thereafter appointments to said Board shall be
for the full term of six years. Vacancies on
said Board shall be filled by the Mayor, subject
to confirmation by the Board of Supervisors, for
the unexpired term becoming vacant. In making
appointments to said Board, the Mayor shall give
due consideration to veterans of all wars engaged
Claude M. Jarman, Jr. 7 June 1, 1987
OPINION NO. 87-11
in by the United States, and to such other
classes of persons who may have a special
interest in the purpose for which said War
Memorial is to be constructed and maintained.
All persons appointed to said Board shall be
residents of the City and County. The members of
said Board shall serve without compensation.
Sec. 4. The said Board of Trustees shall have
power :
(a) To receive, on behalf of the City and
County, gifts, devises and bequests for any
purpose connected with said War Memorial or
incident thereto.
(b) To administer, execute and perform the
terms and conditions and trusts of any gift,
devise or bequest which may be accepted by the
Board of Supervisors of San Francisco for the
benefit of said War Memorial or incident thereto,
and to act as trustee under any such trust when
so authorized to do by said Board of Supervisors
. . . ." (Article XIV-D, added by amendment November 6,
1928, emphasis added)-''
— '' The present Charter provision governing the War
Memorial reads as follows:
"3.610 Board of Trustees; Composition,
Functions, Powers and Duties.
The board of trustees of the San
Francisco War Memorial shall, under
ordinance, have charge of the
construction, administration and
operation of said war memorial and of the
grounds set aside therefor. The board
shall consist of 11 members appointed by
the mayor, subject to confirmation by the
board of supervisors. The terms of
office of the incumbent trustees shall
Footnote "" ^ continued on next page
Claude M. Jarman, Jr. 8 June 1, 1987
OPINION NO. 87-11
On November 10, 1930, the City's Board of Supervisors
accepted the Regents* and Trustees' offer of all the property
held under the 1921 Trust Agreement subject to the following
conditions :
" ( a ) The City and County of San Francisco
accepts all cash, choses-in-action, and other
property so assigned and transferred, upon the
trusts, terms, and conditions set out in that
certain agreement dated August 19, 1921,
hereinabove in Section 1 hereof referred to, and
all amendments thereto heretofore made, and said
City and County agrees to perform or cause to be
performed all the duties which by the terms of
said agreement devolved upon the Regents of the
University of California and/or Walter S. Martin,
Charles Templeton Crocker, John D. McKee, E. S.
Heller, Charles H. Kendrick, Frank F. Kilsby,
Milton H. Esberg, Herbert Fleishhacker , William
H. Crocker, and John S. Drum, and/or their
successors, as trustees.
(b) The title to all real property so conveyed
to the City and County of San Francisco, in
trust, shall vest in said City and County, but
said real property shall be used only as a site
for the War Memorial referred to in that certain
agreement of August 19, 1921.
Footnote — ^ continued
expire as heretofore classified by lot, as
follows: the terms of four of said trustees
shall expire on the second day of January, 1933;
three on the second day of January, 1935; and
four on the second day of January, 1937.
Thereafter appointments to said board shall be
for the term of six years. Vacancies on said
board shall be filled by the mayor, subject to
confirmation by the board of supervisors, for the
unexpired term becoming vacant. In making
appointments to said board, the mayor shall give
due consideration to veterans of all wars in
which the United States may have engaged, and to
such other classes of persons who may have a
special interest in the purpose for which said
war memorial is to be constructed and
maintained. The members of said board shall
serve without compensation." (Emphasis added.)
Claude M. Jarman, Jr. 9 June 1, 1987
OPINION NO. 87-11
(c) All cash, choses-in-act ion, and all other
personal property of every kind and sort so
assigned and transferred to the said City and
County, together with all income and interest
therefrom, shall be set aside for the use and
benefit of the "Board of Trustees of the War
Memorial", which said Board was created by an
amendment to the Charter of the City and County
of San Francisco, designated as Article XlV-d of
said Charter.
(d) The Supervisors of the City and County of
San Francisco hereby authorize the said Board of
Trustees of the War Memorial to administer,
execute, and perform the terms and conditions of
the trust set forth in that certain agreement of
August 19, 1921, hereinabove in Section 1 hereof
referred to, and all amendments thereto
heretofore made.
(e) The cash, choses-in-action, and personal
property of every kind and sort, so assigned and
transferred, in trust, to the City and County of
San Francisco, together with all income and
interest therefrom, and such sums of money as may
be added thereto, shall be used by the said
"Board of Trustees of the War Memorial" only in
conjunction with the proceeds from the War
Memorial bond issue, and only for the purpose of
constructing a War Memorial in the City and
County of San Francisco as provided in that
certain agreement dated August 19, 1921,
hereinabove in Section 1 hereof referred to and
all amendments thereto heretofore made."
(Emphasis added) .
The War Memorial was completed in the fall of 1932. In
November of that year, anticipating occupation of the War
Memorial Veterans Building, the City War Memorial Board of
Trustees invited all American Legion Posts in San Francisco to
name representatives to meet with the Board regarding allocation
of space in the building. (Minutes of the War Memorial Board of
Trustees [Minutes], November 17, 1932.) The 25 American Legion
Posts which responded authorized the San Francisco County Council
of the American Legion Department of California to act for them
in connection with the occupancy of the Veterans Building.
(Minutes, December 8, 1932.)
Claude M. Jarman, Jr. 10 June 1, 1987
OPINION NO. 87-11 •
The American Legion War Memorial Commission (ALWMC) is a
standing committee of the County Council, chaired by the County
Council Commander. It has:
". . . . the power and authority granted to the
San Francisco Posts of the American Legion
concerning the Veterans' Building of the San
Francisco War Memorial, and also [has] full power
and authority to adopt, make, enforce, amend,
alter and repeal rules and regulations therefor
or in connection therewith and/or for its own
government and procedure as a body."
(By-laws of the San Francisco County Council, the
American Legion, Department of California, dated
May 1951, Article VIII, par. 11(c).)
The ALWMC has represented the San Francisco Posts of the American
Legion with respect to the War Memorial Veterans Building for
over fifty years to the present time.
We conclude from our review of the history of the War
Memorial that complete control of and ultimate responsibility for
the War Memorial is vested in its Board of Trustees, subject only
to the provisions of the 1921 Trust Agreement. (See Article
XIV-D, 1928 Charter Amendment; Board of Supervisors' Resolution,
November 10, 1930; Charter Section 3.610, City Attorney Opinions
No. 621 (November 14, 1932), No. 651 (January 12, 1933).)
Complete control of the War Memorial necessarily includes
authority over the allocation and reallocation of space among the
three beneficiaries of the Trust for all the purposes of the War
Memoria 1 .
We further conclude that the Board of Trustees has a
nondelegable responsibility to assure equitable sharing of space
in the War Memorial in light of the purposes of the Trust. In
this regard, no particular beneficiary is entitled to greater
consideration than the other two beneficiaries with respect to
its needs for space in the War Memorial complex. Indeed, the
Trust itself contemplated that space requirements might change
over the years. (See Trust, par. lOA, 10C(3), General Provisions
3 and 4 . )
We also note that in addition to duties and
responsibilities imposed upon the War Memorial Board of Trustees
through the Charter and by the Board of Supervisors, the Board
has duties imposed upon it as trustees of a charitable trust. In
this regard, "[t]he duties of a trustee of a charitable trust
Claude M. Jarman, Jr. 11 June 1, 1987
OPINION NO. 87-11 •
resemble those of a trustee of a private trust (Rest. 2d Trusts,
§379)." Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [55
Cal.Rptr. 507]. Thus the Board has the following duties, among
others :
(1) To administer the trust solely in the interest of
effectuating the charitable purposes (Civil Code
§2258; Rest. 2d Trusts, §169);
(2) To exercise the highest good faith toward the
beneficiaries (Civil Code Section §2228; Rest. 2d
Trusts, §170); and
(3) To exercise at least ordinary care and diligence in
the execution of the trust (Civil Code §2259; Rest. 2d
Trusts, §174) .
ANALYSIS
QUESTION NO.
Paragraph IOC of the Trust Agreement clearly establishes a
trust in favor of the "San Francisco Posts of the American
Legion." The language itself contemplates a group of individual
posts as a collective beneficiary. In 1932, however, twenty-five
posts authorized the San Francisco County Council of the American
Legion Department of California to act for them in connection
with the occupancy of the Veterans Building. (Board of Trustees'
Minutes, November 17 and December 8, 1932.) The City Attorney
advised that this was lawful, stating specifically:
"[The County Council] constitutes a banding
together for united action. In the absence of
direct authority from the San Francisco Posts, it
is my opinion that the County Council cannot
answer for the various posts in this city, but I
believe that the American Legion posts,
individually, may, with propriety, authorize the
County Council to act for them in connection with
all War Memorial matters." (City Attorney
Opinion No. 621, November 14, 1932, p. 2.)
The ALWMC, which is a committee of the San Francisco County
Council of the American Legion, is a body separate and distinct
from the Board of Trustees. It is an organization that is
constituted, empowered, and supervised by one beneficiary under
Claude M. Jarman, Jr. 12 June 1, 1987
OPINION NO. 87-11
the Trust -- the San Francisco Posts of the American Legion. The
Posts have given the ALWMC the power and authority to act on
their behalf regarding such rights as they possess under the
Trust to occupy and use space in the Veterans Building. (By-Laws
of the San Francisco County Council, the American Legion,
Department of California (May 1951), Article VIII, paragraphs
11(c).)
The prerogative to appoint an agent to act on their behalf
reposes exclusively in the San Francisco Posts of the American
Legion. The Board of Trustees is without authority to control
the decision of the Posts to constitute, empower or dismantle the
ALWMC or the County Council. Neither the Trust nor the Charter
authorizes the Board to control the inner workings of one of the
designated beneficiaries or its agent.
The Board does have a duty, however, to insure that the
three beneficiaries of the Trust enjoy the Trust's benefits.
Should the Posts collectively delegate to an agent responsibility
to act on their behalf, which agent in turn unlawfully
discriminates in the allocation of space dedicated by the Board
for the Posts, the Board is then responsible for taking remedial
steps. Hence, if the Board finds that the ALWMC has unlawfully
discriminated against any post in the allocation of space, the
Board should order the ALWMC to appropriately revise the,
allocation. If the ALWMC then fails to comply, the Board should
warn both the Posts and their agent that it will have to explore
further remedial measures in order to effectuate the Trust with
respect to the Posts.
Whether the ALWMC has discriminated in the allocation of
space dedicated by the Board for the benefit of the Posts is a
question of fact. If the Special Ad Hoc Committee does make such
findings of fact, the Board should explore the available avenues
of remedial action.
QUESTION NO. 2
Under its broad, continuous mandate to administer and
operate the War Memorial, subject to the 1921 Trust Agreement,
the Board has the authority at any time to order an inventory of
all the space in the War Memorial complex. The Board could
order, for example, an inventory of all the space in the Veterans
Building presently being devoted to the uses of the Trust
beneficiaries (the Museum and the Posts) and to the uses of any
veterans organizations which have been authorized to occupy space
under paragraph IOC of the Trust.
Claude M. Jarman, Jr. 13 June 1, 1987
OPINION NO. 87-11 •
This broad mandate empowers the Board to allocate and
reallocate space among the three beneficiaries of the Trust.
There is no set amount of space in the War Memorial to which any
beneficiary is entitled as a matter of right. (See City Attorney
Opinions No. 651 (January 12, 1933), No. 75-127 (December 12,
1975), No. 85-3, (March 4, 1985).) The decision how best to
allocate trust assets among the beneficiaries rests in the sound
discretion of the Board of Trustees. The Board has a continuing
duty to consider the needs of all three beneficiaries and to make
space allocations that best promote the purposes of the Trust.
Although the Trust contemplated the construction of a
separate building for each beneficiary, only two buildings were
actually constructed. The practical result has been that two of
the beneficiaries have continuously shared one of the buildings
for more than fifty years. While the Trust did not specifically
provide for any tenancy arrangements in the event that fewer than
three buildings were made available, the Trust appears to give
equal deference to each beneficiary's need for space to carry out
the purposes set forth in that agreement. Reallocation of space
by the Board may therefore be necessary from time to time in
order to fulfill the several purposes of the Trust, and, indeed,
may be required in order for the Board to carry out its duties to
properly administer the Trust. (See Civil Code §§ 2228, 2258,
2259.)
Thus any inventory of space "available" to veterans in the
War Memorial necessarily begins with an inventory of space which
is presently being utilized by the Posts. The inventory must
also include any space allocated by the Posts to other veterans'
groups under paragraph IOC of the Trust. (See City Attorney
Opinion No. 621, (November 14, 1932).) Again, however, the Board
is responsible for the allocation and, when necessary,
reallocation of space to fulfill the trust purposes.-^ If the
Posts believe more space needs to be made available to them, they
must address this need to the Board. The Board must ultimately
assess any such need in light of the space requirements of the
Museum, the other beneficiary located in the building.
-^ The Trust directed that the building to be occupied by
the. San Francisco American Legion Posts be used by them for club
and meeting rooms, executive offices and auditorium purposes
(Trust, par. 8 and 10C(2)).
Claude M. Jarman, Jr. 14 June 1, 1987
OPINION NO. 87-11
QUESTION NO. 3
The Board of Trustees may require the Posts, through their
agent, the ALWMC, to account for City funds in the ALWMC ' s
possession. Therefore, the Board could order such an accounting
for the previous two years. To the extent that the ALWMC
collects and expends non-City funds, however, the Board may not
order an accounting. The Trust does not require the Posts to
account to the trustees for revenues derived from the use of
space allocated to them by the Board.
QUESTION NO. 4
The Board's duty is to administer and operate the War
Memorial, subject only to the terms of the Trust. The ALWMC, as
the representative of one beneficiary of the Trust, has a
duty to abide by the conditions and covenants set forth in the
Trust. So long as the ALWMC ' s activities and projects comply
with these covenants and so long as such undertakings are
reasonably related to the stated function of space for use of the
Posts (see Trust, par. 8, 10C(2)), the Board has no authority to
require that the ALWMC secure prior approval of its projects in
connection with the Veterans Building.
On the other hand, if the Board discovers that the -ALWMC is
engaged in or proposes to engage in a project in connection with
the War Memorial which is inconsistent with the Trust purposes,
the Board has the authority to order the ALWMC to cease the
project. Indeed, the Trustees must take remedial action under
such circumstances since they owe a duty to administer the Trust
solely in the interest of effectuating its purposes and such an
activity is not within the scope of the Trust.
QUESTION NO. 5
Neither the Charter nor the Trust Agreement authorizes the
Board of Trustees to award attorneys' fees.— ^ In the absence
of any express authorization, the Board may not order an award of
such fees. We observe that the Trust states that resolution of
disputes between the Regents and the Trustees shall be submitted
pursuant to statute or the agreement of the parties (Code of
Civil Procedure §1021 et seq. ) .
Claude M. Jarman, Jr. 15 June 1, 1987
OPINION NO. 87-11 •
to a specific arbitration panel before a suit may be instituted,
but no mention is made of attorneys' fees. (General Provisions,
par. 9.)
QUESTION NO. 6
The answer to this question turns on whether a trust or the
acts of a beneficiary of a trust are subject to the provisions of
Administrative Code Chapters 12B and 12C. We examine each
ordinance separately.
Chapter 12B applies to discriminatory employment practices
by City contractors during the performance of a City contract.
(Adm. Code Section 12B.5.) The definition of "contract" is as
follows :
"'Contract' shall mean and include an
agreement to provide labor, materials, supplies
or services in the performance of a contract,
franchise, concession or lease granted, let or
awarded for and on behalf of the City and County
of San Francisco." (Adm. Code Sec. 12B.l(a).)
In a closely analogous context, this office has advised that
an identical definition of the term "contract" found in Adminis-
trative Code Chapter 12D contemplates a relationship under which
the City tenders consideration and in exchange procures services,
labor, supplies and/or materials it desires for its operational
needs from the private sector. (City Attorney Letter Opinion,
dated 2/18/87 to Moira Shek So; see also City Attorney Opinion
No. 84-29, p. 3.) Since Chapter 12B uses the same language, we
conclude the term "contract" in Chapters 12B and 12D has the same
meaning .
The Trust is not an agreement or arrangement by the City to
procure services, labor, or materials from the beneficiaries.
Moreover, the City has not granted or awarded the beneficiaries
of the trust the privilege of using property owned by the City.
(See definitions of "concession" and "franchise" in Adm. Code
Section 12B.l(a).) The Trust beneficiaries are entitled to use
City property by virtue of the Trust. The City, by its
acceptance of the Trust by the Board of Supervisor's Resolution
of November 10, 1930, owes a duty through the Board to the three
beneficiaries, including the Posts, to administer the Trust and
to secure for the beneficiaries their rights under the Trust.
(Trust, par. 9.) Accordingly, Chapter 12B is inapplicable in
this case.
Claude M. Jarman, Jr. 16 June 1, 1987
OPINION NO. 87-11
Administrative Code Chapter 12C, like 12B, concerns
agreements involving the use of City property by lessees,
concessionaires, franchisees and permittees. In particular.
Chapter 12C covers all "... contracts, franchises, leases,
concessions or other agreements ..." involving the lease,
rental or other use of real property and improvements thereon of
the City and County of San Francisco.
Section 12. C. 2 defines a contract to " . . . mean and
include an agreement to operate from or make use of real property
of the City and County of San Francisco in the operation of a
business, social or other establishment or organization." It is
evident that neither the relationship between the City and County
of San Francisco, through the Board, and the Posts nor the
relationship between the City and the prior trustees and Regents
of the University of California constitutes a contract within the
meaning of Section 12. C. 2.
Section 12. C. 2 defines a lease as a contract by which the
City grants a person temporary possession and use of property for
compensation. As described in this opinion, the tenure of the
Posts in the War Memorial facilities does not emanate from a
lease .
Section 12. C. 2 defines a concession as, "... a grant of
land or other property by or behalf of the City and County of San
Francisco to a person for the purpose or use specified in said
grant." The tenure of the Posts in the War Memorial facilities
does not emanate from a grant of land or property from the City
and County of San Francisco. Rather, the City retains title to
the property and holds it in trust for the benefit of the three
beneficiaries. The Board administers that trust on behalf of the
City. In exercising its power to allocate space under the terms
of the Trust, the Board is not granting any property by or on
behalf of the City and County of San Francisco.
Section 12. C. 2 defines the term "franchise" as a " . . .
grant of land or other property by or on behalf of the City and
County of San Francisco for the purpose or use specified in said
grant". As explained above, neither the City nor the Board has
made a grant of property to the Posts.
Finally, in its general statement of policy in Section
12.C.1, the Administrative Code refers to, "all contracts,
franchises, leases, concessions or other agreements" (emphasis
added). It is apparent that the drafters of Section 12. C
contemplated consensual relationships. The duties owed by the
Claude M. Jarman, Jr
17
June 1, 1987
OPINION NO. 87-
Board to the beneficiaries emanate from the Trust rather than
from any consensual relationships. Hence, Chapter 12C does not
confer authority upon the Human Rights Commission to investigate,
mediate or resolve the questions at issue.
In summary, under Administrative Code Chapters 12B and 12C,
the Human Rights Commission has no jurisdiction to mediate,
investigate or adjudicate the charge of discrimination against
the ALWMC.
Respectfully submitted.
LOUISE H. RENNE
City Attorney
MARA E. ROSALES
Deputy City Attorney
APPROVED:
.^
-u. A-^
LOUISE H. RENNE
City Attorney
4187F
ity and County off San Francisco:
Offfice off City Attorney
Louise H. Renne,
^- City Attorney
July 2, 1987
SUBJECT:
. OPINION NO. 87-12
Berth Fees at tne San Francisco Yacht Harbor
REQUESTED BY: John i^ . Taylor
Clerk, Board of Supervisors
PREPARED BY;
Burk E. Delventhal
Deputy City Attorney
Rose Miksovsky
Deputy City Attorney
QUESTION PRESENTED
DOCUMENTS DEPT.
JUL 9 1S87
SAN FRANCISCO
PUBLIC LIBKARV
Does San Francisco's Recreation and ParK Commission have
the authority to set a differential berth fee structure based
upon residency in San Francisco for berthing boats at the San .
Francisco Yacht Harbor?
No.
CONCLUSION
INTRODUCTION
On Dehalf of Supervisor Hongisto, you request this office
to advise you whether San Francisco's Recreation and Park
Commission ("Commission") has the authority to charge San
Francisco residents a lower berth fee than nonresidents for
berthing boats at the San Francisco Yachc Harbor (Harbor) . The
San Francisco Yacht Harbor is located on tidelands. Tne State of
California granted San Francisco title to these lands pursuant to
granting statute Chapter 437, Statutes of 1935.1/ The property
is now administered unaer tne Commission's jurisdiction.
i/cnapter 437 of the Statutes of 1935 states in relevant part:
Ail of the above described real property hereby
granted shall be forever held by said City and
County of San Francisco and by its successors in
trust for the uses and purposes and upon the
express conditions following, to wit: said real
property shall be used solely for aquatic,
recreational, boulevard, park and playground
purposes .
This statute was amended twice, once to extend the period
of time for which an assignment or lease could be made to the
period of twenty (20) years (Statutes of 1963, Cnapter 1298) and
a second time to extend it to forty (40) years (Statutes of 1970,
Chapter 670) .
5) 554-4283 Room 206 City Hall San Francisco 94102-4682
OPINION NO. 87-12
John L. Taylor
July 2, 1987
Your inquiry raises tne question whether there are any
limitations on the Commission's autnority to set a differential
berth fee structure based upon residency in San Francisco. The
response requires an analysis of the tideland trust doctrine
which imposes specific limitations and conditions upon the use of
tidelands.
ANALYSIS
r igh
fish
515,
publ
and
Engl
Amer
r igh
for
Una
t to
ing . "
521.
ic ' s
incap
ish c
ican
t to
tneir
er t
tide
a
Tn
r ign
able
ommo
revo
all
own
he tideland trust doctrine "the public owns the
lands for purposes sucn as commerce, navigation,
ty of Berkeley v. Superior Court (198U) 25 Cal.id
IS doctrine "originated in Roman law, wnicn held the
t to such lanas to be illimitaole and unrestrainable"
of indiviaual exclusive appropriation. Ibid. The
n law developed similar limitations, and after the
lution, the people of each place acquired "absolute
. . . navigable waters, and tne soils under them,«
common use. ..." [Citation omitted.] Ibid.
theref
Ber kel
San Fra
ore, is
ey v . S
ncisco Yacht
impressed wi
uperior Court
tnese
Ibid.
tidela
trust
tradit
V. Wni
tidelan
As tru
nds for
purpose
lonally
tney (1
recogn
broade
right
ecolog
purpos
ize tha
r, incl
to pres
ical un
es, and
ds d
stee
the
s.
def
971)
t th
udin
erve
its
as
evol
for
Den
Ibid
ined
6 C
e pe
g th
the
for
open
vea t
the
ef it
Tn
as f
al.3d
rmiss
e r ig
tide
scien
spac
Harb
th a
(19
o th
publ
of a
e pu
ishi
251
ible
nt t
land
tifi
e .
or is lo
public
80) 26 C
e State
ic, the
11 the p
blic tru
ng , navi
, 259-26
range o
o hunt,
s in the
c study.
Ibid.
cated on tidelands, and
trust. See, City of
al.3d 515, 521. Title to
of California in 1850.
State can only use
eople of the State and for
st purposes were
gation and commerce. Marks
0. However, courts now
f public uses is far
bathe or swim, and the
ir natural state as
for environmental
San Francisco oDtained tne lands upon which the Harbor is
located through grants from the State of California. Tne effect
of these legislative grants is the creation of a trust in wnich
the grantee (San Francisco) becomes trustee of tne land and the
State is tne settlor-beneficiary. State Lands Commission,
A Report on the Use, Development and Administration of Granted
Tidelands and Submerged Lands, p. 43 (1975) .
These lands must be used for activities which promote
statewide, rather than purely local, purposes. See, Mallon v.
City of Long Beach (1955) 44 Cal. 2d 199, 209. This means that
all developments, leases, revenues, etc., relating to granted
tide and submerged lands must contribute to the benefit of the
OPINION NO. 87-12
John L. Taylor 3 July 2, 1987
State's population as a whole and not merely to the local
population. I_d. at 211. Furthermore, all revenues generated as
a result of San Francisco's administration of the lands must be
used to further trust purposes and benefit the people of ttie
State, rather than merely local concerns. See , City of Long
Beach v. Morse (1947) 31 Cal.2d 254, 258.
The State Lands Commission is the state agency which is
charged with the administration of the granted lands program.
Public Resources Code Section 6216. The State Lands Commission
adopts the principle that all activities, developments, and
leases, relating to the granted tidelanas and submerged lands
must contribute to the benefit of the people of the State of
California and not merely to the local population. State Lanas
Commission, A Report on the Use, Development, and Administration
of Granted Tidelands and Submerged Lands, p. 44 (1976). The
State Lands Commission holds that "local trustees wno orient
their use of grantea lands toward purely local interests are in
violation of the public trust they have chosen to administer."
Ibid. It follows that all revenues generated from the
administration of these lands must be used to further trust
purposes and benefit the people of the State, not just local
concerns. I_d. , at 44 and 45.
Finally, the State Lands Commission states that while each
local trustee has the authority to establish the rates to be paid
by lessees, "the trustees must, at the minimum, establish lease
and permit rates which are reasonaoly consistent with those
charged for land of similar location and value or for uses of
similar nature." Id. at 45. In addition "any failure of a
trustee to maximize such revenue may be considered a violation of
Section 25, Article 13 of the State Constitution (prohibition of
gift of public funds, property, etc., to private individuals,
corporations, etc.)." Ibid .
A lower fee for berths at the Harbor based upon residency
in San Francisco clearly favors local over statewide interests.
To the extent that this dual fee structure favors residents over
nonresidents, the use of tne tidelands promotes local over
statewide purposes. The tideland public trust doctrine prohibits
such favored treatment. See, Mallon at 211.
Moreover, if revenues generated from this dual fee
structure are utilized to enable San Francisco residents to pay a
lower fee, this violates the public trust requirement that all
revenues be used to benefit the people of the State, rather than
local concerns. Finally, a disparate fee structure based upon
residency would manifest San Francisco's failure to maximize the
OPINION NO. 87-12
John L. Taylor
July 2, 1987
revenues that could be generated. Hence, such a fee structure
would De a violation of Section 25, Article 13 of the State
Constitution which prohibits a gift of public funds.
We conclude that the tideland public trust doctrine
prohibits the Commission from developing a fee structure for the
use of tideland property that gives preferential treatment to
local residents. Therefore, the Commission does not nave the
authority to charge San Francisco residents a lesser berth fee
than nonresidents for berthing boats at the Haroor.
Respectfully submitted,
LOUISE RENNE
City Attorney
BURK E. DELVEN^HAL
Deputy City Attorney
lOSE MIKSOVSKY '
Deputy City Attorney
Approved :
^^ -^y. •i^.r^
LOUISE ri. RENNE
City Attorney
8589F
City and County of San Francisco:
Louise H. Renne.
'• City Attorney
July 2, 1987
OPINION NO. 87-13
Office of City Attorney
DOCUMENTS DEPT.
JUL 10 'S8^
SAN HKMi^v;i;»CQ
PdRIJC I HRPARY
SUBJECT:
Sanitation Requirements for Vending Machines
REQUESTED BY: PAUL SCHWABACHER, DIRECTOR
Bureau of Environmental
Health Services
PREPARED BY;
ROBERT S. MAERZ
Deputy City Attorney
QUESTIONS PRESENTED
1. Has the State of California preempted San
Francisco Health Code section 467 with respect to vending
machines which dispense bulk coffee and soft drinks by enactment
of section 27541 of the California State Health and Safety Code?
2. Must the San Francisco Health Department place
under permit those vending machines as defined by the state which
were previously exempted by local ordinance?
1. Yes
Yes.
CONCLUSIONS
ANALYSIS
1. You inquired of this office whether Health and
Safety Code section 27541 preempts San Francisco Health Code
section 467 with respect to the regulation of vending machines.
If so, you have inquired whether the Department of Health must
place under permit those vending machines which were previously
exempted by local ordinance. The questions arose because current
San Francisco Health Code provisions concerning the regulation of
vending machines are in conflict with the California Uniform
Retail Food Facilities Law (CURFFL).-''
-'^CURFFL (California Health and Safety Code
sections 27500 et seq.) replaced the California Restaurant Act
(former California Health and Safety Code sections 28520 et seq.)
in 1984.
(415) 864-1952
214 Van Ness Avenue
San Francisco 94102-4574
OPINION NO. 87-13
Mr, Schwabacher 2 July 2, 1987
San Francisco Health Code section 467 subsection
(a) defines "Vending Machine" as follows:
(a) "Food vending machine" means any
self-service device which, upon insertion of a
coin, coins, or token, or by similar means,
dispenses unit servirlgs of food or beverage,
either in bulk or in package, without the
necessity of replenishing the device between
each vending operation, that in operating has
food product contact surfaces or dispenses foods
of a perishable nature, including wrapped
sandwiches or pastry goods, but not including
devices dispensing peanuts, wrapped candy, gum,
bottled beverage or ice exclusively.
Section 467 further specifies the procedure for obtaining a
permit which is required prior to the use and operation of any
vending machine.
California Health and Safety Code section 27541 defines
"Vending Machine", as follows:
"Vending machine" means any self-service
device which, upon insertion of money or tokens,
dispenses food without the necessity of
replenishing the device between each vending
operation. "Vending machine" does not include any
such device dispensing exclusively peanuts, nuts,
popcorn, ballgum, or hard candy; prepackaged
candy, cookies, crackers, or similar snacks and
beverages which are not potentially hazardous as
defined in Section 27531, and prepackaged ice.
San Francisco Health Code section 467 is in conflict
with Health and Safety Code section 27541 to the extent the
latter section excludes from the definition of vending machine
devices which dispense "nuts, popcorn . . . hard candy, . . .
cookies, crackers or similar snacks and beverages which are not
potentially hazardous as defined in section 27531. ..."
Section 27531 defines "Potentially hazardous food" as
" . . . food capable of supporting rapid and progressive growth
of microorganisms that may cause food infections or food intox-
ications. 'Potentially hazardous food' does not include . . .
foods that have a ph level of 4.6 or below, a water activity (Aw)
value of 0.88 or less under standard conditions, or food products
in hermetically sealed containers processed to prevent spoilage."
OPINION NO. 87-13 ,
Mr, Schwabacher 3 July 2, 1987
Whether beverages such as bulk coffee and soft drinks
are "potentially hazardous foods" depends upon a factual
determination of the beverage's ph level, water activity value
and the ability of the beverage to support rapid and progressive
growth of microorganisms that may cause food infections. Devices
which dispense beverages which are not "potentially hazardous
foods", as defined in section 27531, are not considered vending
machines under the state definition. Health Code section 467,
however, contains no equivalent exclusion for such devices and
requires that vendors obtain a permit prior to operation.
The constitutional authority for San Francisco to enact
ordinances regulating vending machines is set forth in Article
XI, section 7 of the California Constitution which confers
authority upon cities and counties to exercise the police power
of the state. That section provides:
"A county or city may make and enforce within its
limits all local, police, sanitary, and other ordinances and
regulations not in conflict with general laws." California
Constitution, Article XI, section 7.
The City's constitutionally derived police power
co-exists with that of the state. However, where local law
conflicts with state law, local law is preempted. Lancaster v.
Municipal Court (1972) 6 Cal.3d 805. Under the doctrine of
preemption, a local ordinance conflicts with State law if it
attempts to regulate an area that has been expressly preempted by
state law or if it duplicates or contradicts existing state law.
(Id.)
In this instance, San Francisco Health Code section 467
attempts to regulate an area that state law has expressly
preempted. California Health and Safety Code section 27501
provides :
§ 27501. Legislative findings
The Legislature finds and declares that the
public health interest requires that there be
uniform statewide health and sanitation
standards for retail food facilities to assure
the people of this state that food will be pure,
safe, and unadulterated. It is the intention of
the Leg
isla
ture
to
occupy the
w
hole field of
health
and
sanitation standar
ds
for these food
f aci li t ies ,
and
the
standards
set forth in this
chapter
and
regu
lat
ions adopted
pursuant to its
provisions
shall
be
exclusive
o
f all local
health
and
sanitation standar
ds
relating to
OPINION NO. 87-13
Mr. Schwabacher
July 2, 1987
Section 27501 of the CURFFL evinces a clear legislative
intent to occupy the entire field of health and sanitation
standards of food facilities such as vending machines. Thus, the
legislature has superceded the power of the Board of Supervisors
to enact similar legislation.
Accordingly, California Health and Safety Code section
27541 preempts San Francisco Health Code section 467.
2. As discussed above, any conflict between provisions
of the City's Health Code and the CURFFL must be resolved in
favor of state law. Therefore, if there are vending machines
which were previously exempt under local ordinance but fall
within the definition of vending machine as set forth in Health
and Safety Code section 27541, those devices are subject to state
permit procedures.
In reality, however, local law appears more restrictive
than state law, rather than the reverse. As discussed above,
San Francisco Health Code section 467 includes more devices
within the definition of vending machine than does Health and
Safety Code section 27541. Accordingly, local law appears to
require permits for a broader range of devices than does the
CURFFL.
The City's permit procedure for vending machines should
be amended to conform with the enforcement, permit and inspection
provisions of the CURFFL which are found at sections 27550-27584
of the Health and Safety Code. Provisions of the CURFFL
concerning vending machines are found generally at sections
27650-27659.
Respectfully submitted.
APPROVED :
ROBERT S. MAERZ
Deputy City Ait
2^^-^^^
LOUISE H. RENNE
City Attorney
RSM:dls/3751w
;ity and County off San Francisco:
Offfice off City
Louise H. Renne,
' City Attorney
July 17, 1987
OPINION NO. 87 - lA
SUBJECT: Authority of the War Memorial
Board of Trustees To Adopt A
Blanket Policy Regarding Aostention
REQUESTED BY: THELMA SHELLEY
Executive Director, San Francisco War Memorial
PREPARED BY: BURK E. DELVENTHAL
Deputy City Attorney
DOCUMENTS DEPT.
SAN FRANCISCO
PURI.ir. » IRPADV
QUESTION PRESENTED
May the V^ar Memorial Board of Trustees adopt a policy that
automatically allows Board members to abstain from voting on
decisions affecting tenant organizations, where the trustee also
sits on the board of directors of the tenant organization?
No.
CONCLUSION
ANALYSIS
Your request for advice is related to two earlier opinions
of this office. In San Francisco City Attorney Opinion No.
79-37, this office concluded that positions on the War Memorial
Board of Trustees and on the board of directors of a nonprofit
tenant organization of the War Memorial were not incompatible
offices. Our conclusion was based on the nistorical relationship
between the War Memorial and the tenant organizations, as well as
the history of the trust creating the War Memorial.
5) 554-4283
Room 206 City Hall
San Francisco 94102-4682
Opinion No. 87 - 14
Tnelma Sheliey - 2 - July 17, 1987
In Opinion No. 84-02, we advised that though the offices
were not incompatible, a member of the Board of Trustees owed a
duty of undivided loyalty to the War Memorial Board.
Accordingly, when a matter came up affecting a tenant
organization, a trustee who was also on the board of directors of
the tenant organization had to disclose his or her positions, ask
that his/her dual status be noted in the official records, and
abstain from voting.
You now ask whether the War Memorial Board of Trustees may
adopt a blanket rule authorizing trustees to abstain from voting
on matters that affect tenant organizations for which they serve
as directors. We conclude that the War Memorial Board may not
adopt such a rule.
The Charter imposes certain prohibitions on the activities
of public officers, including a prohibition against an officer
becoming
"... directly or indirectly interested in any
contract, franchise, right, privilege, or sale or
lease of property awarded, entered into, or
authorized by him in his capacity as an officer
or employee or by an officer or employee under
his supervision and control, or by a board or
commission of which he a member. ..."
We have opined in the past that this prohibition extends beyond
matters in which an individual has a personal financial
interest. The prohibition includes circumstances where the
individual sits on the board of directors of an nonprofit entity
and where the individual also serves on a City board or
commission that is about to award a contract or lease to that
nonprofit entity. See San Francisco City Attorney Opinion No.
75-83.
Charter Section 8.105 does not prohibitan official from
continuing to sit on a board or commission when
". . . the official has only a remote interest in
the transaction and the fact of the interest is
disclosed and noted in the official records of
the board or department and thereafter the board
or commission authorizes, approves or ratifies
the transaction in good faith by a vote of its
membership sufficient for the purpose without
Opinion No. 87 - 14
Tnelma Snelley - 3 - July 17, iyB7
counting the vote or votes of the officer or
member with remote interest."
San Francisco Charter Section 8.1U5(h).
Among the remote interests identified by Section 8.105 is
that of "a nonsalaried officer of a nonprofit corporation."
Section 8.105 recognizes that this situation will occur from time
to time. The section establishes a procedure that prevents the
official with the conflict from acting out of potentially divided
loyalties, while allowing that official to continue to serve both
the public and the nonprofit entity. That procedure requires the
official to disclose the conflict, note the conflict in tne
record, and abstain from participating in the decision.
A blanket rule that relieves certain members of the Board
from voting on specified matters would circumvent this rule. It
would frustrate one of the purposes of the Charter provision,
which is to notify the public each time an official has an
interest in a matter that comes before the board or commission on
which he or she sits.
In addition, a blanket rule would be inconsistent with
Charter Section 3.500(a). That section requires all boards and
commissions to adopt a rule requiring each member present at a
meeting to vote for or against every question that is put before
the commission for a vote, unless the member is excused from
voting by a majority of the members present.
In considering the relationship between Charter Sections
8.1U5 and 3.500, we have orally advised that members with
conflicts such as those described above must disclose and
abstain, but need not obtain leave of the board or commission to
abstain from voting. The specific provisions of Section 8.105(h)
prevail over Section 3.500, but the latter section does manifest
an intent that public officials be accountable for their
participation or non-participation on every matter that comes
before them. A rule automatically allowing ti5ustees to abstain
would negate the disclosure requirement. Such a rule would
deprive the public of information on why an official was
abstaining on a particular matter.
I
/ / /
opinion No. 87 - 14
Tnelma Snelley - 4 - July 17, 1987
Accordingly, you are advised that the War Memorial Board of
Trustees may not adopt a blanket rule excusing certain members
from participating in decisions affecting particular outside
nonprofit agencies with which the Board has some business
relationship.
Respectfully submitted.
/?y.j,/. r.. /y:^J'^.i-^^^.{
BURK E. DELVENTHAL
Deputy City Attorney
^^:^i^
APPROVED:
^,_^ -/-^.i^K^
LOUISE H. RENNE
City Attorney
0309g
City and County off San Francisco:
Office off City Attorney
Louise H. Renne,
City Attorney
July 21, 1987
OPINION NO. 87 -15
DOCUMENTS DfcPT.
JUL2 4 1S57
San KKAlSiCISCO
PIIRI.IC I.IBRADV
SUBJECT:
REQUESTED BY:
PREPARED BY:
Duty of SFUSD to Provide Medical Examinations to
Employees and Students When Asoestos Is Found in
Scnool Buildings.
Ramon Cortines
Superintendent of Schools
San Francisco Unified School District
Elaine C. Warren
Deputy City Attorney
QUESTIONS PRESENTED
(1) Do occupational safety and health laws and
regulations providing for no cost medical examinations require
tne San Francisco Unified Scnool District (SFUSD) to provide
medical examinations to past or present employees who believe
they have been exposed to asbestos?
(2) Do occupational safety ana health laws and
regulations require SFUSD to provide no cost medical examinations
to past or present students who believe tney have been exposed to
asbestos?
(3) Do provisions in the Salary Standardization Ordinance
allowing for no cost medical examinations for stationary
engineers require SFUSD to provide medical examinations to
stationary engineers wno believe they have been exposed to
asbestos?
CONCLUSIONS
(1) Occupational safety and health regulations require
employers to provide no cost medical examinations to present
employees who are or, in the judgment of a trained expert, may be
reasonably expected to be exposed to airborne asbestos fioers in
concentrations at or greater than 0.1 fiber per cubic
centimeter. Employers are not required to provide medical
examinations to former employees.
'15) 554-4283
Room 206 City Hall
San Francisco 94102-4682
Ramon Cortines
Superintendent of Schools -2- July 21, 1987
(2) No.
(3) Tne Salary Standardization Ordinance, l9b6-87,
Section IV. M, whicn is applicable to classified SFUSD employees,
requires the SFUSD to provide annual medical examinations, on
request, to stationary engineers who are exposed to conditions
hazardous to health. Under this provision, a stationary engineer
who reasonaoly believes he has been exposed to asbestos is
entitled to a meaical examination.
ANALYSIS
Ramon Cortines, Superintendent of tne San Francisco Unified
Scnool District, asks whether occupational safety ana health
regulations or any local laws or SFUSD labor contracts require
SFUSD to provide free medical examinations to all past ana
present employees and students who believe tney may have been
exposed to asoestos in school buildings. The first part of this
opinion analyzes the circumstances under wnich Cal-OSHA Rule 5208
and new federal OSHA regulations require the school district to
provide free medical examinations to persons exposed or possibly
exposed to airborne asbestos.
The second part of tnis opinion analyzes provisions in the
Salary Standaraization Ordinance which provide for free medical
examinations for stationary engineers under specific
circumstances .
I . Scope of OSHA Asbestos Regulations
California regulates employee exposure to asbestos through
the California Division of Inaustrial Relations (Cal-OSHA)!/.
Tne Cal-OSHA asbestos regulation, 8 CAC 5208, imposes duties on
an employer to provide a safe place of employment for his or her
employees. Tne terms "employer", "employee", "employment" and
"place of employment" applicable to 8 CAC 5208 are defined in the
1./ As provided in the federal Occupational Safety and
Health Act, California has opted to taKe over r esponsioility from
the federal Department of Laoor for enforcement of worker safety
regulations. 29 U.S.C. Section 667 (1985). Tne California
program is uncertain at this writing because of a proposal by the
Governor to turn tne Cal-OSHA program over to the federal
government. Even if this occurs, however, Cal-OSHA will continue
to set standards and enforce occupational safety regulations in
the public sector, as the federal Act does not encompass public
sector employees. 29 U.S.C. Section 652 (5) (1985) .
Ramon Cortines
Superintendent of Schools -3- July 21, 1987
California Occupational Safety and Healtn Act of ly73. Laoor
Code Sections 530U et seq. Employers covered by Cal-OSHA
regulations are defined in Labor Code Section 3300 as:
(a) the State and every State agency, (b) each
county, city, district, and all public and quasi
public corporations and puDlic agencies, (c) every
person incluoing any puolic service corporation,
whicn has any natural person in service, and (d) tne
legal representative of any aeceased employer.
See also Labor Code Section 6300. As the Act covers all state
and local governmental entities in California, incluaing school
districts, the San Francisco Unified School District is an
employer witnin tne meaning of the Occupational Safety and Health
Act.
The Act covers all locations where SFUSD carries out any
type of employment activity. The Act defines "places of
employment" in Laoor Code Section 6303(a) as:
[Any] place, and the premises appurtenant tnereto,
where employment is carried on, except a place the
nealth and safety jurisdiction over whicn is vested
oy law in, ana actively exercisea by, any state or
federal agency other tnan tne aivision.
Employment is defined in Labor Code Section 6303(b) as:
[T]he carrying on of any trade, enterprise, project,
industry, business, occupation or work, including
ail excavation, demolition, and construction work,
or any process or operation in any way related
tnereto, in wnicn any person is engageo or permitted
to work for hire except househola domestic service.
Tnus tne SFUSD is an employer, and any location where it carries
out work for hire is a place of employment.
The Act extends worker safety protections to "employees" of
tne employer. Employee is defined in Labor Code Section 6304.1
as :
[E]very person who is required or directed by any
employer, to engage in any employment, or to go to
work or be at any time in any place of employment.
The SFUSD has a duty to provide a safe place of employment
only to persons wno are engaged in employment at a SFUSD
location. Absent an employer-employee relationship, an employer
Ramon Cortines
Superintendent of Schools -4- July 21, 1987
is not bound by tne safety and health requirements imposed by
Cal-OSHA wnich would otherwise be applicable under that Act.
Elder V. Pacific Tel. & Tel. Co. (1977) 66 Cal.App.3d 650,
662-663. Tnus, once an individual is no longer "required or
directed by any employer, to engage in any employment, or to go
to work or be at any time in any place of employment," the
individual is no longer an employee within the meaning of the
California Occupational Safety and Health Act. Lab. Code
§ 6304.1.
Furtnermore, the term "employee" does not encompass persons
such as students or memoers of the public who are not engaged in
employment for SFUSD. See 62 Op. A.G. 114, 116 (ly79) concluding
that volunteer firefighters are not employees under Cal-OSHA
because they do not work "for hire." Tne SFUSD owes a duty to
provide a safe work environment to a student only if the student
works for hire for the SFUSD in addition to attending scnool. In
such a case, the SFUSD" s duty to provide a safe work environment
applies only to locations where the individual engages in
employment .
To summarize, 8 CAC 5208 imposes a duty on the SFUSD, as an
employer, to comply witn the specific requirements in the
regulation as they apply to individuals wno are presently
employed by SFUS^. The worker protection provisions in 8 CAC
5208 do not extend to past employees of the SFUSD or past or
present students attending SFUSD schools but not employed by
SFUSD.
II . Medical Examination Requirements in QSHA Regulations
Cal-OSHA Safety Oraer No. 5208 requires employers to assure
that their employees are not exposed to asbestos levels above a
"permissible exposure limit" or PEL. The regulation also sets an
"action level" for asbestos, which is an asbestos concentration
lower than tne PEL. When asbestos concentrations reach or may be
expected to reach the action level, the employer must perform air
monitoring, keep records, provide medical examinations to
employees and train employees in how to protect themselves from
asbestos exposures. 8 CaC 5298(g), (j), (n) .
Tne permissible exposure limit is expressed as an 8-hour
time-weighted average (TWA) concentration. The current Cal-OSHA
8-hour TWA concentration is 2 fibers, longer than 5 micrometers,
per cubic centimeter (2 f/cc) . However, the federal Occupational
Safety and Health Administration (federal OSHA) has recently
revised its 8-hour TWA exposure limit, lowering it from 2.0 f/cc
to 0.2 f/cc. California was required to revise its asbestos
standard to make it at least as stringent as tne federal standard
by December 20, 1986. See 51 Fed. Reg. 22733 (June 20, 1986).
Ramon Cortines
Superintendent of Schools -5- July 21, 1987
Cal-OSHA has not yet revised its asbestos regulation to bring it
up to the new federal stanaard. It is assumed however, that an
asbestos standard at least as strict as tne federal standard will
eventually be in effect in California. Therefore, this opinion
points out instances in wnich the new federal meaical examination
requirements are more stringent than California's existing
rule.^/ Tne SFUSD should follow the new federal standara to
the extent it is stricter than the state standard to assure
adequate protection for its employees.
The California air monitoring requirements are set out in 8
CAC 52U8(g)(A) as follows:
The employer shall sample the air and determine
tne concentration of asbestos fibers within the
breatning zone of employees whose exposure to
airborne asbestos may exceea an 8-hour time-weigntea
average concentration of 0.1 fiber, longer than 5
micrometers, per cubic centimeter due to work
assignments (s) at or near operations with asbestos
or asoestos-containing products wnich result in the
release of asbestos fibers.
The new federal standard for monitoring is similar in that it
specifies tnat monitoring is required wnen workers may reasonably
be expected to be exposed to airborne concentrations at or above
the action level of 0.1 f/cc. 51 Fed. Reg. 22733, to be codified
at 29 CFR 1910.1001(d) (2).
A/ Tne new federal OSHa standard for asbestos contains
two separate standards: one for general industry and one for the
construction industry, which protects employees performing
alterations, repairs, maintenance or renovation of structures.
California has not adopted an asbestos standard specifically for
construction workers. Thus at tnis time, 8 CAC 5208 applies to
all workers. The medical examination provisions for the
construction industry are similar to those for general industry,
except for the employees who are covered. Construction workers
are covered when tney are (1) exposed to levels of asbestos at or
above the action level for 30 or more days per year or (2)
required to wear negative pressure respirators. 51 Fed. Reg.
22760 (June 20, 1986), to be codified at 29 CFR 1926. 58(m). This
opinion does not discuss the construction industry standard.
Where this opinion discusses the federal standard, it is
referring to the federal standard for general industry.
Ramon Cortines
Superintendent of Schools -6- July 21, 1987
Under California regulation, monitoring must be repeated
every six montns if exposure to airborne asbestos may exceed an
8-hour TWA of 0.5 f/cc or a ceiling concentration (i.e. maximum
reading at any time) of 5 f/cc. 8 CAC Section 5208(g) The
federal standard is stricter, in part, in that it requires
monitoring at least every six months where exposures may
reasonably be foreseen to exceed tne action level of 0.1 f/cc
(measured as an 8-hour TWA). 51 Fed. Reg. 22734, to be codified
at 29 CFR 1910.1001(d) (3) .V
Wnen airoorne asbestos levels nave been determined to
exceed or may be reasonably expected to exceed the 0.1 f/cc
level, tne Cal-OSHA regulation requires the employer to provide
no cost medical examinations. 8 CAC Section 520b (]). Tne
federal standard is nearly identical, except that it requires
medical examinations for employees who are or will be exposed to
airborne concentrations at or above tne action level. 51 Fed.
Reg. 22737, to be coaified at 29 CFR 1910 . 1001 (1) (1) .
Specifically, 8 CAC 5208(j) states:
Tne employer snail provide or make available at
no cost to the employee a comprehensive meoical
examination by a licensed physician in accordance
witn this subsection for each employee engaged in
an occupation where exposure to airborne
asbestos, without regard to the use of
respiratory protective equipment, has been
determined to exceed, or may be reasonably
expected to exceed, an 8-hour time-weighted
average concentration of 0.1 fiber, longer than 5
micrometers, per cubic centimeter.
Thus the no cost medical examination requirements are
triggered eitner when monitoring establishes that the action
levels are exceeded or the employer has reason to expect that the
action level may be exceeded. In either case the employer must
provide or make medical examinations available to his or her
employees who are engaged in work where they may be exposed or
2./ Tne California standard is arguably stricter in part
because in addition to requiring monitoring when a specific
8-hour TWA concentration is exceeded, it requires monitoring when
a ceiling level is exceeded. Federal OSHA has interpreted its
action level of 0.1 f/cc to result in effect in a ceiling level
of 6.4 f/cc, which is higner than the California ceiling level of
5 f/cc. 51 Fea. Reg. 22682.
Ramon Cortines
Superintendent of Scnools -7- July 21, 1987
are exposed to asoestos. In sum, the monitoring and medical
examination requirements go hand in hand. If airborne asoestos
levels may exceed (or in the case of the federal standard, reach)
the action level, the employer must botn monitor and provide
medical examinations.
Cal-OSHA requires medical examinations to be conducted
within 30 days of the initial assignment and within 30 days of
termination of employment, if an examination has not been
performed within the last year. The new federal standard is
stricter in that it requires a medical examination prior to
placement of employees in an occupation where they will be
exposed to airborne concentrations of asbestos at or above the
action level. 51 Fed. Reg. 22737, to be coaified at 29 CFR
1910.1001(1) (2) .
Cal-OSHA requires periodic medical examinations after the
initial examination. The frequency varies depending on the age
of the employee and the number of years that have past since the
initial exposure to asbestos. 8 CAC 5208 ( ] ) ( ( 1) (B) . Tne new
federal standard takes a different approach, requiring annual
medical examinations for all employees, altnough chest x-rays may
be given less frequently for employees under 40 or exposed to
asbestos for less than 10 years. 51 Fed. Reg. 22737, to be
codified at 29 CFR 1910 . 1001 (1) (3 ) .
Finally, medical examinations must be provided witnin 30
days before or after termination of employment, if no examination
has been performed witnin the last year. 8 CaC 5208 ( ] ) (1) (A) ;
51 Fed. Reg. 22737, to be codified at 29 CFR 1910 . 1001 (1) (4) .
Neitner 8 CaC 5208 nor the new federal standard requires
employers to monitor and provide medical examinations to every
employee who believes he or she has been exposed to asbestos.
Rather, employers are requirea to provide medical examinations
when exposure levels reach 0.1 f/cc or may be reasonably expected
to reach this level. Thus, the employer must make a factual
determination on a case by case basis as to whetner the
conditions present in the work place trigger the monitoring and
no cost medical examination requirements.
If an employer has conducted monitoring and established
that asbestos levels reach 0.1 f/cc, it is evident that the
employer should institute a medical examination program. It may
be less clear to employers, however, as to when they should
"reasonably expect" that asbestos levels may reach or exceed the
action level.
The Occupational Safety and Health Appeals Board (OSHAB) ,
has authority to review appeals arising from action taken by
Cal-OSHA to enforce its safety orders. OSHAB has issued some
Ramon Cortines
Superintendent of Schools -8- July 21, 1987
opinions which provide guidance on tnis issue. As a general
rule, monitoring and no cost medical examinations are required
when employees are exposed to a potential danger of exposure to
asbestos fibers. One OSHAB decision stated the rule as follows:
A reasonable interpretation of the [monitoring] section is
that if there is a potential danger of exposure to harmful
asbestos fiDers, tne employer is required to monitor the
breathing zone of employees.
Brassbestos Mfg. Corp, 5 Cal-OSHA Rep (Digest Section)
(Sten-0-Press) Para. 13,482 (Jan. 21, Iy80).
Applying tnis rule to factual situations, OSHAB has upheld
Cal-OSHA citations where the facts would lead a qualified person
such as an inaustrial hygienist to conclude tnat airborne
asbestos levels might be exceeded. For example, OSHAB upheld a
Cal-OShA citation for failure to monitor and provide no cost
medical examinations where Cal-OSHA provided opinion eviaence by
an industrial hygienist that the action level or ceiling
concentration would be exceeded given tne employer's work
practices. The industrial hygienist drew such a conclusion based
on a combination of his observations at the work site, a
laboratory report showing a high asbestos content in tne material
sampled and experience gained in air sampling for asbestos at
otner work sites. Capri Manufacturing Co., 11 Cal-OSHA Rep
(Digest Section) (Sten-0-Press) Para. 16,158R (Oct. 21, 19B5).
In another instance, OSHaB upheld a Cal-OSKA citation
alleging failure to monitor and provide no cost medical
examinations where the employer failed to monitor and provide
examinations despite Knowledge that material containing asbestos
was present in amounts that might raise airborne asbestos dust
sufficient to trigger the monitoring requirement. Rockwell
International Space, Transportation Division, 12 Cal-OSHA Rep
(Digest Section) (Sten-O-Press) Para, lb, 404 (May 26, 1986).
In sum, the employer should monitor and provide no cost
medical examinations to employees whenever the employer has
knowledge that asbestos is present and the work activities or
condition of the asbestos would lead an industrial nygienist or
other qualified person to conclude that employees may be exposed
to airborne asbestos at or above the action or ceiling levels.
One issue that remains open is whether an employer must
continue to provide no cost medical examinations once the
employer establishes that asbestos is not present or if present,
is not reasonably expected to exceed the action level. i./
jl' Conversation with Len Welch, Cal-OSHA San Francisco
Legal Office, May 8, 1987.
Ramon Cortines
Superintendent of Scnools -9- July 21, 1987
The wording of the medical examination requirement in 8 CAC
5208 (j) supports an interpretation that medical examinations are
only required during the time tne employee is actually engaged in
work wnere asbestos exposure is reasonably expected to occur.
The medical examination requirements state that an employer shall
provide or make available at no cost to the employee a
comprehensive medical examination "for eacn employee engaged in
an occupation where exposure to airborne asoestos, without regard
to the use of respiratory protective equipmient, has been
determined to exceed, or may be reasonaoly expected to exceed" an
8-hour TWA concentration of 0.1 f/cc. It is reasonable to
conclude from the wording "engaged in" an occupation to mean that
the employer's responsibility to provide perioaic no cost medical
examinations ends wnen the employee is no longer engaged in an
occupation wnere exposure to airborne asbestos may be expected to
reach or exceed 0.1 f/cc.
The employer, however, is responsible for providing a
medical examination to the employee upon termination of
employment because the termination examination applies to all
employees who nave been exposed to asbestos. Futner, while the
regulation may oe reasonably interpreted not to require periodic
medical examinations once an employee is removed from a situation
where the employee may be exposed to asbestos, the employer may
wish to continue to do so for two reasons. One, periodic medical
examinations may provide useful information to the employer as to
whether the employee can be safely exposed to asbestos in tne
future. Two, since asbestos disease has a long latency period,
the effects of previous asoestos exposure may not be evident
until many years after the exposure. Early diagnosis may be
useful in treating any asbestos related disease.
In conclusion, tne medical examination provisions of 8 CAC
5208 and the more stringent requirements of the new federal
standard require employers to provide medical examinations to
employees wno are or may reasonably be expected to be exposed to
airborne concentrations of asbestos at or above tne action level
of 0.1 f/cc. It does not require tne SFUSD to provide medical
examinations to every employee who believes he or she has been
exposed to asbestos. However, it does require SFUSD to provide
medical examinations if the conditions to which an employee are
exposed would lead a qualified person, such as an industrial
hygienist, to conclude that employees were likely to be exposed
to airborne concentrations of asbestos at or aDove the action
level. Finally, the regulation does not appear to require the
SFUSD to continue to provide medical examinations to employees
who are no longer engaged in work where they are exposed to
asbestos. However, the SFUSD may, for other than regulatory
compliance reasons, wish to continue to provide such examinations.
Ran\on Cortines
Superintendent of Schools
-10-
July 21, 1987
III. Medical Examination Provisions in the Salary
Standardization Orainance
A provision in the current salary standardization ordinance
adopted by the Board of Supervisors of the City and County of San
Francisco, entitles Stationary Engineers and related classifi-
cations to receive an annual medical examination if the employee
is exposed to conditions hazardous to health and the employee
requests an examination. Salary Standardization Ordinance,
1986-87, Section IV. M. Tnis provision states as follows:
In instances when Stationary Engineers and related
classifications are exposed to conditions hazardous
to healtn said employees may voluntarily request and
be entitled to a medical examination provided,
however, that in no instance will more than one (1)
medical examination be given in any twelve (12)
month period. Medical examinations will be
considered time worked.
This provision raises two questions: (1) is the SFUSD
bound by this provision in the Salary Standardization Ordinance,
and (2) if so, does the provision require the SFUSD to provide
free annual medical examinations to employees who believe they
have been exposed to asbestos?
The first question can be answered by reference to City
Attorney Opinion 87-09. In that opinion, this office concluded
that the SFUSD and the Community College District are bound by
provisions in the Salary Standardization Ordinance adopted by the
Board of Supervisors. See City Attorney Opinion 87-09 at 9 -
10. As to the SFUSD, this conclusion is based on the provisions
in Education Code Section 45318 which state that the rights and
benefits of classified employees of the school district, other
than certified employees, are to be determined by the Charter.
The Salary Standardization Ordinance has been adopted pursuant to
the salary setting procedure provided for in Charter Section
8.407. Thus it is our conclusion that SFUSD is bound by the
provisions in Section IV. M of the Salary Standardization
Ordinance, 1986-87.
An answer to the second question requires an analysis of
the meaning of Section IV. M in the Salary Standardization
Ordinance, 1986-87. A fundamental rule of statutory construction
is that the intent of the legislators should be ascertained so as
to give effect to the purpose of the law. Select Base Materials
v. Board of Equalization (1959) 51 Cal.3d 640, 645. If the
language of the statute is free of ambiguity, it must be given
its plain meaning. Sand v. Superior Court (1983) 34 Cal.3d 564,
570; Castaneda v. Holcomb (1981) 114 Cal.App.3d 939, 942.
Ramon Cortines
Superintendent of Scnools -11- July 21, 1987
However, wnere the meaning is ambiguous, the court may look to
the legislative intent. Select Base Materials v. Board of
Equalization , supra , 51 Cal.3d at 645.
Whether Section IV. M requires the SFUSD to provide free
medical examinations to employees who believe they have been
exposed to asbestos is not clear from the wording of the
provision. It states that annual medical examinations are
required when employees "are exposed to conditions hazardous to
health." Tne ordinance does not define "hazardous" nor does it
indicate who should make a determination tnat a condition is
hazardous.
The dictionary defines "nazardous" as "depending on hazard
or on chance; exposed or exposing one to hazard; involving risk
of loss." Webster's Third New International Dictionary at 1041.
Thus the ordinary meaning of "conditions hazardous to health"
would appear to mean "conditions exposing one to hazard or
involving a risk of loss of health." This definition does not
clarify whether a "belief" of exposure to asbestos is sufficient
to trigger the requirement for a medical examination.
Tne factual conditions under which an employee may risk a
loss of healtn are wide ranging and open to varying
interpretations. The recent revision to tne federal asbestos
standard for "permissible exposure limits" for employees exposed
to asbestos is an illustration of how difficult it is to set
standards for "safe" exposure levels for substances sucn as
asbestos. The previous federal standard set the acceptaole
exposure limit at 2 fibers per cubic centimeter. The new
standard reduces the exposure limit by a factor of 10. In
explaining the new standard, federal OSHA devoted 35 pages in the
Federal Register to explaining studies on tne health effects of
exposure to asbestos and the risk assessment process that it went
through to arrive at the new standard. 51 Fed. Reg. 22615-22650
(June 20, 1986). Section IV. M contains no definition of
"hazardous condition", no oDjective standard for determining when
conditions are hazardous, and no procedure for determining
hazardous conditions. Thus the language in Section IV. M, is
ambiguous and unclear because it is susceptible to varying
interpretations.
Since the language of Section IV. M is ambiguous, it is
appropriate to look to the legislative intent behind the
provision. Select Base Materials v. Board of Equalization,
supra , 51 Cal.3d. at 645. Section IV. M is part of an ordinance
setting salaries and benefits for City and County employees,
including classified employees other than certified employees, of
the SFUSD. Courts have generally concluded tnat the purpose of
statutes setting government employee wages and benefits is to
Ramon Cortines
Superintendent of Schools -12- July 21, 1987
induce competent persons to enter government service to and
promote the efficiency, morale and general welfare of public
employees. Adam v. City of Modesto (1960) 53 Cal.2d d33, 840.
For this reason, such statutes are generally construed liberally
in favor of providing benefits to employees. San Francisco
Police Officers Assn. v. City and County of San Francisco (1982)
133 Cal.App. 3a 498, 504; Alameda County Employees Assoc, v.
County of Alameda (1973) 30 Cal.App. 3d 518, 531.
In tnis case, a liberal construction of Section IV. M
entitles an employee to an annual medical examination upon
request wnenever it is reasonable to conclude that tne employee
may nave been exposed to hazardous health conditions. Providing
annual medical examinations on request in sucn circumstances is
consistent with the presumed legislative intent of the wage
setting ordinance of promoting efficiency, morale and the general
welfare of tne public. Tnerefore, we interpret Section IV. M of
the Salary Standardization Ordinance to require the SFUSD to
provide stationary engineers and related classifications witn
annual medical examinations wnen employees, based on a reasonaole
belief that tney may have been exposed to asoestos or other
hazardous health conditions, request such an exam.ination.
However, we do not interpret Section IV. M to require the SFUSD to
provide an annual medical examination to a stationary engineer
who has no reason to believe that he or she has been exposed to
asbestos or otner health hazards. This would include stationary
engineers who have never worked in a building or environment
found to contain asoestos or otner hazardous conditions.
Respectfully submitted,
1,0U1SE H. RENNE
City Attorney
ELAINE C. WARREN
Deputy City Attorney
APPROVED;
LOUISE H. RENNE
City Attorney
0125g
City and County of San Francisco:
Office of City Attorney
Louise H. Renne,
City Attorney
August 10, 1987
^ OPINION NO. 87-16
DOCUMENTS DEPT.
AUG 3 11987
SAN FRANCISCO
PUBLIC LIBRARY
SUBJECT:
REQUESTED BY;
PREPARED BY:
POWER OF THE BOARD OF PERMIT APPEALS TO AUTHORIZE
DWELLING UNITS NOT COMPLYING WITH CURRENT
PLANNING CODE REQUIREMENTS
ROBERT PASSMORE
ZONING ADMINISTRATOR
Department of City Planning
PAULA JESSON
CHRISTINA L. DESSER
Deputy City Attorneys
QUESTION PRESENTED
May the Board of Permit Appeals grant a building permit
authorizing an existing dwelling unit which does not meet current
Planning Code density or parking requirements if the unit was
built without a building permit?
No.
ANSWER
A dwelling unit violat
requirements of the current
nonconforming use or noncomp
authorized pursuant to a bui
was in compliance with Plann
the time of the permit. If
use, or noncomplying structu
Planning Code and the Board
permit authorizing its use.
complied with Planning Code
it was built.
SUMMARY
ing the density or parking
Planning Code is legal as a
lying structure if it was built or
Iding permit issued by the City and
ing Code requirements in effect at
such a unit is not a nonconforming
re, it is prohibited under the
of Permit Appeals may not grant a
This is so whether or not the unit
density and parking requirements when
OPINION NO. 87-16
Mr. Passmore 2 August 10, 1987
ANALYSIS
The City Planning Code prohibits the issuance of a permit
for a use which is prohibited by the Code:
[No] permit or license shall be issued by any City
department which would authorize a new use, a change of
use or maintenance of an existing use of any land or
structure contrary to the provisions of this Code.
Planning Code §175.
A dwelling unit that does not comply with the requirements
of the current Planning Code is unlawful unless it qualifies as a
"nonconforming use" or a "noncomplying structure."
1. A "nonconforming use" is a use which existed
lawfully at the effective date of this Code, or of
amendments thereto, and which fails to conform to
one or more of the use limitations under Articles 2 and
6 of this Code that then became applicable for the
District in which the property is located.
2. A "noncomplying structure" is a structure
which existed lawfully at the effective date of
this Code, or amendments thereto, and which fails to
comply with one or more of the regulations for structures,
including requirements for off-street parking
and loading, under Articles 1.2, 1.5, 2.5 and 6 of
this Code, that then became applicable to the property
on which the structure is located.
Planning Code §180.
It is unlawful to commence construction of any structure
without first obtaining a permit from the Bureau of Building
Inspection. Building Code §301.* Therefore, to have "lawfully
existed at the effective date" of the Planning Code, a dwelling
The Building Code has required a building permit prior
to construction since at least 1895. See Building and
Fire Ordinance of the City and County of San Francisco,
Section 4, Handbook of the Builders' Exchange of San
Francisco, 1895-1896.
OPINION NO. 87-16
Mr. Passmore 3 August 10, 1987
unit must have been built pursuant to a lawfully issued building
permit, or authorized by a subsequent permit at a time when it
conformed to the then-existing Planning Code.
The legal doctrine of preexisting nonconforming use is
not applicable and cannot be invoked where the prior
"nonconforming use," as herein, was founded on the
owner's illegal acts, i.e. the result of the owner's
actions in violating duly enacted ordinances [requiring
a building permit]. [Citations.]
Mang v. County of Santa Barbara 182 C.A.2d 93, 102, 5 Cal.Rptr.
724 (1960).
The burden of proof regarding the lawfulness of the use or
structure when it was built rests with the person asserting the
right to the nonconforming use or noncomplying structure. Melton
v. City of San Pablo 252 C.A.2d 794, 804, 61 Cal.Rptr. 29 (1967).
While the Board of Permit Appeals has broad discretion
(Municipal Code §26; Lindell v. Board of Permit Appeals 23 C.2d
303 (1943)), it is not permitted to sanction a violation of the
Planning Code. Section 175 of the Planning Code and case law
deny the Board of Permit Appeals authority to authorize a use or
structure which is prohibited by current zoning restrictions,
even if the property owner could have obtained a permit at the
time of construction:
There can be no doubt that the board of
permit appeals is bound by the relevant law as
enunciated by appropriate ordinances. [Citations.]
Board of Permit Appeals vs. Central Permit Bureau 186 C.A.2d 633,
640, 9 Cal.Rptr. 83 (1960). See also City and County of San
Francisco v. Superior Court 53 C.2d 236, 250-251, 1 Cal.Rptr. 158
(1959); City Attorney Opinion 79-48, June 27, 1979; and City
Attorney Opinion 47-3927, March 17, 1947.
The principle that the Board's authority is limited by the
provisions of the Municipal Code was reaffirmed in City and
County of San Francisco v. Pace (1976) 60 C.A.3d 906. In Pace,
the court held that the Board acted in excess of its jurisdiction
in granting a permit for electrical work to an unlicensed
contractor in violation of the San Francisco Electrical Code.
OPINION NO. 87-16
Mr. Passmore
August 10, 1987
Thus, the Board rtiu
accordance with existing
Code Section 202.1 provi
illegal units in R-1 dis
Francisco v. Pacello 85
(1978
omiss
evide
obtai
any a
inten
Appea
C.A.3
Permi
which
varia
with
). That provision,
ion of any new mech
nee of a legislativ
ning legal status,
ttempt to legalize
t and result in de
Is. (Compare City a
St act with
zoning ord
ded for the
tricts. Se
Cal.App.3d
however, i
anism for 1
e intent to
Until the
these unlaw
facto rezon
in its jurisdiction and
inances. Former Plann
legalization of certai
e City and County of Sa
d 388, 100 Cal.Rptr
t Appeals has no ju
exceed density res
nee but did not hav
the procedures appl
637, 643, 149 Cal.Rptr.
s no longer in effect.
egalizing unlawful unit
preclude these units f
zoning ordinances are a
ful units would subvert
ing by the Board of Per
nd County of San Francisco v. Padi
in
ing
n
n
705
The
s is
rom
mended,
this
mit
11a 23
223 (1972), holding that the Board of
risdiction to authorize dwelling units
trictions where it purported to grant a
e before it an applicant who complied
icable to a variance.)
For the reasons discussed above, the Board of Permit
Appeals may not legalize dwelling units that are in violation of
the Planning Code and were built without a building permit,
irrespective of whether they complied with the provisions of the
Planning Code at the time of construction.
Respectfully submitted.
i
CHRISTINA L. DESSER
Deputy City Attorney
APPROVED ;
LOUISE H. RENNE
City Attorney
CD:dms/4501j
City and County of San Francisco:
Office of City Attorney
Louise H. Renne,
City Attorney
SUBJECT;
•^ OPINION NO. 87 - 17 DOCUMENTS DEPT.
August 18 , 1987 aug::o'.-°c7
SAN FRANCISCO
PUBLIC LIBRARV
REQUESTED BY:
PREPARED BY;
MARINA SKALL CRAFT HARBOR REVENUES
THE HONORABLE DIANNE FEINSTEIN
Mayor
BURK E. DELVENTHAL
ROSE MIKSOVSKY
Deputy City Attorneys
QUESTION PRESENTED •
May tne City and County of San Francisco use monies
generated from the Marina Small Craft Harbor for otner tnan
water-oriented purposes?
CONCLUSION
No. However, tnere is a Droad range of permissiole uses
witnin tne statutorily imposed water-oriented limitations on
revenue generated from the Marina Small Craft Harbor. These uses
are furtner restricted oy the terins of a loan agreement oetween
tne State of California and tne City and County of San Francisco.
ANALYSIS
City
tne
or ie
dete
on w
tne
reve
and
Char
ini t
made
Dudg
Y
and C
Mar ina
nted r
rmme
nich t
Harbor
nues f
must o
ter §§
lal ae
by th
etary
ou nav
ounty
Small
ecreat
wnethe
he Har
In
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(Ibid
ether the
rated from
n water-
tion we must
f the lands
nerated from
size that the
onal facility
Francisco
e, the
pent must be
ne customary
. )
The Harbor is located on tidelands, and therefore
impressed with a public trust. (See, City of Berl-^eley v.
Superior Court (1980) 26 Cal.3d 5ib, 521, cert, uenied, 449 U
840.) Traditionally, the puolic trust purposes were
characterized as fishing, navigation and commerce. (Marks v.
H5) 554-4283
Room 206 City Hall
San Francisco 94102-4682
HONORABLE DIAHNE FEINSTEIN (2) August 18, 1987
OPINION NO. 87 - 17
vJnitney (1971) 6 Cal.Bd 251, 259-260.) Courts now recognize that
tne permissiDle range of puolic uses is far oroader , including
tne right to nunt, bathe or swira, and tne right to preserve tne
tidelands in their natural state as ecological units for
scientific study. ( loid. )
San Francisco ootained the lands on wnich tne Haroor is
located in trust from the State of California. ( See , State Lands
Commission, A Report on the Use, Development, and Aaministration
of Grantea Tideianas ana Suomergeu Lands (Report), p. 43
(1976).) AS trustee, tne City must use the lands for activities
that promote statewide, ratner than local, purposes. (Ha lion v.
City of Long Beacn (1955) 44 Cal . 2d 199, 209.) Under tne
specific limitations imposea oy the state in the granting
conveyance, San Francisco may only use tne property on wnicn the
Haroor is situated for aquatic, recreational, Doulevard, parK and
playground purposes.!./
i/ California granted San Francisco title to the
Haroor in Cnapter 437 of the Statutes of 1935 wniCii states in
relevant part:
"All of the above described real property
nereoy granteu snail oe forever neld oy saiu City
and County of San Francisco and by its successors
in trust for tne uses and purposes anu upon tne
express conditions following, to wit: said real
property snail be used solely for aquatic,
recreational, boulevard, parK and playground
purposes .
Provided, however, that said City and County
of San Francisco snail have power to set apart
and assign, or lease, any of saio property
heremoefore descrioed for a period not to exceed
ten years, to any corporation, cluo or association
organized for the purpose of developing and
promoting aquatic sport; provided, tnat no part
of said property snail be set apart and assigned,
or leased to any corporation, club or association
the ooiect of wnicn is pecuniary profit."
Tnis statute was amended twice, extending tne period for which an
assignment or lease could be maae to twenty (20) years (Statutes
of 1963, Chapter 1298) and later to forty (40) years (Statutes of
1970, Chapter 670) .
H0N0KA3LE DIANWE FEINSTEIN (3) August 18, 1987
OPINION NO. 87 - 17
Thes-e restrictions on tne puDiic trust lands also apply
to revenues generated from the lands. (See, State of California
ex rel . State Lands Corunission v. County of Orange (1962) 134
Cal.App.3a 20; Marion at 209; Keport at 44 and 45.) In addition,
tne City may only use the' revenues for services, purposes and
improvements located on or related to the granted lanas. (See ,
National Audjpon Society v. Superior Court (1983) 33 Cal . 3d 419,
44 0 cert . denied 4 64 U.S. 977; County of Orange at 25; Sax, Tne
Puslic Trust Doctrine in Natural Resource Law: Effective
Judicial Intervention, 56 Kicnigan L.Rev. 472, 477, 536 (1970).)
VJe next consider aaditional limitations imposed oy a
loan agreement with the State of California-.
In 1974 the City and County of San Francisco enterea
into a loan agreement with the State of California. The loan was
for a construction project at the Haroor . Tne loan agreement
limits tne City's use of Haroor revenues to loan payments,
advance loan repayment, operating and miaintenance expenses and
reserve funds until tne loan repayment scnedule ends on August 1,
2007.2./ Operating and maintenance expenses mean laoor and
materials for tne operation of tne Haroor and tne indirect
expenses of City administration up to 15% of the revenues.
Snoula the City elect to repay tne loan in advance, the
City would tnen be aole to develop alternative uses for
expenditures of tne revenues within the limitations of tne
2./ Paragrapn 13 of tne loan states:
Any surplus of funas arising from operation of
PROJECT remaining after deduction from gross
revenues of funds necessary for repayments to
DEPARTMENT, operating and maintenance expenses
and reserve funas as nerein provided, snail oe
retained oy APPLICANT and may be invested in
reasonaoly liquid assets. No transfer of such
funds other than for advance repayment of tne
loan to DEPARTMENT snail oe made to APPLICANT so
long as any principal or interest thereon remains
unpaid. Wnenever such funds exceed TWO (2) years
PROJECT operating and loan repayment expenses as
indicated in EXHIBIT A, all surpluses in excess
of tnis amount may be required by DEPARTMENT to
be used for advance repayment of the loan.
HONORABLE DIANl^E FEINSTEIN (4)
OPINION NO. 87 - 17
August 18, 1987
tideland
trust
d
the revenues cou
boating a
t the
H
to finance any
w
Haroor, t
0 repai
Harbor .
Wn i 1 e
t
view that
Haroor
pro rata
snare
o
operation
cased
construct
ion and
illustrat
ive .
octrine ana tne granting statute. For example,
Id be used to fund a class on marine biology or
aroor , to fund ecological study at the Haroor , or
ater-or iented recreational activities at tne
r the breaKwater or to repair streetlignts at the
ne matter is not free froia douut, we are of tne
revenues may also oe used to pay tne Harbor's
f capital costs of sewer construction and
upon the oenefits tne Haroor receives from such
operation. The aforementioned list is merely
In any future loan negotiations for future projects at
the Haroor, tne City may wisn to preserve its options to maKe
alternative uses of surplus revenues.
rest
oper
the
invo
acce
oe u
tide
limi
Past
exha
net
atio
loan
Ives
lera
sed
land
tati
pra
uste
In su
s tne
n and
payme
econo
te the
for pu
trust
ons , n
ctices
d all
mmary
City'
maint
nts i
a i c a
repa
rpose
doct
oweve
rega
tne a
, an e
s use
enance
n orde
nd puo
yment
s cons
r ine a
r , are
rding
vailao
xist
of t
of
r to
lie
of t
iste
nd t
a b
tne
le o
ing
hese
tne
pur
poll
he 1
nt w
ne g
road
use
ptio
outs
rev
Haro
sue
cy q
oan ,
itn
rant
ran
of H
ns .
tanding loan from tne state
enues to loan payments ana
or. VJnether to accelerate
otner permissicle uses
uestions. VJere tne city to
then Harbor revenues could
the limitations of the
ing statute. V'Jithin tnese
ge of permissiole uses,
aroor revenues nave not
Very truly yours,
LOUISE H. RENNE
city Attorney
BUkK E. DELVENTHAL
Deputy City Attorney
'rose MlKSOVSKy
Deputy City Attorney
a
APPROVED:
0174g
City and County of San Francisco:
Louise H. Renne,
;: City Attorney
Office of City Attorney
October 19, 1987
OPINION NO. 87 - 18
SUBJECT;
APPLICABILITY OF ADMINISTRATIVE CODE CHAPTERS 12B
and 12C TO AGREEMENT FOR THE USE OF CANDLESTICK
PARK FOR PAPAL MASS
REQUESTED BY:
PREPARED BY;
GRANT S. MICKINS
DIRECTOR
HUMAN RIGHTS COMMISSION
MARA E. ROSALES
DEPUTY CITY ATTORNEY
QUESTIONS PRESENTED
DOCUMENTS DEPT.
00X2 71387
SAN FRA/MCJSCO
ftiBLIC LIBRARv
1. Does Administrative Code Chapter 12B apply to a permit
issued by a City department to an organization allowing the use
of City property for the exercise of First Amendment protected
rights?
2. Is a 36 hour agreement among the Recreation and Park
Commission, the San Francisco Giants and the San Francisco
Archdiocese for the use of Candlestick Park for a Papal Mass
subject to the provisions of San Francisco Administrative Code
Chapters 12B and 12C relating to nondiscrimination by City
contractors?
CONCLUSION
1. No,
2. No.
Grant S. Mickins - 2 - October 19, 1987
RELEVANT FACTS
On August 20, 1987, the City and County of San Francisco
("City") through its Recreation and Park Commission ("the
Commission") approved an agreement ("Use Agreement") among the
Commission, the San Francisco Giants ("Giants") and the
Archdiocese of San Francisco ("the Archdiocese"). The Use
Agreement authorized the Archdiocese to use Candlestick Park for
36 hours for the purpose of conducting a Papal Mass. The
Archdiocese agreed to pay the Commission a use fee of $50,000 and
to deliver to the Commission immediately after the event "one
bottom turf cover with cobs."
The Papal Mass was held on September 18, 1987. Under the
City's pre-existing lease with the Giants, the Giants had
exclusive rights to Candlestick Park and all concession
privileges on September 18, 1987, which was normally a baseball
day. To accommodate the Pope's visit, the Giants waived their
right to play baseball on that date and granted use of
Candlestick Park to the City. The City, in turn, granted the
Archdiocese use of Candlestick Park for the Papal Mass.
The Giants released to the City their right to play
baseball only after reaching agreement with the Archdiocese on
several key items. The Archdiocese agreed to defend, indemnify
and hold harmless the Giants from any claim or liability
resulting from the event. Further, the Archdiocese agreed to pay
the Giants for cleaning the stadium and to compensate the Giants
if the Mass caused cancellation of the baseball game scheduled
for September 19, 1987. The Archdiocese also agreed to post a
$400,000 bond in favor of the Giants to cover potential damages
from the cancellation of the September 19th game.
In substance, the Use Agreement is merely a permit
authorizing the Archdiocese to use Candlestick Park. Due to the
complexity of the permit, including arrangements regarding the
sound system, the concession facilities, and the clean up, the
permit was titled an "agreement." However, a close reading of
the Use Agreement reveals that the Commission gave the
Archdiocese a permit to use Candlestick Park; the Archdiocese
agreed to pay a use fee and to comply with other obligations that
the Commission regularly imposes upon groups and organizations
making use of park property for large events.
The property in question. Candlestick Park, is open to use
by anyone year round except during baseball season and days when
the San Francisco 49ers play football. Though the Giants and the
49ers use Candlestick on a regular basis, the Commission's
practice and policy is and has been to allow use of Candlestick
Park for other athletic and nonathletic events. Park Code
Grant S. Mickins - 3 - October 19, 1987
Article 7 specifically sets forth standards and criteria to
govern Commission review of applications for activities impressed
with First Amendment rights. Park Code Section 7.07 directs the
General Manager of the Commission to grant any application for
the use of park property unless subject to one or more of the
content-neutral exceptions not applicable here.
During the August 20, 1987 proceedings before the
Commission, a member of the public asserted that the San
Francisco Administrative Code Chapter 12B applied to the Use
Agreement.—^ Acting on the advice of the City Attorney,
however, the Commission approved the Use Agreement without a
provision stating that it was subject to Chapters 12B or 12C.
You have sought an explanation of the City Attorney's advice.
ANALYSIS
The narrow question presented is whether Chapter 12B-^
applies to the agreement for the use Candlestick Park for a Papal
Mass. The simple answer to this question is no. However, in
order fully to understand the reasons underlying our conclusion
we must first address the broader issue: Is Chapter 12B intended
to apply to an agreement whereby a City department authorizes use
of its property to an organization for the exercise of First
Amendment rights? We turn to an examination of the provisions of
Chapter 12B.
Section 128. 5 provides in relevant part:
This chapter [12B] . . . shall have application only
to discriminatory employment practices by
contractors . . . engaged in the performance of City
and County contracts. (Emphasis added.)
Section 128. 1 requires "all [City] contracts, franchises, leases,
concessions, or other agreements involving real or personal
property" to include a non-discrimination provision,
. . . obligating the contractor, franchisee, lessee,
concessionaire, or other party of said agreement not
to discriminate on the ground or because of race,
color, creed, national origin, ancestry, age, sex.
— ^ All code, chapter and section references are to the
Administrative Code, unless otherwise noted.
— ^ The applicability of Chapter 12C will be discussed
separately infra .
Grant S. Mickins - 4 - October 19, 1987
sexual orientation, disability or Acquired Immune
Deficiency Syndrome or AIDS Related Condition
(AIDS/ARC), against any employee of, or applicant
for employment with, such contractor, franchisee,
lessee, or concessionaire, and shall require such
contractor, franchisee, lessee or concessionaire to
include a similar provision in all subcontracts,
subleases or other subordinate agreements let,
awarded, negotiated, or entered into thereunder.
Section 12B.2 states that every contract subject to Section
12B.1 shall include nondiscrimination provisions. Under these
provisions a City contractor agrees that "[wjherever the work is
performed or supplies manufactured the contractor . . . will not
discriminate against any employee or applicant for employ-
ment.. . ." Among other things, the contractor promises to
notify those unions with which he/she has a collective bargaining
agreement of the contractor's commitments under Chapter 12B.
(Section 12B.2(e) . )
A breach of the nondiscrimination provisions is a basis for
determining the contractor "an irresponsible bidder as to all
future contracts for which such contractor may submit bids."
(Section 12B.2(i).) This sanction bars the contractor from
competing for any contract for "public works, goods or services
for or on behalf of the City and County of San Francisco."
( Ibid . ) Upon a finding of a violation of Chapter 12B, the City
may cancel, suspend or terminate the contract. (Section
12B.2(h).) The Human Rights Commission ("HRC") and its Director
are empowered to implement the provisions of Chapter 12B.
(Section 12B.3. )
Section 12B.4. applies to all "contracts" subject to
Chapter 12B and requires all contractors to submit an affirmative
action program that meets the requirements of the HRC. The HRC
regulations implementing the provisions of Section 12B.4 pertain
to contracts where the City receives services from: (1) general
construction contractors in the performance of public works
contracts; and (2) architects and engineers in the performance of
consulting contracts.
In order to ascertain the legislative intent of Chapter 12B
fundamental rules of statutory construction must be considered.
First of all, one needs to look to the words themselves.
However, particular words and phrases must be construed in
context, considering the express or apparent purpose of the
statutory scheme as a whole. (Palos Verdes Faculty Assn. v.
Pales Verdes Peninsula Unified School District (1978) 21 Cal.3d
650, 658-59.) Thus, words of general import may be given a
contracted meaning depending upon their context; words will not
Grant S. Mickins - 5 - October 19, 1987
be given their literal meaning when to do so would make the
provisions of statute applicable to situations never contemplated
by the legislative body. (Farnsworth v. Nevada-Cal Management
(1961) 188 Cal.App.2d 382, 387.)
Here, the Board of Supervisors has made clear that all of
the provisions of Chapter 12B apply only to the discriminatory
employment practices of City "contractors" while they perform
City "contracts." (Sec. 123. 5.) These terms are defined in
Section 128. 1 as follows:
"Contract" shall mean an agreement to provide labor,
materials, supplies, or services or the performance
of a contract, franchise, concession or lease
granted, let or awarded for and on behalf of the
City and County of San Francisco.
"Contractor" means any person . . . who submits a
In City Attorney Opinion No. 87-11, we concluded that the
definitions of "contract" in Chapters 12B and 12D were identical
and hence should receive a parallel construction. (City Attorney
Opn. 87-11, p. 15.) When we examined the meaning of the word
"contract" in Chapter 12D, we determined that it "contemplated a
relationship under which the City tenders consideration and in
exchange procures services, labor, supplies and/or materials it
desires for its operational needs from the private sector."
(Ibid; City Attorney Letter Opinion, dated 2/18/87 to Moira Shek
So; see also City Attorney Opinion No. 84-29, p. 3.) Most
recently, consistent with these prior opinions, we noted that
Chapter 123 and particularly its language about "other agreements
involving real or personal property" pertained to "enforceable
business arrangements between the City and third parties." (City
Attorney Letter Opinion dated July 9, 1987 to Supervisor John
Molinari.) The agreement at issue falls outside of these
categories.
The City, through its Recreation and Park Commission, did
not procure services, goods, or services for its operational
needs. To the contrary, the Pope in the Papal Mass provided a
Grant S. Mickins - 6 - October 19, 1987
religious service to those individuals who attended the religious
ceremony. In applying for permission to use Candlestick Park,
the Archdiocese merely sought to exercise its right to express
its religious beliefs and did not in any fashion propose a
business transaction between the City and the Archdiocese within
the contemplation of Chapter 12B.
In our opinion, a business relationship necessarily entails
a situation where both parties are in an equal bargaining
position. Agreements struck between the City and a general
construction contractor, an engineer, architect, lessee, or
concessionaire, for instance, allow the City to require
compliance with the City's social policies as prerequisites to
doing business with the City. (See generally Alioto Fish Co. v.
Human Rights Commission of San Francisco (1981) 120 Cal.App.3d
594, 605. cert den. 455 U.S. 944.) Here, the agreement merely
allows use of City property for the expression of
constitutionally protected activity. The City has no bargaining
power with the Archdiocese since the City may only focus on
content-neutral time, place and manner restrictions . (Perry
Educ. Assn. v. Perry Local Educators' Assn. 460 U.S. 37, 45
(1983).) Because the Commission has by practice and policy made
Candlestick Park a public forum, the City cannot deny the
Archdiocese use of Candlestick Park for a religious ceremony if
the property is available.
Other factors support our conclusion that the Board of
Supervisors did not intend Chapter 128 to apply to First
Amendment activities. First, the sanctions for violating Chapter
12B, disbarring a contractor from use of City property or
canceling the agreement or permit to use the property, are
clearly inconsistent and violative of the First Amendment if the
sanctions are directed to the expression of constitutionally
protected activity. (Intern. Soc . for Krishna Consciousness v.
Eaves (1979) 601 F.2d 809, 832-833; Perrine v. Municipal Court
(1971) 5 Cal.3d 656, 664-665.)
Second, use of City property for First Amendment activities
is generally for a very short time, i.e., hours or a few days.
Under Section 12B.4, these groups would be required to submit
extensive work force and employment data before being able to use
City property. Such preconditions would need to be justified as
reasonable time, place and manner restrictions before they could
be imposed on First Amendment activities. (See U.S. Postal
Service Council of Greenburgh (1981) 453 U.S. 114, 132; Park Code
Section 7.01) More importantly, such time consuming and
burdensome preconditions to the exercise of constitutionally
protected rights would be invalid under the First Amendment as a
form of "prior restraint". Indeed, consistent with the
Constitution, the City, through its Human Rights Commission,
could not prevent the use of its public facilities based on its
Grant S. Mickins - 7 - October 19, 1987
disagreement with the expression of constitutionally protected
activities. (Cinevision v. City of Burbank (1984) 745 F.2d
560.) Content based distinctions are censorship plain and
simple. They are prohibited by the First Amendment. ( Ibid . )
Third, the Human Rights Commission has administratively
construed the reguirements of Chapter 12B to be applicable to
agreements whereby the City procures goods, services, materials
and the like for its own operational needs. To our knowledge.
City departments including the Human Rights Commission, the
Recreation and Park Commission and the Police Department have
never applied Chapter 128 to an agreement or permit for the use
of public facilities for a First Amendment activity.
The conclusion that Chapter 128 is inapplicable in this
instance is also consistent with prior advice of this office.
Nine years ago, this office advised the Clerk of the Board of
Supervisors that the City was obligated to rent park property to
Nazi organizations because that property had been made available
to other groups for meetings and social gatherings. (City
Attorney Opinion No. 78-18, p. 2.) Moreover, we concluded that
allowing the occasional use of park property by Nazi
organizations who discriminate on the basis of race and religion
did not violate the provisions of Administrative Code Chapters
128 and 12C. (Id. , p. 5. )
In short. Chapter 128 applies only to arms-length
bargaining agreements whereby the parties retain full discretion
to do business with each other. The legislature did not intend
to have Chapter 128's provisions imposed by any City department
on an organization seeking to use City property for First
Amendment activities. We now consider the applicability of
Chapter 12C.
By its terms. Chapter 12C, relating to nondiscrimination in
agreements for the use of City real property, has a broader scope
than Chapter 128.
Section 12C. 1. provides:
All contracting agencies of the City and County
of San Francisco, or any department thereof, acting
for or on behalf of the City and County, shall
include in all contracts, franchises, leases,
concessions or other agreements involving the lease,
rental, or other use of real property and
improvements thereon of the City and County of San
Francisco, for a period exceeding twenty-nine (29)
days in any calendar year, whether by singular or
cumulative instrument, a provision obligating the
Grant S. Mickins - 8 - October 19, 1987
contractor, franchise, lessee, concessionaire, or
other party of said agreement not to discriminate on
the ground or because of race, color, creed,
national origin, ancestry, age, sex, sexual
orientation ((or)) disability or Acquired Immune
Deficiency Syndrome or AIDS Related Conditions
(AIDS/ARC), against any person seeking
accommodations, advantages, facilities, privileges,
services, or membership in all business, social, or
other establishments or organizations, operating
from or making use of said real property, and shall
require such contractor, franchisee, leasee, or
concessionaire to include a similar provision in all
subcontracts, subleases, or other subordinate
agreements for a period exceeding twenty-nine (29)
days in any calendar year, whether by singular or
cumulative instrument, let, awarded, negotiated or
entered into thereunder. (Emphasis added.)
The term "contract" in Chapter 12C is defined as "an
agreement to operate from or make use of real property of the
City and County of San Francisco in the operation of a business,
social, or other establishment or organization." (Sec. 12C.2.)
Even assuming that this agreement falls within the definition of
a "contract". Chapter 12C is inapplicable because the agreement
is for less than 29 calendar days.
CONCLUSION
Chapter 12B does not apply to uses of the City's public
facilities for First Amendment activities such as religious
ceremonies, charitable soliciting, presentation of musical
events, rallies, speeches and the like. Since the agreement at
issue is for use of Candlestick Park for a religious event.
Chapter 12B is not required to be included therein. Even
assuming the agreement is a "contract" under Chapter 12C, Chapter
12C is not applicable in the instant case because the use of the
City's property is less than 29 days.
OTHER EVENTS EXEMPT FROM CHAPTER 12B
You have asked us to identify other events similar to the
Papal Mass where a City department has not applied Chapter 128.
The Police Legal Department and Recreation and Park Department
inform us that none of the permits issued for First Amendment
activities have included Chapter 12B as a condition to granting
permission for the use of City property. Examples of well known
annual events exempt from Chapters 12B and 12C are: Bay to
Breakers, Martin Luther King Rally, Freedom Day Parade, all
street fairs and street parades. Moreover, agreements between
Grant S. Mickins
- 9 -
October 19, 1987
organizations and the office of the Chief Administrative Officer
for the use of City Hall for special events do not include
references to Chapters 12B and 12C. The Recreation and Park
Department informs us that for large events, negotiation with the
permittee/user of the property is customary with regard to items
such as security, chemical toilets, plan of operation,
coordination with the Police and other City departments. (See
Rec . and Park Commission Resolution No. 14375.)
Very truly yours.
LOUISE H. RENNE
City Attorney
.^2-X-^^*-^
^RA E. ROSALES
Deputy City Attorney
APPROVED ;
9^^ ^^
LOUISE H. RENNE
City Attorney
0 7 0 e g
City and County of San Francisco:
Louise H. Renne,
_ City Attorney
Office of City Attorney
December 8 , 1987
SUBJECT:
REQUESTED BY
PREPARED BY
OPINION NO. 87-19
ACCEPTANCE OF GIFTS
RICHARD WALSH
Library Commission Secretary
ELAINE C. WARREN
Deputy City Attorney
MARCIA F. CUTLER
Legal Assistant
JAN 12 1988
SAN l-RAI\iCiiiCO
PUMI.IC I iRR/^ ov
QUESTIONS PRESENTED
1. What steps need to be followed when a cash gift of more
than $5,000 is offered to the Library?
2. What steps need to be followed when a cash gift of $5,000
or less is offered to the Library?
CONCLUSIONS
The City's procedure for accepting a cash gift involves
three basic steps: receipt, acceptance and administration.
1. For cash gifts over $5,000 given to the Library for library
purposes: the Library Commission receives the gift, the Board of
Supervisors accepts the gift, and the Library Commission
administers the gift in accordance with its terms and conditions
2. For cash gifts of $5,000 or less given to the Library for
library purposes: the Library Commission receives the gift, the
City Librarian accepts the gift and the Library Commission
administers the gift in accordance with its terms and conditions
ANALYSIS
Gifts to the Library of more than $5,000.
The questions you have asked relate to the acceptance and
expenditure of cash gifts. Hence, this opinion is confined
solely to the subject of cash gifts.
[415] 554-4283
Room 206 City Hall
San Francisco 94102-4682
OPINION NO. 87- 19
Richard Walsh -2- December 8 , 1987
Receipt
San Francisco Charter, Section 1.101 grants the City and
County the authority to receive gifts and to do all acts
necessary to carry out conditions attached to such gifts. See
City Attorney Opinion 85-34. Under Charter Section 2.101, all
powers of the City and County are given to the Board of
Supervisors, except those powers specifically delegated to other
officials, boards or commissions. Thus, unless the Charter
specifies otherwise, the Board of Supervisors is the appropriate
body to receive gifts and to authorize acts to carry out the
purposes of such gifts.
Section 3.500 of the Charter specifically gives boards and
commissions authority to "receive" gifts for any purpose
connected or incidental to the department placed under its
charge. Section 3.500 provides in relevant part:
Each board and commission appointed by the
mayor, or otherwise provided by this charter,
shall have powers and duties as follows:
. . .(d) to receive, on behalf of the city and
county, gifts, devises and bequests for any
purpose connected with or incidental to the
department or affairs placed in its charge, and
to administer, execute and perform the terms and
conditions of trusts or any gifts, devise or
bequest which may be accepted by vote of the
people or by the board of supervisors for the
benefit of such department or purpose. . . .
Hence, the Library Commission is the appropriate body to
receive gifts made to the library.
Any officer or employee who receives any money, including a
cash gift, is subject to Charter Section 6.311. This section
provides, in relevant part:
All moneys and checks received by any officer
or employee of the city and county for, or in
connection with the business of, the city and
county, shall be paid or delivered into the
treasury not later than the next business day
after its receipt, and shall be receipted for by
the treasurer. (Emphasis added.)
This provision applies to the receipt of any cash gift and must
be followed regardless of whether the gift is accepted.
OPINION NO. 87- 19
Richard V^alsh -3- December 8 , 1987
Acceptance
The authority granted boards and commissions to receive
gifts and administer them for purposes under their jurisdiction
is distinct from the authority to accept gifts. Charter Section
3.500 does not give boards and commissions authority to accept
gifts. This authority remains vested with the voters and the
Board of Supervisors.
Pursuant to its authority to accept gifts, the Board of
Supervisors has enacted Sections 10.116 through 10.116-3 of the
Administrative Code delegating authority to department heads to
accept gifts of $5,000 or less (see discussion infra ) . However,
the Board has not delegated to department heads the authority to
accept gifts valued at more than |5,000. Hence, the Board of
Supervisors retains authority to accept gifts valued in excess of
$5,000. Such gifts must be accepted by the Board of Supervisors
before the Library Commission may administer the gift and
authorize expenditure of any money from the gift.
Administration of the Gift
Section 3.500 gives boards and commissions authority to
"administer, execute and perform the terms and conditions" of the
gifts once the gifts are accepted by the Board of Supervisors.
Therefore, the Library Commission, as the administering body,
authorizes expenditures pursuant to the terms and conditions of
the gift.
However, expenditure of a cash gift is also subject to the
Charter provisions governing the expenditure of money. Charter
Sections 6.303 and 6.302 prohibit expenditures unless they are
made pursuant to the annual appropriation ordinance. These
sections provide, in releva'nt part:
6.303
No money shall be drawn from the treasury of
the city and county nor shall any obligation for
the expenditure of any money be incurred except
in pursuance of appropriations . . . made as in
this charter provided.
6.302
Accounts shall be kept by the controller
showing the amount of each class or item or
revenue as estimated and appropriated in the
annual appropriation ordinance, and the amount
collected. Accounts shall also be kept by the
controller of each expense appropriation item
authorized by the board of supervisors. Every
OPINION NO. 87- 19
Richard Walsh -4- December 8 , 1987
warrant on the treasury shall state specifically
by title and number the appropriation item
against which such warrant is drawn.
No obligation involving the expenditure of
money shall be incurred or authorized by any
officer, employee, board or commission of the
city and county unless the controller first
certifies that there is a valid appropriation
from which the expenditure may be made, and that
sufficient unencumbered funds are available in
the treasury to the credit of such appropriation
to pay the amount of such expenditure when it
becomes due and payable.
Thus, before the City expends revenues received from a
gift, that expenditure must be authorized by an appropriation of
the revenues by an appropriation ordinance and an account of the
expenditure must be kept by the Controller. Section 11.1 of the
administrative provisions of the annual appropriation ordinance
appropriates cash gifts. This section provides, in relevant part:
Whenever the City and County of San Francisco
shall receive for a special purpose from the
United States of America, the State of
California, or from any public or semi-public
agency, or from any private person, firm or
corporation, any moneys, or property to be
converted into money, the Controller shall set up
on the books of his office a special fund or
account evidencing the said moneys so received
and specifying the special purposes for which
they have been received and for which they are
held, which said account or fund shall be
maintained by the said Controller as long as any
portion of said moneys or property remains.
The expenditures necessary from said funds or
said accounts as created herein, in order to
carry out the purpose for which said moneys or
orders have been received or for which said
accounts are being maintained, shall be approved
by the Controller and said expenditures are
hereby appropriated in accordance with the terms
and conditions under which said moneys or orders
OPINION NO. 87- 19
Richard VJalsh -5- December 8 / 1987
have been received by the City and County of San
Francisco, and in accordance with the conditions
under which said funds are maintained.
Thus, the Board of Supervisors, by including Section 11.1
in the annual appropriations ordinance, has appropriated gifts
received by the City and County of San Francisco in accordance
with the terms and conditions of the gifts.
In conclusion, cash gifts over $5,000 received by the
Library Department must be deposited with the Treasurer by the
end of the next business day. The gift must be formally accepted
by the Board of Supervisors or by vote of the people.
Thereafter, expenditure of the cash gift must be authorized by
the Library Commission and approved by the Controller.
Gifts to the Library Valued at $5,000 or Less.
Receipt
The procedure for receiving, accepting and administering
cash gifts of $5,000 or less is set forth in Administrative Code
Sections 10.116 et seg. Administrative Code Section 10.116-1
provides that cash gifts of $5,000 or less, when received, shall
be deposited with the Treasurer. This must be done before the
end of the next business day after receipt of the cash gift
(Charter Section 6.311).
Pursuant to Administrative Code Section 10.116-3, the
Library Commission must submit an annual report to the Board of
Supervisors showing all gifts it has received in the last year
that were valued at not more than $5,000, the nature or amount of
each gift and the disposition of each gift. The Library
Commission must furnish this report to the Board of Supervisors
during the first two weeks of July. Id .
Acceptance
The Board of Supervisors, in Administrative Code Section
10.116, has delegated to department heads the authority to accept
gifts of $5,000 or less, provided they are for the benefit of
that department and for purposes within its jurisdiction.
Section 10.116 provides:
The Board of Supervisors does hereby authorize
department heads to accept any gift of cash in an
amount not to exceed $5,000, or goods of market
OPINION NO. 87-19
Richard Walsh -6- December 8 , 1987
value not to exceed $5,000, which may from time
to time be offered to the City and County of San
Francisco through any department, board or
commission thereof, for the benefit of the
designated department, board or commission and
for such purposes within its prescribed legal
jurisdiction as may be specified by the donors.
The Board of Supervisors does hereby authorize
said departments, boards and commissions to
receive and to administer such gifts in
accordance with the wishes of the donors.
Therefore, the City Librarian, as the head of the library
department, may accept gifts valued at no more than $5,000,
provided that the gift is given for a library purpose.
Administration of the Gift
In Section 10.116, the Board of Supervisors authorizes
"departments, boards and commissions to receive and to administer"
gifts accepted by department heads in accordance with the wishes
of the donors. However, boards and commissions created pursuant
to charter provisions already have the power to receive and
administer gifts pursuant to Charter Section 3.500. The Board of
Supervisors therefore does not have the pov;er to authorize
department heads under boards and commission formed pursuant to
charter provisions "to receive and to administer" gifts. It must
be concluded that the Board of Supervisors did not intend to
empower department heads acting under boards and commissions to
exercise powers, control over which is reposed by the Charter in
boards and commissions. In departments such as the library where
the department head reports to a board or commission, the board or
the commission, rather than the department head, is the entity
empowered by the Charter to authorize the expenditure of gifts
accepted by the department head. Where a department does not have
a board or commission overseeing its affairs, then Section 10.116
empowers the head of the department to authorize (i.e. administer)
the expenditure of gifts valued at not more than $5,000.
As the Library Department is overseen by the Library
Commission, the Commission must authorize the expenditure of any
gifts valued at $5,000 or less that are accepted by the City
Librarian. The librarian's power to accept does not include the
authority to expend the gift. The proper procedure requires the
Library Commission to authorize the expenditure of such gifts.
Section 10.116-1 provides that the Controller will establish
procedures for setting up special accounts for the gifts and for
disbursements from these accounts. We have discussed these
Richard Walsh
OPINION NO. 87- 19
-7-
December 8
1987
procedures with members of the Controller's staff. Under the
normal procedure, the department in question provides the
Controller with information about the gift so that the Controller
can set up a separate account for each gift that is given for a
unique purpose. Thus, if the City Librarian receives and accepts
a gift for the purchase of books, he or she should then request
the Controller to set up an account for that purpose. If the City
Librarian receives and accepts cash gifts for general library
purposes, that information should be given to the Controller so
that an account can be set up for all such general gifts. By
setting up accounts in this fashion, the Controller and the
Library will be able to verify and account for the fact that gifts
have been expended in compliance with the terms and conditions of
the donor.
In conclusion, the Library Department should deposit cash
gifts with the Treasurer no later than the next business day after
receipt of the gift. The City Librarian may accept cash gifts
valued at not more than $5,000, provided the gifts are intended
for a purpose under the jurisdiction of the Library. The Library
Commission administers the gifts as requested by the donor and may
authorize expenditures pursuant to the budgetary provisions of the
Charter. Finally, the Library Commission should submit an annual
report to the Board of Supervisors, in the first two weeks of
July, listing the gifts valued at not more than $5,000 that it
received in the last year, and explaining the disposition of each
gift.
Very Truly Yours,
LOUISE H. RENNE
City Attorney
By;
y.
ELAINE WARREN
Deputy City Attorney
LOUISE H. RENNE
City Attorney
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