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Full text of "Opinion"

DOCUMENTS DEPARTMENT 



«■! 






C I- 



SAN FRANCISCO 
PUBLIC LIBRARY 

REFERENCE 
BOOK 

Not U) be taken I'rom tlie Library 

GOVZr.^iMENT IN'FORMATION CENTER 

SAN FRANCISCO PUBLIC LIBRARY 



FEB 3 19^3 



SAN FRANCISCO PUBLIC LIBRARY 



3 1223 03474 9524 




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 

Provision s 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 Optometr y (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. Star k (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. M elton 
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 o f 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 
rom tn 
e devo 
3.550, 
ter min 
e Recr 
proces 



e asK 
of Sa 

Craf 
ional 
r tne 
Dor i 
respo 
e Har 
ted t 

3.55 
at ion 
eatio 
s as 



ea t 
n Fr 
t Ha 

pur 
re a 
s lo 
ndin 
Dor 
ore 
2, a 

of 
n an 
prov 



nis 
anci 
roor 
pose 
re 1 
cate 
g to 
are 
cr ea 
nd 6 
now 
d Pa 
ided 



of f i 

SCO 

(Ha 
s . 

iinit 
d or 

you 
gene 
tion 
.200 
tnes 
rk C 

in 



ce t 
may 
rbor 
To a 
atio 

on 
r in 
rate 
al u 

et 
e mo 
ommi 
the 



o aa 
use 
) fo 
nswe 
ns o 
the 
quir 
d oy 
ses . 
seq . 
nies 
ssio 
Char 



vise 
monie 
r oth 
r thi 
n tne 
reven 
y, we 

a re 

(Se 

) Tn 

shal 
n tnr 
ter. 



you wn 
s gene 
er tna 
s ques 

use o 
ues ge 

empna 
creati 
e_, San 
eref or 
1 ue s 
ough t 

(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 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 


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 



7 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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