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HomeMy WebLinkAboutMINUTES - 08132002 - SD3 To: BOARD OF SUPERVISORS t - Contra FROM: Supervisor Mark Deaulner, District IV Y + C3Sta DATE- August 1 , 00County SUBJECT:Alternate for the Planning Commission SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECO M1+N1lAIMNS Refer to Internal Operations Committee the issue of appointing an alternate to the Contra Costa County Planning Commission and in particular provide that. 1. The Board of Supervisors appoints an alternate commissioner for the Contra Costa County Planning Commission. This alternate will have all powers and duties prescribed by law for the standing members and exercise those powers and duties when a standing Commissioner is absent or must recuse himself or herself when there is a conflict of interest. 2. The Alternate Commissioner should attend regularly'scheduled meetings and hearing so he/she will be knowledgeable about a subject'should''he/she'be called upon to vote. 3. Alternate Commissioner will be compensated in the same manner as standing Commissioners. 4. Defer to County Counsel and Director of Community Development to implement and research any legal obstacles, ,BACKGROUND Planning Commissioners have intense,busy schedules and should be commended for the tremendous jobs they do in balancing their personal lives with their extensive County service. Frequently however,>a time conflict arises causing Commissioners'to miss a scheduled meeting or a Commissioner must be recused'because of a conflict of interest. The appointment of an Alternate could help alleviate any problems that Knight arise as a result of an absence. CONTINUED ON ATTACHMENT: YES SIGNATURE:V),/k4tJZ. .,,,✓ RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF HOARD COMMITTEE APPROVE OTHER ACTION OF BOARD ON A#7 ti 5 t 13. 200 APPROVED'AS RECOMMENDED X OTHER-2— REFERRED to the Internal Operations Committee the issue of appointing an alternate to the Contra Costa County Planning Commission; DIRECTED the 'Internal Operations Committee to include in their discussion other possible solutions to problems that arise as a VOTE Oi SUPERVISORS result of 'absences to the Contra Costa County Planning Commission. I HEREBY CERTIFY THAT THIS IS A TRUE UNANIMOUS(ABSENT. ) AND CORRECT COPY OF AN ACTION TAKEN AYEsi1II,ISS#V,I NOES.. II AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. ATTESTED XWmt 13, 2002 JOHN SWEETEN CLERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR` Contact:Nanci I»Vakke Dist.IV cc: County Administrator Board of Supervisors County Counsel Dennis Barry Community Development Director Contra Costa Planning Commission Members i By ,DEPUTY Office of the County Counsel Contra Costa County 651 PineStreet, 9th Floor Phone: (925)335-1800 Martinez, CA 94553 Fax: (925)646.1078 Date: August 8, 2002 To: Mark DeSaulnier, Supervisor,District 4 From: Silvano B.Marchesi, County Counsel By: Thomas L. Geiger,Deputy County Counsel 7 Re: PLANNING COMMISSION'ALTERNATES SUMMARY This responds to your inquiry about whether alternates maybe appointed to the County Planning Commission. Because planning commissioners exercise judgment and discretion, their powers cannot be delegated to alternates unless there is statutory authority to do so. There is no statutory authority to appoint alternates to the Planning Commission. For these reasons, we conclude the Board of Supervisors may not appoint alternates to the County Planning Commission. DISCUSSION A public body or public officer' generally may not delegate discretionary duties or functions. (See 62 Ops.Cal.Atty.Gen. 473,482 (1979) [citing cases).) Powers'conferred upon public agencies and officers that involve the exercise of judgment and discretion are in the nature of public trusts and cannot be surrendered or delegated to subordinates in the absence of statutory authorization:. (Civil Service Assn. v.San Francisca Redevelopment Agency(1986) 166-Cal.A.pp.3d 1222, 1225, see also 2A McQuillin, Municipal Corporations (3d ed. 1996) § 10.39.) The Planning Commission makes administrative(quasi-judicial) decisions because its members apply existing law'or policy to a given set of facts. (Pacific Corp. v. City of Camarillo (1983) 149 CalApp.3d 168, 176. Decisions on variances, conditional use permits, and similar development approval permits are administrative decisions that require the exercise of judgment and discretion. (Topanga;Assn.for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514 n. 12.) Because planning,commissioners exercise judgment and discretion, their powers cannot be delegated to alternates unless there is explicit or implicit statutory authority to do so. 1. Ealicit Statutory Authority Government Code section 65101 authorizes counties to create planning commissions. See Moore v.'Panish(1982)32 Cal.3d 535,545(definition of"public office"), Mark f)eaulnier August 8, 2002 ; Pa e 2 Subsection (a) of thissection provides, in relevant part. "The legislative body may create one or more planning commissions each of which shall report directly to the legislative body.: The legislative body shall specify the membership'of the commission or commissions. In any event, each planning commission shall consist of at lust five members, all of whom shall act in the public interest. If it creates more than one planning commission, the legislative body shall prescribe the issues,responsibilities,or geographic jurisdiction assigned to each ssbody. ..."x Nothing in Government Code 65101 explicitly authorizes the appointment'of alternate planning commissioners. Furthermore,none of the predecessor statutes to Government Code section. 65101 authorized the appointment of alternates,'although between,1929 and 1965,predecessor statutes provided that the deputies of ex officio members could serve on planning commissions.' Between 1947 and 1965,the ex officio members (or their deputies)were non-voting, advisory members. The first statute requiring counties to establish planning commissions was adopted in 1927. This statute required counties to create,by ordinance,a six-member planning commission. (Stats.1927, ch.'874, § 2.) The six members were appointed by the chief executive officer of the county(with the approval of the legislative body), and'three'of these members were ex officio—the chief executive officer,the chief engineer and the legislative body's attorney. (Ibid. The 1927 statute was repealed by the Planning.Act of 1929,which required the legislative body of each county to create, by ordinance, a nine-member planning commission. (Stats. 1929, ch. 838, § 2.) Six members were to be appointed by the legislative body. The remaining three members' were ex officio. One was the chief engineer or surveyor or his designated deputy and two others were selected by the legislative body. (Ibid.) The designated deputies of the ex officio members could serve. (Ibid.; see also Stats. 1937, ch. 665, § 2 Stats. 1945,ch. 715, § 2; Stats. 1947, ch. 807, § 13;)' In 1947,the Legislature required county planning commissions to have at least five and not more than severs members, appointed by the chairman of the board of supervisors and approved by the 2 In Contra Costa County,the planning commission must have seven members. (C.C.C.Ord Code,§26-2.402.):One member is nominated by each member of the Board of Supervisors and two members are nominated by the Board as a whole. (C.CC.Ord.Code,§26-2.404.) 3 A deputy and an alternate are not the same. See section 2 of this memo. "Ex-officio"means"by virtue of the authority implied by office." (Black's Law Dict.(7'ed. 1999)p.597,col. 1.) Mark Deaulnier August 8,'2002 Pae 3 board. (Stats. 1947, ch. 868, § 2.) This statute also provided for the appointment of an unspecified number of advisory members, including the district attorney,the county chief engineer or county surveyor,and officials, including one supervisor. (Ibid.) Deputies could be designated to sit in the absence of these advisory members,who had no voting rights unless the board of supervisors provided' for these rights. (Ibid.; see also Stats. 1956, 1"Ex. Sess., ch'. 33, § 8.) In 1965,the Legislature required county planning commissions to have at least five and not more than nine members, and eliminated the provision for advisory members. (Stats. 1965, ch. 1880, § 5;see also Stats'. 1971,ch. 462, § 1; Stats. 1978,ch. 644, § I. In 1984, the Legislature adopted Government Code section 65 10 1, which required county planning commissions to have at least five members, (Stats. 1984, ch. 690, §2; see'also Stats. 1985, ch. 617, § 25.) By eliminating the provision for advisory and ex officio members, who could be deputies, the Legislature expressed its intent to allow no one other than appointed members on planning commissions. when a statute uses a particular term,but later the term is omitted, the;omission signifies the Legislature intended a different meaning. (Lazar v. Hertz Corp. (1999)69 Cal.AppAth 1494, 1504.) The later statute is controlling. (Ibid.) If the Legislature had intended for county planning commissions to include alternates, it could have authorized this by statute. The Legislature has done so with respect to other commissions and boards. For example, the Legislature has authorized the designation of alternates for local agency formation.commissions (Gov. Code, § 56325)and boards of directors of sanitary districts(Health and Saf. Code, § 4730). A maxim of statutory interpretation provides that, where a statute with reference to one subject contains a given provision,the omission of such a provision from another statute is significant to show that a different'intention existed. (See Williams v. County of San Joaquin (1990) 225 Cal.App.3d 132.6, 1332.) Because some statutes provide for alternate members but no statute provides for alternate';planning commissioners,this maxim leads to the conclusion that the Legislature did not intend for county planning=.commissions to include alternates. 2. Im 'icit Statutory Authority Under Goveinrnent Code section 7, a principal officer can delegate duties that involve the exercise of judgment and discretion to deputies. This section provides: "Whenever a power is granted to, or a duty is imposed upon, a public officer, the power may be exercised or the duty may be performed by a deputy of the officer or by a person authorized,pursuant to law,by the Mark DeSaulnier August 8, 2002`. Page 4 officer, unless this cede expressly provides otherwise." The corollary to this rule is that if apublic officer is not authorized to have deputies, then the duties of a public officer may not be delegated to others. (See,e.g., Civil Service Assn.., supra, 166 CalApp.3d at 1225.) Under Government Code section 1190, a deputy is a subordinate officer. "When not otherwiseprovided for, each deputy possesses the powers and may perform the duties attached by law to the office of his principal." (Gov. Code, § 1194.) If the official name of a principal officer is used in any statute conferring power or imposing duties or liabilities,'it includes deputies. (Gov. Code, §" 24100.) A deputy is not the same as an alternate. A deputy has many functions, which depend on the principal officer's duties. (See Gov. Code, §1194.) On the other hand, an alternate has one function-to serve on a board or commission when the regular member is not in attendance. (See,e.g., Gov. Code, § 56325 (a) [alternate local agency formation commission members]; 58 Ops.Cal.Atty.Gen. 442, 443 (1975) [alternate members to nonprofit'corporation board.of directors].)s An alternate may be a deputy(see 52 Ops.Cal.Atty.Gen. 75, 76 (1969)), but an alternate is not always a deputy,as in the case of alternate LAFCO members. Likewise,a deputy may at times serve as an alternate for the principal officer if authorized by law,but this would be only one of the deputy's many functions: Whether a member of a'board'or commission may have;a deputy serve as the member's alternate generally depends on whether the member is authorized by lacy to have a deputy. The Attorney General has concluded that members of board and commissions,may be represented by alternates if these members are authorized by law to have deputies. (See 52 Ops.Cal.Atty.Gen. 75, 76 (1969) [deputy of county treasurer may sit on retirement board in place of treasurer]; 62 Ops.Cal.Atty.Gen. 479, 489(1979)[directors of state departments may appoint alternates who are deputies to California Council on Criminal Justice if director is authorized by Gov. Code, § 7.5 to designate deputy director as alternate to state boards, commissions, or committees].) 4 Section 7 was added to the Government Code in 1943 to insure that the principal officer could delegate duties that involved the exercise of judgment and discretion,as well as ministerial duties. At common law, the rule was that only ministerial duties could be delegated to deputies,and there was some question whether under statutes existing in 1943(the predecessors to Government Code sections 1194 and 24 100)the restrictive nature of that rule had been abrogated. (See 62 Ops.Cal.Atty.Gen.479,486('1979):) 5 This office has previously concluded that county supervisors may appoint alternates to boards and commissions. (County Counsel`Opns.Nos.78-133,85-009.) However,the conclusion in these opinions was limited to non-statutory boards or commissions that act in an advisory capacity without decision-making powers. This office also has previously concluded that county supervisors may not appoint alternates to the Planning Commission. (County Counsel.Opn.No.99-014.) Mark DeSaulnier August 8, 2002 Pa. e 5 In contrast, the Attorney General has concluded that members of boards or commissions, may not be represented by alternates if these members are not authorized by law to have deputies. (See 29 Ops.Cal.Atty.Gen. 145, 149 (1957) [two'appointive members of District'Securities Commission could not be represented by alternates because they are not authorized by law to have deputies], 34 Ops.Cal.Atty.Gen. 25 27 (1959) [Lieutenant Governor could not appoint his executive secretary to act for him on Toil Bridge Authority because Lieutenant Governor has no deputies].) The Attorney General also has concluded that if an individual is appointed to a board or commission by virtue of individual qualifications rather than his or her ex officio status, a deputy may not serve as an alternate. (See 62 Ops.Cal.Atty.Gen. 479,491-92'(1979) [district attorney member of California Council on Criminal Justice was selected by Governor to serve on commission presumably because of his individual qualifications, and deputy does not have same qualifications],) Opinions of the Attorney General should be given great weight and are persuasive in the absence of controlling authority. (Bell Gardens Bicycle Club v. Department ofJusUce(1995) 36 Cal.AppAth 717, 741 fii. 6.) A planning commissioner is not a county officer authorized to appoint deputies, nor are county supervisors authorized:to appoint deputies as their subordinates. Nothing in the Government Code authorizes county supervisors to appoint deputy planning commissioners. Because there is no statutory authorization for deputy planning commissioners, we conclude that there is no implicit statutory authorization for planning commission alternates. For the above reasons, in our view the Board of Supervisors may not appoint alternates to the County Planning Commission. TLG: cc: John Gioia,Supervisor,District 1 Gayle B Uilketm,Supervisor,District 2 Donna Gerber,Supervisor,District 4 Federal D.Glover, Supervisor,District 5 John Sweeten,County Administrator Attn:Julie Enea Senior Deputy County Administrator Dennis M.Barry,AICD,Community Development Director Y3:\20021Btioni ufSryScrvierns�l¢nni�cinia o-lfiiwm.ayxi BACKGROUND: On May 31, 2000, the Service Employees International Union(SEIU) Local 1877 master janitorialcontract expired. This contract covered over 5,000 Bay Area janitors that clean hi-tech and other commercial office buildings. Since negotiations began in mid-March,janitorial contractors have made proposals for only a 30-cent-an-hour raise over the next five years. Under the expired contract,janitors made $8.00 an hour, which places them at the federal poverty level. Over the next five years,the proposed increase would not allow janitors to maintain at the poverty level, Iet alone rise above it. SEIU is seeking'a three-year contract at a living wage, one significantly higher than the anticipated rate of inflation., to lift Bay Area janitors out of poverty. Hard working members of our communities should benefit from the current period of economic prosperity, as they contribute significantly to it. As well, when janitors earn a living wage they participate fully in the local economy and require and will not need public financial or other support, which benefits the entire Bay Area. Therefore, the Contra Costa County Board of Supervisors stands with the janitors and their families as they seek full and fair payment for their services.