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Court of Appeal, First District, Division 4, California.

PIEDMONT UNIFIED SCHOOL DISTRICT et al., Plaintiffs and Respondents, v. COUNTY OF ALAMEDA, Defendant and Appellant.

No. A055056.*

Decided: July 27, 1992

Kelvin H. Booty, Jr., County Counsel, County of Alameda, William E. Rundstrom, Asst. County Counsel, Oakland, for defendant and appellant. Lloyd M. Harmon, Jr., County Counsel, County of San Diego, Anthony Albers, Chief Deputy, San Diego, for amicus curiae on behalf of defendant and appellant. Victor J. Haydel III, Brian M. Holbrook, David T. Owen–Ball, Farella, Braun & Martel, San Francisco, for plaintiffs and respondents. John L. Bukey, Robert A. Galgani, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, for amicus curiae on behalf of plaintiffs and respondents.

In this case, we are called upon to decide a pure question of law:  whether the Alameda County Counsel is obligated to provide legal services without fee to the Piedmont, Castro Valley, San Leandro, and Livermore Valley Joint Unified School Districts, as it did before July 1, 1990.   The trial court concluded the county counsel was so obligated.   We affirm the judgment.


For many years, the Alameda County Counsel had provided without fee a broad range of legal services to school districts within the county.   In March 1990, the county counsel informed the school districts that effective July 1, 1990, due to funding problems at the county level, it would only provide such legal services for a fee.1  The county based its position on a 1976 amendment to Government Code section 26520 (hereafter section 26520).

The school districts objected.   In separate letters, they relied heavily upon a 1978 Attorney General's opinion, which concluded that the 1976 amendment to section 26520 “did no more than continue, in revised form, the traditional obligation of the county counsel or district attorney to act as general counsel to school districts.”  (61 Ops.Cal.Atty.Gen. 227, 234 (1978).)   For example, in a letter dated June 1, 1990, the superintendent of the Piedmont Unified School District wrote:  “Under Education Code Section 35206, our District is given the alternative of contracting with private counsel or with the Office of the County Counsel ‘to supplement the legal services that customarily are being rendered by the Office of County Counsel’.   The implication of this provision, especially read together with the language of Education Code Sections 35204 and 35205 and Government Code Section 26520, make [sic ] it clear that we are entitled to receive, free of charge, those kinds of services the County Counsel's office has provided in the past.   Consequently, the suggestion in your March 30, 1990, letter that services customarily provided in the past by the Office of the County Counsel will only be continued if certain districts contribute $100,000 is contrary to the law and to Attorney General's Opinion 61 Ops.Atty.Gen. 227, 5–4–78.”

The superintendents of the other school districts wrote similar letters to the county counsel.   One, recognizing the scarcity of resources for all public agencies, added that “the legal services provided by County Counsel are cost effective in preventing protracted, expensive legal problems for school districts.   Since most legal expenses are a direct cost to the general fund, increased costs in this area have a direct impact on money available for educational support.”

The county counsel's office remained firm in its position.   It responded with a letter to each school district stating that “we, along with many other county counsels, completely disagree with the Attorney General's opinion you quote in your letter․  [¶] [I]t seems clear the Legislature intended a significant change regarding services to school districts by its 1976 amendment to section 26520.”

After July 1, 1990, the county counsel refused to provide to the school districts without fee those legal services it had previously provided.

To resolve this legal dispute, the school districts filed a complaint for declaratory relief, the county answered, and each side moved for summary judgment.   Following a hearing, the trial court issued a seven-page “Order Granting Plaintiffs' Motion for Summary Judgment and Denying Defendant's Cross–Motion for Summary Judgment,” setting forth its legal reasons for concluding “as a matter of law that state law requires county counsel to provide school districts with customary general legal services without fee.”   A judgment was entered decreeing that the plaintiff school districts were “entitled to receive from Alameda County Counsel without fee general legal services of the kind customarily rendered to plaintiffs without fee during the twelve months prior to July 1, 1990.”

The county appeals from the judgment.


 On appeal, the county argues that by its 1976 amendment to section 26520, the Legislature clearly intended to rescind the county's obligation to provide free general legal services to school districts.   It argues that where the meaning of a statute is plain, its language is clear and unambiguous, and there is no uncertainty or doubt of the legislative intent, there is no need for construction and a court should not indulge in it.

The school districts respond that the county ignores the historical context of the 1976 amendments to section 26520.   They argue that the text of the amendments is ambiguous, and that by applying established principles of statutory construction, it becomes clear that the Legislature in 1976 did not intend to alter the financial relationship between county counsel and school districts in which legal services customarily rendered were to be without fee.

Before the 1976 amendments, section 26520 read:  “When required and without fee, the district attorney shall give his opinion in writing to county and district officers on matters relating to the duties of their respective offices.”  (Stats.1947, ch. 424, § 1, p. 1139, as amended by Stats.1951, ch. 1553, § 41, p. 3541.) 2

In 1976, section 26520 was amended to read:  “The district attorney shall render legal services to the county without fee, shall render legal opinions to school districts on matters as required by law, and may render legal services to local public entities as requested.   Unless required by law to provide legal services to local public entities without fee, the district attorney may charge a local public entity a fee, not to exceed the total cost to the county, for such legal services.”  (Stats.1976, ch. 800, § 1, p. 1848.)

Thereafter, the Marin County Counsel requested an Attorney General's opinion, asking (1) what legal services the county counsel was obligated to provide to school districts, and (2) whether the county could require school districts to pay for legal services, and if so, which ones?  (61 Ops.Cal.Atty.Gen., supra, at p. 227.)

In an opinion dated May 4, 1978, the Attorney General concluded:  “1.  The 1976 amendment to Government Code section 26520, insofar as it affects school districts, is a simple rewording of the previous language of that section, continuing the traditional obligation of the county legal officer to render written legal advice to school districts and, by plain implication, to act as general legal counsel to school districts except as expressly provided otherwise by law.  [¶] 2.   The only authority for a county to charge a school district for legal services is found in Education Code section 35206, which provides that the county legal officer may supplement ‘customarily rendered’ legal services to a school district after agreement with the district concerning the manner of services and the fee to be paid by the district therefor.”  (61 Ops.Cal.Atty.Gen., supra, at p. 227, emphasis added.)

Since 1978, there have been no formal challenges to the Attorney General's opinion.   Neither the Attorney General 3 nor any court has issued a contradictory opinion, nor has the Legislature amended the section to indicate that the Attorney General's 1978 opinion was inconsistent with its legislative intent.  (See Meyer v. Board of Trustees (1961) 195 Cal.App.2d 420, 431, 15 Cal.Rptr. 717.)   In this context, the school districts argue that the contemporaneous construction of the statute by the Attorney General is entitled to great weight and should be followed unless it is “clearly erroneous.”   (Ibid.;  see also Jaynes v. Stockton (1961) 193 Cal.App.2d 47, 56, 14 Cal.Rptr. 49.)

Analyzing section 26520 and the effect of its 1976 amendment, we conclude it is ambiguous concerning the issue before us.   For example, before the 1976 amendment, the statute clearly provided that any legal services the county counsel provided to “county or district officers” were to be “without fee.”   After 1976, the county counsel was required to continue rendering legal services to “the county without fee.”   As to “local public entities” other than “the county” or “school districts,” 4 the county counsel after 1976 was authorized but not required to “render legal services ․ as requested.”   Except when required by law to provide the services without a fee, the county counsel was authorized to “charge a local public entity a fee ․ for such legal services.”  (§ 26520, as amended.)   Thus, the statute expressly prohibited charging the county any fee for legal services, while such fees were expressly authorized, but not required, as to local public entities.

In contrast, the language of the statute is neither clear nor unambiguous insofar as it applies to the county counsel charging fees for legal services to “school districts.”   Had it been the Legislature's intent to allow for the charging of fees, it would have been a simple matter to include “school districts” with “local public entities.”   But the section is silent on the issue of fees to be charged school districts for legal services.   The Legislature's intent cannot be ascertained from the plain language of section 26520.5  We must therefore resort to other principles of statutory construction for guidance.

In 1978, the Attorney General concluded that “insofar as it affects school districts,” the 1976 amendment to section 26520 was “a simple rewording of the previous language of that section․”  (61 Ops.Cal.Atty.Gen., supra, 227, emphasis added.) 6  Moreover, in looking to the historical relationship between county counsel and school districts during the preceding 40 years, the Attorney General concluded that the county counsel was “the legal counsel to school districts for all ordinary purposes.”   The only authority for a county to charge school districts for legal services was when the county counsel provided additional services beyond those customarily rendered by the county counsel.  (See Ed.Code, § 35205, discussed infra.)  (61 Ops.Cal.Atty.Gen., supra, 227.)   Based on our own independent analysis of the amendments to section 26520, we agree with the Attorney General's position.   His opinion was not “clearly erroneous.”

Historically, before 1976, the county counsel did more than give “his opinion in writing” to school districts.  (See former § 26520.)   Pursuant to other statutes, the county counsel advised school districts concerning bond issues and defended tort suits against the school districts, school board members and school district employees “without fee.”  (See Gov.Code, § 26522;  Ed.Code, § 35203.)   Further, county counsel customarily rendered other legal services beyond those statutorily mandated.

For example, in Jaynes v. Stockton, supra, 193 Cal.App.2d 47, 14 Cal.Rptr. 49, a statute authorized school districts to employ persons furnishing “special services and advice.”   Shortly after the statute was enacted, the Attorney General issued a formal opinion concluding that this authorization applied only to special services not required to be performed by a public official.7  When a school district employed private counsel to advise and assist its board of trustees in obtaining Federal Old Age Survivors' Insurance coverage for school district employees, it was prevented from spending public funds for that purpose because the county counsel was ready, willing and able to perform those services.  (Id., at pp. 49–50, 14 Cal.Rptr. 49.)   The trial court found that the county counsel was required to perform the particular legal services, that such services “were available to the school district from the county counsel, at no cost or expense to the district” and, under the circumstances, held the school district was not authorized to employ and pay the private law firm.  (Id., at pp. 50, 54, 14 Cal.Rptr. 49.)   The law firm's assignee appealed.

It is ironic in view of the issue and arguments put forward in this case that the county counsel representing the school district in Jaynes, together with 12 other county counsel appearing as amici curiae, urged the reviewing court to follow the Attorney General's opinion interpreting the underlying statute.   The Jaynes court stated:  “The contemporaneous construction of a statute by those charged with its enforcement and interpretation, although not necessarily controlling, ‘is entitled to great weight, and courts generally will not depart from such construction unless it is clearly erroneous or unauthorized.’  [Citations.]   As a contemporaneous construction, and because he was charged with the duty of rendering an opinion with respect to its meaning, the attorney general's interpretation of the subject statute is entitled to great respect.  [Citations.]”  (Jaynes v. Stockton, supra, 193 Cal.App.2d at p. 56, 14 Cal.Rptr. 49.)

In Jaynes, the legal services “required” to be performed by the county counsel for a school district “at no cost or expense” involved advice and assistance in obtaining certain employee benefits for its employees.  (193 Cal.App.2d at p. 50, 14 Cal.Rptr. 49.)   A cursory examination of other pre–1976 published opinions lists county counsel as the attorneys of record rendering legal services to school districts on other issues beyond those mandated by statute.  (See, e.g., Lucas v. Board of Trustees (1971) 18 Cal.App.3d 988, 990, 96 Cal.Rptr. 431 [employment of superintendent];  Meyer v. Board of Trustees, supra, 195 Cal.App.2d at p. 422, 15 Cal.Rptr. 717 [teacher discharge].)  These examples lend credence to the Attorney General's 1978 conclusion that before the 1976 amendment to section 26520, there was a general consensus that the county counsel “was obligated to act as the general counsel for school districts in all ordinary matters.”  (61 Ops.Cal.Atty.Gen., supra, at p. 231.)

Given that historical background, a court will not presume that the Legislature, in enacting a statute, intends to overthrow a long-established principle of law or to enact a wholesale revision of the relationship between agencies unless such intention is made clearly to appear either by express declaration or by necessary implication.  (Jaynes v. Stockton, supra, 193 Cal.App.2d at p. 56, 14 Cal.Rptr. 49;  61 Ops.Cal.Atty.Gen., supra, at p. 230.)   The ambiguous phrasing of section 26520, insofar as it relates to school districts, is inadequate to indicate such an intent.

 Another principle of statutory construction is to construe the statute so it may be harmonized with related statutes.  Education Code section 35206, the text of which was originally enacted in 1972, authorizes school districts to “elect to supplement the legal services that customarily are being rendered by the office of county counsel or district attorney by contracting with either the office of county counsel or office of district attorney, or both, for additional services.   Such additional services shall be performed at a fee and in a manner agreed upon by the governing board and the office of county counsel or office of district attorney, or both.”  (Emphasis added.)  (Ed.Code, § 35206, added by Stats.1976, ch. 1010, § 2, p. 3075, recodifying former Ed.Code, § 1016.6, added by Stats.1972, ch. 346, § 3, p. 659, as amended by Stats.1973, ch. 195, § 4, p. 498.)   By necessary implication, Education Code section 35206 recognized that when enacted, county counsel were customarily rendering basic legal services to school districts without fee.   Thereafter, school districts could elect to “supplement” those basic legal services with “additional services” for which they would have to pay “a fee.”

In his 1978 opinion, the Attorney General concluded that “[t]he enactment of Education Code section 35206 allows the county board of supervisors to shift the cost of providing legal services to school districts from the general tax rolls to those of the affected districts—but only to the extent that such services fall outside those which, at the time of the enactment, ‘customarily ․ [were] being rendered by the office of county counsel or district attorney․’ ”  (61 Ops.Cal.Atty.Gen., supra, at p. 235.)   The Education Code section did not authorize the county to charge school districts for traditional legal services.  (Ibid.)

In view of the above, we conclude as a matter of law that the trial court correctly ruled that the plaintiff school districts are entitled to receive from the Alameda County Counsel without fee those general legal services as had been customarily rendered to them without fee before July 1, 1990.

In response to the concerns expressed by amicus curiae, our reading of these statutes does not disrupt whatever relationships which may exist between the county counsel and the school districts within the several counties.   This will depend upon the legal services that “customarily are being rendered” by the county counsel to those school districts within each county.


The judgment is affirmed.


1.   The county counsel's original proposal was to “continue to provide its current level of legal services to interested school districts if such districts will jointly contribute approximately $100,000 for such services for the 1990–91 fiscal year.”   A subsequent proposal involved billing individual school districts at an hourly rate.

2.   Most counties now have a county counsel to perform civil legal services for the county.  Government Code section 26529 provides:  “In counties which have a county counsel, the county counsel shall discharge all the duties vested in the district attorney by Sections 26520, 26522, 26523, 26524, and 26526.”   For convenience, except when quoting or paraphrasing specific source materials, we shall refer to the county's civil legal officer as the county counsel.

3.   In 1987, the Attorney General did conclude that before 1976, individual school “district officers” may have been able to request written opinions from the county counsel.   After 1976, only “school districts,” acting by majority vote of their governing boards, could request legal opinions from the county counsel.  (70 Ops.Cal.Atty.Gen. 42, 44 (1987).)   The Attorney General did not alter its 1978 conclusion “that the Legislature intended to continue the pre-existing obligation of county counsels [sic ] to render traditional legal advice” to school districts.   (Id., at p. 43, citing 61 Ops.Cal.Atty.Gen., supra, at p. 233.)

4.   The term “local public entities” is not a term of art under general governmental law.   In 1981, the Attorney General concluded that as used in section 26520, it referred to “special districts formed in a county pursuant to state law for public purposes,” such as fire protection districts and municipal water districts.  (See 64 Ops.Cal.Atty.Gen. 418, 420 (1981), and cases therein cited;  see also Gov.Code, §§ 810, 811.2, defining “public entity” for purposes of governmental tort claims act.)

5.   The 1976 amendment to section 26520 is also ambiguous as to the scope of the duties performed by county counsels on behalf of school districts.   As discussed, infra, while the county counsel historically provided legal services to school districts, the statute retained the preexisting reference to legal opinions on behalf of school districts.  (See 61 Ops.Cal.Atty.Gen., supra, at p. 229.)

6.   In his briefs, the county counsel ignores the Attorney General's limiting language.   Elsewhere in his opinion, the Attorney General stated:  “Regardless of how one might view the impact of new section 26520 on the county counsel's relationship to the county or to school districts, all would agree the amendment profoundly affects the county counsel's relationship to special districts.”  (61 Ops.Cal.Atty.Gen., supra, at p. 231, emphasis in original.)

7.   Present statutes authorize school districts to employ and pay private counsel for various legal services, after obtaining the written views of the county counsel.   Those views are advisory only.  (See, e.g., Ed.Code, §§ 35204, 35205.)

REARDON, Associate Justice.

POCHÉ, Acting P.J., and PERLEY, J., concur.