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OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA
Opinion No. 65-2
1965 Cal. AG LEXIS 20; 45 Ops. Cal. Atty. Gen. 82
April 16, 1965
SYLLABUS:
[*1]
LOCAL AGENCY FORMATION AND ANNEXATION COMMISSIONS -- Local Agency Formation Commissions are not units of county government but are public agencies, and persons employed or contracted for by the commissions are commission employees, but county officers serving on the commissions do not lose their status as county
employees.
REQUESTBY:
EXECUTIVE OFFICER, STATE EMPLOYEES' RETIREMENT SYSTEM
QUESTION:
The Executive Officer, State Employees' Retirement System, has presented the following questions:
(1) Are the "Local Agency Annexation Commissions" and the "Local Agency Formation Commissions" created by
sections 54750-54791 of the Government Code "public agencies" within the meaning of sections 20009 and 22009,
Government Code?
(2) If so, are the executive officer and staff personnel, designated in accordance with sections 54769 and 54791,
Government Code, employees of the respective commissions within the meaning of section 20012, Government Code?
The conclusions are:
(1) Local Agency Formation Commissions created by sections 54775-54791 of the Government Code are public
agencies within the meaning [*2] of sections 20009 and 22009 of the Government Code, having been established by
the State to further a State policy and having authority independent of the county where located.
(2) Whether the executive officers and staff personnel designated in accordance with sections 54769 and 54791 of
the Government Code are employees of the Commission depends on whether they are appointed, assigned, employed,
or contracted for by the Commission. In those cases where the County Administrator or County Clerk serves as executive officer and where the county provides staff personnel, such personnel remain county employees. Despite the wording of sections 54750-54771 of the Government Code, no Local Agency Annexation Commissions were, in fact, created, and the provisions of these sections are applied to the Local Agency Formation Commissions.
OPINIONBY:
THOMAS C. LYNCH, Attorney General; William M. Goode, Deputy
OPINION:
[**82] ANALYSIS
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1965 Cal. AG LEXIS 20, *; 45 Ops. Cal. Atty. Gen. 82, **
Because the statutes do not specifically classify local agency formation commissions either as public agencies or as
units of county government, it is necessary to trace the legislative development of the code provisions establishing the
commissions. [*3]
In March, 1959 Governor Edmund G. Brown appointed a Commission on Metropolitan Area Problems to study and
make recommendations on the critical [**83] situation brought about by California's post-World War II population
explosion. After extensive hearings the Commission submitted to the Governor in December, 1960 its Report on Meeting Metropolitan Problems. This report recognized that migration of people into California's metropolitan areas has
generated: (1) increased demand for more and broader governmental services; (2) excessive discrepancies in the level of
urban services; (3) tax structures that have little or no relation to services received; and (4) a greatly increased number
of independent and often overlapping local governmental units.
The Commission recommended that the State establish a "State Metropolitan Areas Commission," one of the duties
of which would be to: "Exercise quasi-judicial powers in the review and approval of proposals for the incorporations of,
or annexations to, cities, and for the creation of, [or] annexations to . . . special districts."
The Commission noted that metropolitan area problems are State-wide problems and are not subject to solution except [*4] on an area-wide basis. Hence, they are beyond the reach of local governments as presently constituted and
call for State action.
This report was subject to several reservations. The League of California Cities contended, inter alia, "the State
agency authority over annexations should be exercised only in metropolitan areas." The County Supervisors Association
of California insisted that: "A state Metropolitan Areas Commission can serve a useful purpose in California, but only if
it has advisory duties." (Emphasis added.)
In his 1963 inaugural address, the Governor urged enactment of laws "to end the haphazard formation of new cities
and service districts." (Senate Journal, January 7, 1963, p. 50.) The Governor submitted Assembly Bill 1662 dealing
with the formation of new cities and special districts, and Senate Bill 861, designed to control the annexation of territory
to existing cities and districts.
Assembly Bill 1662 provided for a nine-member formation commission composed of three State, three county, and
three city officials, which would exercise complete control over formation of cities and districts throughout the State.
This clearly would result in a "public agency" as [*5] used in sections 20009 and 22009, Government Code. n1 Senate
Bill 861 would create in each county a five-member annexation commission consisting of two county officials, two city
officials, and one member of the general public.
n1 All section references are to the Government Code unless otherwise specified.
Faced with immediate objection by the County Supervisors Association that Assembly Bill 1662 would be contrary
to "home rule" principles, the bill was changed, with the agreement of the Governor's office and the League of California Cities, to provide for a five-member commission corresponding to that provided in Senate Bill 861.
Assembly Bill 1662, as enacted, provided that if the formation commission was created, no annexation commission
would be established and the former would [**84] have all the powers enumerated in both bills. n2 Senate Bill 861
carried similar language. n3 Enactment of both bills thus resulted in the creation of a Local Agency Formation Commission in [*6] each county, this Commission having the functions and responsibilities of both the Formation and Annexation Commissions as provided in the two bills. See 43 Ops. Cal. Atty. Gen. 267 and 44 Ops. Cal. Atty. Gen. 91.
n2 Cal. Stats. 1963, ch. 1810, § 2, p. 2711.
n3 Cal. Stats. 1963, ch. 1808, § 2, p. 2716.
It can be argued the Commission is a county agency because it is staffed and financially supported by the county.
n4 Further, the work done by the Commissions is in furtherance of the power to control the area over which they have
jurisdiction; two members of the Commissions are appointed by the county board of supervisors, although the Commissions have authority to incur usual and necessary expenses.
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1965 Cal. AG LEXIS 20, *; 45 Ops. Cal. Atty. Gen. 82, **
n4 Cal. Gov. Code §§ 54788, 54790-54791; Cal. Gov. Code §§ 54769-54771.
On the other hand, arguments [*7] favoring classification of the Commissions as agencies independent of the counties include the fact that they are not responsible to anyone; they may employ personnel as they need them; they may
hold hearings and enforce their own rules and regulations; they have perpetual existence; they may enter into contracts
for professional and consulting services and incur usual and necessary expenses for the accomplishment of their functions. Although they do not have the express power to sue, such power is implied in their right to contract; and they do
exercise control over local government to the extent that no annexation without Commission approval is a valid annexation.
"Public agencies," as used in sections 20009 and 22009, means any city, county, district, or other local authority or
public body of or within this State. Status as a public agency depends on existence independent of and autonomous of
the political entity which created it rather than as an integral unit of the parent body. 3 Ops. Cal. Atty. Gen. 234 (1944);
4 Ops. Cal. Atty. Gen. 76 (1944).
The nature of Local Agency Formation and Annexation Commissions must be determined [*8] by whether they
are carrying out State or local policies and whether they have the right to act independently of the county rather than
exclusively by the manner in which they are financially supported. The creation of Local Agency Formation Commissions by the State for the purpose of executing a part of the functions of State government, even though locally performed, leads to the conclusion that these Commissions are public agencies within the meaning of sections 20009 and
22009.
Personnel to assist the Commissions may be obtained in two ways: (1) County officers or other employees may
serve, and in doing so, do not lose their status as county employees (25 Ops. Cal. Atty. Gen. 248, 250 (1955)); or (2) the
Commission may employ or contract for professional or consulting services to carry out its functions, and may further
appoint and assign staff personnel where the assistance rendered by the county boundary commission is insufficient.
When the Commission fails to appoint an executive officer, the County Administrator or County Clerk so serves.
[**85] Persons employed or contracted for by the Commission become Commission employees. Section 20012(b)
provides [*9] that any person in the employment of any contracting agency, for purposes of the State Employees' Retirement Law, is considered to be an employee of the contracting agency. Sections 54769 and 54791 confer on the
Commission the right to employ or to contract for services. It is concluded that since a Local Agency Formation Commission is not a county agency, the executive officer and staff personnel employed by the Commission are Commission
rather than county employees.
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GovernmentsState & Territorial GovernmentsEmployees & OfficialsPensions & Benefits LawGovernmental EmployeesCounty PensionsPensions & Benefits LawGovernmental EmployeesState Pensions