People ex rel. Deputy Sheriffs' Assn. v. County of Santa Clara

• Decision Date: 04 October 1996
• Docket Number: No. H013730,H013730
• Citation: 49 Cal.App.4th 1471,57 Cal.Rptr.2d 322
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 7484, 96 Daily Journal D.A.R. 12,243 The PEOPLE ex rel. DEPUTY SHERIFFS' ASSOCIATION OF SANTA CLARA COUNTY, INC., et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CLARA, et al., Defendants and Respondents.

Page 322

57 Cal.Rptr.2d 322

49 Cal.App.4th 1471, 96 Cal. Daily Op. Serv. 7484,

96 Daily Journal D.A.R. 12,243

The PEOPLE ex rel. DEPUTY SHERIFFS' ASSOCIATION OF SANTA CLARA COUNTY, INC., et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CLARA, et al., Defendants and Respondents.

No. H013730.

Court of Appeal, Sixth District, California.

Oct. 4, 1996.

Rehearing Denied Oct. 25, 1996.

Review Denied Jan. 22, 1997.

Carroll, Burdick & McDonough and Christopher D. Burdick, Alison Berry-Wilkinson, and Martin R. Gran; Daniel Lungren, Attorney General, and Clayton P. Roche, Deputy Attorney General, for plaintiffs and appellants.

Remcho, Johansen & Purcell and Robin B. Johansen, Philip C. Monrad; Ruby & Schofield and Allen Ruby, Glen W. Schofield; Steven Woodside, Santa Clara County Counsel, for defendants and respondents.

PREMO, Associate Justice.

Plaintiffs appeal the trial court's ruling that defendant County of Santa Clara (hereafter, County) could consolidate the offices of Chief Probation Officer and Director of the County's Department of Corrections. ¹ Their main contention is that the offices are inherently incompatible and cannot be legally merged.

FACTS

In 1987, in Santa Clara County Charter section 509, ratified by the voters on June 6, 1988, the county established a Department of Corrections (hereafter, Corrections) to run the county's jails pursuant to Government Code section 23013. The Board of Supervisors (hereafter, board) transferred jurisdiction over the jails from the sheriff to a director of corrections (hereafter, director) This created a problem because correctional officers are classified in the Penal Code as custodial officers, not peace officers, and they may not carry firearms in the course of their duties. (Pen.Code, §§ 831, 831.5.) Correctional deputies, on the other hand, are classified as peace officers and may carry firearms in the course of their duties. (Pen.Code, §§ 830.1, 830.6, subd. (a)(2).) Armed officers are needed at the jail for transporting prisoners, pursuing escaped prisoners, and supervising custodial officers.

                who staffed the jails with "correctional officers" and "correctional deputies."   The former were hired and trained by the director;  the latter originally had been hired and deputized by the sheriff.  After the changeover, in addition to being members of Corrections, the correctional deputies remained members of the sheriff's department with the contractual right to transfer into the sheriff's department as openings arose.  By June 1990, a substantial number had taken advantage of this right, and the number of correctional deputies in Corrections fell below that required by state law.  (County of Santa Clara v. Deputy Sheriffs' Assn.  (1992) 3 Cal.4th 873, 877-878, 13 Cal.Rptr.2d 53, 838 P.2d 781.)
                

In 1990, County tried to confer "limited peace officer" status upon the correctional officers. The Deputy Sheriffs' Association (hereafter, DSA) objected, and County sued it for a declaration of rights and duties. This court upheld the decision of the trial court allowing the conferring of such status, ² but the Supreme Court reversed. It held that county correctional officers are not peace officers listed in Penal Code section 830 and may not carry firearms in the course of their duties. (County of Santa Clara v. Deputy Sheriffs' Assn., supra, 3 Cal.4th 873, 13 Cal.Rptr.2d 53, 838 P.2d 781.)

In July 1993, after an unsuccessful attempt to amend the Penal Code to permit correctional officers to carry firearms, ³ the board adopted a resolution consolidating corrections as a "bureau" "under the jurisdiction of the Probation Department[ ]" to whom it entrusted "jurisdiction of all county functions, personnel and facilities relating to institutional confinement, punishment, care, treatment and rehabilitation of offenders, both presentenced and sentenced, juvenile and adult." Probation officers have limited peace officer status and may carry firearms in the performance of their duties. (Pen.Code, § 830.5.)

On July 20, 1993, plaintiffs filed a complaint challenging the consolidation of the two departments as well as the chief probation officer's attempted grant of peace officer powers to correctional officers. The trial court dismissed the matter because a challenge to the consolidation of county offices should be raised in a quo warranto proceeding ⁴ for which the permission of the Attorney General is necessary. (Code Civ. Proc., § 803.)

On January 13, 1994, the Attorney General granted leave to sue and on February 7, 1994, plaintiffs filed a verified complaint in quo warranto for injunctive and declaratory relief. After all the superior court judges of the county recused themselves, the Judicial Council assigned the Honorable Winslow Christian (retired) to hear and decide the issue. The Santa Clara County Correctional Peace Officers' Association agreed to participate as amicus curiae and a one-day court trial was held on September 21, 1994. Thereafter, Justice Christian held that the Board's consolidation of offices was lawful and effective. This appeal ensued.

CONTENTIONS ON APPEAL

Appellants assert that the offices of director of corrections and chief probation officer are incompatible and cannot be consolidated. First, they claim that one individual cannot hold and perform the duties of both offices without violating the California common law prohibition on the holding of two incompatible public offices. They contend consolidation creates conflicts of interest both actually and potentially and that the consolidated officer's loyalties are inherently inconsistent and conflicting.

Furthermore, the chief probation officer cannot carry out the duties of the director of corrections because there is no legislative authority for a probation department to run institutions for untried, unsentenced adults. Next, by appointing the chief probation officer (who is appointed by the superior court) ex officio chief officer of the bureau of corrections, the board improperly delegated to the court the board's responsibility to appoint the director of corrections. This violated the enabling provisions which established the original department of corrections.

Finally, appellants dismiss as irrelevant County's claim that the merger is efficacious, economical, and progressive, remarking: "[t]he Legislature has not blessed this marriage of convenience."

STANDARD OF REVIEW

"Where the facts are not in conflict and the issue involves the proper application of a statute or administrative regulation, a reviewing court is not bound by the trial court's determination. [Citations.]" (Shoban v. Board of Trustees (1969) 276 Cal.App.2d 534, 541, 81 Cal.Rptr. 112.) In our case, the evidence bearing on the interpretation of the statutes and ordinances brought into issue in this case is not in substantial conflict. Consequently, we are "not bound by the trial court's finding, but must make our own determination respecting the proper interpretation of the [enactments]. [Citations.]" (Ibid.)

INCOMPATIBILITY

1. Subordination

As a charter county, Santa Clara County has the constitutional authority to consolidate offices and its authority is not limited by general law as found in Government Code, section 24300. (Cal. Const., art. 11, § 4; More v. Board of Supervisors (1916) 31 Cal.App. 388, 393, 160 P. 702, 77 Ops.Cal.Atty.Gen. 7 (1994); see also Gov.Code, § 24308.)

County exercised this power by resolution stating in pertinent part: "1.Consolidation of Corrections Department under Probation. The county department of corrections ... is hereby consolidated under the jurisdiction of the Probation Department. The Probation Department shall have jurisdiction of all county functions, personnel and facilities relating to institutional confinement, punishment, care, treatment and rehabilitation of offenders, both presentenced and sentenced, juvenile and adult.

"2. Name. The department of corrections ... is hereby renamed as the Bureau of Correction, hereafter referred to as the Bureau.

"3. Head of Correction. There is in the County the position of Chief Officer of the Bureau of Correction, hereafter referred to as Chief Officer, appointed by the Board of Supervisors. The Board of Supervisors hereby appoints the Chief Probation Officer to serve as Chief Officer.

"4. Duties of Chief Officer.

"(a) The Chief Officer shall be in charge of and responsible for the correctional facilities under the jurisdiction of the Bureau and shall have custody of the presentenced and sentenced prisoners in them in accordance with such rules and regulations as prescribed by state law and by the Board of Supervisors.

"(b) The Chief Officer shall perform those duties with respect to the keeping of prisoners and the administration of the County jail which are assigned to the Sheriff by general law.

"(c) The Chief Officer shall have administrative control over the Bureau...."

By appointing the chief probation officer to be chief officer of the bureau of correction, the chief probation officer became ex officio head of corrections. Ex officio powers come "[f]rom office; by virtue of the office; without any other warrant or appointment than that resulting from the holding of a particular office. Powers may be exercised by an officer which are not specifically conferred upon him, but are necessarily implied in his office; these are ex officio...." (Black's Law Dict. (6th ed. 1990) p. 575 [ex officio].)

"From California's earliest days, courts have interpreted 'ex officio' in the context of the occasion. If the enabling act or Constitution called for two elective offices, or otherwise made it clear that no melding of offices was intended, the solution was to find the offices to be distinct. In those cases, the courts held the duties were assigned to the office holder of the designated office in question. For example, in People v. Durick (1862) 20 Cal. 94, the two elective offices of county clerk and county...