XAVIER BECERRA, Attorney General
CATHERINE BIDART Deputy Attorney General
AGO 19-401
No. 19-401
California Attorney General Opinion
Office of the Attorney General State of California
January 15, 2021
THE
HONORABLE DAVID S. BALDWIN, THE ADJUTANT GENERAL, CALIFORNIA
MILITARY DEPARTMENT, has requested an opinion on a question
related to county authority to contract with the military.
QUESTION
PRESENTED AND CONCLUSION
Does
California law authorize a county to contract with the
military for the county to provide certain governmental
services—such as water, waste removal, sewage,
landscaping, street maintenance, and emergency vehicle
repair—in support of a military installation within the
county?
Yes.
California law generally authorizes a county to contract with
the military for the county to provide those kinds of
services in support of a military installation within the
county.
ANALYSIS
We are
asked broadly whether a county is empowered to contract with
the military for the county to provide an array of
governmental services—including water, waste removal,
sewage, landscaping, street maintenance, and emergency
vehicle repair—in support of a local military
installation. As background, California is home to more than
two dozen military installations, on which there are varying
levels of federal jurisdiction.
1 We are presented with a general
question, which would cover contracts with both federal and
state military agencies.
2 In elaborating on the question, the
requestor gives the example of a proposed contract for
Ventura County to repair emergency vehicles at the United
States Naval Base in Ventura. The requestor informs us that
the then County Counsel advised that the County lacked
authority to contract with the Navy to provide these
services, but then negotiated a joint powers agreement for
this purpose. The disagreement over the basis of the
County's authority prompted the requestor to seek our
opinion on a county's authority to contract to provide
the asked-about services to military installations throughout
the State. We conclude that a county has the general
authority to enter into such a contract.
[3] This conclusion
is based on our analysis of county powers deriving from the
state Constitution and statutes.
A
county is a legal and political subdivision of the
State.
4 It may exercise only those powers
expressly granted to it by the state Constitution or a state
statute, as well as powers that arise by necessary
implication from those sources.
5 The Constitution not only directs
the Legislature to provide for county powers,
[6] but also
expressly empowers a county to "make and enforce within
its limits all local, police, sanitary, and other ordinances
and regulations not in conflict with general
laws."
7 These powers are often referred to as
"police powers," and a county may exercise them
within the county unless the Legislature has provided
otherwise.
A
county's police powers are extensive. They encompass the
authority to provide for the general welfare and safety of
the community.
8 As the court of appeal has explained, they
are general or specific to a particular subject matter. (See,
e.g., Gov. Code, § 25333 ["The board of supervisors
may approve a contract . . . only after conducting a public
hearing as a part of a regularly held meeting of the
board"]; see also Gov. Code, § 23005 [county acts
through its board of supervisors or authorized agents of the
board].)
[u]nder this police power, counties have plenary authority to
govern, subject only to the limitation that they exercise
this power within their territorial limits and subordinate to
state law. [Citations.] A county may use its police
powers to do whatever will promote the peace, comfort,
convenience, and prosperity of its citizens and these
powers should not be lightly limited. [Citation.] Thus, a
county's constitutional authority to engage in a
challenged activity will generally be upheld if it is
reasonably related to promoting the public health,
safety, comfort, and welfare, and if the means adopted
to accomplish that promotion are reasonably appropriate to
the purpose.9
These
broad powers generally authorize direct provision of the
asked-about services, ranging from supplying water to
repairing emergency vehicles that facilitate governmental and
safety services within the county. Of course, there may be
specific laws that govern how or to what extent, if at all, a
particular service may be provided.
10 But generally speaking, a
county's police powers authorize it to directly provide
such services.
11
As
pertinent here, both constitutional and statutory law give
counties authority to exercise their powers by contract. The
constitutional police powers of a county, which empower it to
provide the asked-about services within county territory,
include the power to contract to provide those
services.
12 And Government Code section 23004,
subdivision (c) specifically authorizes a county to make
contracts "necessary to the exercise of its
powers."
13 This includes, for example, the power to
enter into contracts with the federal government related to
maintenance of public roads.
14
A
county's contractual power to provide certain
governmental services exists even as to a military
installation on a federal enclave.
15 While this might appear
to be barred by the territorial limitation on county powers,
it is not. Federal authority over federal enclaves does not...
