Kamp, 051183 CAAGO, AGO 83-308

Docket Nº:AGO 83-308
Case Date:May 11, 1983
Court:California
 
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JOHN K. VAN DE KAMP Attorney General
JACK R. WINKLER Deputy Attorney General
AGO 83-308
No. 83-308
California Attorney General Opinion
Office of the Attorney General State of California
May 11, 1983
         THE HONORABLE NEIL B. VAN WINKLE, COUNTY COUNSEL FOR THE COUNTY OF MONO, has requested an opinion on the following question:          May the board of supervisors of a general law county lawfully remove an incumbent from the office of county counsel before the expiration of the term without the grounds or the hearing prescribed by Government Code section 27641?          CONCLUSION          The board of supervisors of a general law county may not lawfully remove an incumbent from the office of county counsel before the expiration of the term without the grounds or hearing prescribed by Government Code section 27641.          ANALYSIS          Before the revision of article XI1 in 1970, article XI, section 5, provided in part:
"The Legislature, by general and uniform laws, shall provide for the election or appointment, in the several counties, of boards of supervisors, sheriffs, county clerks, district attorneys, and such other county, townships, and municipal officers as public convenience may require, and shall prescribe their duties and fix their terms of office. . . ."
         In June 1970, article XI was revised by voter approval of Assembly Constitutional Amendment 29 incorporating recommendations of the Constitution Revision Commission. The provisions concerning county officers was incorporated in article XI, section 1(b), which then read as follows:
"(b) The Legislature shall provide for county powers and an elected governing body in each county and prescribe compensation of its members. The Legislature or the governing body may provide for other officers whose compensation shall be prescribed by the governing body. The governing body shall provide for the number, compensation, tenure, and appointment of employees."
         Article XI, section 1(b), was amended in November 1970 to insert a new sentence following the first, concerning compensation of the governing board. The first sentence was amended in June 1978 to include an elected county sheriff. As a result of these amendments article XI, section 1(b), now reads:
"(b) The Legislature shall provide for county powers, an elected county sheriff, and an elected governing body in each county. Except as provided in subdivision (b) of Section 4 of this article, each governing body shall prescribe by ordinance the compensation of its members, but the ordinance prescribing such compensation shall be subject to referendum. The Legislature or the governing body may provide for other officers whose compensation shall be prescribed by the governing body. The governing body shall provide for the number, compensation, tenure, and appointment of employees."
         Article XI, section 13, provides in part:
"The provisions of Sections 1(b) (except for the second sentence), 3(a), 4, and 5 of this Article relating to matters affecting the distribution of powers between the Legislature and cities and counties, including matters affecting supersession, shall be construed as a restatement of all related provisions of the Constitution in effect immediately prior to the effective date of this amendment, and as making no substantive change. . . ."
         Article XI, section 13, was adopted as part of the June 1970 revision of article XI and has not been changed. Thus the parenthetical exception for the second sentence refers to the second sentence of the June 1970 version of article XI, section 1(b), i.e., to the sentence which reads: "The Legislature or the governing body may provide for other officers whose compensation shall be prescribed by the governing body" which now appears as the third sentence of the current version of article XI, section 1(b).          The new article XI, section 1(b), treats officers and employees separately. The first sentence requires the Legislature to provide for an elected governing body and an elected sheriff for each county. The third sentence authorizes both the Legislature and the governing body to provide for other county "officers." The last sentence empowers the governing body to provide for "employees." A county counsel appointed pursuant to Government Code section 27640 is a county officer within the meaning of the Constitution rather than a county employee. (Ogle v. Eckel (1942) 49 Cal.App.2d 599, 602.) Thus, our analysis focuses on the third sentence of article XI, section 1(b).          The 1970 revision of article XI changed the manner in which county officers are to be "provided for." Construing former article XI, section 5, the Supreme Court in County of El Dorado v. Meiss...

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