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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General
 

:


 OPINION :
 

:


 of : No. 87-1101
 

:


 JOHN K. VAN DE KAMP : January 28, 1988


 Attorney General :
 

: 


ANTHONY S. DaVIGO :


 Deputy Attorney General :
 

:
 

THE HONORABLE RALPH C. DILLS, MEMBER OF THE CALIFORNIA
 

STATE SENATE, has requested an opinion on the following question:
 

May an individual be a member simultaneously of the State
 

Industrial Welfare Commission and the Personnel Commission of the
 

Los Angeles County Superintendent of Schools? 


CONCLUSION
 

An individual may be a member simultaneously of the State
 

Industrial Welfare Commission and the Personnel Commission of the
 

Los Angeles County Superintendent of Schools.
 

ANALYSIS
 

The question presented concerns the common law doctrine
 

of incompatible public offices as applied to dual membership on the
 

Personnel Commission of the Los Angeles County Superintendent of
 

Schools ("commission") and the Industrial Welfare Commission
 

("I.W.C."). The doctrine prevents a person from holding
 

simultaneously two public offices if the performance of the duties
 

of either office could have an adverse effect on the other. (68
 

Ops.Cal.Atty.Gen. 337, 338-339 (1985).) In 66 Ops.Cal.Atty.Gen.
 

176, 177 (1983), we summarized as follows: 


"'Offices are incompatible, in the absence of
 

statutes suggesting a contrary result, if there is any
 

significant clash of duties or loyalties between the
 

offices, if the dual office holding would be improper for
 

reasons of public policy, or if either officer exercises
 

a supervisory, auditory, or removal power over the
 
other.' (38 Ops.Cal.Atty.Gen. 113 (1961).) 


"(See also, generally, People ex rel Chapman v.
 

Rapsey (1940) 16 Cal.2d 636, 641-642, and e.g. 65
 

Ops.Cal.Atty.Gen. [606] (1982), Opn. No. 82-901; 64
 

Ops.Cal.Atty.Gen. 288, 289, (1981); 64 Ops.Cal.Atty.Gen.
 

137, 138-139 (1981); 63 Ops.Cal.Atty.Gen. 623 (1980); 63
 

Ops.Cal.Atty.Gen. 607, 608 (1980).) 


"The policy set forth in People ex rel Chapman v.
 

Rapsey, supra, 16 Cal.2d 636 comprehends prospective as
 

well as present clashes of duties and loyalties. (See 63
 

Ops.Cal.Atty.Gen. 623, supra.) 


"'. . . Neither is it pertinent to say that the
 

conflict in duties may never arise, it is enough that it
 

may, in the regular operation of the statutory
 

plan. . . .' (3 McQuillin, Municipal Corporations (3d
 

Ed. 1973, 12.67, p. 297). 


"'[O]nly one significant clash of duties and
 

loyalties is required to make . . . offices
 

incompatible. . . .' (37 Ops.Cal.Atty.Gen. 21, 22
 

(1961).) Furthermore, '[t]he existence of devices to
 

avoid . . . [conflicts] neither changes the nature of the
 

potential conflicts nor provides assurance that they
 

would be employed. (38 Ops.Cal.Atty.Gen. 121, 125
 

(1961).) Accordingly, the ability to abstain when a
 

conflict arises will not excuse the incompatibility or
 

obviate the effects of the doctrine. A public officer
 

who enters upon the duties of a second office
 

automatically vacates the first office if the two are
 

incompatible. (People ex rel. Chapman v. Rapsey,supra,
 

16 Cal.2d 636, 644.) Both positions, however, must be
 

offices. If one or both of the positions is a mere
 

employment as opposed to a public office, the doctrine
 

does not apply. (See 58 Ops.Cal.Atty.Gen. 109, 111
 

(1975).)'"
 

For purposes of the doctrine, a public office is (1) a
 

position in government, (2) which is created or authorized by the
 

Constitution or by law, (3) the tenure of which is continuing and
 

permanent, not occasional or temporary, (4) in which the incumbent
 

performs a public function for the public benefit and exercises
 

some of the sovereign powers of the state. ( Id. at 342.) In
 

Schaefer v. Superior Court (1952) 113 Cal.App.2d 428, 432-433, the
 

court clarified the meaning of "sovereign powers of the state" as
 

follows: 


"If specific statutory and independent duties are
 

imposed upon an appointee in relation to the exercise of
 

the police powers of the State, if the appointee is
 

2. 87-1101
 
 

 

 

invested with independent power in the disposition of
 

public property or with the power to incur financial
 

obligations upon the part of the county or state, if he
 

is empowered to act in those multitudinous cases
 

involving business or political dealings between
 

individuals and the public, wherein the latter must
 

necessarily act through an official agency, then such
 

functions are a part of the sovereignty of the state."
 

There is in each county a Superintendent of Schools (Cal.
 

Const., art. IX, § 3) whose duties are prescribed by statute (e.g.,
 

Ed. Code,1 §§ 1240-1271).2 In order to carry out these duties, the
 

superintendent may employ certificated (§ 1293) and classified
 

(§ 1311) personnel. With respect to such classified employees, the
 

Los Angeles County Superintendent of Schools has, pursuant to
 

section 45224, adopted a merit system procedure in accordance with
 

the provisions of section 45240 et seq. Section 45243 provides for
 

the establishment of a personnel commission. (See generally, 56
 

Ops.Cal.Atty.Gen. 421 (1973); 48 Ops.Cal.Atty.Gen. 64 (1966).) The
 

statutory scheme prescribes the qualifications for membership on
 

the commission (§ 45244), the manner of appointment (§ 45245),
 

three year staggered terms of office (§ 45247), and the
 

compensation of members (§ 45250). 


It is the duty of the commission to prepare an annual
 

budget for its own office (§ 45253), to classify all
 

noncertificated employees and positions within the jurisdiction of
 

the governing board or of the commission, with specified exceptions
 

(§ 45256), to prescribe, amend, and interpret such rules, which
 

shall be binding upon the governing board, as may be necessary to
 

insure the efficiency of the service and the selection and
 

retention of employees upon a basis of merit and fitness, and
 

providing for the procedures to be followed by the governing board
 

as they pertain to the classified service regarding applications,
 

examinations, eligibility, appointments, promotions, demotions,
 

transfers, dismissals, resignations, layoffs, reemployment,
 

vacations, leaves of absence, compensation within classification,
 

job analyses and specifications, performance evaluations, public
 

advertisement of examinations, rejection of unfit applicants
 

without competition, and other necessary matters (§§ 45260, 45261),
 

1

Unidentified statutory citations are to the Education Code.
 

2

Article XI, section 4, provides that "County charters shall
 

provide for . . . (e) [t]he powers and duties of governing bodies
 

and all other county officers . . . ." The County Superintendent
 

of Schools is a county officer. (Gov. Code, § 24000; 52
 

Ops.Cal.Atty.Gen. 8, 9 (1969).) The Los Angeles County Charter
 

contains no provision respecting the duties of that office inasmuch
 

as the office is constitutionally created. (Cf. ( Nielsen v.
 

Richards (1924) 69 Cal.App. 533.) 


3. 87-1101
 
to appoint a personnel director and all employees of the commission
 

(§ 45264), and to recommend to the governing board salary schedules
 

for the classified service (§ 45268; and see 54 Ops.Cal.Atty.Gen.
 

77 (1971)). 


The I.W.C. is an agency of the state Department of
 

Industrial Relations, established pursuant to the authority
 

provided under California Constitution, article XIV, section 1.
 

Each of five members, appointed by the Governor with the consent of
 

the Senate, serves a four year term of office. (Lab. Code, §§ 70,
 

71.) The I.W.C. is authorized to promulgate orders regulating
 

wages, hours, and working conditions of any occupation, trade, or
 

industry in which employees are employed in this state. (Lab.
 

Code, §§ 1173, 1182.) As summarized in Industrial Welfare Com. v.
 

Superior Court (1980) 27 Cal.3d 690, 701-702: 


"From its inception in 1913 to the present, the
 

commission has been vested with broad statutory authority
 

to investigate 'the comfort, health, safety, and welfare'
 

of the California employees under its aegis (§ 1173,
 

enacted Stats. 1913, ch. 324, § 3, p. 633) and to
 

establish (1) '[a] minimum wage . . . which shall not be
 

less than a wage adequate to supply . . . the necessary
 

cost of proper living and to maintain the health and
 

welfare of such [employees],' (2) '[t]he maximum hours of
 

work consistent with the health and welfare of [such
 

employees]' and (3) '[t]he standard conditions of labor
 

demanded by the health and welfare of [such employees]
 

. . .' (§ 1182, enacted Stats. 1913, ch. 324, § 6, pp.
 

634-635.)
 

"Indeed, the 1973 act--while retaining the
 

authorizing language of section 1182 quoted above-­

restated the commission's responsibility in even broader
 

terms, directing the commission continually to review and
 

to update its 'rules, regulations and policies to the
 

extent found by the commission to be necessary to provide
 

adequate and reasonable wages, hours, and working
 

conditions appropriate for all employees in the modern
 

society." (Italics added.) (§ 1173, enacted States.
 

1973, ch. 1007, § 1.5, p. 2002.)"
 

Such orders are published in the California Administrative Code,
 

title 8, section 11000 et seq. To carry out its duty, I.W.C. or
 

any member thereof may subpena witnesses and administer oaths.
 

(Lab. Code, § 1176.) 


4. 87-1101
 
While we entertain no doubt that both of the positions in
 

question are public offices, we predicate our conclusion herein
 

exclusively upon the absence of incompatibility between them. The
 

commission is concerned solely with public employees, i.e., the
 

classified employees of the County Superintendent of Schools. As
 

we shall see, I.W.C. is concerned solely with employees in the
 

private sector. Neither agency has any official interest in or
 

jurisdiction over the province of the other. 


The statutes creating and defining the powers of the
 

I.W.C. contain no express reference to any public agency or to
 

public employment. The California Supreme Court has recently
 

reviewed the principles of construction which must be followed in
 

determining whether the general terms of a statute are applicable
 

to a public jurisdiction: 


"[I]n the absence of express words to the contrary,
 

neither the state nor its subdivisions are included
 

within the general words of a statute. [Citations.] But
 

this rule excludes governmental agencies from the
 

operation of general statutory provisions only if their
 

inclusion would result in an infringement upon sovereign
 

governmental powers. 'Where . . . no impairment of
 

sovereign powers would result, the reason underlying this
 

rule of construction ceases to exist and the Legislature
 

may properly be held to have intended that the statute
 

apply to governmental bodies even though it used general
 

statutory language only.' [Citations.]" ( City of Los
 

Angeles v. City of San Fernando (1975) 14 Cal.3d 199,
 

276-277; accord Regents of University of California v.
 

Superior Court (1976) 17 Cal.3d 533, 536; and see 66
 

Ops.Cal.Atty.Gen. 217, 218 (1983).) 


In 65 Ops.Cal.Atty.Gen. 267, 272-273 (1982), we summarized: 


"The crucial distinction in each case is whether the
 

particular legislation affects the fundamental purposes
 

and functions of the governmental body. Immunity is
 

granted if statutorily mandated activities are impaired
 

(see Hall v. City of Taft (1956) 47 Cal.2d 177, 182-183;
 

City of Orange v. Valenti (1974) 37 Cal.App.3d 240, 244),
 

while no exception is provided when the agency's public
 

purposes are unaffected. (See Regents of University of
 

California v. Superior Court, supra, 17 Cal.3d at 537;
 

Flournoy v. State of California (1962) 57 Cal.2d 497,
 

498-499; State of California v. Marin Mun. Water District
 

(1941) 17 Cal.2d 699, 704-705; City Streets Imp. Co. v.
 

Regents, etc. (1908) 153 Cal. 776, 779; Dropo v. City &
 

County of S.F. (1959) 167 Cal.App.2d 453, 460.)" 


5. 87-1101
 
In 63 Ops.Cal.Atty.Gen. 24, 27 (1980), we expressed our view
 

concerning the relationship between public employment and
 

governmental purposes: 


"It is manifest that the relationship between a
 

public employer and its employees affects the fundamental
 

purposes and functions of the governmental body. (Cf. In
 

re Means (1939) 14 Cal.2d 254, 258; and see unpub. op. of
 

the California Attorney General, dated Dec. 29, 1978, No.
 

IL 78-151.) It has been stated in this regard that
 

governments perform their functions through their
 

officers and employees elected or appointed for that
 

purpose, and that any process of law which would tend to
 

embarrass such officers or employees while in office, and
 

hinder or distract them in the discharge of their duties,
 

would injuriously affect the capacity of the state to
 

perform its functions. ( Ruperich v. Baehr (1904) 142
 

Cal. 190, 193; Balthasar v. Pacific Electric Railway Co.,
 supra, 187 Cal. at p. 308.) 


"The rule that governmental agencies are excluded
 

from the operation of general statutory provisions, in
 

the absence of express words to the contrary, only if
 

their inclusion would result in an infringement upon
 

sovereign powers, is long established. (Butterworth v.
 

Boyd (1938) 12 Cal.2d 140, 150; Hoyt v. Board of Civil
 

Service Commissioners, supra, 21 Cal.2d at p. 402.)
 

Nevertheless, we are aware of no cases which have held
 

public agencies bound by a general statute which
 

regulates the employment relationship. On the contrary,
 

we have, on a number of occasions, construed such
 

statutes as not applicable to public jurisdictions, in
 

the absence of any expression of legislative intent to
 

the contrary. (See 1 Ops.Cal.Atty.Gen. 607 (1943)
 

(§ 226, itemized statement of deductions); 5
 

Ops.Cal.Atty.Gen. 122 (1945) (employment of minors); 9
 

Ops.Cal.Atty.Gen. 275 (1947) (length of work day).) In
 

Butterworth v. Boyd, supra, it was held that certain
 

provisions of the Insurance Code could not be applied to
 

a city where such application would have impaired the
 

city's power to provide a health service system for
 

municipal employees. In Nutter v. Santa Monica (1946) 74
 

Cal.App.2d 292, it was held that the state policy
 

regarding labor relations, Labor Code section 923, was
 

not applicable to public employers."
 

Further, the policy of this state with respect to the
 

classified employees of the County Superintendent of Schools, as
 

shown at the outset, is reflected in an integral, comprehensive
 

regulatory scheme which is, in itself, an indication that the
 

provisions of a general statute were not intended to apply. (Cf.
 

In re Means, supra, 14 Cal.2d at 257; 63 Ops.Cal.Atty.Gen., supra,
 

6. 87-1101
 
28.) In O'Sullivan v. City & County of San Francisco (1956) 145
 

Cal.App.2d 415, 418, the court similarly observed that
 

"It is doubtful that the Labor Code applies to employees
 

under a comprehensive municipal civil service system." 


The views expressed herein are further supported by the
 

presumption that the interpretations set forth in the Attorney
 

General's opinion last quoted, and related cases, have come to the
 

attention of the Legislature, and if they were contrary to
 

legislative intent that some corrective measure would have been
 

adopted during the course of the intervening period. (California
 

Correctional Officers' Association v. Board of Administration
 

(1978) 76 Cal.App.3d 786, 794; 69 Ops.Cal.Atty.Gen. 191, 196-197
 

(1986).) 


Our determinations herein are also consistent with
 

contemporaneous administrative interpretation. The orders of
 

I.W.C. have never been applied to or enforced against public
 

employees. On the contrary, order number MW-80 presently in
 

effect, expressly exempts public employees. (Tit. 8, Cal. Admin.
 

Code, § 11000, ¶ 2.) It is well settled that where the terms of a
 

statute are ambiguous, the construction of the statute by the
 

officials charged with its administration must be given great
 

weight. ( Rivera v. City of Fresno (1971) 6 Cal.3d 132, 140; 62
 

Ops.Cal.Atty.Gen. 494, 500 (1979).) 


Finally, it is noted that provisions of the Labor Code
 

extending to public employment do so expressly. (E.g., former
 

§ 1413, subd. (d), see now Gov. Code, § 12926, subd. (c) -- Fair
 

Employment Practices; § 3300 -- Workers' Compensation; § 6300 -­

Occupational Safety and Health.) When the Legislature has
 

carefully employed a term in one place and has excluded it in
 

another, it should not be implied where excluded. (Ford Motor Co.
 

v. County of Tulare (1983) 145 Cal.App.3d 688, 691.)
 

Inasmuch as the respective domains of the I.W.C. and of
 

the commission are mutually exclusive, it is concluded that an
 

individual may be a member simultaneously of both. 


* * * * *
 

7. 87-1101