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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 : No. 86-603 

: 

of : APRIL, 15, 1987 

: 

JOHN K. VAN DE KAMP : 

Attorney General : 

: 

ANTHONY S. DA VIGO : 

Deputy Attorney General : 

: 

THE HONORABLE RICHARD E. FLOYD, MEMBER OF THE 

CALIFORNIA ASSEMBLY, has requested an opinion on the following question: 

Do the prevailing wage provisions of Labor Code section 1771 apply to the 

employees of an engineering firm which contracts with a city to perform the duties of city 

engineer? 

CONCLUSION 

The prevailing wage provisions of Labor Code section 1771 apply to the 

employees of an engineering firm which contracts with a city to perform the duties of city 

engineer, except with respect to such duties which do not qualify as a public work. 

ANALYSIS 

We are advised that a city has entered into a contract with a private 

engineering firm to perform, on an extended basis, all or a portion of those duties which 

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would ordinarily be performed by a city engineer. The firm is required upon written 

authorization of the city manager to provide all necessary consulting engineering services 

needed for the preparation of special reports, investigations and studies, plan checking, 

surveying and inspections, the preparation of plans, specifications and cost estimates and 

any other special municipal projects or programs requiring specialized consulting 

services. 

We are asked whether the prevailing wage provisions of Labor Code 

section 1771 apply to such surveyors and related employees. The inquiry assumes that 

the work in question is a "public work" within the meaning of that section, as defined in 

section 1720 of said code: 

"As used in this chapter 'public works' means: 

"(a) Construction, alteration, demolition or repair work done under 

contract and paid for in whole or in part out of public funds, except work 

done directly by any public utility company pursuant to order of the Public 

Utilities Commission or other public authority. 

"(b) Work done for irrigation, utility, reclamation and improvement 

districts, and other districts of this type. 'Public work' shall not include the 

operation of the irrigation or drainage system of any irrigation or 

reclamation district, except as used in Section 1778 relating to retaining 

wages. 

"(c) Street, sewer or other improvement work done under the 

direction and supervision or by the authority of any officer or public body 

of the state, or of any political subdivision or district thereof, whether such 

political subdivision or district operates under a freeholder's charter or not. 

"(d) The laying of carpet done under a building lease-maintenance 

contract and paid for out of public funds. 

"(e) The laying of carpet in a public building done under contract 

and paid for in whole or part out of public funds." 

We have previously considered in another context the meaning of "public 

works" as it relates to such engineering services. (63 Ops.Cal.Atty.Gen. 501, 504-508 

(1980).) It was there observed that each contract must be separately reviewed to 

determine whether the work in question qualifies as such. (Id., 506-507.) That similar 

distinctions must be drawn with regard to the application of prevailing wage requirements 

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to engineering services is indicated, for example, by the specifications of Title 8, 

California Administrative Code, section 16001, subdivision (c), providing that certain 

field survey work is subject to such requirements "when it is integral to the specific 

public works project in the design, preconstruction, or construction phase." A letter dated 

March 30, 1978 from the Director of Industrial Relations to Public Agency Awarding 

Bodies contained the following administrative interpretation: 

"As the person authorized by the Legislature to determine prevailing 

wage rates, I have determined that surveyors are included in the prevailing 

wage law pertaining to public works, § 1720 et seq. and § 1770 et seq. of 

the Labor Code. 

"A general determination has been made that when a firm performs 

engineering, surveying, and photogrammetry work for preparation of any 

plans and specifications for an awarding body under contract, the work of 

the surveyors, or those assisting the surveyors to establish field control 

lines, is to be paid at prevailing wage rates according to Part 7 of the Labor 

Code which deals with 'Public Works and Public Agencies.' 

"Surveying, whether performed in the preparation or construction 

stage, is a necessary prerequisite and integral part of construction without 

which the work could not proceed and is performed by the type of 

classification of worker intended to be covered by the Act (§ 1723 and 

§ 1772 of the Labor Code). 

"Covered work includes all field survey work related to the 

engineering phase of a public works project, as well as to the construction 

phase of a public works project. The engineering phase includes field 

survey work for feasibility and design. Covered work does not include 

field survey work, such as general land surveying and mapping, related to 

the planning function of agencies covered by the prevailing wage law; nor 

does it include office work." 

It is not the purpose of this discussion to factor analyze all of the 

performance dimensions of a city engineer to determine which would or would not, if 

performed by a private concern pursuant to contract, qualify as a public work. By its own 

terms, Labor Code section 1771 does not apply to work which does not so qualify. With 

respect to work that does so qualify, that section provides: 

"Except for public works projects of one thousand dollars ($1,000) 

or less, not less than the general prevailing rate of per diem wages for work 

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of a similar character in the locality in which the public work is performed, 

and not less than the general prevailing rate of per diem wages for holiday 

and overtime work fixed as provided in this chapter, shall be paid to all 

workers employed on public works. 

"This section is applicable only to work performed under contract, 

and is not applicable to work carried out by a public agency with its own 

forces. This section is applicable to contracts let for maintenance work." 

(Emphasis added.) 

Hence, the issue arises as to whether the work in question is "performed 

under contract" or "carried out by a public agency with its own forces." The prevailing 

wage requirement applies in the former but not the latter circumstance. 

In its contract with the city the firm is characterized as "the City Engineer." 

Reference is made to Government Code section 36505, providing that 

"The city council shall appoint the chief of police. It may appoint a 

city attorney, a superintendent of streets, a civil engineer, and such other 

subordinate officers or employees as it deems necessary." (Emphasis 

added.) 

Hence, it is suggested that the prevailing wage law does not apply where 

the duties in general of a city engineer are performed on an ongoing basis by a private 

firm acting as city engineer, as distinguished from an independent contractor, and that its 

employees are therefore the city's "own forces." We shall first consider whether the 

contractual designation "City Engineer" is determinative of one's status as an appointee to 

public office under Government Code section 36505, supra, as distinguished from a 

contractor under section 37103 of said code. 

A city may enter into a contract with an engineer for specialized services. 

(Gov. Code, § 37103.) Such a contract does not render the engineer a city officer. (28 

Ops.Cal.Atty.Gen. 362, 364 (1956).) On the other hand, a contract for services is not 

inherently inconsistent with public office, where the contractor has been duly appointed 

and taken the required oath. (Id.) The status of such a contractor must be determined by 

the duties and powers conferred, and not solely by contractual references as "city 

engineer" or other appointive terms in the contract. (Id., Staheli v. City of Redondo 

Beach (1933) 131 Cal.App. 71, 79.) In the latter case the court construed a contract 

providing in part that Staheli "is hereby appointed to act and fill the duties of the City 

Engineer . . ." (id., 78-80): 

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"In the case of Kennedy v. City of Gustine, 199 Cal. 251 [248 Pac. 

910], we find a situation where the board of trustees of a city of the sixth 

class appointed C. C. Kennedy 'as city engineer, his compensation to be 

seven per cent of cost of construction work'. The agreement under which 

plaintiff in that case went to work provided: 

"'That for and in consideration of the compensation to be paid by the 

party of the first part to the party of the second part at the times and in the 

manner hereinafter provided, the party of the first part hereby employs said 

party of the second part as City Engineer of the said City of Gustine, for the 

purpose of performing the engineering work and supervising the 

construction of certain street improvements in said City of Gustine, namely: 

The construction of curbs, sidewalks and pavement upon (naming certain 

streets) during the present and next succeeding calendar year'. Construing 

this agreement and determining liability thereunder, the court said (p. 255): 

'It is clear, however, that the plaintiff was not an officer of the city, but that 

he was employed, not to discharge the general duties of the office of city 

engineer, but only the particular engineering work specified in the 

contract. . . . Any reference to him in the minutes or the contract or in the 

evidence as "city engineer" is not controlling. Whether a position, or 

office, is a public office depends "not upon what the particular office in 

question may be called, nor upon what a statute may call it, but upon the 

power granted and wielded, the duties and functions performed and other 

circumstances which manifest the true character of the position and make 

and mark it a public office, irrespective of its formal designation".' (Citing 

Coulter v. Pool, 187 Cal. 181, 186 [201 Pac. 120], and other California 

cases.) 

"Although respondent was employed to fill the duties of the city 

engineer of Redondo Beach and resolution No. 719 provided as his 

compensation the sum of $175 per month as a retaining fee for general city 

engineering and city engineering advice, we are not convinced that the use 

of those words constituted him individually a city officer, particularly since 

he was not definitely appointed city engineer and in view of the fact that 

almost every conceivable kind of city engineering work as popularly 

understood is left by the same resolution in the balance to await future 

development or possibly future disagreement. Since respondent was 

engaged on a retainer basis to give general engineering advice in the first 

instance, and later, if required, to give special advice or special service on 

compensation to be determined, it seems reasonable to say that from this 

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resolution arose a private contract with an individual rather than the 

creation of a public office." (Last two emphases added.) 

Similarly, with regard to the matter under consideration, it is undisputed 

that (1) the firm is retained by and subject to the terms and conditions of a contract, (2) 

services are to be performed only upon the written authorization of the city manager, and 

(3) the method of compensation for services rendered by the firm is to be approved for 

each project by the city manager. Thus, as in the Staheli case, each project is left to await 

future development or possible future disagreement, for compensation to be determined. 

Further problems arise with regard to the appointment of a corporation as a 

public officer. Unless otherwise provided, each public officer must first take and 

subscribe the constitutional oath. (Cal. Const., art. XX, § 3; Gov. Code, §§ 1360 & 

36507.) In addition, a person who is not 18 years of age and a citizen of this state at the 

time of election or appointment is incapable of holding a civil office. (Gov. Code, 

§ 1020.) While a corporation may be characterized as a citizen of the state of its creation 

(Keystone Driller Co. v. Superior Court (1903) 138 Cal. 738, 742), it is so considered 

only for the purpose of protecting the property rights of the incorporators (County of San 

Mateo v. Southern Pac. R. Co. (CC Cal. 1882) 13 F. 722, 747, writ dism. 116 U.S. 138).1 

The salient fact remains, in any event, that the surveyors and other 

personnel who perform such services are employed and compensated by the firm. 

Whether or not the firm may be deemed a public officer, employee, or agent, it is not the 

city. In our view, therefore, the argument propounded is inconsistent with the plain 

meaning of section 1771 and with the nature and purpose of its requirements. 

The prevailing wage prescription of section 1771 is contained in the first 

sentence which applies unequivocally to "all workers employed on public works." The 

second sentence is an exception relating to "work carried out by a public agency with its 

own forces." This exception is specifically limited to work done by force account 

(Bishop v. City of San Jose (1969) 1 Cal.3d 56, 64; O.G. Sansone Co. v. Department of 

Transportation (1976) 55 Cal.App.3d 434, 459), i.e., by its own employees as 

distinguished from work performed pursuant to contract with a commercial firm for 

similar services (see, Webster's Third New Internat. Dict. (1961) p. 887; Jackson v. 

Pancake (1968) 266 Cal.App.2d 307, 311). 

Manifestly, employees of the firm are not those of the city. In this regard it 

should be recalled that statutory exceptions should be narrowly construed. (Lacabanne 

1 Still another issue concerns the meaning of "business activity" under Corporations Code 

sections 206 and 207, for purposes of holding public office. 

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Properties, Inc. v. Dept. Alcoholic Bev. Contr. (1968) 261 Cal.App.2d 181, 189; 66 

Ops.Cal.Atty.Gen. 24, 26 (1983).) Further, expressly excluded from the exception is 

"work performed under contract." Hence, the rule applies that where statutory language 

is clear and unambiguous, there is no need for construction and the courts should not 

indulge in it. (Board of Supervisors v. Lonergan (1980) 27 Cal.3d 855, 866; 66 

Ops.Cal.Atty.Gen. 217, 221-222 (1983).) 

Nor would the exemption of the firm's employees be consistent with the 

nature and purpose of the prevailing rate standards. With respect to such purpose, the 

court stated in O.G. Sansone Co. v. Department of Transportation, supra, 55 Cal.App.3d 

at 458: 

"Little has been written in judicial opinions concerning the purpose 

of the California legislation. However, cases have expounded on the 

purpose of the Davis-Bacon Act (40 U.S.C. § 276a et seq.) The Supreme 

Court stated in U.S. v. Binghamton Construction Co., 347 U.S. 171, at 

pages 176-177: 'The language of the [Davis-Bacon] Act and its legislative 

history plainly show that it was not enacted to benefit contractors, but 

rather to protect their employees from substandard earnings by fixing a 

floor under wages on Government projects.' And in International U. of 

Operating Eng. Local 627 v. Arthurs (W.D. Okla. 1973) 355 F.Supp. 7, at 

page 8, it was stated: 'The purpose of the Davis-Bacon Act is to provide 

protection to local craftsmen who were losing work to contractors who 

recruited labor from distant cheap-labor areas. S.Rept. 963, Mar. 17, 1964 

(to accompany H.R. 6041), 1964 U.S. Code Congressional and 

Administrative News, pp. 2339, 2340. Some contractors pay wages 

according to collective bargaining agreements. But even though these 

contractors usually are required to pay higher wage scales, they can still 

compete with nonunion contractors for public contract work because of the 

Davis-Bacon Act prevailing wage scale provision. Noncompliance with the 

Davis-Bacon Act makes it impossible for all contractors to compete. There 

is thus injury to the laborers and mechanics, as well as injury to contractors 

and labor organizations.' 

"It has been said that the provision for payment of prevailing wages 

on state construction works serves as a public policy in that the state will 

benefit from 'the superior efficiency of well-paid labor working during 

reasonable hours' and that such benefit justifies the employment of men on 

'less favorable terms than could be secured by the stress of competition.' 

(65 Am.Jur.2d, Public Works and Contracts, § 199, p. 87.)" 

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If exempt, workers employed and compensated by the firm would enjoy 

neither the benefit of a salary established by law, nor of a salary subject to the constraints 

of section 1771. We perceive no such legislative oversight. 

It is concluded that the prevailing wage provisions of Labor Code section 

1771 apply to the employees of an engineering firm which contracts with a city to 

perform the duties of city engineer, except with respect to such duties which do not 

qualify as a public work. 

***** 

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