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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. 86-404
 

:
 

of : FEBRUARY 18, 1987 

:
 

JOHN K. VAN DE KAMP :
 

Attorney General :
 

:
 

ANTHONY S. DA VIGO :
 

Deputy Attorney General :
 

:
 

THE HONORABLE CHARLES O. LAMOREE, COUNTY COUNSEL, 

COUNTY OF SOLANO, has requested an opinion on the following question: 

Does a county counsel of a general law county have a duty to render a legal 

opinion on a matter of general interest or application to a school district upon the request 

of an individual member of its governing board? 

CONCLUSION 

The county counsel of a general law county does not have a duty to render a 

legal opinion on a matter of general interest or application to a school district upon the 

request of an individual member of its governing board. 

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ANALYSIS
 

The present inquiry concerns the authority of an individual member of a 

school district governing board to request, and the corresponding duty of the county 

counsel of a general law county to render a legal opinion on a matter of general interest 

or application to the board. 

Government Code section 26529 provides: 

"In counties which have a county counsel, the county counsel shall 

discharge all the duties vested in the district attorney by Sections 26520, 

26522, 26523, 26524, and 26526. The county counsel shall defend or 

prosecute all civil actions and proceedings in which the county or any of its 

officers is concerned or is a party in his or her official capacity. Except 

where the county provides other counsel, the county counsel shall defend as 

provided in Part 7 (commencing with Section 995) of Division 3.6 of Title 

1 of the Government Code any action or proceeding brought against an 

officer, employee or servant of the county."1 

Of the sections referred to, 26520 is pertinent and provides as follows: 

"The district attorney shall render legal services to the county 

without fee, shall render legal opinions to school districts on matters as 

required by law, and may render legal services to local public entities as 

requested. Unless required by law to provide legal services to local public 

entities without fee, the district attorney may charge a local public entity a 

fee, not to exceed the total cost to the county, for such legal services." 

(Emphasis added.) 

Prior to its amendment by the Statutes of 1976, chapter 800, section 1, 

Government Code section 26520 provided as follows: 

"When required and without fee, the district attorney shall give his 

opinion in writing to county and district officers on matters relating to the 

duties of their respective offices." (Emphasis added.) 

1 The county counsel "shall discharge all the duties vested by law in the district attorney other 

than those of a public prosecutor." (Gov. Code, § 27642; 56 Ops.Cal.Atty.Gen. 53 (1973).) 

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Thus, prior to 1976, the statute by its express terms required the county counsel to render 

legal opinions to county and district, including school district, officers "on matters 

relating to the duties of their respective offices." 

In 61 Ops.Cal.Atty.Gen. 227, 229 (1978), we examined the effect of the 

1976 amendment particularly with respect to the substitution for the words last quoted of 

the words "on matters as required by law." It had been suggested that these were words 

of limitation which required as a condition to the obligation to render a legal opinion an 

independent statutory basis. We concluded, on the contrary, that the Legislature intended 

to continue the pre-existing obligation of county counsels to render traditional legal 

advice. (Id., at 233.) It was in this context that we expressed our perception of ". . . the 

1976 amendment to section 26520, insofar as it affects school districts, as a simple 

rewording of the previous language of that section, continuing the same obligation to 

render written advice to school districts as has been in the codes since 1880, but updating 

the language to reflect the current state of the law." (Id., at 232.) 

We did not there consider the question now presented as to who may 

request a legal opinion. Nor does the statute itself expressly resolve that issue. As a 

reasoned hypothesis, however, the party or agency entitled to receive an opinion is the 

party or agency authorized to request it. In this regard, we can only view the 1976 

amendatory change from the words "district officers" to "school districts" as a matter of 

substantive significance. It is a settled interpretive precept that an amendment to a statute 

making a material change in its wording indicates an intent to change the meaning of the 

prior statute. (Jordan v. Consolidated Mut. Ins. Co. (1976) 59 Cal.App.3d 26, 48.) 

Hence, the agency entitled to receive an opinion, and therefore authorized to make a 

request to which the county counsel must respond, is by express legislative designation 

the school district as distinguished from any of its officers, including each member of its 

governing board,2 acting independently. 

2 While it is clear that the members of the governing board of a school district exercise a 

portion of the sovereign power of the state and are public officers (People v. Elliott (1953) 115 

Cal.App.2d 410, 414; People v. Darby (1952) 114 Cal.App.2d 412, 423; 47 Ops.Cal.Atty.Gen. 

79, 80 (1966); 68 Ops.Cal.Atty.Gen. 337, 344 (1985)), a fundamental distinction must be 

recognized between a governing board and its individual members. (Cf. King City Union High 

Sch. Dist. v. Waibel (1934) 2 Cal.App.2d 65, 68; Smith v. Board of Education (1946) 76 

Cal.App.2d 662, 667; see also Bender v. Williamsport Area Sch. Dist. (Mr. 25, 1986) 471 U.S. 

___ — status as a school board member does not permit member to "step into the shoes of the 

board" and invoke its right to appeal; and cf. Carsten v. Psychology Examining Committee 

(1980) 27 Cal.3d 793, 798-799 — board member not "beneficially interested" in action 

challenging administrative determination.) 

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The question remains as to who is authorized to request an opinion on 

behalf of the district. It is, of course, the governing board of a school district (i.e., a 

board of school trustees or a board of education) which may exercise any power 

conferred by law upon the district. (Ed. Code, §§ 35161, 35010.) Further, every official 

action must be taken by majority vote of all of the membership constituting the governing 

board. (Ed. Code, §§ 35163, 35164.) Thus, the majority of the board by formal vote is 

authorized to request an opinion of the county counsel. 

By way of analogy it may be observed that the governing board is 

authorized, in the alternative, to employ or contract the services of private legal counsel. 

(Ed. Code, §§ 35041.5; 35204 through 35206.) There is no indication whatever that an 

individual member may exercise this prerogative.3 

We are unable to perceive in the statutes set forth above a duty on the part 

of the county counsel to render legal opinions to each member in their respective 

capacities as individual members. It is concluded, therefore, that the county counsel of a 

general law county does not have a duty to render a legal opinion upon the request of an 

individual member of a school district governing board on a matter of general interest or 

application to the board. 

***** 

3 With respect to special districts, Government Code section 27645 provides: 

"Subject to Section 26520, the county counsel shall represent and advise 

the officers and employees of special districts organized within the county and 

shall have exclusive charge and control of all civil actions and proceedings in 

which special districts, their officers or employees are concerned or are parties 

when: 

"(a) The governing board of the special district requests the county 

counsel to so act; 

"(b) The governing board of the special district is composed in whole or in 

part of persons who are also members of the county board of supervisors; and 

"(c) No specific provision is made in the law under which the special 

district is organized for the district to obtain legal services." (Emphasis added.) 

We have previously distinguished special districts, which are "local public entities" within the 

meaning of section 26520 (64 Ops.Cal.Atty.Gen. 418, 420 (1981)), from school districts. (Id.; 

61 Ops.Cal.Atty.Gen. 227, 231 (1978).) 

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