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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 : 

:

 JOHN K. VAN DE KAMP : No. 87-205

 Attorney General : 

: AUGUST 13, 1987

 RODNEY O. LILYQUIST :

 Deputy Attorney General :

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THE HONORABLE MICHAEL H. KRAUSNICK, COUNTY COUNSEL, 

STANISLAUS COUNTY, has requested an opinion on the following question: 

Does the borrowing of federal funds by a school district to abate asbestos hazards 

require electorate assent under the provisions of section 18 of article XVI of the Constitution? 

CONCLUSION 

The borrowing of federal funds by a school district to abate asbestos hazards does 

not require electorate assent under the provisions of section 18 of article XVI of the Constitution 

where such abatement is required by law, thereby making the debt involuntarily incurred and exempt 

from the constitutional requirement. 

ANALYSIS 

Section 18 of article XVI of the Constitution provides in part: 

"No . . . school district, shall incur any indebtedness or liability in any 

manner or for any purpose exceeding in any year the income and revenue provided 

for such year, without the assent of two-thirds of the qualified electors thereof, 

voting at an election to be held for that purpose . . . ." 

The question presented for resolution concerns whether this constitutional requirement of electorate 
 

assent would be applicable with respect to the borrowing of funds by a school district to abate 

asbestos hazards in its schools. We conclude that the voter requirement would be inapplicable 

where an official determination has been made that such abatement action is necessary to protect 

human health and the environment. 

School districts are authorized by the Legislature to obtain federal funds for various 

purposes (see Ed. Code, §§ 12400-12405),1

 including "asbestos inspection, testing, encapsulation, 

and removal" (§ 49410.5, subd. (b)). Congress has established an asbestos hazards abatement 

program under which local school districts may receive grants or loans for: 

"(A) abating the threat posed by materials containing asbestos to the health 

and safety of children or employees; 

"(B) replacing the asbestos materials removed from school buildings with 

other appropriate building materials; and 

"(C) restoring school buildings to conditions comparable to those existing 

before abatement activities were undertaken pursuant to this section." (20 U.S.C. § 

4014(c)(1).) 

To obtain a loan or grant, a school district must send its application to its state governor who ranks 

it with other applications "based on the nature and magnitude of the existing and potential exposure 

presented by the asbestos materials." (20 U.S.C. § 4013(b)(2).) The governor submits all 

applications and his or her priority list to the federal administrator who makes the final 

determination as follows: 

"In ranking applications, the Administrator shall consider--

"(A) the priority assigned to the abatement program by the Governor pursuant 

to section 4013(b)(2) of this title; 

"(B)(i) the likelihood of release of asbestos fibers into a school environment; 

"(ii) any other evidence of the risk caused by the presence of asbestos 

including, but not limited to, situations in which there is a substantial quantity of dry 

loose asbestos-containing material on horizontal surfaces or asbestos-containing 

material is substantially deteriorated or damaged, and there is asbestos-containing 

material in an air plenum or in a high traffic area, confined space or within easy 

reach of a passerby; 

"(iii) the extent to which the corrective action proposed by the applicant will 

1

All references hereafter to the Education Code are by section number only. 

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reduce the exposure of school children and school employees; and 

"(iv) the extent to which the corrective action proposed by the applicant is 

cost-effective compared to other techniques including management of material 

containing asbestos." (20 U.S.C. § 4014(c)(2).) 

The federal loans "have a maturity period of not more than twenty years" and are "repayable during 

such period at such times and in such amounts as the Administrator [of the Environmental Protection 

Agency] may specify in the loan agreement." (20 U.S.C. § 4014(f).) The loans in question are thus 

authorized by both state and federal statute. The only issue here is whether voter approval for a loan 

must first be obtained where it would cause a district to incur an indebtedness "exceeding in any 

year the income and revenue provided for such year" as specified in the Constitution. 

In answering this question, we note that the voter approval requirement for debts 

created by school districts is also applicable to the debts of counties and cities and that this 

constitutional language has received extensive commentary. (See, e.g., Kosel, Municipal Debt 

Limitation in California (1977) 7 Golden Gate L. Rev. 641; Beebe, Hodgman & Sutherland, Joint 

Power Authority Revenue Bonds (1968) 41 So. Cal.L.Rev. 19; Note, States: Municipal 

Corporations: Debt Limitation: Circumvention (1950) 38 Cal.L.Rev. 962; Note, Municipal 

Corporations: Deductions of Assets in Computation of Indebtedness (1941) 29 Cal.L.Rev. 779; 

Note, Municipal Corporations: Debt Limitations: Cal. Const., art. XI, § 18; Contingent Liability 

(1935) 23 Cal.L.Rev. 445.) 

In Lagiss v. County of Contra Costa (1963) 223 Cal.App.2d 77, 85, the Court of 

Appeal explained the intent of having prior electorate approval of long-term financial obligations: 

"This constitutional provision was enacted to prevent the improvident creation of inordinate debts 

which might be charged against taxpayers in ever increasing volume from year to year." (See also 

Compton Community College etc. Teachers v. Compton Community College Dist. (1985) 165 

Cal.App.3d 82, 88; Starr v. City and County of San Francisco (1977) 72 Cal.App.3d 164, 173-175; 

Wright v. Compton Unified Sch. Dist. (1975) 46 Cal.App.3d 177, 181.) 

Several exceptions, however, to the voter requirement have been recognized by the 

courts. In 67 Ops.Cal.Atty.Gen. 349 (1984), we examined these situations and described the 

"involuntary debt" exception as follows: 

"If the debt is not 'voluntarily' incurred, the constitutional requirement will 

be found inapplicable. (American Co. v. City of Lakeport, supra, 220 Cal. 548, 557-

558; City of Pasadena v. McAllaster (1928) 204 Cal. 267, 273; City of Long Beach 

v. Lisenby, supra, 180 Cal. 52, 57-58; Lotts v. Board of Park Commrs. (1936) 13 

Cal.App.2d 625, 635.) The primary application of this theory has been where the 

Legislature has 'imposed' an obligation upon local governments by statute. (See, 

e.g., Lewis v. Widber (1983) 99 Cal. 412, 413; Wright v. Compton Unified School 

District (1975) 46 Cal.App.3d 177, 181-183; City of La Habra v. Pellerin (1963) 216 

Cal.App.2d 99, 102; People ex rel. City of Downey v. Downey County Water Dist. 

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(1962) 202 Cal.App.2d 786, 805; Sacramento Municipal Util. Dist. v. Spink (1956) 

145 Cal.App.2d 568, 579-580.) . . . . 'The unarticulated rationale for this exception 

undoubtedly is that it is pointless to submit obligations imposed by law to the 

electorate for approval, since the local entity cannot refuse to pay the debt, regardless 

of election outcome. [Citation.]'" (Id., at pp. 353-354.) 

The involuntary debt exception was first recognized by the Supreme Court in Lewis 

v. Widber (1893) 99 Cal. 412. The court stated: "The clear intent expressed in the said clause was 

to limit and restrict the power of the municipality as to any indebtedness or liability which it has 

discretion to incur or not to incur." (Id., at p. 413; see Compton Community College, etc. Teachers 

v. Compton Community College Dist., supra, 165 Cal.App.3d 82, 90; County of Shasta v. County 

of Trinity (1980) 106 Cal.App.3d 30, 37; Starr v. City and County of San Francisco, supra, 72 

Cal.App.3d 164, 172.) 

While a specific duty must be found for this exception to apply (County of Los 

Angeles v. Byram (1951) 36 Cal.2d 694, 699; Compton Community College etc. Teachers v. 

Compton Community College Dist., supra, 165 Cal.App.3d 82, 91-94; Wright v. Compton Unified 

Sch. Dist., supra, 46 Cal.App.3d 177, 183), it is unnecessary that the governing law establish the 

particular amount or manner of expenditure (Compton Community College etc. Teachers v. 

Compton Community College Dist., supra, 165 Cal.App.3d 82, 93-94). 

In County of Los Angeles v. Byram, supra, 36 Cal.2d 694, for example, the Supreme 

Court ruled that the cost of constructing a courthouse was not subject to the constitutional provision 

because the county had a legal duty to provide "adequate quarters" for the courts. This legal duty 

was found sufficient even though the county had discretion in determining what kind of courthouse 

to supply and how much money to spend. (Id., at p. 700.) 

In City of La Habra v. Pellerin (1963) 216 Cal.2d 99, the Court of Appeal similarly 

held that voter approval would not be required for the construction of police and fire stations. Even 

though the city had discretion in determining the nature and cost of these buildings, the court found 

that the state law requiring the furnishing of police and fire protection was sufficient to satisfy the 

involuntary debt exception. (Id., at p. 102.) 

With respect to the abatement of asbestos hazards by a school district, Congress has 

recently enacted the Asbestos Hazard Emergency Response Act of 1986. (15 U.S.C. §§ 2641-2654.) 

The legislation directs the administrator of the Environmental Protection Agency to adopt 

regulations requiring the inspection, cleanup, and disposal of asbestos from schools in a timely 

manner. (15 U.S.C. § 2643.) Each school district is required to develop an asbestos management 

plan describing the "measures to be taken to respond to any friable asbestos-containing material . . . 

including the location or locations at which a response action will be taken, the method or methods 

of response action to be used, and a schedule for beginning and completing response actions." (15 

U.S.C. § 2643(i)(1)(C).) If the regulations are not promulgated, Congress itself has directed the 

inspection, cleanup, and disposal of the asbestos. (15 U.S.C. § 2644.) Section 2644 of title 15 of 

the United States Code provides in part: 

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"The local educational agency shall . . . develop and begin implementation 

of an operation and maintenance plan with respect to friable asbestos-containing 

material in a school building under its authority . . . . 

"The local educational agency shall . . . develop a management plan for 

responding to asbestos-containing material in each school building under its 

authority and . . . begin implementation of such plan . . . and . . . complete 

implementation of such plan in a timely fashion. 

". . . . . . . . . . . . . . . . . . . . . . . . . 

"The ambient interior concentration of asbestos after the completion of 

actions . . . shall not exceed the ambient exterior concentration, discounting any 

contribution from any stationary source . . . ." 

The federal legislation additionally provides that in an emergency situation the federal administrator 

or the governor of a state may "act to protect human health or the environment" and "seek 

reimbursement of all costs of an emergency action" from the school district, or either official may 

seek injunctive relief against the district "as may be necessary to respond to the hazard." (15 U.S.C. 

§ 2648.) For various violations of the regulatory or statutory requirements, a school district may 

incur a civil penalty of up to $5,000 a day. (15 U.S.C. § 2647.) Congress has also authorized the 

states to adopt more stringent requirements than the federal standards with respect to asbestos 

hazards in schools. (15 U.S.C. § 2649.)2 

We believe that once an official determination has been made that action is necessary 

to protect human health and the environment, the district would have sufficient duty under federal 

law to abate the asbestos hazard so as to render inapplicable the provisions of article XVI of the 

Constitution when borrowing federal funds to perform such duty. Here the determination would 

necessarily be made by the school district in applying for the federal loan, by the Governor in giving 

the application a priority, and by the federal government in providing the loan based upon the 

statutory criteria of requisite need. (See 20 U.S.C. §§ 4013-4014.) Under such circumstances it 

would not be a task voluntarily assumed by the district for which prior voter approval would be 

required. Even though a district may have discretion in determining the amount and manner of the 

expenditure, it would be under a statutory obligation to provide a safe and healthy environment in 

its schools. Hence the involuntary debt exception would be applicable. (See County of Los Angeles 

v. Byram, supra, 36 Cal.3d 694, 700; Compton Community College etc. Teachers v. Compton 

Community College Dist., supra, 165 Cal.App.3d 82, 93-94; City of La Habra v. Pellerin, supra, 216 

2

The Commerce Clause (U.S. Const., art. I, § 8, cl. 3) gives Congress the authority to control 

asbestos hazards in schools. (See Garcia v. San Antonio Metro. Transit Auth. (1985) 469 U.S. 

536, 539-557; Hodel v. Indiana (1981) 452 U.S. 314, 323-329; Hodel v. Indiana Surface Min. & 

Recl. Assn. (1981) 452 U.S. 264, 276-292; SED, Inc. v. City of Dayton (S.D. Ohio 1981) 519 

F.Supp. 979, 982-984; SED, Inc. v. City of Dayton (S.D. Ohio 1981) 515 F.Supp. 737, 740.) 

5. 87-205
 
Cal.App.2d 99, 102.) The fact that federal law rather than state law provides the duty makes the 

debt no less involuntary for purposes of the exception. 

In answer to the question presented, therefore, we conclude that the borrowing of 

federal funds by a school district to abate asbestos hazards does not require electorate assent under 

the provisions of section 18 of article XVI of the Constitution where such abatement is required by 

law, thereby making the debt involuntarily incurred and exempt from the constitutional requirement. 

* * * * * 

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