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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. 87-905 

:

 JOHN K. VAN DE KAMP : DECEMBER 8, 1987

 Attorney General : 

: 

ANTHONY S. DaVIGO :

 Deputy Attorney General : 

: 

THE HONORABLE DEVON L. WORKMAN, COUNTY COUNSEL, COUNTY 

OF GLENN, has requested an opinion on the following question: 

May an attorney who contracts with a city to provide services as city attorney not 

including those as public prosecutor lawfully contract with the county in which the city is located 

to provide a defense for a criminally accused indigent? 

CONCLUSION 

An attorney who contracts with a city to provide services as city attorney may 

lawfully contract with the county in which the city is located to provide a defense for a criminally 

accused indigent provided that (1) the attorney does not, in fact, exercise prosecutorial 

responsibilities on behalf of the city, (2) the city expressly relieves the attorney of any and all 

prosecutorial responsibilities on its behalf, (3) the representation does not involve an ordinance of 

the city, (4) the accused waives any rights arising out of any potential conflict resulting from the 

attorney's position with the city, and (5) the city has not otherwise limited or prohibited the attorney 

from engaging in such representation. 

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ANALYSIS
 

It is understood for purposes of the present inquiry that an attorney has entered into 

a contract with a city to perform, as an independent contractor,1

 certain services traditionally 

performed by a city attorney.2

 The contract does not include services as a public prosecutor. The 

question presented for consideration is whether the attorney may lawfully contract with the county 

in which the city is located to defend an indigent accused of crime. 

Government Code section 1126 provides: 

"(a) Except as provided in Section 1128, a local agency officer or employee 

shall not engage in any employment, activity, or enterprise for compensation which 

is inconsistent, incompatible, in conflict with, or inimical to his or her duties as a 

local agency officer or employee or with the duties, functions, or responsibilities of 

his or her appointing power or the agency by which he or she is employed. Such 

officer or employee shall not perform any work, service, or counsel for compensation 

outside of his or her local agency employment where any part of his or her efforts 

will be subject to approval by any other officer, employee, board, or commission of 

his or her employing body, unless otherwise approved in the manner prescribed by 

subdivision (b). 

"(b) Each appointing power may determine, subject to approval of the local 

agency, and consistent with the provisions of Section 1128 where applicable, those 

outside activities which, for employees under its jurisdiction, are inconsistent with, 

incompatible to, or in conflict with their duties as local agency officers or employees. 

An employee's outside employment, activity, or enterprise may be prohibited if it: 

(1) involves the use for private gain or advantage of his or her local agency time, 

facilities, equipment and supplies; or the badge, uniform, prestige, or influence of his 

or her local agency office or employment or, (2) involves receipt or acceptance by 

the officer or employee of any money or other consideration from anyone other than 

his or her local agency for the performance of an act which the officer or employee, 

if not performing such act, would be required or expected to render in the regular 

course or hours of his or her local agency employment or as a part of his or her duties 

1

Government Code section 37103 provides: 

 "The legislative body may contract with any specially trained and experienced 

person, firm, or corporation for special services and advice in financial, economic, 

accounting, engineering, legal or administrative matters. . . ." (Emphasis added.) 

2

See Government Code sections 36505, 41801-41805. A city attorney holds a public office as 

distinguished from a mere public employment. (See People ex rel. Clancy v. Superior Court 

(1985) 39 Cal.3d 740, 747; 66 Ops.Cal.Atty.Gen. 382, 383, n. 3 (1983).) 

2. 87-905
 
 

as a local agency officer or employee or, (3) involves the performance of an act in 

other than his or her capacity as a local agency officer or employee which act may 

later be subject directly or indirectly to the control, inspection, review, audit, or 

enforcement of any other officer or employee or the agency by which he or she is 

employed, or (4) involves such time demands as would render performance of his or 

her duties as a local agency officer or employee less efficient. 

"The local agency may adopt rules governing the application of this section. 

Such rules shall include provision for notice to employees of the determination of 

prohibited activities, of disciplinary action to be taken against employees for 

engaging in prohibited activities, and for appeal by employees from such a 

determination and from its application to an employee." 

The language of this section which refers to "officer or employee" could be literally construed so 

as to exclude from its ambit private legal counsel retained by a county on a contract basis. (Cf. 

Handler v. Board of Supervisors (1952) 39 Cal.2d 282, 286-287; 61 Ops.Cal.Atty.Gen. 18, 22 

(1978); cf. generally Montgomery v. Superior Court (1975) 46 Cal.App.3d 657, 671; 28 

Ops.Cal.Atty.Gen. 362, 364 (1956); and see 70 Ops.Cal.Atty.Gen. 92, 95 (1987).)3 

It has been held, on the other hand, that Government Code section 1090, providing 

that city officers shall not be interested in any contract made by them in their official capacity, 

applies to a special city attorney retained under contract. Such an attorney is an "officer and agent" 

of the city. (Schaefer v. Berinstein (1956) 140 Cal.App.2d 278, 291; Terry v. Bender (1956) 143 

Cal.App.2d 198, 206-207.) 

Based upon these cases we applied the same rationale, in 46 Ops.Cal.Atty.Gen. 74, 

78-79 (1965), to a financial consultant retained by a special district pursuant to contract: 

"It must now be determined whether a financial consultant who is temporarily 

retained by a special district is an 'employee' of the district, as that term is used in 

section 1090, or whether he is an independent contractor who is not an 'employee.' 

In other contexts, persons performing specialized services on a temporary basis have 

been held to be neither officers nor employees of the governmental body. Handler 

3

But compare People ex rel. Clancy v. Superior Court, supra, 39 Cal.3d at 747:

 "It is true that the retainer agreement between the City and Clancy provides 

that Clancy is to be 'an independent contractor and not an officer or employee of 

City.' However, a lawyer cannot escape the heightened ethical requirements of 

one who performs governmental functions merely by declaring he is not a public 

official. The responsibility follows the job: if Clancy is performing tasks on 

behalf of and in the name of the government to which greater standards of 

neutrality apply, he must adhere to those standards." 

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v. Board of Supervisors, 39 Cal.2d 282, 286 (1952) [engineer and special attorney 

may be retained by resolution rather than ordinance]; Kennedy v. Ross, 28 Cal.2d 

569, 572 (1946) [temporary architect not city employee for purposes of civil service 

law]. However, a statute similar to section 1090 was held by the Florida Supreme 

Court to apply to a contract between a city commission and a firm of financial 

advisers. City of Miami v. Benson, 63 So.2d 916, 921 (Fla. 1953). 

"Prior to the amendment of section 1090 giving it application to 'employees,' 

the District Court of Appeal decided a series of cases involving an attorney at law 

who was retained by the City of Compton for the special purpose of clearing title to 

tax-deeded and special assessment delinquent land in the city. In the first of these 

cases, Schaefer v. Berinstein, 140 Cal.App.2d 278 (1956), the court applied the 

policy, if not the letter, of section 1090 in sustaining a pleading involving the special 

attorney. Without first discussing the issue of his status, the court stated: 

"'Statutes prohibiting personal interests of public officers in public contracts 

are strictly enforced. . . . A person merely in an advisory position to the city is 

affected by the conflicts of interest rule. . . . He was an officer and agent of the city 

and as such was in a position to advise the city council as to what action should be 

taken. . . . The contracts to purchase from the city and the ultimate sales were 

contrary to public policy and are void.' 140 Cal.App.2d at 291-292. (Emphasis 

added.) 

"The court reiterated the above rules in again applying the policy of section 

1090 to sustain a second complaint against the same attorney in Terry v. Bender, 143 

Cal.App.2d 198, 206-207, 211 (1956). The City of Compton had a charter provision 

which was very similar to the present version of section 1090 and which applied to 

employees. Terry v. Bender, 143 Cal.App.2d 198 at 204 [footnote] (1956). The 

court referred to this provision in Schaefer v. Berinstein, 140 Cal.App.2d 278 (1946): 

"'It is the general policy of the state that public officers shall not be interest 

in any contract made in their official capacity in which they have a personal or 

financial interest. . . . That policy affords aid in construing charter provisions on the 

same subject.' 140 Cal.App.2d at 289. 

"'It is sufficient to say that even if the city of Compton had not adopted a 

provision relating to "conflicts of interests," Bender's conduct would be prohibited 

by section 1090 of the Government Code.' 140 Cal.App.2d at 291. 

"It seems clear that the Legislature in later amending section 1090 to include 

'employees' intended to apply the policy of the conflicts of interest law, as set out in 

the Schaefer and Terry cases, to independent contractors who perform a public 

function and to require of those who serve the public temporarily the same fealty 

expected from permanent officers and employees. It is a fundamental rule for the 

4. 87-905
 
interpretation of a statute that it is presumed to have been enacted or amended in the 

light of such existing judicial decisions as have a direct bearing upon it. Sutter 

Hospital v. City of Sacramento, 39 Cal.2d 33, 38 (1952); Whitley v. Superior Court, 

18 Cal.2d 75, 78 (1941); Estate of Moffitt, 153 Cal. 359, 361 (1908), aff'd, 218 U.S. 

404 (1910). Except where the statutory language is clear and explicit, courts 

construe statutes with a view to promoting rather than to defeating their general 

purpose and their underlying policy. People v. Centr-O-Mart, 34 Cal.2d 702, 704 

(1950); Department of Motor Vehicles v. Industrial Acc. Com., 14 Cal.2d 189, 195 

(1939). 

"Conflict of interest statutes are strictly enforced, Schaefer v. Berinstein, 140 

Cal.App.2d 278, 291 (1956), and should, therefore, be liberally construed. We 

conclude that a financial consultant who is employed by a public agency on a 

temporary basis is an 'employee' under section 1090." 

Finally, in 61 Ops.Cal.Atty.Gen., supra, 22-23 we concluded that the same reasoning 

applied to Government Code section 1126, thus rendering that statute applicable to special counsel 

employed by a county on a contractual basis. Under subdivision (a) of that section, a local agency 

officer or employee may not engage in any employment, activity or enterprise for compensation 

which is "inconsistent, incompatible, in conflict with, or inimical to" his public duties. Subdivision 

(b) provides that the appointing power of the local agency's officers and employees, subject to the 

approval of the local agency, must determine which outside activities fall within the prohibition. 

(Mazzola v. City and County of San Francisco (1980) 112 Cal.App.3d 141, 153-154; 69 

Ops.Cal.Atty.Gen. 119, 120 (1986); 68 Ops.Cal.Atty.Gen. 175, 183 (1985).) In the absence of a 

determination by the appointing power that the representation of an indigent accused of crime 

constitutes a prohibited activity, however, Government Code section 1126 would not apply. 

We next consider a different and independent line of cases. In People v. Rhodes 

(1974) 12 Cal.3d 180, an indigent criminal defendant was represented under court appointment by 

the part-time City Attorney of Hanford. Reversing his conviction, the court declared as a judicially 

declared rule of criminal procedure, "a city attorney with prosecutorial responsibilities may not 

defend or assist in the defense of persons accused of crime." (Id. at 187, emphasis added.) In Sparks 

v. Superior Court (1975) 45 Cal.App.3d 533, Rhodes was interpreted as applying to retained as well 

as court-appointed counsel. (Id. at 536.) In Montgomery v. Superior Court, supra, 46 Cal.App.3d 

at 674, involving the law partners of a city attorney, the court concluded that "the city attorney of 

a city which has validly divested him of prosecutorial responsibilities, or his professional associates 

in the practice of law, may defend or assist in the defense of any criminal action (1) in which 

personnel of the employing city are not involved in any significant respect and (2) in which the 

defendant has knowingly and intelligently waived any irregularity which might be perceived by 

reason of the Rhodes proscription . . . subject to appropriate exercise of the trial court's discretion 

in a particular case." (Emphasis added; cf. generally People v. Pendleton (1979) 25 Cal.3d 371, 

379.) 

Montgomery was decided on March 31, 1975. On September 6, 1975, the Legislature 

5. 87-905
 
enacted Government Code section 41805 (Stats. 1975, ch. 556): 

"(a) No city attorney who does not, in fact, exercise prosecutorial 

responsibilities on behalf of the city or cities by which he is employed shall be 

precluded from defending or assisting in the defense of, or acting as counsel for, any 

person accused of any crime except for violation of any ordinance of the city or cities 

by which he is employed, provided that: 

"(1) The city or cities by which he is employed expressly relieve him of any 

and all prosecutorial responsibilities on its or their behalf; and 

"(2) The accused has been informed of and expressly waives any rights 

created as a result of any potential conflict created by his attorney's position as a city 

attorney. 

"(b) Where the above provisions are met, no partner or associate of a city 

attorney shall be prevented from defending or assisting in the defense of, or acting 

as counsel for, any person accused of any crime except for violations of any 

ordinance of the city or cities by which his partner or associate is employed as a city 

attorney. 

"This section shall not preclude any city from limiting or prohibiting the 

private practice of any attorney it retains or employs." 

By the terms of this superseding enactment, a city attorney may represent any person accused of 

crime provided that (1) the attorney does not, in fact, exercise prosecutorial responsibilities on behalf 

of the city, (2) the city expressly relieves the attorney of any and all prosecutorial responsibilities 

on its behalf, (3) the representation does not involve an ordinance of the city, (4) the accused waives 

any rights arising out of any potential conflict resulting from the attorney's position with the city, 

and (5) the city has not otherwise limited or prohibited the attorney from engaging in such 

representation. 

The present inquiry concerns an attorney performing legal services for a city as an 

independent contractor. In our view, Government Code section 41805 is not constrained by any 

technical definition of the term "city attorney," whether the position is full or part time, whether the 

relationship between the person exercising such powers and the city is formal or informal, or 

whether the relationship is based on appointment or contract. Indeed, such distinctions are not 

always clear. As noted in Montgomery v. Superior Court, supra, 46 Cal.App.3d at 670-671: 

"The result is a practical one, moreover, because it acknowledges the realities 

attending the position of a city attorney in the cities of California, particularly the 

smaller ones. The Attorney General, having examined these realities with respect 

to a particular subject, described them as follows: 'In a number of the smaller cities 

of the state the relationship between the person appointed as city attorney and the 

city is of a very informal nature. An attorney is appointed at a modest retainer to 

6. 87-905
 
render certain limited services, often he has no office in the city hall and he handles 

the affairs of the city as he does the affairs of other clients. There is often an 

agreement between the city and the attorney as to just what services the city attorney 

is to perform and in many cases both the attorney and the city officials are prone to 

look upon the attorney as an independent contractor rather than as a member of the 

city government.' (28 Ops.Cal.Atty.Gen. 362, 364.)" 

We perceive no rational basis for the assumption that a person providing services as 

a city attorney pursuant to contract should be subject to any greater or lesser restraint than may be 

applicable to an appointed city attorney. The policy which favors the availability of such attorneys 

for court appointment in criminal proceedings is the same in either case. This policy was recognized 

in Montgomery as follows (id. at 672-673): 

"Among the 412 cities of California, only 64 employ full-time city attorneys 

under arrangements which prohibit them from engaging in any outside practice. 

Eleven (11) of them permit their city attorneys to engage in limited outside practice. 

Each of the remaining 337 cities employs a city attorney on a part-time basis and 

permits him to engage in outside practice without limitation. Our sources also 

indicate that many city attorneys in the part-time category have resigned their 

positions, or intend to do so, because of the Rhodes proscription disqualifying them 

from criminal practice. In some of the counties with the lowest populations in the 

state, part-time city attorneys are among the very few practitioners who are locally 

available to serve as court-appointed counsel in criminal cases. The continuing 

availability of competent attorneys to the cities and to the administration of criminal 

justice, in these counties and elsewhere, is a 'compelling public policy consideration' 

(People v. Rhodes, supra, 12 Cal.3d 180 at p. 185) to be weighed in applying the 

Rhodes rule to the facts presented here." (Emphasis added; fns. omitted.) 

Further, the basis for imposing conditions upon such activity by an attorney who 

represents a city is not unique to those who serve by formal appointment. The practical 

considerations respecting the exercise of prosecutorial responsibility are summarized in 

Montgomery (id. at 671): 

"The Rhodes court formulated the proscription upon the bases of (1) the 

practical conflict between the absolute duty owed by a defense attorney to his client 

and the rapport which a city attorney-prosecutor must reasonably maintain with his 

law enforcement associates in the employ of his city and 'neighboring law 

enforcement agencies' (People v. Rhodes, supra, 12 Cal.3d 180 at p. 184); (2) the 

corollary threat to the integrity of the criminal justice system at large (id., at pp. 184-

185); and (3) the 'compelling public policy consideration' that the actual or apparent 

incompatibility, between the role of defense counsel and that of the city attorneyprosecutor, would undermine the vital element of public confidence in the system. 

(Id., at pp. 185-186.)" 

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Considerations respecting the interests of the accused and the right of that person to waive any 

irregularity which might arise by virtue of the attorney's dual status (id. at 673), are equally pertinent 

to those who serve under contract or appointment. 

Finally, the last sentence of Government Code section 41805 suggests a broad 

interpretation: "This section shall not preclude any city from limiting or prohibiting the private 

practice of any attorney it retains or employs." (Emphasis added.) It is concluded that an attorney 

who contracts with a city to provide services as city attorney may lawfully contract with the county 

in which the city is located to provide a defense for a criminally accused indigent subject to the 

terms and conditions of Government Code section 41805. 

* * * * * 

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