California Attorney General Opinion No. 79-605

1 79-605 TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California GEORGE DEUKMEJIAN Attorney General _________________________ OPINION of GEORGE DEUKMEJIAN Attorney General Rodney Lilyquist, Jr. Deputy Attorney General : : : : : : : : : : : No. 79–605 August 22, 1979 SUBJECT: REQUIRED PAYMENT OF PLAN-CHECKING AND INSPECTION FEES—The Trustees of the California State University are not required to pay the plan- checking and inspection fees of a city with regard to construction modifications of city streets adjacent to a state university campus where these services are performed by personnel employed by the Trustees. The Trustees of the California State University and Colleges have requested an opinion on the following question: Are the Trustees of the California State University and Colleges required to pay the plan-checking and inspection fees of a city with regard to construction modifications of city streets adjacent to a state university campus where these services are performed by personnel employed by the Trustees? CONCLUSION The Trustees of the California State University and Colleges are not required to pay the plan-checking and inspection fees of a city with regard to construction modifications 2 79-605 of city streets adjacent to a state university campus where these services are performed by personnel employed by the Trustees. ANALYSIS We are informed that the Trustees of the California State University and Colleges [Trustees] have approved a construction project for the modification of the road system of one of the state university campuses. In conjunction with the redesign of the traffic pattern, certain city streets adjacent to the campus will also require modification. The city street modifications have been designed and will be inspected by personnel employed by the Trustees. Although the city approves of the construction project as a whole, it believes that the plans and construction regarding the city streets should be specifically inspected and approved by city personnel since it will be responsible for the future maintenance and liability thereof. For such plan-checking and inspection services, the city would charge the Trustees according to its established fee schedule. The question presented for analysis is whether the city may impose plan checking and inspection fees upon the Trustees under these circumstances.1 We conclude that it may not. The Legislature has given to the Trustees specific responsibility for administering the California State University and Colleges. (Ed. Code §§ 66600, 66606.)2 They ‘succeed to the powers, duties and functions with respect to the management, administration and control of the state colleges heretofore vested in the State Board of Education or in the Director of Education.” (§ 66606.) In administering their statutory duties on behalf of the state, the Trustees come within certain legislative enactments pertaining to the operation of the state’s business. Of particular significance to the question presented herein is Government Code section 6103. It provides: “Neither the state nor any county, city, district, or other political subdivision, nor any public officer or body, acting in his official capacity on behalf of the state, or any county, city, district or other political subdivision, shall pay or deposit any fee for the filing of any document or paper, for the performance of any official service, or for the filing of any stipulation or agreement which may constitute an appearance in any court by any other party to the 1 No question is raised concerning the modification of the road system on the campus property itself. 2 All unidentified section references hereinafter refer to the Education Code. 3 79-605 stipulation or agreement. This section does not apply to the State Compensation Insurance Fund or where a public officer is acting with reference to private assets or obligations which have come under his jurisdiction by virtue of his office, or where it is specifically provided otherwise. No fee shall be charged for the filing of a confession of judgment in favor of any of the public agencies named in this section. “No fee shall be charged any of the public agencies named in this section to defray the costs of reporting services by court reporters. Such fees shall be recoverable as costs as provided in Section 6103.5.” (Emphasis added.) Because of the Trustees’ statutory duties with regard to the state’s program of higher education, they must be considered as coming within the terms of Government Code section 6103 when acting in their official capacities on behalf of the state. (See People v. Moroney (1944) 24 Cal. 2d 638, 641–642 [State Franchise Tax Commissioner acting on behalf of the state within the meaning of the statute]; Mitchell v. Tayler (1935) 3 Cal. 2d 217, 218–219 [Insurance Commissioner acting to protect the state’s interest although private persons would ultimately benefit]; Regents of University of California v. City of Santa Monica (1978) 77 Cal. App. 3d 130, 135–3 17 [Regents equated with the state for purposes of the statute]; 54 Ops. Cal. Atty. Gen. 218, 2 19–220 (1971) [Public Employers’ Retirement System created by the Legislature for a state purpose, functioning as part of the state for purposes of the statute]; 26 Ops. Cal. Atty. Gen. 49, 50 (1955) [State Board of Equalization acting on behalf of the state within the meaning of the statute].) Accordingly, if the plan-checking and inspection services of the city can be characterized as “any official service” under Government Code section 6103, fees for such services could not be imposed upon the Trustees under the general terms of the statute. “Official service” has been defined as an act or activity carried out in the performance of duties imposed by statute or ordinance. (City of Pasadena v. Fox (1936) 16 Cal. App. 2d 584, 586; 53 Ops. Cal. Atty. Gen. 322, 323 (1970).) More specifically, it has been defined as including the services of plan-checking and the inspecting of building construction. (Regents of University of California v. City of Santa Monica, supra, 77 Cal. App. 3d 130, 133–136; City of Pasadena v. Fox, supra, 16 Cal. App. 2d 584, 585–586; 40 Ops. Cal. Atty. Gen. 15, 20 (1962).) Hence, the general terms of Government Code section 6103 would preclude the imposition of the city plan-checking and inspection fees upon the Trustees in the circumstances under consideration. A familiar rule of statutory construction, however, is that the provisions of a specific statute control over those of a more general statute. (Covino v. Governing Board (1977) 76 Cal. App. 3d 314, 321.) Government Code section 6103 states in part: “This section 4 79-605 does not apply . . . where it is specifically provided otherwise.” Thus, if another state statute carves out an exception to the exemption provisions of Government Code section 6103, the fees in question could be imposed against the Trustees. (See City of Pasadena v. Fox, supra, 16 Cal. App. 2d 584, 586.) We have been unable to find such a statutory exception. Government Code section 6103.6 provides: “Section 6103 does not apply to any fee or charge for official services established by a city or county ordinance as a reasonable and nondiscriminatory inspection fee to defray the costs of the inspection by such city or county of work done in, under, on or about any city or county street or highway, whether such work is done pursuant to franchise, statutory authority, or otherwise. Section 6103 does not apply to a reasonable and nondiscriminatory fee or charge established by a city or county ordinance to defray the costs of insuring such city or county against liability for injury or death to persons and damage to property resulting from such work in streets and highways. This section does not authorize a fee or charge for the mere issuance of a permit to do such work, nor does this section authorize the assessment against, or collecting of, any fee or charge from the State.” (Emphasis added.) Except for the last sentence of Government Code section 6103.6, the statute would appear to be applicable to the city’s fees under discussion. However, just as the Trustees act on behalf of the state in performing their official duties for purposes of Government Code section 6103, we believe that the state acts by and through the Trustees for purposes of Government Code section 6103.6. By implication, the latter stature’s reference to “the State” must include a statewide body with plenary, statutorily granted powers such as the Trustees. (See Regents of University of California v. City of Santa Monica, supra, 77 Cal. App. 3d 130, 135–137.) Government Code section 6103.6 thus disposes of the question presented. In the context of the statutory scheme, it prevents the imposition of a charge against the Trustees for issuance of a permit to make the road modifications at issue herein and it prevents the imposition of a fee for any kind of service performed for the Trustees in connection with the road construction. Finally, we note the provisions of Government Code section 6103.7 as follows: “Section 6103 does not apply to any fee or charge for official services established by a city, county, city and county, or district as a reasonable and nondiscriminatory inspection fee to defray the costs of the inspection by such 5 79-605 city, county, city and county, or district of building construction work performed within the boundaries of such city, county, city and county, or district whether such work is done pursuant to franchise, statutory authority, or otherwise. Section 6103 does not apply to a reasonable and nondiscriminatory fee or charge established by a city, county, city and county, or district ordinance to defray the costs of providing plan-checking services to any applicant, whether such plan-checking services are performed by the city, county, city and county, or district having jurisdiction over the construction or are contracted by such city, county, city and county, or district to an independent plan-checking firm. This section does not authorize a fee or charge for the mere issuance of a permit to do such work, nor does this section authorize the assessment against, or collecting of any fee or charge from, the state or its agencies when, and to the extent that such inspection or services are otherwise required by law, to he, and are in fact, performed by another governmental agency.” (Emphasis added.) As previously indicated, the project approved by the Trustees is for work performed in modifying the road system of one of the state university campuses. Such ‘road” construction would come under the express provisions of Government Code section 6103.6, if at all, rather than section 6103.7 which refers to ‘building” construction. Moreover, the last sentence of Government Code section 6103.7 specifically exempts from its provisions the collection of any fees from state agencies3 for services required by law to be “performed by another governmental agency.” In Regents of University of California v. City of Santa Monica, supra, 77 Cal. App. 3d 130, 137, the Court of Appeal examined this exemption condition for state agencies under Government Code section 6103.7. After finding that the Regents of the University of California had (1) the authority to design, inspect and construct the facilities in question and (2) a staff of licensed architects, engineers and building inspectors who drafted the plans, inspected the facilities, and approved the construction, the court concluded that the Regents “amply satisfied” the conditions for the exemption from fees (while assuming, without deciding, that the statute would otherwise be applicable). Similar to the authority of the Regents, the Trustees “have full power and responsibility in the construction and development of any state university or college 3 We do not view the expression “the state or its agencies” contained in Government Code section 6103.7 as expanding upon the term “the state” used by the Legislature in Government Code sections 6103 and 6103.6. Government Code section 6103.7 may be seen as a later statutory amendment, clarifying the Legislature’s intent as to the statutory scheme as a whole. (See Regents of University of California v. City of Santa Monica, supra, 77 Cal. App. 3d 130, 135–137.) 6 79-605 campus, and any buildings or other facilities or improvements connected with the State University and Colleges . . . .” (§ 66606.) Campus construction projects are “under the sole and direct control of the trustees” (§ 90104), and for which the Trustees are required to have “prepared full, complete and accurate plans and specifications” (§ 90120). The Trustees may contract with the Department of General Services to carry out any of their functions. (§ 90106.) Here, the Trustees have performed their statutory duties with regard to the project in question. Complete plans have been prepared and approved, and the Trustees have contractually obtained a state building inspector from the Department of General Services to inspect and approve the construction at the project site on a daily basis. The modifications of the city streets must be considered to be ‘improvements connected with the State University and Colleges” (§ 66606) for which the Trustees have “sole and direct control” (§ 90104). Even if Government Code section 6103.7 would thus otherwise be applicable, the statute exempts the Trustees from payment of the fees inasmuch as the services are “required by law, to be, and are in fact, performed by another governmental agency.” (Regents of University of California v. City of Santa Monica, supra, 77 Cal. App. 3d 130, 137.) No other statutes appear to be relevant to our discussion. The conclusion to the question presented, therefore, is that the Trustees are not required to pay a city’s fees for plan-checking and inspection services performed with regard to construction modifications of city streets adjacent to a state university campus where these services are performed by personnel employed by the Trustees. *****