                      TO BE PUBLISHED IN THE OFFICIAL REPORTS


                           OFFICE OF THE ATTORNEY GENERAL

                                     State of California


                                     DANIEL E. LUNGREN

                                       Attorney General


                         ______________________________________

                  OPINION            :
                                     :          No. 92-109
                  of                 :
                                     :          NOVEMBER 10, 1992
        DANIEL E. LUNGREN            :
           Attorney General          :
                                     :

        ANTHONY S. DA VIGO           :

        Deputy Attorney General      :

                                     :
______________________________________________________________________________


          THE HONORABLE CHARLES W. QUACKENBUSH, MEMBER OF THE
CALIFORNIA ASSEMBLY, has requested an opinion on the following questions:

              1. May a regional air pollution control district require employers to charge parking
fees as a means of achieving average vehicle ridership goals for purposes of the California Clean
Air Act of 1988?

               2. May a regional air pollution control district impose civil penalties upon employers
who fail to achieve average vehicle ridership goals?

                                         CONCLUSIONS

               1. A regional air pollution control district may not require employers to charge
parking fees as a means of achieving average vehicle ridership goals for purposes of the California
Clean Air Act of 1988.

               2. A regional air pollution control district may impose administrative civil penalties
of not more than $500 pursuant to its own rules and regulations and initiate judicial proceedings for
imposition of civil penalties by a court upon an employer who fails to achieve average vehicle
ridership goals mandated by lawful orders of the district, the achievement of which was within the
reasonable control of the employer.

                                            ANALYSIS

              The Legislature has provided for the establishment of air quality control districts,
including county, unified, regional, Bay Area, South Coast, Sacramento Metropolitan, and San
Joaquin Valley districts. (Health and Saf. Code, §§ 40000-41133; 74 Ops.Cal.Atty.Gen. 196
(1991).)1/ Among the general powers common to all such districts are the adoption and
implementation of regulations to "[e]ncourage or require the use of ridesharing, vanpooling, flexible
work hours, or other measures which reduce the number or length of vehicle trips" (§ 40716, subd.
(a)(2)), and the adoption, implementation, and enforcement of "transportation control measures"
including "any strategy to reduce vehicle trips, vehicle use, vehicle miles traveled, vehicle idling,
or traffic congestion for the purpose of reducing motor vehicle emissions" (§ 40717, subds. (a), (g)).
Sections 40716 and 40717 are part of the California Clean Air Act of 1988. (Stats. 1988, ch. 1568.)

               1. Parking Fees

                The first inquiry is whether a district may require employers to charge parking fees
as a means of achieving established "average vehicle ridership" goals. In 74 Ops.Cal.Atty.Gen. 196,
200 (1991), we concluded that a district itself may not impose parking fees. In our view, the
distinction between the imposition of fees by a district, and the requirement by a district that such
fees be charged by employers, is illusory insofar as the statutory basis for such orders is concerned.
Accordingly, we conclude that district mandated parking fees charged by employers do not fall
within the conferred powers of a district under the California Clean Air Act of 1988.

               Administrative agencies have only those powers conferred upon them by statute, and
an administrative act in excess of those powers is void. (Ferdig v. State Personnel Bd. (1969) 71
Cal.2d 96, 103-104.) We have recently so determined in regard to air pollution control districts (74
Ops.Cal.Atty.Gen., 196, 198 (1991)) and in connection with the power to impose fees (73
Ops.Cal.Atty.Gen. 229, 234-235 (1990)). Of course, an agency's powers are not limited to those
expressly granted in the legislation; rather, it is well settled that administrative officials "may
exercise such additional powers as are necessary for the due and efficient administration of powers
expressly granted by statute, or as may fairly be implied from the statute granting the powers."
(Dickey v. Raisin Proration Zone No. 1 (1944) 24 Cal.2d 796, 810; see also Stackler v. Department
of Motor Vehicles (1980) 105 Cal.App.3d 240, 245.)

              The doctrine of implied powers, however, is not without limitation. As stated in
Addison v. Department of Motor Vehicles (1977) 69 Cal.App.3d 486, 498:

              "It cannot be invoked where the grant of express powers clearly excludes the
       exercise of others, or where the claimed power is incompatible with, or outside the
       scope of, the express power. For a power to be justified under the doctrine, it must
       be essential to the declared objects and purposes of the enabling act--not simply
       convenient, but indispensable. Any reasonable doubt concerning the existence of the
       power is to be resolved against the agency."

                Sections 40716 and 40717 admittedly contain general language and broadly worded
grants of power. Thus, in the portions of those statutes above quoted, the phrases "or other measures
which reduce the number or length of vehicle trips" and "any strategy to reduce vehicle trips" appear
without apparent limitation. If literally construed, such terms would authorize a district to impose
a monetary increase in the price of fuel, in the cost of automotive parts and maintenance, as well as
the cost of parking a vehicle, in order to achieve its intended legitimate objectives. While the word
"fee," or "fund," or "charge," or "price," or "cost," or any other such monetary reference is
conspicuously absent, the issue to be resolved is whether the power of an administrative agency to




       1.     All section references are to the Health and Safety Code unless otherwise indicated.

                                                  2.                                          92-109
impose or to require the imposition of direct economic costs and incentives may be implied from
such broad statutory terms.

               In 74 Ops.Cal.Atty.Gen. 196, 198-199 (1991), we examined the provisions of certain
concomitant federal legislation which refer expressly to "parking surcharge regulations."2/ It may
be argued that sections 40716 and 40717 should be read in light of the federal Clean Air Act (42
U.S.C. §§ 7401-7642), and since the latter recognizes "parking surcharge regulations" as an
appropriate method of reducing air pollution, state law should be similarly construed.

               Such an argument is predicated upon the well established principle that a state statute
which is patterned after federal legislation, based on the similarity of language and obvious identity
of purpose, should be construed not independently but in conjunction with its federal counterpart.
(Social Workers' Union, Local 535 v. Alameda County Welfare Dept. (1974) 11 Cal.3d 382, 391;
Pearson v. State Social Welfare Board (1960) 54 Cal.2d 184, 214; 64 Ops.Cal.Atty.Gen. 425, 433
(1981).)

                On the contrary, the corollary of the interpretive precept appears more applicable
here, i.e., the omission by the Legislature of a certain provision in the federal counterpart by
implication negates an intent to embrace the federal terms in that respect. (See 64
Ops.Cal.Atty.Gen. 425, 434 (1981).)

              In any event, the reference in the federal statute to "parking surcharge regulations"
must be viewed in its context. Specifically, the federal law provides that each state shall have the
primary responsibility for assuring air quality within its geographical area by submitting to the
Environmental Protection Agency administrator an implementation plan which will specify the
manner in which national primary and secondary ambient air quality standards will be achieved and
maintained within each air quality control region within the state. (42 U.S.C. §§ 7407, 7410.) The
implementation plan must include, inter alia, "enforceable emission limitations and other control
measures, means, or techniques (including economic incentives such as fees, marketable permits,
and auctions of emissions rights) . . . as may be necessary or appropriate to meet the applicable
requirements of this chapter . . . ." (42 U.S.C. § 7410(a)(2).) The specific reference to "parking
surcharge regulation" contains the following:

               "No parking surcharge regulation may be required by the Administrator under
       paragraph (1) of this subsection as a part of an applicable implementation plan. All
       parking surcharge regulations previously required by the Administrator shall be void
       on June 22, 1974. This subparagraph shall not prevent the Administrator from
       approving parking surcharges if they are adopted and submitted by a State as part of
       an applicable implementation plan. The Administrator may not condition approval
       of any implementation plan submitted by a State on such plan's including a parking
       surcharge regulation." (42 U.S.C § 7410(c)(2)(B).)

               Thus, parking surcharge regulations are recognized as an appropriate part of an
applicable implementation plan, but are expressly excluded as a federal requirement for state plans.


      2.   The federal definition of a "parking surcharge regulation" is as follows:

               "The term `parking surcharge regulation' means a regulation imposing or

       requiring the imposition of any tax, surcharge, fee, or other charge on parking spaces,

       or any other area used for the temporary storage of motor vehicles." (42 U.S.C. §

       7410(c)(2)(D)(i).)


                                                  3.                                          92-109
Considering the federal reference in this context, the inference is even more compelling that the
Legislature did not intend by mere implication to adopt it. Consequently, authority under state law
to require the imposition of parking fees may not be implied by virtue of a reference to such fees in
the federal act.

                Examining the internal provisions of state law, including the California Clean Air Act
of 1988, it appears that where the Legislature intended to authorize the imposition of fees, it so
provided expressly and specifically with respect to their amounts and uses. (See §§ 40500, 40506,
40510, 40510.7, 40511, 40512, 40522, 41081, 41512, 41512.5, 42311, 42311.2, 42311.5, 44220-
44237.) From such statutory examples it may be perceived that the absence of any express provision
indicates an intent not to confer authorization. (See Safer v. Superior Court (1975) 15 Cal.3d 230,
238; Board of Trustees v. Judge (1975) 50 Cal.App.3d 920, 927.)

                Similarly, it has been stated that "where a statute on a particular subject omits a
particular provision, the inclusion of such a provision in another statute concerning a related matter
indicates an intent that the provision is not applicable to the statute from which it was omitted."
(Marsh v. Edwards Theatres Circuit, Inc. (1976) 64 Cal.App.3d 881, 891; accord Fogarty v.
Superior Court (1981) 117 Cal.App.3d 316, 320; see also 67 Ops.Cal.Atty.Gen. 325, 329-330 (1984)
[authority to "issue such rules and regulations as may be necessary to carry out the intent and
purpose of this chapter," while broad and without reservation, did not authorize administrative award
of back pay or attorneys' fees].)

                Moreover, sections 40716 and 40717 do not stand in isolation, but rather in the
context of a universal body and system of laws of which it is a part. In executing the particular
statutory responsibilities imposed by sections 40716 and 40717, those charged with their
administration must take cognizance of and effectuate, or at least refrain from acting in derogation
of, other valid governmental policies. (See Zabel v. Tabb (5th Cir. 1970) 430 F.2d 199, 209; 73
Ops.Cal.Atty.Gen. 156, 163 (1990).)

                In this regard, we note that the Legislature has exercised its constitutional authority
to enact a general statutory scheme for the determination of the terms and conditions of employment
in private industry. (See Cal. Const., art. XIV, § 1.) Section 923 of the Labor Code provides as
follows:

                "In the interpretation and application of this chapter, the public policy of this
       state is declared as follows: Negotiation of terms and conditions of labor should
       result from voluntary agreement between employer and employees."

This statute codifies the state's public policy in favor of the collective bargaining process and was
intended to balance the industrial equation, so far as possible, by placing employer and employee
on an equal basis. (Service Employees Internat. Union v. Hollywood Park, Inc (1983) 149
Cal.App.3d 745, 759.)

              Similarly, the basic national labor policy is expressed in section 1 of the National
Labor Relations Act (29 U.S.C. § 151) in part as follows:

               "It is hereby declared to be the policy of the United States to . . . encourag[e]
       the practice and procedure of collective bargaining and [to] protect[] the exercise by
       workers of full freedom of association, self-organization, and designation of
       representatives of their own choosing, for the purpose of negotiating the terms and
       conditions of their employment . . . ."


                                                  4.                                                92-109

                In view of the expressed state and federal policies regulating the voluntary
determination of employment terms and conditions, including parking privileges, it would not
appear that the Legislature intended to authorize by mere implication a local public agency to
directly impair employment relationships.3/ On the contrary, the mere existence of such an integral,
comprehensive, and specific system of laws regulating employment relationships is an indication
that the provisions of another general statutory scheme were not intended to apply. (Cf., O'Sullivan
v. City and County of San Francisco (1956) 145 Cal.App.2d 415, 418; 75 Ops.Cal.Atty.Gen. 1, 5
(1992).)

                 Finally, we have previously observed that numerous "administrative problems" would
arise if the authority to impose parking fees were included in the general grants of powers conferred
in sections 40716 and 40717. (74 Ops.Cal.Atty.Gen. 196, 200 (1991).) Again, the failure of the
Legislature to provide any restrictions, standards, or safeguards respecting the fundamental decision
to directly affect the economic relationship between employer and employee raises serious doubt
concerning the Legislature's intent to authorize the fees in question.         We do not believe that
the Legislature intended to confer upon a district by mere implication the power to require parking
fees charged by employers without prescribing standards defining, for example, the correlative
interests between the goals to be accomplished and the effective operation of commerce and
industry.

                We expressly do not determine that such fees may not be authorized by appropriate
legislation, but only that in view of the competing public policies discussed above, the imposition
of such fees has not been authorized by mere implication. It is concluded that a district may not
require employers to charge parking fees as a means of achieving average vehicle ridership goals
for purposes of the California Clean Air Act of 1988.

               2. Civil Penalties

               The second inquiry is whether a district may impose civil penalties upon employers
who fail to achieve average vehicle ridership goals.4/ This question assumes, as do we, that the
district has made a lawful order which is reasonable under the circumstances and within the
reasonable control of the employer. (Cf. Sunset Amusement Co. v. Board of Police Commissioners
(1972) 7 Cal.3d 64, 84.)

                 An average vehicle ridership goal may, for example, be included by a district as a
legitimate transportation control measure in its attainment plan in a district with moderate air
pollution (§ 40918, subd. (a)(3)), in a district with serious air pollution (§ 40919, subd. (a)(3)), or
in a district with severe air pollution (§ 40920, subd. (a)(2)). (§ 40717, subd. (a).) A district might,



     3. Another related public policy is embodied in the constitutional prohibition against the
impairment of the obligation of contracts. (Cal. Const., art. I, § 9; U.S. Const., art. I, § 10.) While
the prohibition against the impairment of contracts, including collective bargaining agreements, must
be harmonized with the authority of a state to safeguard the vital interests of its people (United
States Trust Co. v. New Jersey (1977) 431 U.S. 1, 15; 66 Ops.Cal.Atty.Gen. 418, 422 (1983)), it may
be doubted that the Legislature conferred such power, sub silentio, upon a local public agency.

   4. A place of employment is an indirect source of air pollution within the meaning of section
40716 (see 42 U.S.C. § 7410(a)(5)(C)) and clearly within the regulatory jurisdiction of the district
in which it is located (42 U.S.C. § 7511a(d)(1)(B); cf. Western Oil and Gas Assn. v. Orange County
Air Poll. Cont. Dist. (1975) 14 Cal.3d 411, 421; 56 Ops.Cal.Atty.Gen. 531 (1973)).

                                                  5.                                            92-109

for example, as a transportation control measure within the reasonable control of the employer, order
an employer to restrict its own parking facilities to vehicles carrying two or more employees.5/

                With respect to civil penalties being imposed by a district for failure to achieve
average vehicle ridership goals, two inferences must be drawn at the outset. First, a "goal" in
common parlance is an end toward which effort or ambition is directed. (Webster's New Internat.
Dict. (3d ed. 1961) p. 972.) Thus, the failure to achieve a goal per se, cannot provide a basis for
violation of an order. Hence, it will be assumed either that the order mandated the achievement of
the "goal" or that the proposed civil penalty is based on the failure to make a reasonable effort or
movement toward the goal.

                  Second, with one exception limited to a maximum administrative penalty of $500,
a district itself does not, as we shall see, impose civil penalties. It will be assumed that the question
has reference to the initiation of judicial proceedings by a district for the imposition of civil penalties
by a court.

                The Supreme Court has ruled that the "state may impose reasonable penalties as a
means of securing obedience to statutes validly enacted under the police power" without violating
due process principles. (Hale v. Morgan (1978) 22 Cal.3d 388, 398.) "There is no inhibition upon
the state to impose such penalties for disregard of its police power as will insure prompt obedience
to the requirements of such regulations." (Shalz v. Union School Dist. (1943) 58 Cal.2d 599, 606.)
"Imposition of civil penalties has, increasingly in modern times, become a means by which
legislatures implement statutory policy." (Hale v. Morgan, supra, 22 Cal.3d 388, 398; see People
ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 42-44; People v. Western Air Lines (1954)
42 Cal.2d 621, 627-628; People v. Superior Court (Olson) (1979) 96 Cal.App.3d 181, 195-196;
State of California v. City and County of San Francisco (1979) 94 Cal.App.3d 522, 531.)

                Of course, an administrative agency may not impose a fine unless specifically so
authorized by statute. (See Gov. Code, § 11145; Harbor Comm'rs v. Redwood Co. (1891) 88 Cal.
491, 493; Cf. 28 Ops.Cal.Atty.Gen. 210, 211 (1956).) Unlike the absence of authority to impose or
to order the imposition of parking fees, however, the imposition of civil penalties for violation of
a district order is expressly authorized and carefully constrained. Specifically, any person who
violates an order, rule, or regulation of a district is liable for a civil penalty of not more than $1,000.
(§ 42402, subd. (a).)6/

                With regard to any such penalty, three limitations are expressly observed. First, no
such liability will accrue if the person accused of a violation alleges and establishes that the violation
was caused by an act which was not the result of intentional or negligent conduct. (§ 42402, subd.
(b).)

               Second, the penalty must be assessed and recovered in a civil action brought in the
name of the People of the State of California by the Attorney General, by a district attorney, or by
an attorney for the district in which the violation occurred. (§ 42403.)




   5. We are not asked to consider the effect of such an order upon conflicting provisions of a
preexisting collective bargaining agreement.

   6. We are not concerned here with the more serious civil penalties for negligent emission (§
42402.1) or failure to take corrective action against a known emission (§ 42402.2).

                                                    6.                                             92-109
                Third, in determining the amount of the penalty, the court must take into
consideration all relevant circumstances including, but not limited, to (a) the extent of harm caused
by the violation, (b) the nature and persistence of the violation, (c) the length of time over which the
violation occurred, (d) the frequency of past violations, (e) the record of maintenance, (f) the
unproven or innovative nature of the control equipment, (g) any action taken to mitigate the
violation, and (h) the financial burden to the defendant. (§ 42403.)

               Finally, the district itself may impose administrative civil penalties, not in excess of
$500, for each violation of an order, rule, or regulation of the district, if the district board has
adopted rules and regulations specifying procedures for the imposition and amounts of such
penalties. (§ 42402.5.)

                It is concluded that a district may impose administrative civil penalties not in excess
of $500 pursuant to its own rules and regulations and initiate judicial proceedings for the imposition
of civil penalties by a court upon an employer who fails to achieve average vehicle ridership goals
mandated by lawful orders of the district, the achievement of which was within the reasonable
control of the employer.

                                               *****




                                                  7.                                            92-109

