                                     TO BE PUBLISHED IN THE OFFICIAL REPORTS

                                          OFFICE OF THE ATTORNEY GENERAL
                                                    State of California

                                                  DANIEL E. LUNGREN
                                                     Attorney General
                                         ______________________________________

                                        OPINION            :
                                                           :       No. 97-502
                                       of                  :
                                                           :       November 12, 1997
                             DANIEL E. LUNGREN             :
                                Attorney General           :
                                                           :
                              CLAYTON P. ROCHE             :
                             Deputy Attorney General       :
                                                           :
                    ______________________________________________________________________

                      THE HONORABLE JAMES B. LINDHOLM, COUNTY COUNSEL, SAN LUIS OBISPO
         COUNTY, has requested an opinion on the following question:

                          May the electorate of a general law county enact through the initiative process an ordinance
         that would require a vote of the people for (1) any closure, sale, or lease of a county hospital, (2) any action
         transferring the management of a county hospital from the board of supervisors to another entity, or (3) any
         reduction or elimination of medical services at a county hospital?


                                                         CONCLUSION

                          The electorate of a general law county may not through the initiative process enact an
         ordinance that would require a vote of the people for (1) any closure, sale, or lease of a county hospital, (2)
         any action transferring the management of a county hospital from the board of supervisors to another entity,
         or (3) any reduction or elimination of medical services at a county hospital.


                                                           ANALYSIS

                           In this request for our opinion we are asked if the electorate of a general law county may,
         through the initiative process, enact an ordinance that would require prior voter approval with respect to
         changes in the management or control of a county hospital by the board of supervisors. We conclude that the
         electorate may not enact such an ordinance through the initiative process.

                           In article II, sections 8 and 9 of the Constitution, the people have reserved to themselves the
         powers of initiative and referendum with respect to state laws, that is, the power to propose (initiative) or
         reject (referendum) such laws. In section 11 of the same article, the people have similarly reserved to
         themselves initiative and referendum powers in "each city and county under procedures that the Legislature
         shall provide." We are here concerned with the county initiative process, for which the Legislature has
         provided facilitating procedures. (Elec. Code, §§ 9100-9126). Pursuant to the governing statutory scheme, the

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         provided facilitating procedures. (Elec. Code, §§ 9100 9126). Pursuant to the governing statutory scheme, the
         electorate of a county may propose an ordinance through a petition signed by the requisite number of voters,
         requiring the board of supervisors to either adopt the ordinance or submit the matter of its adoption to the
         electorate.

                           The right of the local electorate to initiate ordinances is generally coextensive with the
         power of the local governing body to enact legislation. (De Vita v. County of Napa (1995) 9 Cal.4th 763,
         775; Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 777; Simpson v. Hite
         (1950) 36 Cal.2d 125, 129.) "`Only ordinances which involve an exercise of legislative power may be
         enacted by initiative.' [Citations.]" (Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal.3d 511, 516,
         fn. 6.) "[T]he purpose of an initiative is to enact laws the local governing body could enact." (Memorial
         Hospitals Assn. v. Randol (1995) 38 Cal.App.4th 1300, 1310.) In this respect, we note that the Constitution
         prohibits boards of supervisors of general law counties from adopting ordinances that conflict with state law.
         Section 7 of article XI of the Constitution provides:

                          "A county or city may make and enforce within its limits all local, police, sanitary,
               and other ordinances and regulations not in conflict with general laws." Footnote No. 1

         Thus, neither a board of supervisors of a general law county nor the electorate through the initiative process
         may adopt ordinances that conflict with state law.

                          It is also now well settled that the initiative power may not be exercised by the local
         electorate where the Legislature has designated the local governing body as its agent to administer policies of
         statewide concern. (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 500-507; Yost v.
         Thomas (1984) 36 Cal.3d 561, 570; Associated Home Builders etc., Inc. v. City of Livermore (1976) 18
         Cal.3d 582, 596, fn. 14; Simpson v. Hite, supra, 36 Cal.2d at 129-135; Da Vita v. County of Napa, supra, 9
         Cal.4th at 780-781; W.W. Dean & Associates v. City of South San Francisco (1987) 190 Cal.App.3d 1368,
         1374-1379; Ferrini v. City of San Luis Obispo (1983) 150 Cal.App.3d 239, 248-249; Merriman v. Board of
         Supervisors (1983) 138 Cal.App.3d 889, 891-892; Redevelopment Agency v. City of Berkeley (1978) 80
         Cal.App.3d 158, 167-171; Friends of Mount Diablo v. County of Contra Costa (1977) 72 Cal.App.3d 1006,
         1010-1012; Walker v. City of Salinas (1976) 56 Cal.App.3d 711, 715-717; Fletcher v. Porter (1962) 203
         Cal.App.2d 313, 318-321; 66 Ops.Cal.Atty.Gen. 258, 259-261 (1983).) As recently explained by the
         Supreme Court, the Legislature may "delegate the exercise of [legislative] authority exclusively to the
         governing body, thereby precluding initiative and referendum." (Da Vita v. County of Napa, supra, 9 Cal.4th
         at 776.)

                        Here, we are concerned with a county hospital. As to the property of a county, the court in
         County of Marin v. Superior Court (1960) 53 Cal.2d 633, 638-639, stated:

                          ". . .[A]ll property under the care and control of a county is merely held in trust by the
               county for the people of the entire state. The county is merely a political subdivision of state
               government, exercising only the powers of the state, granted by the state, created for the purpose
               of advancing `the policy of the state at large, for purposes of political organization and civil
               administration, in matters of finance, of education, of travel and transport, and expressly for the
               general administration of justice.' [Citations.] The county holds all its property, therefore, . . as
               agent of the state. [Citations.]"

         In County of Los Angeles v. Graves (1930) 210 Cal. 21, 25, the court observed:

                          ". . . If there be legal title in the county, it is held in trust for the whole public. In the
               absence of constitutional restrictions, the Legislature has full control of the property so held by
               the counties as agencies of the state. [Citation.] . . . ."

                          Th L i l t        h         t d           h    i    t t t       h             i   th       i iti

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                            The Legislature has enacted a comprehensive statutory scheme governing the acquisition,
         sale, lease, or other disposition of county real property. (Gov. Code, §§ 25520-25588.) Government Code
         section 25521 provides:

                          "The board of supervisors of any county may sell or lease for a term not exceeding 99
               years, without a vote of the electors of the county first being taken, any real property belonging
               to the county."

         Not only has the Legislature vested the authority to dispose of or manage county property specifically in the
         "board of supervisors," the establishment and administration of county medical facilities (Health & Saf.
         Code, §§ 1440-1475) rests solely in the board of supervisors (Health & Saf. Code, § 1441). Health and Safety
         Code section 1442.5 expressly provides in part:

                          "Prior to closing a county facility, eliminating or reducing the level of medical
               services provided, or prior to the leasing, selling, or transfer of management, the board shall
               provide public notice, including notice posted at the entrance to all county health care facilities,
               of public hearings to be held by the board prior to their decision to proceed. The notice shall be
               posted not less than 14 days prior to the public hearings. The notice shall contain a list of the
               proposed reductions or changes, by facility and service. The notice shall include the amount and
               type of each proposed change, the expected savings, and the number of persons affected.

                          "Notwithstanding the board's closing of a county facility, the limitation of or
               reduction in the level of services provided, or the leasing, selling, or transfer of management of a
               county facility subsequent to January 1, 1975, the county shall provide for the fulfillment of its
               duty to provide care to all indigent people, either directly through county facilities or indirectly
               through alternative recipients."

                          Accordingly, the Legislature has designated the board of supervisors as its agent to
         administer public hospital services in each county. (See Health & Saf. Code, §§ 1442.5, 1445; Welf. & Inst.
         Code, § 14000.2; City and County of San Francisco v. Superior Court (1976) 57 Cal.App.3d 44, 46-47; 38
         Ops.Cal.Atty.Gen. 176 (1961).) It has expressly authorized boards of supervisors to sell or lease county
         property without voter approval. (Gov. Code, § 25521.) However, before selling, leasing, transferring the
         management of, or reducing the level of medical services in a county hospital, the public must be notified and
         public hearings held. (Health & Saf. Code, § 1442.5.) Footnote No. 2

                           Since a local initiative measure may not conflict with state law, a vote of the people may not
         be required for the sale or lease of a county hospital. (Gov. Code, § 25521.) Because the Legislature has
         designated the board of supervisors as its agent to manage county hospital medical services, a local initiative
         may not grant voters "approval authority" over management decisions. (See De Vita v. County of Napa,
         supra, 9 Cal.4th at 775-777; Committee of Seven Thousand v. Superior Court, supra, 45 Cal.3d at 500-507;
         Board of Education v. Superior Court, supra, 93 Cal.App.3d at 584-585.) As recently affirmed by the Court
         of Appeal in Memorial Hospitals Assn. v. Randol, supra, 38 Cal.App.4th at 1313:

                           ". . . Where the Legislature has enacted a statewide policy and has assigned to a
               particular local body the duty to implement that policy, the Legislature thereby places
               implementation of the statewide policy beyond the reach of initiative and referendum.
               [Citations.]"

                         In 7 Ops.Cal.Atty.Gen. 85 (1946), we concluded that a local initiative may not require a
         board of supervisors to contract with a hospital district to provide medical care for indigent persons, stating:

                          "In the present situation the care of the indigent sick is a matter which requires the
               constant administrative attention of the board of supervisors and their use of discretionary power

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                to decide the mode and manner of care. A contract with a public agency such as the proposed
                hospital district would be the proper subject of a resolution by the board after consideration of
                the details of the service to be rendered and the funds available. This would be an administrative
                function of the board and a decision to contract after an offer to perform by the hospital district
                ....

                           "It is our opinion that . . . an ordinance which would itself effectuate or require the
                supervisors to effectuate a contract with a hospital district constitutes an interference with the
                executive and administrative powers of the board of supervisors and is not within the initiative
                power." (Id., at p. 87.)

         We reaffirm our 1946 opinion, which we find to be fully supported by case law developed over the past 50
         years.

                          In answer to the question presented, therefore, we conclude that the electorate of a general
         law county may not enact through the initiative process an ordinance that would require a vote of the people
         for (1) any closure, sale, or lease of a county hospital, (2) and action transferring the management of a county
         hospital from the board of supervisors to another entity, or (3) any reduction or elimination of medical
         services at a county hospital.

                                                                   *****

         Footnote No. 1
         The promotion of the public health and welfare of the citizens of a county falls within the powers conferred by section 7 of
         article XI of the Constitution. (Goodall v. Brite (1936) 11 Cal.App.2d 540.) Return to text
         Footnote No. 2
         As one court has observed, if voters are dissatisfied with decisions made by their elective officers, "they are not without a
         remedy; the recall procedure is expressly made applicable. [Citations.]" (Board of Education v. Superior Court (1979) 93
         Cal.App.3d 578, 585.)




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