                         TO BE PUBLISHED IN OFFICIAL REPORTS


                           OFFICE OF THE ATTORNEY GENERAL

                                     State of California


                                      DANIEL E. LUNGREN

                                        Attorney General


                          ______________________________________

                  OPINION            :
                                     :          No. 91-104
                  of                 :
                                     :          JULY 10, 1991
        DANIEL E. LUNGREN            :
           Attorney General          :
                                     :
         CLAYTON P. ROCHE            :
        Deputy Attorney General      :
                                     :
______________________________________________________________________________

              THE STATE BOARD OF CORRECTIONS has requested an opinion on the
following question:

               May a city contract with a private entity to operate a local detention facility?

                                          CONCLUSION

               A city may contract with a private entity to operate a local detention facility.

                                            ANALYSIS

               The question presented arises in the context of a city which proposes to contract with
a private corporation to operate a misdemeanor pre-arraignment detention facility. Does a city have
the legal authority to do so?

                 Although the Government Code does not specifically provide that a city may
establish a city jail, provisions of that code impliedly recognize such authority. Thus, Government
Code section 36903 provides:

              "Imprisonment for violation of an ordinance shall be in the city jail, unless
       by ordinance the legislative body prescribes imprisonment in the county jail. If city
       prisoners are imprisoned in the county jail the expense is a charge against the city."

Significantly, there is nothing in the law with respect to how a city jail is to be acquired or how it
is to be administered. This is to be contrasted with the law requiring the establishment of a county
jail under the supervision of the county sheriff and the detailed state regulations concerning its
operation. (See Pen. Code, § 4000 et seq.)



                                                 1.                                             91-104

                  Although Government Code section 36903 is restricted to the detention of persons
imprisoned for violation of city ordinances, later enactments found in both the Government Code
and the Penal Code recognize the fact that over the years city jails have had an expanded role. We
can take official notice of the fact that most individuals who are arrested, whether by city, county,
district or state peace officers, are arrested for violations of state laws. We can also take notice that
in metropolitan areas, such arrestees will often be detained in the city jail until arraigned.

                As a general proposition, the cost of detention of prisoners both before and after
conviction is predicated upon the nature of the offense. The county is liable for prisoners detained
for violations of state law or county ordinances and the city is liable for prisoners detained for
violations of city ordinances. (See Gov. Code, § 29602; County of Sonoma v. Santa Rosa (1894)
102 Cal 426; Washington Township Hosp. Dist. v. County of Alameda (1968) 263 Cal.App.2d 272,
275; 58 Ops.Cal.Atty.Gen. 496, 498 (1975); 22 Ops.Cal.Atty.Gen. 209 (1953); 15 Ops.Cal.Atty.Gen.
173 (1950).)

                In apparent recognition of both the expanded role of city jails and the division of
responsibility to support prisoners, the Legislature enacted section 4004.5 of the Penal Code, which
provides as to county prisoners:

               "(a) A city may furnish facilities to be used for holding prisoners held for
        examination or during trial without cost to the county or upon such terms as may be
        agreed upon by the governing body of such city and the board of supervisors, and the
        marshal or constable may keep such prisoners in their custody in such city jail.

                 "(b) A city may furnish facilities to be used for holding persons convicted of
        a public offense who have been transferred from the county jail by the sheriff due to
        crowded conditions upon such terms as may be agreed upon by the governing body
        of such city and the board of supervisors. The agreed terms may indicate that the
        facilities are to be provided free of charge to the county."

Additionally, section 4022 of the Penal Code permits any person convicted of a crime in a municipal
or justice court to be confined in the city jail, with the consent of the city, and at the city's expense.

                Thus, it is evident that a city may establish a city jail. It is also seen that the law in
no way dictates how that jail shall be established or administered. Finally, it is seen that a city jail
is a proper place for the incarceration of persons arrested for and charged with any crime, whether
state, county or city prohibition.

                 Furthermore, we note that there is nothing intrinsically wrong in the establishment
of detention facilities which are privately operated. The law presently provides for the establishment
of privately operated "work furlough" programs for state and county prisoners. (See Pen. Code, §§
1208, 6260 et seq.) Additionally, sections 6250-6258.1 of the Penal Code authorize the Director
of Corrections to establish "community correctional centers" for state prisoners and parolees, which
can be privately operated under contract. And finally section 6031.4 of the Penal Code, which
defines the duties of the State Board of Corrections regarding construction standards and
inspections, states in subdivision (c):

                "`Local detention facility' also includes any adult detention facility that holds
        prisoners under contract on behalf of cities, counties, or cities and counties. Nothing
        in this subdivision shall be construed as affecting the establishment of private
        detention facilities." (Emphasis added.)


                                                   2.                                               91-104

Thus, section 6031.4 of the Penal Code both dictates that the Board's duties would be essentially the
same whether a local detention facility is publicly operated or privately operated as well as
recognizes the propriety of privately operated facilities.

                In the absence of any law which would prohibit a city from establishing a private
detention facility, we believe that section 37112 of the Government Code grants the basic authority
to do so. It states:

               "In addition to other powers, a legislative body [of a city] may perform all
       acts necessary or proper to carry out the provision of this title [which contains
       section 36903 implicitly recognizing the power to establish a city jail]."

                Accordingly, we conclude that a city council may enter into a contract with a private
entity to operate a local detention facility as a "necessary or proper" way in which to exercise its
power to establish a city jail.1

                                             * * * *




   1
   In so concluding we do not attempt to determine if there are any administrative duties which
would require the action of duly authorized peace officers in lieu of private correctional officers.
These could be addressed on an item by item basis.

                                                 3.                                           91-104
