                            TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                  OFFICE OF THE ATTORNEY GENERAL


                                            State of California



                                              DANIEL E. LUNGREN


                                                Attorney General



                                ______________________________________

                     OPINION            :
                                        :          No. 95-819
                   of                   :
                                        :          April 12, 1996
          DANIEL E. LUNGREN             :
            Attorney General            :
                                        :
          CLAYTON P. ROCHE              :
         Deputy Attorney General        :
                                        :
______________________________________________________________________________


            THE HONORABLE JAMES A. CURTIS, COUNTY COUNSEL, NEVADA
COUNTY, has requested an opinion on the following question:

                 May a county which awarded an exclusive trash collection franchise in 1982 after
receiving competitive bids, and which terminated that agreement and executed another exclusive
franchise with the same franchisee in 1985, now terminate the existing franchise and award a new
contract to the same franchisee without obtaining competitive bids?

                                                   CONCLUSION

               A county which awarded an exclusive trash collection franchise in 1982 after receiving
competitive bids, and which terminated that agreement and executed another exclusive franchise with
the same franchisee in 1985, may now terminate the existing franchise and award a new contract to the
same franchisee without obtaining competitive bids.

                                                     ANALYSIS

                This request for our opinion asks us to resolve an apparent conflict between two
separate statutory schemes. One seemingly requires a county to obtain competitive bids before
awarding a trash collection franchise (Pub. Resources Code, '' 49200-49205),1 while the other appears
   1
    All references hereafter to the Public Resources Code are by section number only.


                                                           1.                                95-819

to allow a county to award a trash collection franchise without first obtaining competitive bids (''
40050-40062). We conclude that a county need not obtain competitive bids before awarding a trash
collection franchise.

               1.       Sections 49200-49205

               Section 49200 states:

               "Every franchise or permit for the collection, disposal, or destruction, or any
       combination thereof, of garbage, waste, offal, and debris, shall be granted by the board
       of supervisors only under the terms and conditions of this chapter."

Section 49201 provides:

                "(a) Any county may, by resolution adopted by the board of supervisors, call for
       bids for the granting of a franchise or permit, exclusive or otherwise, for the collection,
       disposal, or destruction, or any combination thereof, of garbage, waste, offal, and
       debris, according to the terms and conditions set forth in the resolution, for a period of
       time not to exceed 25 years.

                "(b) After adoption of the resolution pursuant to subdivision (a), the board of
       supervisors shall cause to be published once a week for two successive weeks a notice
       which shall set forth all of the terms and conditions in the resolution and the time, date,
       and place for the receiving and opening of sealed bids, which shall not be sooner than
       four full weeks from date of the first publication of the notice.

              "(c) Upon examination by the board of supervisors of the bids, the franchise or
       permit may be awarded to the lowest qualified bidder. The board of supervisors may
       postpone the granting of the franchise or permit from time to time until it has had a full
       and complete opportunity to examine the merits of each bid."

Section 49205 states:

               "The board of supervisors which, prior to July 1, 1980, adopted an ordinance
       governing the granting of franchises or permits for the collection, disposal, or
       destruction, or any combination thereof, of garbage, waste, offal, and debris, and which
       granted franchises or permits pursuant to that ordinance covering defined zones or areas
       of the county, may extend the term of any of those franchises or permits for only one
       additional period not exceeding 25 years without advertising or calling for bids as
       required by Section 49201, if all of the following conditions exist:

               "(a)(1) The county franchise or permit ordinance contains rules and regulations
       for the protection of the public health and welfare and provides that the board of
       supervisors may control the rates to be charged customers by the franchise or
       permitholders.

                                                   2.                                                95-819

                 "(2) Notwithstanding any provision in a county ordinance, the board of
         supervisors shall not increase the rates to be charged to customers by franchise or
         permitholders without first calling and holding a public hearing on the proposed
         increase in rates. Publication of notice of the hearing required by this paragraph shall
         be made by the board of supervisors pursuant to Section 6066 of the Government Code.

                "(b) The franchise or permit proposed to be extended was granted in strict
         compliance with the requirements for calling and advertising for bids and award to the
         lowest qualified bidder pursuant to Section 49201, and otherwise granted in strict
         compliance with this chapter.

                  "(c) The franchise or permit proposed to be extended was granted on a
         nonexclusive basis so that the board of supervisors is not precluded from granting
         additional franchises or permits to cover the same areas if, in the judgment and
         discretion of the board of supervisors, the public interest will be served thereby.

                 "(d) The county franchise or permit ordinance authorizes the county auditor or
         any other qualified public accountant to audit periodically the books and records of the
         franchise or permitholders."

Under sections 49200-49205, a county granting a franchise for trash collection must do so "only under
the terms and conditions of [section 49200-49205]." (' 49200.) One of those terms and conditions is
that the board of supervisors award the franchise "to the lowest qualified bidder." (' 49201, subd. (c).)
 No other method of awarding the franchise is contained in this legislative scheme. "`The mode
prescribed is the measure of the power.'" (People v. Zamora (1980) 28 Cal.3d 88, 98; see also Wildlife
Alive v. Chickering (1976) 18 Cal.3d 190, 196; Martello v. Superior Court (1927) 202 Cal. 400, 405; In
re Fain (1983) 145 Cal.App.3d 540, 550.) Section 49205 specifically allows for a franchise to be
extended without calling for competitive bids, but only under narrowly drawn conditions.2

                 If sections 49200-49205 provided the exclusive means for a county to award a trash
collection franchise, we would have little hesitancy in concluding that competitive bids would be
required in the circumstances presented.

                  2.        Sections 40059-40062

                  Section 40059 provides:

                 "(a) Notwithstanding any other provision of law, each county, city, district, or
         other local governmental agency may determine all of the following:



    2
     For example, the original franchise must have been "granted on a nonexclusive basis." (' 49205, subd. (c).)


                                                            3.                                                     95-819

               "(1) Aspects of solid waste handling which are of local concern, including, but
       not limited to, frequency of collection, means of collection and transportation, level of
       services, charges and fees, and nature, location, and extent of providing solid waste
       handling services.

                "(2) Whether the services are to be provided by means of nonexclusive
       franchise, contract, license, permit, or otherwise, either with or without competitive
       bidding, or if, in the opinion of its governing body, the public health, safety, and
       well-being so require, by partially exclusive or wholly exclusive franchise, contract,
       license, permit, or otherwise, either with or without competitive bidding. The authority
       to provide solid waste handling services may be granted under terms and conditions
       prescribed by the governing body of the local governmental agency by resolution or
       ordinance.

               "(b) Nothing in this division modifies or abrogates in any manner either of the
       following:

              "(1) Any franchise previously granted or extended by any county or other local
       governmental agency.

               "(2) Any contract, license, or any permit to collect solid waste previously
       granted or extended by a city, county, or a city and county." (Italics added.)

For purposes of the grant of authority contained in section 40059, solid waste handling services include
"the collection, transportation, storage, transfer, or processing" (' 40195) of "garbage, trash, refuse,
paper, rubbish, ashes . . . ." (' 40191, subd. (a).)

                 The language of section 40059 was formerly contained in Government Code section
66756, since repealed. When the latter statute was enacted (Stats. 1980, ch. 504, ' 1), the purposes of
the legislation were described in the report of the Senate Committee on Local Government dated June
16, 1980, as follows:

        "Background:

       "Under current law, the several types of local agencies which provide solid waste
       handling services are subject to a variety of requirements and procedures.

       "For example, both cities and counties may contract for the provision of solid waste
       handling services, and such contracts may be exclusive or non-exclusive. In addition,
       while current law specifically requires some local agencies to grant contracts or
       franchises through competitive bidding (e.g., counties, garbage disposal districts), other
       local agencies may grant such contracts without competitive bidding (e.g., cities,
       garbage and refuse disposal districts).

       ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                                                                            4.                                    95-819

        "Proposed legislation:

        "Assembly Bill 2454 would enact the following provisions relative to solid waste
        handling services which would be applicable to cities, counties, cities and counties, and
        special districts which provide solid waste handling services:

        ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

        "3.          Authorization for such local agencies to determine:

                (a)      aspects of solid waste handling which are of local concern, including,
        but not limited to, frequency of collections, means of collection and transportation,
        level of service, charges and fees, nature, location, and extent of providing solid waste
        handling services;

                     (b) whether such services will be provided with or without competitive bidding;

                (c) whether such services shall be provided by means of nonexclusive, partially
        exclusive or exclusive franchise, contract, license, permit or otherwise.

        ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

        "Comments:

        "According to the proponents of AB 2454, the purpose of the bill is to ensure that local
        agencies will not be subject to lawsuits as a result of the U.S. Supreme Court decision
        in Lafayette. The bill is intended to accomplish such purpose by providing State policy
        and uniform procedure with regard to local solid waste handling services which
        specifies that such services may be provided exclusively or nonexclusively, with or
        without competitive bidding."

The same stated purposes for the proposed legislation were contained in the report of the Assembly
Committee on Local Government dated April 9, 1980. It is apparent from such legislative history that
the language in question, now contained in section 40059, was intended to grant cities, counties, and
other local agencies the authority to determine whether trash collection services should "be provided
with or without competitive bidding." All government entities were given this power, whereas
previously only some agencies could provide such services under contract without obtaining
competitive bids. "[I]t is well established that reports of legislative committees and commissions are
part of a statute's legislative history and may be considered when the meaning of a statute is uncertain.
[Citations.]" (Hutnick v. United States Fidelity & Guaranty Co. (1947) 47 Cal.3d 456, 465, fn. 7.)

               Accordingly, under sections 40050-40062, a county may award a trash collection
franchise "without competitive bidding." (' 40059, subd. (a)(2).) If sections 40050-40062 provided


                                                                             5.                                    95-819

the exclusive means for a county to award a trash collection franchise, we would have little hesitancy in
concluding that obtaining competitive bids would not be required in the circumstances presented.



         3.       Resolving The Statutory Conflict

                Section 40059 begins with the phrase "Notwithstanding any other provision of law
. . . ." This phrase makes the language of section 40059 "`sui generis' and controlling over both
statutory and decisional law." (In re Marriage of Dover (1971) 15 Cal.App.3d 675, 678, fn. 3; see
State of California v. Superior Court (1967) 238 Cal.App.2d 691, 695-696; 78 Ops.Cal.Atty.Gen. 65,
70 (1995).) It is as if the limitations of sections 49200-49205 do not exist if a county acts pursuant to
the grant of authority contained in section 40059. The Legislature has recognized that the terms of
section 40059 may be inconsistent with the language of some other statute or statutes and has
determined that the conflict should be resolved in favor of section 40059's terms and conditions.

              If any further analysis is needed (see, e.g., Sanders v. County of Yuba (1967) 247
Cal.App.2d 748, 750-754), we note that the Legislature has additionally declared:

                  "In the event of any conflict or inconsistency between the provisions of Parts 1
         (commencing with Section 40000) to Part 7 (commencing with Section 47000),
         inclusive, and Part 8 (commencing with Section 48000) of Division 30, as enacted by
         this act, the provisions of Parts 1 to 7, inclusive, shall prevail." (Stats. 1989, ch. 1095,
         ' 32, subd. (c).)

Section 40059 is contained in "Parts 1 to 7," while sections 49200-49205 are contained in "Part 8" for
purposes of this declaratory statement by the Legislature. Hence, the grant of authority set forth in the
former prevails over the limitations and conditions of the latter in the event of any conflict or
inconsistency.3 Such treatment reinforces and reaffirms the "[n]otwithstanding any other provision of
law" language of section 40059. The competitive bidding requirements of sections 49200-49205 must
therefore yield to the statutory grant of authority contained in section 40059.

                We conclude that under the terms of section 40059, a county which awarded an
exclusive trash collection franchise in 1982 after receiving competitive bids, terminated that agreement
and executed another exclusive franchise with the same franchisee in 1985, may now terminate the
existing franchise and award a new contract to the same franchisee without receiving competitive bids.

                                                      *****


    3
      The granting of a trash collection franchise would not constitute a violation of the anti-trust laws under the
circumstances presented. (See Tom Hudson & Associates v. City of Chula Vista (9th Cir. 1984) 746 F.2d 1370, 1372-1374;
City of Camarillo v. Spadys Disposal Service (1983) 144 Cal.App.3d 1027, 1029-1032; 62 Ops.Cal.Atty.Gen. 741, 743-745
(1979).)


                                                         6.                                                  95-819

