                      TO BE PUBLISHED IN THE OFFICIAL REPORTS



                            OFFICE OF THE ATTORNEY GENERAL


                                      State of California



                                        BILL LOCKYER


                                        Attorney General



                                  _________________________

                                                :
                   OPINION                      :                   No. 98-810
                                                :
                       of                       :                  May 28, 1999
                                                :


               BILL LOCKYER                     :


               Attorney General                 :


                                                :


           GREGORY L. GONOT                     :


           Deputy Attorney General              :


                                                :



   ________________________________________________________________________



           THE HONORABLE PHILLIP S. CRONIN, COUNTY COUNSEL, COUNTY
OF FRESNO, has requested an opinion on the following questions:

                1. May federal inmates and detainees be placed in custody in privately operated
detention facilities in California?

                2. May prisoners from other states be placed in custody in privately operated
detention facilities in California?

                3. Does a sheriff have the responsibility for responding to incidents or complaints
at privately operated detention facilities housing federal inmates and detainees?

               4. May a county contract with private operators of detention facilities housing
federal inmates and detainees under terms requiring the operators to reimburse the county for the
costs of the sheriff’s response actions undertaken with respect to incidents or complaints at the
facilities?




                                                1


                                                                                           98-810


                                        CONCLUSIONS



                1. Federal inmates and detainees may be placed in custody in privately operated
detention facilities in California.

                2. Prisoners from other states may not be placed in custody in privately operated
detention facilities in California.

               3. A sheriff has the responsibility for responding to incidents and complaints at
privately operated detention facilities housing federal inmates and detainees, but may decline to
respond under limited circumstances.

               4. A county may not contract with private operators of detention facilities
housing federal inmates and detainees under terms requiring the operators to reimburse the
county for the costs of the sheriff’s response actions undertaken with respect to incidents or
complaints at the facilities.


                                           ANALYSIS

                We are asked several questions concerning privately operated detention facilities 1
in California. Under what circumstances, if any, may such facilities house federal inmates and
detainees or prisoners sent here from other states? If such facilities may be operated privately,
what is the role of a sheriff in undertaking law enforcement actions at the facilities?

               1. Federal Inmates and Detainees

              The first question to be addressed is whether federal inmates and detainees may
be placed in custody in privately operated detention facilities in California. We conclude that
they may.

                Under federal law, persons convicted of federal crimes are committed to the
custody of the Bureau of Prisons (“Bureau”). (18 U.S.C. § 3621(a).) In designating the place of
incarceration, “[t]he Bureau may designate any available penal or correctional facility that meets
minimum standards of health and habitability established by the Bureau, whether maintained by
the Federal Government or otherwise and whether within or without the judicial district in which
the person was convicted, that the Bureau determines to be appropriate and suitable . . . .” (18
U.S.C. § 3621(b); italics added.) As used in the foregoing statute, the phrase “or otherwise”
includes detention facilities operated by private entities. (Gleave v. Graham (W.D.N.Y. 1997)
954 F.Supp. 599, 609-610.)


   1
     The Term “detention facilities” is used broadly to include such commonly known places of
incarceration as jails, prisons, and correctional facilities. (See Pen. Code, § 6031.4.)

                                                2
                                                                                           98-810


                Other persons who may be placed in custody in a privately operated detention
facility under federal law are aliens subject to a final order of removal issued by the Immigration
and Naturalization Service (“INS”). Pending their removal, such persons may be detained by the
INS. (8 U.S.C. § 1231(a)(2); 8 C.F.R. § 2.1.) Federal regulations governing the INS’s detention
of aliens require that the INS follow certain guidelines when contracting with non-INS facilities,
including private ones. “Whenever an alien is taken into Service custody and detained at a
facility other than at a Service Processing Center, the public or private entities contracted to
perform such service shall have been approved for such use by the Service’s Jail Inspection
Program or shall be performing such service under contract in compliance with . . . .” (8 C.F.R. §
235.3(e); italics added. )

                United States marshals may also place persons in custody in a privately operated
detention facility. Such persons generally are those who have been arrested under federal law
and are awaiting trial. (18 U.S.C. § 4086; see 28 C.F.R. § 0.111(k).) Federal law specifies:

              “The Attorney General, in support of United States prisoners in non-
       Federal institutions, is authorized to make payments from funds appropriated for
       the support of United States prisons for—

                  “. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

              “(3) the housing, care, and security of persons held in custody of a Untied
       States marshal pursuant to Federal law under agreements with State or local units
       of government or contracts with private entities . . . .

              “. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”
       (18 U.S.C. § 4013(a).)

It further provides:

              “In order to be eligible for a contract for the housing, care, and security of
       persons held in custody of the United States Marshals pursuant to Federal law and
       funding under subsection (a)(3), a private entity shall—

              “(A) be located in a district that has been designated as needing additional
       Federal detention facilities pursuant to paragraph (1);

                  “(B) meet the standards of the American Correctional Association;

                  “(C) comply with all applicable State and local laws and regulations;

                  “(D) have approved fire, security, escape, and riot plans; and

                  “(E) comply with any other regulations that the Marshals Service deems


                                                                      3
                                                                                                                                     98-810


       appropriate.” (18 U.S.C. § 4013(b)(2).)

               Federal prisoners convicted in the District of Columbia may also be placed in
custody in a privately operated facility in California. The United States Attorney General has
custody of these prisoners and is responsible for determining their place of confinement. (D.C.
Code, § 24-425.) The United States Attorney General is authorized to designate “any available,
suitable, and appropriate institutions, whether maintained by the District of Columbia
government, the federal government, or otherwise, or whether within or without the District of
Columbia.” (Ibid.; italics added.) The United States Attorney General’s authority and duties in
this regard have been delegated to the Bureau. Under the National Revitalization and Self-
Government Improvement Act of 1997 (Pub.L.No. 105-33 (Aug. 5, 1997) 111 Stat. 712), the
Bureau is required to house 2000 District of Columbia felons in privately operated facilities by
December 31, 1999.

               As found in Gleave v. Graham, supra, 954 F.Supp. at 608-609, the private
operators of detention facilities housing federal inmates and detainees act pursuant to a
subdelegation of executive authority from the federal government. The rules, conditions of
confinement, and penalties are imposed by a court or by statute or regulation, and the federal
agency executing the contracts retains ultimate control over the private operators. What the
federal agency may do, private operators may do if their contracts with the federal agency are
authorized by law.

                Here, we find that the contracts are authorized by federal law. Hence, the private
operators need not look to California law as the source of their authority in carrying out the terms
of their contracts. In maintaining custody of the federal inmates and detainees, they act pursuant
to federal law.


               The supremacy clause of the United States Constitution provides:

                “This Constitution, and the laws of the United States which shall be made
       in pursuance thereof; and all treaties made, or which shall be made, under the
       authority of the United States, shall be the supreme law of the land; and the judges
       in every state shall be bound thereby, any thing in the Constitution or laws of any
       state to the contrary notwithstanding.” (U.S. Const., art. VI, cl. 2.)

Federal laws are effective throughout the country, and the supremacy clause makes them a part
of the law of each state. (80 Ops.Cal.Atty.Gen. 297, 299 (1997); 66 Ops.Cal.Atty.Gen. 497, 499­
500 (1983).) California would thus be required to accept within its borders federal inmates and
detainees housed in privately operated detention facilities pursuant to federal law.

              We conclude in answer to the first question that federal inmates and detainees
may be placed in custody in privately operated detention facilities in California.



                                                 4
                                                                                              98-810


                2. Prisoners From Other States

               The second question presented is whether prisoners from other states may be
placed in custody in privately operated detention facilities located in California. We conclude
that they may not.

                The Legislature has enacted a comprehensive statutory scheme (Pen. Code, §§
11189-11197) 2 governing the custody in California of prisoners from other states. California is a
party to the Interstate Corrections Compact (§ 11189) and the Western Interstate Corrections
Compact (§ 11190). Under both compacts, elaborate terms are provided for the contractual
obligations of the parties and the procedural rights and duties governing the transfer of custody.

                Significantly, this legislative scheme authorizes the State of California to contract
for the placement of prisoners from other states. No authorization is provided in this legislation
for another state to contract with a private entity to house its prisoners in California.

                Moreover, when the Legislature has authorized the use of privately operated
detention facilities, it has done so in specific and limited circumstances. (See, e.g., §§ 1208
[county jail prisoners in work furlough program], 3054 [female parolees in community
residential treatment pilot program], 3413 [women inmates who have children in community
residential treatment program], 6130 [inmates and parolees in health care facilities pilot
program], 6225 [defendants sent to restitution centers in order to pay their victims financial
restitution], 6256 [inmates in community correctional centers for alcohol and drug abuse], 6261
[inmates in work furlough programs].) No authorization has been given by the Legislature for a
privately operated detention facility to house prisoners from other states.

                In analyzing these various statutes, we apply well recognized principles of
statutory construction. We are “to give meaning to every word and phrase in the statute to
accomplish a result consistent with the legislative purpose . . . .” (Harris v. Capital Growth
Investors XIV (1991) 52 Cal.3d 1142, 1159.) “[A] statute ‘. . . is to be interpreted by the
language in which it is written, and courts are no more at liberty to add provisions to what is
therein declared in definite language than they are to disregard any of its express provisions.’ ”
(Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1097.) “ ‘[T]he expression of
certain things in a statute necessarily involves exclusion of other things not expressed. . . .’ ”
(Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391, fn. 13.)
“ ‘In the grants [of powers] and in the regulation of the mode of exercise, there is an implied
negative; an implication that no other than the expressly granted power passes by the grant; that
it is to be exercised only in the prescribed mode . . . .’ ” (Wildlife Alive v. Chickering (1976) 18
Cal.3d 190, 196; see also People v. Zamora (1980) 28 Cal.3d 88, 89; 57 Ops.Cal.Atty.Gen. 307,
310 (1974).)

                Applying these principles of construction, we find that California law does not

   2
       All references hereafter to the Penal Code are by section number only.

                                                 5
                                                                                             98-810


authorize the placement of another state’s prisoners in a privately operated detention facility in
California. The Legislature has been careful in granting the authority to house out-of-state
prisoners in California and the use of privately operated detention facilities to house prisoners.
The Legislature has not, however, combined the two types of authority.

                Against these specific grants of authority, we observe that a general statutory
prohibition prevents prisoners from other states from being housed in a privately operated
detention facility in California. Section 173 states:

               “Every . . . person, who willfully imports, brings, or sends, or causes or
       procures to be brought or sent, into this State, any person who is a foreign convict
       of any crime which, if committed within this State, would be punishable therein
       (treason and misprision of treason excepted), or who is delivered or sent to him
       from any prison or place of confinement in any place without this State, is guilty
       of a misdemeanor.”

While the Legislature may of course enact specific statutes that would govern over the general
prohibition of section 173 in particular circumstances (see Code Civ. Proc., § 1859; Woods v.
Young (1991) 53 Cal.3d 315, 325; Agricultural Labor Relations Bd. v. Superior Court (1976) 16
Cal.3d 392, 420), the Legislature has not done so here.

              We conclude in answer to the second question that prisoners from other states
may not be placed in custody in privately operated detention facilities in California.

               3. Sheriff’s Responsibility

              The third question presented concerns whether a sheriff has a responsibility to
respond to incidents or complaints arising out of the operation of a private detention facility
housing federal inmates and detainees. We conclude that he does.

               A sheriff is the chief law enforcement officer of the county.                (81
Ops.Cal.Atty.Gen. 86, 87 (1998); 50 Ops.Cal.Atty.Gen. 64, 67 (1967).) The jurisdiction of a
sheriff to investigate crimes extends throughout the county, including incorporated cities. (81
Ops.Cal.Atty.Gen., supra, 87; 8 Ops.Cal.Atty.Gen. 149, 150-151 (1946).)

               A sheriff has a general duty to investigate crimes in his jurisdiction and arrest
those who have committed public offenses. (See Coffee v. Superior Court (1905) 147 Cal. 525,
530; Los Angeles Free Press, Inc. v. City of Los Angeles (1970) 9 Cal.App.3d 448, 457; Pitchess
v. Superior Court (1969) 2 Cal.App.3d 653, 657; 50 Ops.Cal.Atty.Gen., supra, 67-68; 36
Ops.Cal.Atty.Gen. 198, 199-200 (1960); 8 Ops.Cal.Atty.Gen., supra, 151.) “The sheriff shall
preserve peace . . . .” (Gov. Code, § 26600.) “The sheriff shall arrest and take before the nearest
magistrate for examination all persons who attempt to commit or who have committed a public
offense.” (Gov. Code, § 26601; see 81 Ops.Cal.Atty.Gen., supra, 88-89.)



                                                6
                                                                                              98-810


                As a peace officer, the sheriff’s authority extends to any place in the state: (1) as
to any public offense committed (or which there is probable cause to believe has been
committed) within the county employing the sheriff; (2) where the sheriff has the prior consent
of the chief of police if the place is within a city; or (3) as to any public offense committed (or as
to which there is probable cause to believe has been committed) in the sheriff’s presence when
there is an immediate danger to person or property or the escape of a perpetrator of the offense.
(§ 830.1.) Thus, for purposes of carrying out his basic law enforcement responsibilities, a
sheriff’s jurisdiction is not limited to any particular type of facility, public or private. (See, 81
Ops.Cal.Atty.Gen. 86, supra, [county sheriff is authorized to investigate criminal acts alleged to
have occurred at a state correctional facility].)

                With regard to riots and other disturbances that may arise at a privately operated
detention facility housing federal inmates and detainees, we note that the sheriff is charged by
Government Code section 26602 with “prevent[ing] and suppress[ing] any affrays, breaches of
the peace, riots, and insurrections which come to his knowledge” and with “investigat[ing]
public offenses which have been committed.” As for an escape from a privately operated
detention facility by a federal inmate or detainee, section 4537, subdivision (a) provides:

               “The person in charge of any secure detention facility, including, but not
       limited to, a prison, a juvenile hall, a county jail, or any institution under the
       jurisdiction of the California Youth Authority, shall promptly notify the chief of
       police of the city in which the facility is located, or the sheriff of the county if the
       facility is located in an unincorporated area, of an escape by a person in its
       custody.”

              A sheriff has discretion to examine each situation based upon the individual facts.
In 81 Ops.Cal.Atty.Gen. 86, supra, we considered whether a sheriff was authorized to investigate
alleged criminal acts at a state correctional facility. After noting a sheriff’s general law
enforcement responsibilities under Government Code sections 26600-26602, we stated:

               “Nevertheless, a sheriff may exercise some degree of discretion in
       investigating criminal activity. (See Johnson v. State of California (1968) 69
       Cal.2d 782, 793-797; Gates v. Superior Court (1995) 32 Cal.App.4th 481, 503,
       506-507; Newton v. County of Napa (1990) 217 Cal.App.3d 1551, 1560;
       Constance B. v. State of California (1986) 178 Cal.App.3d 200, 208, fn. 8; Green
       v. City of Livermore (1981) 117 Cal.App.3d 82, 87; Mann v. State of California
       (1977) 70 Cal.App.3d 773, 778; Hartzler v. City of San Jose (1975) 46
       Cal.App.3d 6, 8; McCarthy v. Frost (1973) 33 Cal.App.3d 872, 875.)
       Accordingly, we do not believe that a sheriff must investigate patently frivolous
       charges. Also, a cursory, preliminary investigation may show the allegations to
       be without merit, resulting in no further investigation being necessary.

               “Significantly, a sheriff may not be the only law enforcement officer with
       jurisdiction to investigate a particular offense. (See Pen. Code, § 800.1, subd.


                                                  7
                                                                                                  98-810


       (a)(1). ) In similar circumstances to those present here, we concluded that
       ‘administrative understanding and comity, subject to the availability of
       appropriations’ may control the extent and nature of the operations of law
       enforcement agencies with concurrent jurisdiction over an alleged criminal
       offense . . . .

               “ ‘Administrative understanding and comity’ does not necessarily require
       a formal joint powers agreement or contract between agencies with concurrent
       jurisdiction in order to avoid a duplication of law enforcement efforts. On the
       other hand, a sheriff must be satisfied that serious criminal charges will be
       investigated by some law enforcement agency with jurisdiction to act . . . .

               “Other possible reasons may exist for declining to investigate a particular
       criminal complaint. Each situation would require evaluation based upon the
       specific facts. Of course, a sheriff may be found guilty of willful misconduct in
       office by failing to investigate a crime without sufficient cause. (Coffee v.
       Superior Court, supra, 147 Cal. at 530; People v. Mullin, supra, 197 Cal.App.2d
       at 487; see Steiner v. Superior Court (1996) 50 Cal.App.4th 1771, 1780.)” (Id., at
       pp. 89-90.)

               A sheriff’s jurisdiction and law enforcement duties thus extend to privately
operated detention facilities housing federal inmates and detainees; however, a sheriff may
decline to respond to incidents or complaints at a facility in limited circumstances such as when
the crime report is patently frivolous, a preliminary investigation shows the allegations to be
without merit, or the sheriff has an agreement that another law enforcement agency having
jurisdiction over the matter (such as federal authorities or a city police department) will
undertake the appropriate response.

              4. Financial Responsibility

               The final question presented is whether a county may contract with the operators
of private detention facilities housing federal inmates and detainees under terms requiring the
operators to reimburse the county for the costs of the sheriff in responding to incidents or
complaints at the facility. We conclude that such a contract may not be executed.

              Government Code section 53069.8 provides:

               “(a) The board of supervisors of any county may contract on behalf of the
       sheriff of that county, and the legislative body of any city may contract on behalf
       of the chief of police of that city, to provide supplemental law enforcement
       services to private individuals or private entities to preserve the peace at special
       events or occurrences that happen on an occasional basis. Contracts entered into
       pursuant to this section shall provide for full reimbursement to the county or city
       of the actual costs of providing those services, as determined by the county


                                                8
                                                                                              98-810


       auditor or auditor-controller, or by the city, as the case may be.

               “(b) The services provided pursuant to this section shall be rendered by
       regularly appointed full-time peace officers, as defined in Section 830.1 of the
       Penal Code, or as negotiated with the respective certified employee organizations.

              “(c) Peace officer rates of pay shall be governed by a memorandum of
       understanding.

              “(d) A contract entered into pursuant to this section shall encompass only
       law enforcement duties and not services authorized to be provided by a private
       patrol operator, as defined in Section 7582.1 of the Business and Professions
       Code.

               “(e) Contracting for law enforcement services, as authorized by this
       section, shall not reduce the normal and regular ongoing service that the county,
       agency of the county, or city otherwise would provide.”

Accordingly, under this statutory grant of authority the services that may be obtained by contract
are “supplemental law enforcement services” for the purpose of “preserv[ing] the peace at
special events or occurrences that happen on an occasional basis.”

                As discussed in answer to the third question, a sheriff’s duties include responding
to incidents at both public and private facilities. (Gov. Code, § 26602.) Such services cannot be
sold. (See 57 Ops.Cal.Atty.Gen. 423 (1974) [county service area district may not be established
to provide services already included in mandated basic and uniform level of law enforcement
services the sheriff is under obligation to provide]; see also 68 Ops.Cal.Atty.Gen. 175, 181
(1985).) Consequently, the types of services contemplated by Government Code section 53069.8
are the supplemental law enforcement services that may be needed to forestall breaches of the
peace at special events or occurrences, not the law enforcement actions that are needed once an
incident takes place.

               We also observe that the phrase “special events or occurrences that happen on an
occasional basis” implies planned events or activities, giving the sheriff the opportunity to
determine how much of his resources may be expended without “reduc[ing] the normal and
regular ongoing service that the county . . . otherwise would provide.” (Gov. Code, § 53069.8,
subd. (e).) Unplanned contingencies would not allow the sheriff the opportunity to allocate his
resources in the orderly manner contemplated by the statute.

              Hence, we do not believe that Government Code section 53069.8 was intended to
authorize placement of the sheriff’s department “on retainer” to private enterprises, placing
unpredictable demands on county resources and possibly jeopardizing normal and regular law
enforcement service elsewhere in the county. Our interpretation of Government Code section
53069.8 also avoids situations where the private contractor and the sheriff might disagree


                                                 9


                                                                                            98-810


concerning whether the particular incident was covered by the contract. Moreover, it permits the
sheriff to exercise discretion in responding to a particular incident or complaint.

               No other statute authorizes the county’s proposed contractual agreements. We
conclude that a county may not contract with private operators of detention facilities housing
federal inmates and detainees under terms requiring the operators to agree to reimburse the
county for the costs of the sheriff’s response actions undertaken with respect to incidents or
complaints at the facilities.

                                            *****




                                              10


                                                                                         98-810


