BILL ANALYSIS
SENATE JUDICIARY COMMITTEE A
Charles M. Calderon, Chairman B
1995-96 Regular Session
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AB 816 (W. Murray)
As amended on June 13, 1995
Hearing date: August 22, 1995
Food and Agriculture Code
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TORT IMMUNITIES
-GOVERNMENTAL IMMUNITY FOR COUNTY AGRICULTURAL DEPARTMENTS-
HISTORY
Source: California Agricultural Commissioners and Sealers
Association
Related Pending Legislation: None Known
Assembly Floor Vote: 68 - 4
Assembly Committee on Agriculture Vote: 11 - 0
Assembly Committee on Judiciary Vote: 9 - 0
Senate Committee on Agriculture and Water Resources: 7 - 0
(THIS ANALYSIS REFLECTS AUTHOR'S AMENDMENTS TO BE OFFERED IN
COMMITTEE. THE AMENDMENTS RE-DRAFT THE PROPOSED IMMUNITY SO THAT
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THE INTERPRETATION OF ITS PROVISIONS WILL BE CONSISTENT WITH CASES
INTERPRETING THE EXISTING GOVERNMENT CODE IMMUNITIES.)
KEY ISSUES
1. SHOULD COUNTY DEPARTMENTS OF AGRICULTURE AND THEIR EMPLOYEES BE
GRANTED A GOVERNMENTAL IMMUNITY AGAINST LIABILITY WHEN PERFORMING
GOVERNMENT FUNCTIONS, AS SPECIFIED?
A. DO THE EXISTING TORT IMMUNITIES ALREADY COVER A COUNTY
DEPARTMENT OF AGRICULTURE AS A SUBSIDIARY AGENCY OF THE COUNTY,
WHICH IS PROTECTED BY THE TORT CLAIMS ACT? IF SO, IS THE
PROPOSAL REDUNDANT?
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B. IN THAT THE STATED CONCERN IS TO PROTECT COUNTIES FROM
LAWSUITS WHEN THE COUNTY DEPARTMENT OF AGRICULTURE CARRIES OUT PEST
ABATEMENT OR ERADICATION PROGRAMS, AS AUTHORIZED BY LAW, IS THE
PROPOSAL MISDIRECTED IN ITS AIM TO CONFER A "LICENSING IMMUNITY",
"INSPECTION IMMUNITY" AND "TAXING IMMUNITY" TO ADDRESS THAT CONCERN?
C. SHOULD THE BILL BE RE-DRAFTED TO SPECIFY THAT DISCRETIONARY
IMMUNITY DOCTRINE OF THE TORT CLAIMS ACT APPLIES TO DECISIONS OF
A COUNTY DEPARTMENT OF AGRICULTURE TO ENFORCE STATE OR LOCAL
PEST CONTROL/ERADICATION LAWS, BUT THAT THE DEPARTMENT'S
ENFORCEMENT ACTION MAY STILL BE CHALLENGED IF IT LACKS LEGAL
AUTHORITY?
2. SHOULD EDUCATION REQUIREMENTS FOR THE POSITION OF A COUNTY
AGRICULTURAL COMMISSIONER OR INSPECTOR BE REVISED TO PERMIT
APPLICANTS WITH A BROADER RANGE OF EDUCATION DISCIPLINES TO APPLY?
PURPOSE
1. Existing law provides protection to public entities and public
employees against specified tort liability under the Government Tort
Claims Act.
Under Govt. Code Secs. 818.4 and 821.2, a public entity and its
public employee is not liable for an injury caused by the
issuance, denial, suspension, or revocation of, or by the
failure or refusal to issue, deny, suspend, or revoke, any
permit, license, certificate, approval, order, or similar
authorization where the public entity or its employee is
authorized by law to determine whether or not the authorization
should be issued, denied, suspended, or revoked. Case law holds
that this "licensing" immunity encompasses only discretionary
activities, and does not immunize from liability for injuries
caused by a nondiscretionary ministerial act. (See Morris v.
County of Marin (1977) 18 Cal.3d 901.)
Under Government Code Section 818.6, a public entity is not
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liable for injury caused by its failure to make a physical
inspection, or by reason of making an inadequate or negligent
inspection, of any property, other than its property, for the
purpose of determining whether the condition of the property
complies with or violates any enactment or contains or
constitutes a hazard to health or safety. This "inspection
immunity" attaches to both discretionary and ministerial acts of
the public entity. This "inspection" immunity for public
employees under Section 821.4 is less absolute. A public
employee may be liable for fraudulent inspections and negligence
or other wrongful acts or omissions that are not otherwise
exempt which are committed during an inspection.
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Under Govt. Code Sec. 860.2, neither a public entity nor a
public employee is liable for an injury caused by instituting
any judicial or administrative proceeding or action for, or
incidental to, the assessment or collection of a tax or for an
act or omission in the interpretation or application of any law
relating to a tax. This "taxing" immunity appears to be
absolute and applies to both discretionary and ministerial acts.
(See Mitchell v. Franchise Tax Board (1986) 183 Cal.App.3d
1133.)
This bill, as amended by author's amendments to be offered in
committee, would provide that the provisions of Government Code
Section 818.4 and 821.2, 818.8 and 821.4, and 860.2 apply to
acts or omissions committed by a county department of
agriculture and its employees.
2. Existing law limits eligibility for licensure as a county
agricultural commissioner or inspector to those with a bachelor's
degree with a specialization in agricultural or biological science.
This bill would revise the qualifications for the positions to
make eligible any person who has a bachelor's degree with a
specialization in chemical or physical science, "or other
appropriate disciplines."
The purpose of this bill is to: 1) confer a governmental immunity
to county departments of agriculture and their employees in the
performance of specified governmental functions, and 2) to revise
the qualifications required for licensure as a county agricultural
commissioner or inspector.
COMMENT
1. Should county departments of agriculture and their employees be
specifically granted a governmental immunity against tort liability
when performing specified government functions?
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a) Are county departments already covered by existing law?
A threshold question is whether the existing Government
Code tort immunities already apply to the acts of a county
agricultural department and its employees. While there are
no reported cases on point, it may soundly be argued that as
a subsidiary agency of a county, the existing tort claims
immunities already apply to the department and its
employees.
The Tort Claims Act applies to "a public entity." A
"public entity" is defined by Govt. Code Sec. 811.2 to
include "the State, the Regents of the University of
California, a county, city, district, public authority,
public agency, and any other political subdivision or public
corporation in the State." The term "local public entity"
includes "a county, city, district, public authority, public
agency, and any other political subdivision or public
corporation in the State," other than the State. The Tort
Claims Act is intended to include every kind of independent
political or governmental entity in the state. If an agency
is not independent of a public agency or entity but is
instead a subsidiary or member agency, a lawsuit may be
brought against the public agency or entity of which it is a
part.
Hence, while a county department of agriculture does not
appear to be an public entity for purposes of the Tort
Claims Act, it is a subsidiary or member agency of a
qualifying public entity. Like a county sheriff or city
police department, a county agriculture department should be
covered by the Tort Claims Act as a subsidiary agency of the
local public entity. If that is so, AB 816 is a redundant
statement of law. If enacted, it would create a precedent
of specifically applying the tort immunities to a subsidiary
agency of a county. That could invite other subsidiary
agencies to request "equal status" in the law.
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IS THIS BILL NECESSARY?
b) Proposed solution may be misdirected
According to the sponsor, the California Agricultural
Commissioners and Sealers Association, the county
Agricultural Commissioner is responsible for taking pest
abatement and eradication actions in the county. Most
recently, for example, the commissioners have been working
to suppress the "Tristeza" citrus virus in certain San
Joaquin Valley counties. Abatement efforts have also been
undertaken in pear growing regions of Sacramento, Yolo, and
Solano Counties to suppress pest infestations in abandoned
orchards.
Although these eradication programs are conducted
pursuant to strict procedures, proponents assert that
counties continue to be challenged in civil court based on
the belief that the county is not authorized by law to take
abatement actions. While the counties have prevailed in
these lawsuits, they continue to be forced to defend these
actions at considerable expense.
The proponents assert that AB 816 will relieve the
county of liability in those cases where the commissioner
has the duty and responsibility to make a decision
authorized by law.
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It is not at all clear that the proposed immunities, if
enacted, would address the proponent's concerns. If the
legal challenge is to intrinsic legal authority of a county
agriculture department to carry out pest eradication
programs, it is unclear how the proposed "licensing",
"inspection", and "taxing" immunities would bar those
lawsuits. In other words, if the county department acts in
excess of jurisdiction or acts without legal authority,
those immunities of the Tort Claims Act would not seem to
apply to immunize the county from legal actions challenging
the county's legal authority to act.
c) A clarification of the law as it applies to county pest
control actions may be appropriate to stem frivolous litigation
If numerous meritless lawsuits are being filed to
challenge the implementation of a pest control action which
is authorized by law, it may be appropriate to enact a
statute clarifying the application of the existing
discretionary immunity doctrine to these decisions.
Under Govt. Code Sections 820.2 and 815.2(b), a public
employee and the employing public entity is not liable for
an injury resulting from the employee's act or omission when
the act or omission was the result of the exercise of
discretion vested in the employee, whether or not the
discretion was abused. In the leading case of Johnson v.
State of California (1968) 69 Cal.2d 782, the Supreme Court
held that the doctrine applies to immunize a public employee
and entity for "basic policy decisions".
Thus, for example, the bill could be re-drafted to
specify that the discretionary immunity doctrine of the Tort
Claims Act applies to the decision of county department of
agriculture to enforce state and local pest control and
eradication laws (including policy decisions relating to
implementation of the eradication action), but that the
department's enforcement action may still be challenged if
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it exceeds legal authority.
SHOULD THIS ALTERNATIVE APPROACH BE CONSIDERED?
d) Opposition of trial lawyers
The Consumer Attorneys of California opposes AB 816.
CAOC asserts that negligent inspections by county
agriculture employees can lead to large scale food poisoning
and that negligent acts should not be immunized when the
consequences can be so serious.
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2. Education requirements revised for county agricultural
commissioner or inspector
This bill would also revise the qualifications for the position
of county agricultural commissioner or inspector to make
eligible any person who has a bachelor's degree with a
specialization in chemical or physical science, "or other
appropriate disciplines." Current law limits eligibility to
those with a degree in agricultural or biological science.
The revision adding "other appropriate disciplines" is opposed
by the Service Employees International Union, AFL-CIO, which
represents county agriculture inspectors. SEIU argues that
weakening the qualifications for the job of agricultural
inspector could diminish public confidence in the integrity and
ability of agricultural inspectors. If indeed the revision
operates to weaken the qualifications for the position, it could
result in the appointment of unqualified inspectors whose
negligent work would also be immunized by this bill.
This provision was added after the measure was approved by the
Senate Committee on Agriculture and Water Resources.
Consideration might be given to the re-referral of this issue
back to that committee for its review.
Support: None Known
Opposition: Consumer Attorneys of California; SEIU
Prior Legislation: None Known
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