The opinion
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.
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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.
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"(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).)
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"(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).
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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"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
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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).)
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