Can a California water district contribute to its directors' retirement plans or pensions without violating the Water Code's caps on director compensation?
Plain-English summary
California has hundreds of water special districts, each with its own enabling statute that sets out (among other things) what the district may pay its elected directors. Most enabling statutes set a daily meeting stipend; some allow no compensation at all; some authorize a "just and reasonable" amount or even a salary. Many enabling statutes also separately authorize retirement plans or pensions for the district's "officers and employees."
Water Code sections 20201 and 20202, enacted in 1984 and amended in 1988, address the daily stipend specifically. Section 20201 says any water district may, by referendable ordinance, set or increase a stipend up to $100 per meeting day, and may go above that amount through later referendable ordinances. Section 20202 caps each such increase at 5% per calendar year and limits compensation to 10 days in any calendar month. Section 20201 opens with "[n]otwithstanding any other provision of law," which on its face looks like it could supersede the rest of the water-code compensation scheme.
Senator John Moorlach asked the AG whether sections 20201 and 20202, read together, forbid water districts from making employer-paid contributions to retirement plans or pensions on behalf of their directors. The AG concluded the answer is no. The legislative history of SB 1370 (1984) and AB 3088 (1988) shows that the purpose of these sections was narrow: to relieve the Legislature from having to pass a special bill every time a district wanted to bump a daily stipend. The "notwithstanding" phrase, on its own, is not enough to imply the broader repeal of every compensation-related provision in every district's enabling statute. The AG noted that several years after sections 20201 and 20202 were enacted, the Legislature amended other Water Code sections (50605, 70078) without removing the "just and reasonable" compensation authority they granted, evidence that the Legislature did not view sections 20201/20202 as an across-the-board repealer.
So where a water district's enabling statute authorizes retirement plans or pensions for "officers and employees," the AG read that authorization to include directors as officers, and concluded that the district may make employer-paid contributions toward those plans without running afoul of the 20201/20202 stipend caps. This matters operationally because the IRS treats water district directors as "employees" subject to Social Security taxation unless they are members of a public retirement system. Most water-district directors elected on or after July 1, 1994 are excluded from CalPERS membership (Gov. Code, § 20322, subd. (c)), so an employer-funded 457(b) or 401(a) plan satisfying the 7.5% federal threshold is the vehicle districts use.
Currency note
This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Q: What does "notwithstanding any other provision of law" actually do?
A: It is a "term of art" treated by California courts as words of supersession (People v. Palacios (2007) 41 Cal.4th 720, 729; Apartment Ass'n of Los Angeles County, Inc. v. City of Los Angeles (2009) 173 Cal.App.4th 13, 26). But it does not necessarily repeal every other statute in sight. Courts and the AG read it in context, look at legislative history, and decline to find implied repeals lightly. That is what the AG did here.
Q: Why does it matter whether directors are "employees" for Social Security purposes?
A: Because the IRS treats them that way (26 U.S.C. § 3212(b)(7)(F)). Without membership in a public retirement system that contributes at least 7.5% of compensation, a director's stipend gets hit with Social Security tax. An alternative retirement plan funded in part by the district avoids that.
Q: Can a water district director participate in CalPERS?
A: Generally not, if elected on or after July 1, 1994 (Gov. Code, § 20322, subd. (c)). Unelected employees of the district can still join CalPERS. To meet the 7.5% federal threshold for elected directors, districts typically establish a 457(b) or 401(a) plan and contribute the employer share.
Q: What if my district's enabling statute uses "officers and employees" without saying "directors"?
A: The AG read that phrase to include directors as officers. Members of governing boards of public districts are commonly treated as elected or appointed public officers (90 Ops.Cal.Atty.Gen. 24, 26 (2007); 69 Ops.Cal.Atty.Gen. 126, 128 (1986); Bus. & Prof. Code, § 16204).
Q: Can a district increase a director's daily stipend above $100?
A: Yes, but by referendable ordinance, capped at 5% per calendar year, with no more than 10 paid days in any calendar month (Wat. Code, §§ 20201, 20202). The voters of the district can petition for a referendum on the ordinance.
Q: What about districts whose enabling statute lets the board set "just and reasonable" compensation?
A: The AG took the view that those statutes are still in effect after 20201/20202 were enacted. The Legislature has amended them since without disturbing the "just and reasonable" compensation authority, which the AG read as evidence that the broader compensation regime survives section 20201's "notwithstanding" clause.
Background and statutory framework
The state Constitution prefers general laws (Cal. Const., art. IV, § 16), but courts have long allowed the Legislature to create water districts by special act when warranted (Fairfield-Suisun Sewer Dist. v. Hutcheon (1956) 139 Cal.App.2d 502, 508-509). The result is the patchwork that exists today: general acts for irrigation districts, county water districts, California water districts, water storage districts, water replenishment districts, municipal water districts, water conservation districts, county water works districts, and others, plus dozens of special-act districts (Mojave Water Agency, Antelope Valley-East Kern, Desert Water, San Gorgonio Pass, Crestline-Lake Arrowhead, Tahoe-Truckee Sanitation, Monterey Peninsula, etc.).
Water Code section 20200 broadly defines "water district" for purposes of chapter 2 of division 10 to include essentially every flavor of California water special district. The "as used in this chapter" language is a key limiter: the broad definition applies inside the stipend-increase chapter, not throughout the Water Code (Alcala v. City of Corcoran (2007) 147 Cal.App.4th 666, 670; Howard Jarvis Taxpayers Assn. v. City of San Diego (1999) 72 Cal.App.4th 230, 236).
The AG's reasoning rests on three classic statutory-construction tools: read the statute in context (Smith v. Superior Court (2006) 39 Cal.4th 77, 83), disfavor implied repeals (Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 913), and consult legislative history when meaning is contested (Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385, 1401). The result preserves the statutory architecture: sections 20201/20202 govern stipend increases, and the various enabling statutes' authorizations for retirement plans for officers and employees stand on their own.
Citations and references
Statutes:
- Water Code sections 20200, 20201, 20202 (stipend regime)
- Water Code section 22140-22141, 31008, 71593, 71594 (representative retirement-authority enabling statutes)
- Government Code section 20322, subdivision (c) (CalPERS exclusion for elected directors)
- 26 U.S.C. § 3212(b)(7)(F) (federal alternative retirement plan rules)
- 26 C.F.R. § 31.3121(b)(7)-2(e) (federal 7.5% threshold)
Cases:
- People v. Palacios (2007) 41 Cal.4th 720
- Apartment Ass'n of Los Angeles County, Inc. v. City of Los Angeles (2009) 173 Cal.App.4th 13
- Alcala v. City of Corcoran (2007) 147 Cal.App.4th 666
- Smith v. Superior Court (2006) 39 Cal.4th 77
- Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889
- Gonzalez v. Department of Corrections and Rehabilitation (2011) 195 Cal.App.4th 89
- Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385
Official Citation: 102 Ops.Cal.Atty.Gen. 1
Source
- Landing page: https://oag.ca.gov/opinions/yearly-index
- Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/16-301_1.pdf
Original opinion text
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
XAVIER BECERRA
Attorney General
OPINION
of
XAVIER BECERRA
Attorney General
MANUEL M. MEDEIROS
Deputy Attorney General
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No. 16-301
April 4, 2019
THE HONORABLE JOHN M. W. MOORLACH, MEMBER OF THE SENATE,
has requested an opinion on the following question:
May a California water district make employer-paid retirement plan or pension
contributions on behalf of its governing board members (“directors”), where such plans or
pensions are otherwise authorized by the district’s enabling statutes, without violating
Water Code sections 20201 or 20202 regarding the compensation that water districts may
pay to their directors?
CONCLUSION
A California water district may make employer-paid retirement plan or pension
contributions on behalf of its directors, where such plans or pensions are otherwise
authorized by the district’s enabling statutes, without violating Water Code sections 20201
or 20202 regarding the compensation that water districts may pay to their directors.
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ANALYSIS
In this opinion, we consider whether California water districts may lawfully make
contributions to their directors’ retirement plans or pensions. We conclude that they may.
“There are hundreds of water special districts in California, with a great diversity of
purposes, governance structures, and financing mechanisms. Some districts are
responsible for one type of specific duty, while others provide a wide range of public
services. Some are governed by a county board of supervisors or city council while others
have their governing boards directly elected by the public.”1
Water districts can be created either by forming under a general water district act,
or by a special act of the Legislature.2 General acts prescribe the duties, responsibilities,
and powers of the given type of district (water supply, sanitation, flood control, etc.), and
they apply to all districts of that type throughout the state. On the other hand, a special
act’s provisions apply only to the particular district that is the subject of the act.
Compensation for water district directors is specified by the enabling statute
applicable to the district. Most enabling statutes provide for a director stipend of $100 per
day for each day’s attendance at a meeting.3 But some provide for stipends of less than
Legislative Analyst’s Office, Water Special Districts: A Look at Governance and
Public Participation” (March 2002), available at http://www.lao.ca.gov/2002/water_distri
cts/special_water_districts.html.
1
Despite the state Constitution’s preference for general laws whenever possible (Cal.
Const., art. IV, § 16), courts have found it permissible for the Legislature to create water
districts by special act where warranted (see Fairfield-Suisun Sewer Dist. v. Hutcheon
(1956) 139 Cal.App.2d 502, 508-509).
2
E.g., Gov. Code, § 61047 (Stats. 2005, ch. 249, § 3 [Community Services Districts]);
Wat. Code, §§ 21166 (Stats. 1947, ch. 928, § 1, p. 2145 [Irrigation Districts]), 30507 (Stats.
1949, ch. 274, § 1, p. 500 [County Water Districts]), 30507.1 (Stats. 1987, ch. 880, § 1
[Contra Costa Water District]), 34740-34741 (Stats. 1951, ch. 390, § 1, p. 1196 [California
Water Districts]), 40355 (Stats. 1951, ch. 391, § 1, p. 1240 [Water Storage Districts]),
60143 (Stats. 1955, ch. 1514, § 1, p. 2766 [Water Replenishment Districts]), 71255 (Stats.
1963, ch. 156, § 1, p. 823 [Municipal Water Districts]), 74208 (Stats. 1965, ch. 75, § 1, p.
961 [Water Conservation Districts]), 81339 (Stats. 2002, ch. 844, § 1 [Bay Area Water
Supply and Conservation Agency]), 81632 (Stats. 2002, ch. 849, § 1 [San Francisco Bay
Area Regional Water System Financing Authority]); Wat. Code App. (West’s), §§ 40-6.5
(Stats. 1982, ch. 992, § 7, p. 3595 [Orange County Water District]), 142-503 (Stats. 2016,
ch. 391, § 1 [Kings River East Groundwater Sustainability Agency]), 143-503 (Stats. 2016,
3
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$100 per day;4 some allow no compensation;5 some permit the board to set a “just and
reasonable” compensation;6 and some provide for salaries or a combination of stipends and
salaries.7
We are informed that the Internal Revenue Service deems directors of water district
governing boards to be “employees,” and that director compensation is therefore subject to
Social Security taxation unless the directors are members of a public retirement system.8
Although water districts may (and do) contract with the California Public Employees
Retirement System (CalPERS),9 members of part-time governing boards such as water
ch. 392, § 1 [North Fork Kings Groundwater Sustainability Agency]).
E.g., Wat. Code, §§ 12513 (Stats. 1977, ch. 393, § 2, p. 1388 [Colorado River Board
of California]) ($50 per day), 55305 (Stats. 1969, ch. 315, § 1, p. 687 [County Water Works
Districts]) ($10 per day); Wat. Code App. (West’s), §§ 116-3.11 (Stats. 1973, ch. 1089, §
3.11, p. 2210 [South Delta Water Agency]) ($25 per day), 117-3.11 (Stats. 1973, ch. 1133,
§ 3.11 [Central Delta Water Agency]) ($25 per day).
4
E.g., Wat. Code App. (West’s) §§ 9-14 (Stats. 1905, ch. 310, § 14, p. 332 [Levee
Districts]), 48-16 (Stats. 1945, ch. 1122, § 16, p. 2147 [Riverside County Flood Control
and Water Conservation District]), 55-38 (Stats. 1961, ch. 1009, § 1, p. 2690 [Alameda
County Flood Control and Water Conservation District]), 65-5 (Stats. 1951, ch. 1657, § 5,
p. 3777 [Yolo County Flood Control and Water Conservation District]), 74-6 (Stats. 1955,
ch. 1057, § 6, p. 2010 [Santa Barbara County Flood Control and Water Conservation
District]), 91-9 (Stats. 1959, ch. 2123, § 9, p. 4987 [Sierra County Flood Control and Water
Conservation District]), 92-9 (Stats. 1959, ch. 2127, § 9, p. 5017 [Lassen-Modoc County
Flood Control and Water Conservation District]), 109-51 (Stats. 1969, ch. 209, § 51, p. 497
[Metropolitan Water District]).
5
See, e.g., Wat. Code, §§ 50605 (Stats. 1951, ch. 336, § 1, p. 697, Stats. 1897, ch. 186,
p. 239 (Pol. Code, § 3454) [Reclamation Districts]), 70078 (Stats. 1959, ch. 370, § 1, p.
2292 [Levee Districts]); Wat. Code App. (West’s), § 120-253 (Stats. 1981, ch. 421, § 1, p.
1619 [Stanislaus County Flood Control District]).
6
Wat. Code App. (West’s) § 1-11 (Levee District No. 1) ($500 per year in quarterly
installments); see Wat. Code, §§ 21166 (Irrigation Districts) ($100 per day, $600 per
month, or up to $15,00 per year), 22840 (500K acre Irrigation Districts) (annual salary up
to that of an Imperial County supervisor).
7
See Internal Revenue Service, Classification of Elected and Appointed Officials,
https://www.irs.gov/government-entities/federal-state-local-governments/classificationof-elected-and-appointed-officials; see also 26 U.S.C. § 3212(b)(7)(F).
8
9
See Gov. Code, § 20460 (“Public Agency Participation” in CalPERS); see also id.,
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district boards are specifically excluded from membership in CalPERS if they were elected
to office on or after July 1, 1994.10 However, for purposes of the Social Security tax laws,
a qualifying “public retirement system” could be an agency-provided plan such as a 457(b)
plan or a 401(a) plan11 (hereafter referred to collectively as an alternative retirement plan
or “ARP”), if that plan provides for a contribution to the employee’s account of at least 7.5
percent of the employee’s compensation—part of which contribution may be provided by
the employer.12
Many enabling statutes also authorize water districts to establish and contribute to
retirement plans or pensions for officers and employees,13 and we are told that some water
districts have established ARPs and are making contributions to those plans for the benefit
§ 20056 (“public agency” includes districts).
Gov. Code, § 20322, subd. (c). Unelected employees of a district may be members
of CalPERS.
10
11
See 26 C.F.R. § 31.3121(b)(7)-2(e).
See 26 C.F.R. § 31.3121(b)(7)-2(e)(iii); cf. Gov. Code, § 19999.2 (establishing state
deferred compensation plan to satisfy 26 U.S.C. § 3212(b)(7)(F) for state employees who
are not members of CalPERS).
12
See, e.g., Wat. Code, §§ 22140, 22141 (Stats. 1965, ch. 726, § 1, p. 2128 [Irrigation
Districts]), 31008 (Stats. 1953, ch. 1375, § 1, p. 2954 [County Water Districts]), 71593,
71594 (Stats. 1963, ch. 156, § 1 [Municipal Water Districts]); Wat. Code App. (West’s),
§§ 97-13, & 6 (Stats. 1959, ch. 2146, § 13, p. 5132 [Mojave Water Agency]), 98-61, & 12
(Stats. 1959, ch. 2146, § 61, p. 5153 [Antelope Valley-East Kern Water Agency]); 100-15,
& 16 (Stats. 1961, ch. 1069, § 15, p. 2762 [Desert Water Agency]), 101-15, & (p) (Stats.
1961, ch. 1435, § 15, p. 3246 [San Gorgonio Pass Water Agency]), 104-11, & 16 (Stats.
1962, 1st Ex. Sess, ch. 40, § 11 p. 291 [Crestline-Lake Arrowhead Water Agency]), 10976 (Stats. 1969, ch. 441, § 22, p. 975 [Metropolitan Water District]), 112-15, & 11 (Stats.
1969, ch. 1175, § 15, p. 2276 [Bighorn-Desert View Water Agency]); 114-124 (Stats. 1971,
ch. 1560, § 124, p. 3095 [Tahoe-Truckee Sanitation Agency]), 118-264 (Stats. 1977, ch.
527, § 264, p. 1685 [Monterey Peninsula Water Management District]).
13
Not all water-district enabling statutes expressly authorize the provision of retirement
contributions for “directors”; some authorize retirement contributions for “officers and
employees,” without clearly identifying directors as officers. Members of governing
boards of public districts or entities are commonly regarded as elected or appointed public
officers (see, e.g., 90 Ops.Cal.Atty.Gen. 24, 26 (2007); 69 Ops.Cal.Atty.Gen. 126, 128
(1986); Bus & Prof. Code, § 16204). For purposes of this analysis, we assume that when
an enabling statute uses the phrase “officers and employees” in connection with retirement
contributions, it includes “directors.”
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of their governing board members in order to satisfy the 7.5 percent requirement mentioned
above.
In this opinion, we analyze the proposition that two statutes in the Water Code
(sections 20201 and 20202) generally forbid water district employer contributions, by
limiting director compensation to a stipend of $100 per meeting (except as it may be
periodically increased by an ordinance subject to voter referendum). We conclude that
sections 20201 and 20202 do not restrict the scope of compensation available to district
directors. Instead, we believe that the statutes’ purpose is to empower water districts that
pay directors a minimal daily stipend to increase the stipend level without need of further
legislation.
Our analysis starts with an examination of the statutes at issue. In pertinent part,
Water Code section 20201 provides:
Notwithstanding any other provision of law, the governing board of
any water district[14] may, by ordinance adopted pursuant to this chapter,
provide compensation to members of the governing board, unless any
The term “water district,” for purposes of section 20201, is defined broadly by Water
Code section 20200 to mean “any district or other political subdivision, other than a city
or county, a primary function of which is the irrigation, reclamation, or drainage of land or
the diversion, storage, management, or distribution of water primarily for domestic,
municipal, agricultural, industrial, recreation, fish and wildlife enhancement, flood control,
or power production purposes. ‘Water districts’ include, but are not limited to, irrigation
districts, county water districts, California water districts, water storage districts,
reclamation districts, county waterworks districts, drainage districts, water replenishment
districts, levee districts, municipal water districts, water conservation districts, community
services districts, water management districts, flood control districts, flood control and
floodwater conservation districts, flood control and water conservation districts, water
management agencies, water agencies, and public utility districts formed pursuant to
Division 7 (commencing with Section 15501) of the Public Utilities Code.” (Wat. Code,
§ 20200.) This sweeping definition applies only to chapter 2 of division 10 of the Water
Code, as evidenced by the introductory limitation, “As used in this chapter.” (See Alcala
v. City of Corcoran (2007) 147 Cal.App.4th 666, 670 (term’s definition “is expressly
limited to the article in which it appears”; “it does not pretend to define the term for use in
all statutes”); Howard Jarvis Taxpayers Assn. v. City of San Diego (1999) 72 Cal.App.4th
230, 236 (phrase “as used in this article” restricts the field of application); 66
Ops.Cal.Atty.Gen. 40, 47 (1983); 64 Ops.Cal.Atty.Gen. 317, 323 (1981).) Accordingly,
the term “water district” may elsewhere have a more restrictive meaning. (See, e.g., Health
& Saf. Code, § 116286; Sts. & Hy. Code, § 830; Wat. Code App. (West’s), § 134-315.)
14
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compensation is prohibited by its principal act, in an amount not to exceed
one hundred dollars ($100) per day for each day’s attendance at meetings of
the board, or for each day’s service rendered as a member of the board by
request of the board, and may, by ordinance adopted pursuant to this chapter,
in accordance with Section 20202, increase the compensation received by
members of the governing board above the amount of one hundred dollars
($100) per day.
It is the intent of the Legislature that any future increase in
compensation received by members of the governing board of a water district
be authorized by an ordinance adopted pursuant to this chapter and not by
act of the Legislature. 15
Water Code section 20202, in turn, provides:
In any ordinance adopted pursuant to this chapter to increase the
amount of compensation which may be received by members of the
governing board of a water district above the amount of one hundred dollars
($100) per day, the increase may not exceed an amount equal to 5 percent,
for each calendar year following the operative date of the last adjustment, of
the compensation which is received when the ordinance is adopted.
No ordinance adopted pursuant to this chapter shall authorize
compensation for more than a total of 10 days in any calendar month.16
Section 20201 begins with sweeping words of supersession: “Notwithstanding any
other provision of law.”17 At first blush, then, section 20201 could be read to sweepingly
supplant the myriad enabling statutes that provide for water district director compensation.
Under such a reading, for example, section 20201 would seem to divest many water
districts of their otherwise authorized discretion to set a “just and reasonable”
15
Wat. Code, § 20201.
16
Wat. Code, § 20202.
See People v. Palacios (2007) 41 Cal.4th 720, 729 (the “broad and unambiguous
scope of ‘notwithstanding any other provision of law’ overrides application” of
inconsistent statute); Apartment Ass’n of Los Angeles County, Inc. v. City of Los Angeles
(2009) 173 Cal.App.4th 13, 26 (phrase is a “term of art” that overrides other code sections
unless specifically modified by use of a term applying it only to a particular code section
or phrase); 73 Ops.Cal.Atty.Gen. 296, 299 (1990) (phrase amounts to “words of
supersession with respect to any inconsistent provision”).
17
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compensation, or to provide for monthly salaries, despite specific statutory authority for
some districts to do so.
But we must read sections 20201 and 20202 “with reference to the entire scheme of
law of which they are part, so that the whole may be harmonized and retain
effectiveness.”18 We may not lightly infer sweeping implied repeals. An implied repeal
of a statute is generally disfavored, and we will not construe section 20201 impliedly to
repeal other statutes unless it is clear that this was the Legislature’s intent.19 And even the
introductory phrase, “Notwithstanding any other provision of law,” without any other
indicia of legislative intent, is not necessarily determinative of supersession.20
We may look to legislative history to discern the Legislature’s intent here.21 In it,
we find that sections 20201 and 20202 were not intended to impose a strict limit on director
compensation. Rather, the statutes were intended to supplement, not supplant, the enabling
statutes, and to allow water districts to increase daily stipends without additional legislative
authorization.
Before these sections were enacted, those water districts whose enabling statutes
tied director compensation to a limited daily stipend had no administrative mechanism for
increasing the stipend. Yet the Legislature was hesitant to be making stipend-adjustment
decisions for special districts, seeing this as a matter more appropriately left to local
control. Accordingly, in the early 1980s, “[t]ired of successive bills, the Legislature
allowed water districts to increase their board members’ stipends above $100 a meeting,
provided that a governing board boosted its pay by referendable ordinance.”22
Smith v. Superior Court (2006) 39 Cal.4th 77, 83; People v. Ledesma (1997) 16
Cal.4th 90, 95, citation omitted; 96 Ops.Cal.Atty.Gen. 54, 56 (2013); 95 Ops.Cal.Atty.Gen.
89, 95 (2012).
18
See Williams v. Superior Court (2014) 230 Cal.App.4th 636, 658; 99
Ops.Cal.Atty.Gen. 56, 59-60 & fn. 19 (2016).
19
See, e.g., Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 913;
Gonzalez v. Department of Corrections and Rehabilitation (2011) 195 Cal.App.4th 89, 9496; People v. Wilson (2002) 95 Cal.App.4th 198, 202; see also Lungren v. Deukmejian
(1988) 45 Cal.3d 727, 735 (court will determine whether statute’s literal meaning comports
with its purpose).
20
See, e.g., Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52
Cal.4th 499, 526-527; 73 Ops.Cal.Atty.Gen. 330, 333 (1990); see also Gonzalez v.
Department of Corrections and Rehabilitation, supra, 195 Cal.App.4th at pp. 94-96.
21
22
Sen. Local Gov. Comm., Analysis of Assem. Bill No. 490 (2007-2008 Reg. Sess.), p.
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In 1984 the Legislature enacted Senate Bill 1370, the first of two bills to address the
problem. Legislative Counsel’s Digest explained:
Under existing law, various water district acts contain limitations on
the amount of compensation which may be received by each member of the
governing board of a water district organized under the act.
...
This bill would authorize the governing board of any water
district . . . which is authorized under its principal act to [receive]
compensation in the amount of $100 or more per day to increase, by
ordinance, the amount of that compensation, subject to prescribed
limitations, and subject to a prescribed right of the voters of the district to
petition for a referendum of the ordinance.23
As enacted, SB 1370 empowered water districts paying a stipend of $100 or more
per day to increase the stipend, subject to referendum.24 In 1988, sections 20201 and 20202
1.
See Sen. Bill No. 1370 (1983-1984 Reg. Sess.) as amended Feb. 28, 1984, Legislative
Counsel’s Digest. We may properly rely on Legislative Counsel’s Digest as authoritative
evidence of legislative intent. (Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385,
1401; Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133
Cal.App.4th 26, 35; see also Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d
367, 376-377 [legislative amendments presumed to have “intent and meaning expressed in
the Legislative Counsel's Digest”]; 80 Ops.Cal.Atty.Gen. 297, 303 (1997); 77
Ops.Cal.Atty.Gen. 227, 230 (1994).)
23
24
Sections 20201 and 20202, as enacted by SB 1370, provided:
- Notwithstanding any other provision of law, the governing board of
any water district which is authorized under its principal act to provide
compensation to members of the governing board in the amount of one hundred
dollars ($100) or more per day for each day’s attendance at meetings of the
board, or for each day’s service rendered as a member of the board by request of
the board, may, by ordinance adopted pursuant to this chapter, increase the
compensation received by members of the governing board above the amount of
one hundred dollars ($100) or more per day.
It is the intent of the Legislature that any future increase in compensation
received by members of the governing board of a water district above that
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were amended by Assembly Bill 3088 to read as they do today.25 Again, the intent of the
measure was to expand the law’s coverage, this time to include all water districts authorized
to pay directors any amount of compensation. 26
The historical materials show that sections 20201 and 20202 are designed to relieve
the Legislature from endlessly revisiting the issue of daily stipends, and to empower water
districts to increase stipends in an incremental and accountable manner. We find nothing
to suggest an intent to generally preempt water district enabling statutes in the area of
director compensation.27 More particularly, nothing in the legislative history suggests that
amount be authorized by an ordinance adopted pursuant to this chapter and not
by an act of the Legislature.
20202. In any ordinance adopted pursuant to this chapter to increase the
amount of compensation which may be received by members of the governing
board of a water district, the increase may not exceed an amount equal to 5
percent, for each calendar year following the operative date of the last
adjustment, of the compensation which is received when the ordinance is
adopted.
No ordinance adopted pursuant to this chapter shall authorize compensation
for more than a total of six days in any calendar month.
Stats. 1984, ch. 186, § 1.
25
See Stats. 1988, ch. 397, § 1.
26
The Assembly Committee on Local Government reported:
Current law allows water districts which are authorized to compensate their
board members at the rate of $100 or more per day to increase the compensation
by referendable ordinance at a noticed public protest hearing without further
authorization by the Legislature. Such increases are limited to five percent per
calendar year.
This bill would extend this authorization to those water districts whose board
members are compensated at less than $100 per day.
Assem. Com on Local Gov., Analysis of Assem. Bill No. 3088 (1987-1988 Reg. Sess.)
as amended March 10, 1988, p. 1; see also Sen. Rules Com., Analysis of Assem. Bill No.
3088 (1987-1988 Reg. Sess.) as amended May 27, 1988, p. 1.
We note, for example, that several years after enactment and amendment of Water
Code section 20201, sections 50605 and 70078 were each amended without change to the
existing language permitting payment of a “just and reasonable” compensation. (See Stats.
2005, ch. 700, §§ 34, 38.) This is some evidence of the Legislature’s belief that this grant
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the Legislature intended by sections 20201 and 20202 to nullify authorizations in water
district enabling statutes that permit retirement contributions for the benefit of directors.
We conclude that sections 20201 and 20202 do not preclude a California water
district from contributing to retirement plans or pensions on behalf of its directors, where
such plans or pensions are otherwise authorized by the district’s enabling statutes. 28
of discretion to pay a “just and reasonable” compensation remained “good law”
notwithstanding enactment of section 20201. (Cf. Department of Corrections and
Rehabilitation v. Workers’ Comp. Appeals Bd. (2008) 166 Cal.App.4th 911, 914-915.)
The requester also asked us, if employer contributions to directors’ retirement plans
were unlawful, whether directors would be obligated to reimburse improper contributions
and what statute of limitations would apply to reimbursement. Our answer to the present
question makes it unnecessary for us to address those additional questions.
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