Citations
- 50 Cal. App. 4th 1926
Full opinion text
Opinion
SILLS, P. J.
After the American Trader ran aground off Huntington Beach and released thousands of gallons of crude oil, several state agencies represented by the Attorney General sued the owner of the ship to recover cleanup costs. Then commenced a paper war—or, more precisely, a war by paper. Instead of oil, now it was paper that gushed. Tens of thousands of pages of documents were produced in discovery; numerous motions were fought. The private lawyers for the shipowner deluged their civil servant opponents with successive court proceedings.
One of the state agency plaintiffs, the Department of Fish and Game, sought reinforcements. After receiving written permission from the Attorney General, the department employed an outside law firm to help it counter the shipowner’s oppressive litigation tactics. Eighteen months later, the shipowner launched a strike at the department’s new troops by moving to disqualify them. The shipowner’s legal theory was their involvement violated a provision of the Government Code section 12520, which forbids the Attorney General from employing special counsel. When the attack failed and the trial court denied the motion to disqualify, the shipowner brought this appeal.
We affirm. As explained below, section 12520 does not forbid the Department of Fish and Game from employing outside counsel when it first receives the written permission of the Attorney General.
The shipowner also contends that the employment of the outside law firm violates civil service contracting law, specifically section 19130. Again, the contention has no merit; indeed, and somewhat ironically, section 19130 supplies the very justification for not applying normal civil service hiring procedures to this case. One of the exceptions to the civil service contracting law, as set forth in section 19130, is for when there is an urgent need for the services of a private contractor (see § 19130, subd. (b)(10)), and such a need is certainly present here.
Facts
On February 7, 1990, while mooring at an oil berth off the coast of Huntington Beach, the steam tanker American Trader ran aground and released some 400,000 gallons of crude oil into state waters. The oil spill was declared a local and state emergency. Various state agencies were mobilized and began cleanup operations.
In 1991, the Department of Fish and Game, the Department of Parks and Recreation, the California Regional Water Quality Control Board, the State Coastal Conservancy, and the State Lands Commission, as relators through the Attorney General’s office, together with several local government entities, sued the owner and operator of the American Trader, Attransco, and several other corporations for environmental damages, civil penalties and attorney fees. For the first three years of the litigation, the Attorney General was sole legal counsel for the state and all five of its agencies.
As the lawsuit progressed, the Attorney General’s office recommended to the Department of Fish and Game that it seek special counsel to assist it in representing the department’s interests. In April 1994, the Department of Fish and Game associated the law firm of Hedges & Caldwell as cocounsel.
Eighteen months later, in October 1995, Attransco filed a motion to disqualify Hedges & Caldwell, arguing the Attorney General was prohibited by section 12520 from employing special counsel, and the availability of civil service attorneys precluded the Attorney General from granting authorization under section 11040 to the Department of Fish and Game to hire outside counsel. The issue of section 19130 was not raised. The trial court, characterizing the motion as “obstructionists,” denied the motion. Attransco then initiated this appeal.
Discussion
As it did at the trial level, Attransco contends that section 12520 precludes the Department of Fish and Game from being represented by an outside law firm. When examined in detail, Attransco’s argument essentially rests on putting the pieces of statutory jigsaw puzzle together in such a way as to form a circle.
To begin with, the actual text of section 12520 does Attransco no good. The statute provides in its entirety: “The Attorney General shall not employ special counsel in any case except pursuant to either of the following: HD (a) Article 3 (commencing with Section 12540). [f] Article 4 (commencing with Section 12550).”* *** There is no reference to the Department of Fish and Game. Only the Attorney General is precluded from employing special counsel.
Not to be outdone by the text, Attransco reasons that other statutes, in particular sections 11042 and 11043, force the conclusion that the Department of Fish and Game is absolutely obligated to use only the Attorney General. And, because the agency may only use the Attorney General, it follows that any employment of outside counsel by the department is, in essence, the employment of special counsel by the Attorney General, and therefore still in contravention of section 12520.
Section 11043 is part of a small group of five statutes (§§ 11040, 11041, 11042, 11043 & 11044) found in title 2 (government of the State of California), division 3 (executive branch), part 1 (state departments and agencies), chapter 1 (state agencies), article 4 (legal services) of the Government Code. The five statutes are most easily examined in their logical order, not the (somewhat convoluted) order in which they appear in the code.
Section 11042 begins with a basic rule against state agencies using outside counsel: “No State agency shall employ any legal counsel other than the Attorney General, or one of his assistants or deputies, in any matter in which the agency is interested.” Section 11044 sets up a backcharge mechanism for the Attorney General to “recover the costs incurred in providing the legal services.” Section 11043 states that whenever a law authorizes an agency to employ counsel other than the Attorney General, it shall be construed to refer to the Attorney General: “Except as to the State agencies and laws specified in Section 11041, whenever any law authorizes any State agency to employ legal counsel other than the Attorney General, it shall be construed to refer to the Attorney General. The Attorney General may assign to the State agency assistants or deputies from his staff, under such terms as he deems necessary to conduct the legal business of or render legal counsel to the agency.”
Section 11041 exempts a list of state entities (of which the Department of Fish and Game is not one) from the operation of section 11042 or 11043: “Sections 11042 and 11043 do not apply to the Regents of the University of California [etc.] nor to any other state agency which, by law enacted after Chapter 213 of the Statutes of 1933, is authorized to employ legal counsel. . . .”
Finally, section 11040, subdivision (a), opens up some leeway for state agencies, by specifically allowing them to employ counsel with the prior written permission of the Attorney General: “This article does not affect the right of any state agency or employee to employ counsel in any matter of the state, after first having obtained the written consent of the Attorney General.”
Amendments in 1992 and 1995 (see Stats. 1992, ch. 1287; Stats. 1995, ch. 893) added subdivisions (b) and (c) to section 11040, which tout the importance of using the Attorney General, but set forth no absolute rule forbidding outside counsel from ever being used: “(b) It is the intent of the Legislature that overall efficiency and economy in state government be enhanced by employment of the Attorney General as counsel for the representation of state agencies and employees in judicial and other proceedings. [Ü The Legislature finds that it is in the best interests of the people of the State of California that the Attorney General be provided with the resources needed to develop and maintain the Attorney General’s capability to provide competent legal representation of state agencies and employees in any judicial proceeding. [