Metropolitan News-Enterprise


Thursday, November 8, 2007


Page 3


A.G. Says State Commissions Cannot Delegate Discretionary Powers


By a MetNews Staff Writer


A state commission may only delegate to another body or an individual officer powers and duties that do not require the exercise of special judgment and discretion conferred by statute, Attorney General Edmund G. Brown Jr. has opined.  

In an opinion filed Tuesday, the attorney general said the nine-member Native American Heritage Commission cannot delegate to its executive secretary its statutory duties, which include identifying and cataloguing places of cultural significance to Native Americans, and with protecting the integrity and sanctity of Native American burial sites, skeletal remains, and grave artifacts found on public and private property. 

Public Resources Code Secs. 5097.9 through 5097.994 assign those responsibilities to the commission, a majority of whose members must be tribal members nominated by a tribe or other organization. Brown said the Legislature, in enacting those statutes, conferred special judgment and discretion on the commission to determine whether sacred Native American sites, remains, or artifacts suffer or are threatened by severe damage, and to take appropriate mitigating measures and legal action.

As a result, Brown said in an opinion drafted by Deputy Attorney General Daniel G. Stone, the commission could not delegate this authority to the executive secretary because doing so would render the commission virtually superfluous and negate quorum rules and open meeting requirements.

“[M]atters that call for an exercise of the board’s or commission’s special discretion or judgment may not lawfully be delegated to an executive officer or other body because such authority is exclusively reserved, as a public trust, for the public agency to which that authority has been conferred by law,” he said.

The attorney general did conclude, however, that the commission could delegate other routine, preliminary, or ministerial powers and duties that did not require the exercise of the special judgment and discretion.

Brown said that these powers and duties included the authority to investigate claims or threats of damage to Native American graves; to prepare preliminary reports, hold hearings, and make recommended findings subject to the commission’s review and approval; and to make recommendations that the commission bring legal action through the attorney general.  He said they also included personnel decisions, supervision of staff, and general day-to-day administration of operations.

The opinion is No. 07-103.


Copyright 2007, Metropolitan News Company