Untitled California Attorney General Opinion ( 1989 )

OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
______________________________________
OPINION :
: No. 89-301
of :
: AUGUST 31, 1989
JOHN K. VAN DE KAMP :
Attorney General :
:
RODNEY O. LILYQUIST :
Deputy Attorney General :
:
______________________________________________________________________________
THE COMMISSION ON TEACHER CREDENTIALING has requested an opinion
on the following questions:
1. May information disclosed at an executive session of the Commission on Teacher
Credentialing to the designee of the Superintendent of Public Instruction be discussed by the
designee with the Superintendent without the authorization of the Commission?
2. May information disclosed at an executive session of the Commission on Teacher
Credentialing be discussed by the Superintendent of Public Instruction with legal counsel for the
Department of Education without the authorization of the Commission?
CONCLUSIONS
1. Information disclosed at an executive session of the Commission on Teacher
Credentialing to the designee of the Superintendent of Public Instruction may be discussed by the
designee with the Superintendent without the authorization of the Commission.
2. Information disclosed at an executive session of the Commission on Teacher
Credentialing may be discussed by the Superintendent of Public Instruction with legal counsel for
the Department of Education without the authorization of the Commission.
ANALYSIS
The Commission on Teacher Credentialing ("Commission") is a state administrative
body with duties that include (1) adopting standards for the accreditation of teacher preparation
programs, (2) establishing professional standards, (3) determining the scope of teacher credentials,
and (4) specifying the requirements for obtaining and renewing various types of teacher credentials,
certificates, and permits. (Ed. Code, § 44225; see 66 Ops.Cal.Atty.Gen. 212 (1983); 54
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Ops.Cal.Atty.Gen. 257 (1971).)1/ The Commission is also responsible for denying, suspending, and
revoking teacher credentials pursuant to specified procedures. (§§ 44242-44246; see 61
Ops.Cal.Atty.Gen. 353, 363-364 (1978).)
The two questions presented for resolution concern confidential information that is
disclosed during an executive session of the Commission held to consider the revocation of a teacher
credential. Attending the session is a designee of the Superintendent of Public Instruction
("Superintendent"). May the designee disclose the information to the Superintendent without the
authorization of the Commission? If the designee may do so or if the Superintendent is personally
present during the executive session, may the Superintendent disclose the information to the legal
counsel for the Department of Education ("Department") without the authorization of the
Commission? We conclude that the designee may disclose the information to the Superintendent
and the Superintendent may disclose the information to the Department's legal counsel without the
authorization of the Commission.
The Legislature has established the Commission under the provisions of section
44210, which states in part:
"There is hereby established in the state government the Commission on
Teacher Credentialing, to consist of 15 voting members, 14 of whom shall be
appointed by the Governor with the advice and consent of the Senate, as specified
in subdivisions (b) to (g), inclusive. The commission shall consist of the following
members:
"(a) The Superintendent of Public Instruction or his or her designee.
"(b) Six practicing teachers from public elementary and secondary schools
in California.
"(c) One person who is employed on the basis of a services credential other
than an administrative services credential.
"(d) One member of a school district governing board.
"(e) Four representatives of the public. . . .
"(f) One school administrator in a public elementary or secondary school in
California.
"(g) One faculty member from a college or university that grants
baccalaureate degrees.
"With the exception of the four representatives of the public and the
Superintendent of Public Instruction, the appointment of a member shall terminate
if he or she is no longer a practicing teacher in a public elementary or secondary
school, or a person who is employed on the basis of a valid services credential, or a
school administrator, or a faculty member of a college or university that grants
1. All references hereafter to the Education Code are by section number only.
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baccalaureate degrees, or a school district governing board member, as may be the
case, in California . . . ." (Emphasis added.)2/
The meetings of the Commission are normally open to members of the public. (§
44231.) Section 44245, however, states:
"All meetings and hearings of the commission and Committee of Credentials
to consider the suspension or revocation of credentials shall be executive and closed
sessions with only commission members, committee members, staff members, the
certified employee whose application or credential is in issue, the counsel of such
employee, and any material witnesses in attendance."3/
With this statutory background in mind, we turn to the central statute requiring
interpretation and application to the factual situations presented. Subdivision (a) of section 44248
provides:
"Any member of the commission, commission staff member, member or staff
member of the Committee of Credentials, [or] State Department of Education
employee who releases or gives out information received at a commission or
committee meeting or hearing or through the investigation of a certified employee
without authorization of the commission or committee, is guilty of a misdemeanor."
Under the provisions of section 44248, therefore, it would be a crime for a Commission member to
give out information received at a Commission meeting without the authorization of the
Commission. Does this statutory prohibition have any effect upon disclosures made by the
Superintendent's designee to the Superintendent and by the Superintendent to the Department's legal
counsel?
1. Designee Disclosing to Superintendent
In determining whether the disclosure prohibition of section 44248 would prevent
the contemplated discussions between the designee and the Superintendent, we first consider which
of the two is the "member of the commission." Is the Superintendent the Commission member
whether or not he chooses a designee, or is the designee the Commission member once the
designation is made?
Subdivision (a) of section 44210 seemingly indicates that the designee is the
Commission member by its use of the conjunction "or" in the phrase "or his or her designee." Such
a construction of the statute would give significance to the term and phrase, and "[i]t is a settled
axiom of statutory construction that significance should be attributed to every word and phrase of
a statute." (People v. Woodhead (1987) 43 Cal. 3d 1002, 1010.) The remainder of section 44210,
on the other hand, suggests that the Superintendent is the member, since it refers only to the
Superintendent and makes no reference to the Superintendent's designee where it otherwise would
be expected.
2. The Commission also has four ex officio members who, with certain exceptions, have no
voting privileges. (§ 44212.)
3. The Committee of Credentials is comprised of seven members selected by the Commission
to, among other duties, investigate allegations of misconduct by a credential holder. (§§ 44240-
44244.1.)
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In resolving this statutory ambiguity, we are guided by principles of construction
recently summarized in Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal. 3d
1379, 1386-1387, where the Supreme Court said:
"Pursuant to established principles, our first task in construing a statute is to
ascertain the intent of the Legislature so as to effectuate the purpose of the law. In
determining such intent, a court must look first to the words of the statute
themselves, giving to the language its usual, ordinary import and according
significance, if possible, to every word, phrase and sentence in pursuance of the
legislative purpose. A construction making some words surplusage is to be avoided.
The words of the statute must be construed in context, keeping in mind the statutory
purpose, and statutes or statutory sections relating to the same subject must be
harmonized, both internally and with each other, to the extent possible. [Citations.]
Where uncertainty exists consideration should be given to the consequences that will
flow from a particular interpretation. [Citation.] Both the legislative history of the
statute and the wider historical circumstances of its enactment may be considered in
ascertaining the legislative intent. [Citations.]"
As part of a statute's legislative history, the reports of legislative committees (see Hutnick v. United
States Fidelity & Guaranty Co. (1988) 47 Cal. 3d 456, 465, fn. 7) and of the state's Legislative
Analyst (see Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal. 3d 287, 300) may
properly be considered in analyzing the meaning of the language employed.
We have examined at length the legislative history of the amendment of section
44210 that made the Superintendent a voting member of the Commission. When this change
occurred in 1988 (Stats. 1988, ch. 1355, § 4.5), the report of the Senate Rules Committee described
the proposed change (referring to the Superintendent as the "SPI") as follows:
"Reduces the voting membership of CTC from 17 to 15 members. The
membership of CTC would include the SPI, six classroom teachers, four public
representatives, one school administrator, one other services credential holder,
one school board member, and one faculty member."
This same declaration of the proposed amendment's effect was contained in the report of the
Assembly Committee on Education. The report of the state Legislative Analyst similarly
declared:
"Specifically, under this bill, the commission would be composed of six
teachers, four public representatives, and one representative each of school
administrators, other certificated employees, local school board members,
university faculty, and the Superintendent of Public Instruction."
The legislative history of the 1988 amendment of section 44210 refers solely to
the Superintendent as the new voting member of the Commission. The Superintendent's designee
is not mentioned as a possible member; indeed, we have found no reference to the designee in
the legislative history of the 1988 amendment.
The legislative history also fails to mention the Superintendent's authority in
choosing a designee. Is the selection to be made under the general language of section 44210 or
under some other statutory authorization? We are informed by the Superintendent that the
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present designee has the qualifications of subdivision (f) of section 331124/ for purposes of
Government Code section 7.9. Subdivision (a) of section 7.9 of the Government Code states:
"Notwithstanding any provision of law to the contrary, the Controller, the
Treasurer, the Director of Finance, or the Superintendent of Public Instruction
may designate any deputy of his or her office to act in his or her place and stead
on any state board, commission, committee, or governing board of a state agency
with respect to the exercise of statutory powers and duties of any of those bodies.
The deputy, while sitting on a board, commission, committee, or governing board
of a state agency may exercise the same powers that the Controller, the Treasurer,
the Director of Finance, or the Superintendent of Public Instruction may exercise
as if he or she were personally present. The Controller, the Treasurer, the
Director of Finance, or the Superintendent of Public Instruction so designating a
deputy shall be responsible for the acts of the deputy acting under the designation
in the same manner and to the same extent that the Controller, the Treasurer, the
Director of Finance, or the Superintendent of Public Instruction is responsible for
the acts of the deputy performing his or her official duties as deputy to the
Controller, the Treasurer, the Director of Finance, or the Superintendent of Public
Instruction."5/
Construing section 44210 in light of its legislative history and in conjunction with
these related statutes, we believe that the Superintendent is the Commission member even when
he selects a designee to serve in his place. He acts through the designee and is responsible for
all acts of the designee with respect to the Commission's activities. The participation by the
designee at an executive session of the Commission may be considered as though the
Superintendent were personally present. The designee exercises the powers of and is subject to
the restrictions governing the Superintendent and does not have independent membership
authority on the Commission.
Returning to the controlling language of subdivision (a) of section 44248, we find
that it refers to a Commission member "who releases or gives out" information without proper
authorization. To "give out" is "to make known to or as if to the public." (Webster's Third New
Internat. Dict. (1966) p. 960.) "Release" may be similarly defined. (Id., at p. 1917.)
4. Section 33112 provides:
"The Superintendent of Public Instruction shall:
"........................
"(f) Designate and appoint, or terminate the designation and appointment of,
any officer or employee of the department to have the powers and liabilities of a
deputy, including designation pursuant to Section 7.9 of the Government Code,
which appointment and termination of appointment shall be effective when filed in
writing in the office of the Secretary of State."
5. Additionally, Government Code section 7.6 provides separate and independent authority for
the Superintendent to designate certain of his deputies "to act . . . in [his] place and stead, to all
intents and purposes as though [he] were personally present" during the proceedings of a state board,
commission, or committee of which he is a statutory member. (See 70 Ops.Cal.Atty.Gen. 250, 252-
253 (1987).)
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Here, the Superintendent is not to be considered a member of the public but rather
is the Commission member. The Superintendent's designee does not "release or give out"
Commission information by disclosing the information to the Superintendent, a Commission
member. The latter participates in the Commission's activities through his designee; disclosures
between the two are outside the scope of section 44248.
In answer to the first question, therefore, we conclude that information disclosed
at an executive session of the Commission to the designee of the Superintendent may be
discussed by the designee with the Superintendent without the authorization of the Commission.
2. Superintendent Disclosing to Department Legal Counsel
The Superintendent holds a constitutional office to which he is elected by the
voters of the state. (Cal. Const., art. IX, § 2.) He is also the Director of Education, the statutory
executive officer of the Department. (§§ 33300-33305; 56 Ops.Cal.Atty.Gen. 556, 560 (1973).)
The Department is authorized to have its own legal counsel. (§ 33110; Gov. Code, §§ 11041-
11042.) The Superintendent is a member of the Commission in his role as a constitutional
officer.
The Commission, as created under section 44210, is independent of the
Department. However, "[t]he Department of Education shall assist the commission in any
manner the commission may request . . . ." (§ 44222.) Legislature has provided the Commission
with its own staff. Section 44221 states in part:
"The commission may employ such personnel as may be necessary to
carry out its duties and responsibilities. The staff of the commission shall be
subject to the relevant system and procedures of the state civil service."
The Commission has its own legal counsel who provides advice and representation independent
of the Department's legal counsel.
Whether the Superintendent may disclose Commission information to the
Department's legal counsel without Commission authorization is not readily apparent from a
superficial reading of the relevant statutes. Nonetheless, we believe that the answer may be
found in the language of section 44248 when read in light of the Superintendent's unique role as
a Commission member.
Section 44248 prohibits any "State Department of Education employee" from
disclosing Commission information without proper authorization. The statute thus expressly
covers disclosures by the Department's legal counsel. This indicates that disclosures to the legal
counsel would not be considered as "outside" disclosures by the Legislature, since the statute's
coverage extends to the legal counsel as well.
The language of section 44248 clearly contemplates that at least some Department
employees will be in possession of confidential Commission information. The Legislature has
provided a close association between the Commission and the Department in the performance
of official duties. (See § 44222.) This is particularly true with respect to the Superintendent's
status as a Commission member.
The Superintendent is the only "ex officio" member of the Commission; he is a
Commission member by virtue of his constitutional office. His powers as a Commission member
are by operation of law. (§ 44210.) In contrast, the other Commission members are selected by
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the Governor with the advice and consent of the Senate. (Ibid.) Their Commission powers are
not conferred upon them by operation of law but rather by the act of an individual, the Governor.
Various consequences flow from this distinction between an "ex officio" board
member and one who is not. (See 62 Ops.Cal.Atty.Gen. 479, 490-492 (1979); 49
Ops.Cal.Atty.Gen. 85, 86 (1967); 29 Ops.Cal.Atty.Gen. 145, 148-149 (1957); 24
Ops.Cal.Atty.Gen. 56, 58 (1954).) For our purposes, it is important to recognize that the
Superintendent's role on the Commission is to give the perspective of his office.
The Legislature has provided the Superintendent with the Department's legal
counsel for consultation and advice in connection with the rendering of his public duties. To
deny the Superintendent the legal assistance of his office established by statute would measurably
diminish the very purpose and perspective for which the Legislature has placed him on the
Commission.
Under these circumstances, we are not prepared to say that Commission
authorization is required for the Superintendent to discuss Commission information with the
Department's legal counsel in order to fully perform his official duties. These private discussions
in the furtherance of official responsibilities do not constitute the "outside" disclosures prohibited
by section 44248. (See Parrott v. Rogers (1980) 103 Cal. App. 3d 377, 383.)
In answer to the second question, therefore, we conclude that information
disclosed at an executive session of the Commission may be discussed by the Superintendent
with legal counsel for the Department without the authorization of the Commission.
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