The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
FRANCESCA R. GESSNER
Acting Chief Deputy Attorney General
_______________
:
OPINION :
: No. 23-601
of :
: June 3, 2025
FRANCESCA R. GESSNER :
Acting Chief Deputy Attorney General 1 :
:
MANUEL M. MEDEIROS :
Deputy Attorney General :
The HONORABLE MIA BONTA, MEMBER OF THE STATE ASSEMBLY, has
requested an opinion on the following questions concerning the California State
Teachers’ Retirement System.
QUESTIONS PRESENTED AND CONCLUSIONS
1. May the Teachers’ Retirement Board assess penalties under Education Code
sections 23003, 23006, and 23008 against a county office of education for contribution
and reporting errors attributable to a charter school on whose behalf the county
superintendent of schools contributes and reports to the California State Teachers’
Retirement System (CalSTRS)?
Yes. The Teachers’ Retirement Board may assess penalties under Education Code
sections 23003, 23006, and 23008 against a county office of education for contribution
1
Attorney General Rob Bonta has recused himself from any personal involvement in the
Department of Justice’s response to this opinion request. Accordingly, the Acting Chief
Deputy Attorney General has exercised final authority over the Department’s handling of
this matter.
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and reporting errors attributable to a charter school on whose behalf the county
supervisor of schools contributes and reports to CalSTRS.
2. If the answer to Question 1 is yes, does the county office of education, through
its superintendent of schools, have an administrative remedy for contesting the
assessment of a penalty the superintendent believes to be incorrect?
Yes. The county office of education, through its superintendent of schools, may
seek and obtain an administrative appeal to contest the assessment of a penalty the
superintendent believes to be incorrect.
3. If the answer to Question 1 is yes, does Education Code section 23012
authorize the county superintendent of schools to recover funds used to pay the
assessment or penalty from the funds allotted to the charter school?
Yes. Education Code section 23012 authorizes the county superintendent of
schools to recover funds used to pay the assessment or penalty from the funds allotted to
the charter school.
BACKGROUND
This opinion request seeks clarification concerning the Teachers’ Retirement Law
based on concerns raised by the Alameda County Office of Education regarding
employer-reporting and contribution-remittance obligations to the California State
Teachers’ Retirement System (commonly known as CalSTRS). 2 As reflected in
applicable regulations, charter schools do not report directly to CalSTRS; instead, the
county superintendent of schools submits any required reports and contributions to the
system as an intermediary on the charter school’s behalf. 3
2
The Teachers’ Retirement Law is codified at Education Code section 22000 et seq.
Unless otherwise indicated, all statutory references in the text are to the Education Code.
3
The county superintendent of schools is typically the head of the county office of
education. (See Today’s Fresh Start, Inc. v. Los Angeles County Office of Education
(2013) 57 Cal.4th 197, 207 & fn. 4.) We use the terms “county superintendent” and
“county office of education” interchangeably as context warrants. Other than the county
office of education (or superintendent of schools), “direct reports” to CalSTRS are
limited to those specific school or community college districts—as opposed to individual
charter or non-charter schools—that the Teachers’ Retirement Board approves for direct
reporting. (Cal. Code Regs., tit. 5, § 27700, subd. (a)(4); see id. §§ 27702, 27703.)
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The Alameda County Superintendent of Schools acts as the intermediary for a
charter school in Alameda County. 4 If the county superintendent fails to timely forward
the required contributions, or timely submit complete reports, the Education Code
provides that the Teachers’ Retirement Board “shall, in accordance with regulations,
assess penalties.” 5
ANALYSIS
The Teachers’ Retirement Law established CalSTRS (sometimes referred to as the
“system” in the relevant statutes) to provide retirement benefits to California’s public
school educators who teach pre-kindergarten through community college. 6 The
Teachers’ Retirement Board has plenary authority and fiduciary responsibility for
administering the system, including regulating the duties of employers and other public
authorities, and requiring essential reports. 7
Teachers and other persons employed in connection with public schools, including
charter schools, may participate as members of CalSTRS. 8 Members and their employers
contribute a statutorily specified percentage of each member’s compensation to the
retirement plan. 9 Section 23000 requires employers to deduct the member’s contribution
from their creditable compensation and remit the correct amount, plus the employer’s
contribution, to CalSTRS in a timely fashion. 10 Section 23004 requires the county
superintendent of schools—or school or community college district directly reporting to
4
The charter school at issue is chartered by the Oakland Unified School District. The
requestor informs us that the Alameda County Superintendent of Schools serves as the
intermediary for 29 charter schools in Alameda County.
5
Ed. Code, §§ 23003, 23008 (failure to remit timely contributions); Ed. Code, § 23006
(failure to submit timely reporting); see also Cal. Code Regs., tit. 5, §§ 27003, 27007.
6
Ed. Code, § 22000 et seq.; Blaser v. State Teachers’ Retirement System (2019)
37 Cal.App.5th 349, 356.
7
Cal. Const., art. XVI, § 17, subd. (b); Ed. Code, §§ 22201, subd. (a), 22213, 22250; see
Duarte v. State Teachers’ Retirement System (2014) 232 Cal.App.4th 370, 384
(discussing statutory scheme governing Retirement Board).
8
Ed. Code, §§ 22146 (defining “member”), 22119.5, subd. (a)(3) (creditable service
performed for a charter school).
9
Ed. Code, §§ 22901, 22950, 22950.5, 22951, 23001; 89 Ops.Cal.Atty.Gen. 248, 248-
249 (2006).
10
Ed. Code, §§ 23000, 23002. “Creditable compensation” includes salaries or wages and
other remuneration for creditable service. (Ed. Code, § 22119.2.)
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the Board with the Board’s approval—to “submit a report monthly to the system
containing information as the board may require in the administration of the plan.” 11
The Teachers’ Retirement Law defines “employer” or “employing agency” to
include the county superintendent of schools, school districts, and participating charter
schools. 12 A charter school may elect to make the state retirement plan available to its
employees who perform creditable service on the same terms and conditions applicable to
non-charter public schools in the chartering district. 13
As mentioned above, charter schools are not authorized to report directly to
CalSTRS. 14 For this reason, the Retirement Law holds the county superintendent
responsible for submitting all required contributions and monthly reports to CalSTRS on
behalf of participating charter schools (as well as those school districts within the county
that are not approved as CalSTRS “direct reports”). 15
1. CalSTRS May Properly Assess Penalties under Education Code Sections
23003, 23006, and 23008 Against an Intermediary Superintendent for a
Charter School’s Contribution or Reporting Errors
a. Penalties imposed under section 23003 for contribution errors
Our requestor first asks whether CalSTRS may lawfully assess penalties against a
county superintendent for violating the employer contribution requirements of section
23000, inasmuch as that statute imposes on an employer only the obligation to deduct and
remit the contributions “of members employed by the employer.” 16 The request notes
that, in the case of charter schools, the county superintendent is not the employer of the
11
Ed. Code, § 23004.
12
See Ed. Code, § 22131, subd. (a).
13
Ed. Code, § 47611, subd. (a).
14
See Cal. Code Regs., tit. 5, §§ 27700, subd. (a)(4) (limiting “direct report” to an
elementary, high school, or unified school district, or a community college district, that is
approved to report directly), 27702, subd. (a) (Retirement Board authorized to approve or
deny a district as a direct report based upon specified criteria), 27703 (required
documentation for district’s approval).
15
Ed. Code §§ 23001, 23004; 47611.3; see CalSTRS Employer Directive 2001-
01 (Jan. 19, 2001), p. 2, available at https://resources.finalsite.net/images/v1637354371/s
dcoenet/cjr1mtalgysj9vqbre8h/ed01-01.pdf (as of June 3, 2025).
16
Ed. Code, § 23000, italics added.
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member employees whose contributions are at issue; rather, the charter school is the
employer for purposes of section 23000. 17
But even if a county superintendent is not the employer of employees whose
contributions are at issue, the superintendent is nevertheless obliged to remit
contributions on behalf of the charter school employer based on independent statutory
obligations as a direct report under sections 23001 and 47611.3. Section 23001 mandates
that “[e]ach county superintendent . . . that reports directly to the system shall draw
requisitions for contributions required by Sections 22901, 22901.7, 22950, and 22950.5
in favor of the State Teachers’ Retirement System.” 18 Section 47611.3 requires the
county superintendent to submit reports on behalf of charter schools. 19 Do these statutes
support CalSTRS’s practice of penalizing the county superintendent for charter school
errors? Reading them in the context of other provisions of the Teachers’ Retirement
Law, we conclude that they do.
Our task in construing a statutory scheme is to ascertain the intent of the
Legislature so as to effectuate the purpose of the law. 20 CalSTRS’s practice of imposing
penalties on a county superintendent for delinquent payment of member or employer
contributions is supported by the plain language of the Teachers’ Retirement Law.
As we have noted, section 23001 requires the county superintendent (among other
“direct reports”) to make monthly contributions to CalSTRs on behalf of employers and
members within the county. Specifically, it states that a direct report “shall draw
requisitions for contributions required” to be paid by members and employers under the
Retirement Law “in favor of the State Teachers’ Retirement System.” 21 Those
requisitions become warrants against the county treasury when allowed and signed by the
county auditor. 22 Section 23001 also requires the county superintendent to “forward the
17
See CalSTRS Employer Directive 2001-01, note 15, ante (“Charter schools are
reminded that, as an employer, they are responsible for the accuracy and timeliness of
CalSTRS monthly report information and contributions for their employees”).
18
Ed. Code, § 23001. Sections 22901 and 22901.7 concern calculation of member
contributions; sections 22950 and 22950.5 concern calculation of employer contributions.
19
Ed. Code, § 47611.3, subd. (a).
20
Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387-
1388 (hereafter, Dyna-Med, Inc.); Rodriguez v. Workers’ Comp. Appeals Bd. (2019)
39 Cal.App.5th 195, 203-204 (construing Public Employees Retirement Law);
89 Ops.Cal.Atty.Gen., supra, at p. 250 (Teachers’ Retirement Law).
21
Ed. Code, § 23001.
22
Id. Although the Retirement Law does not expressly define the term “requisition,” its
(continued…)
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warrants to the board in the system’s headquarters office.” 23 Section 23002 specifies the
deadlines for submitting member and employer contributions. And section 23003
requires the Board to assess penalties “if a county superintendent of schools . . . fails to
make payment of contributions as provided in Section 23002.” 24 Section 23003 thus
mandates the assessment of penalties on a county superintendent of schools who fails to
timely submit county treasury warrants to CalSTRS in payment of member and employer
contributions.
b. Penalties imposed under sections 23006 and 23008 for reporting errors
In a similar vein, section 23004 requires the county superintendent of schools
(among other “direct reports”) to submit a monthly report to CalSTRS
“containing information as the [B]oard may require in the administration of the plan” in
an encrypted format “that ensures the security of the transmitted member data.” 25
Section 23005 specifies the due date for those monthly reports. 26 The consequences for
reporting errors appear in sections 23006 and 23008.
Section 23006 requires the Board to assess penalties “if a county superintendent of
schools submits monthly reports, as specified by Section 23004, late, as defined in
Section 23005, or in unacceptable form.” 27 Section 23008 requires the county
superintendent or other CalSTRS direct report to make adjustments on its monthly
reporting for any underpayments or overpayments of contributions within 60 days of
learning of the error, and states that the Board “shall assess penalties for late or improper
adjustments pursuant to Section 23006.” 28
The penalty provisions of sections 23003, 23006, and 23008 require the Board to
assess penalties “if ” the county superintendent (or other direct report) fails to make the
required contribution, reporting, or adjustment. The statutes do not expressly direct that
the penalties shall be assessed against the direct report. But we believe that the best
use in this context corresponds to the dictionary definition as “requiring something to be
furnished,” as here requiring payment to be furnished from the county treasury to
CalSTRS. (Merriam-Webster’s Collegiate Dict. (11th ed. 2003), pp. 1058-1059;
Merriam Webster’s Online Dictionary, available at https://www.merriam-
webster.com/dictionary/requisition (as of June 3, 2025)).
23
Ed. Code, § 23001.
24
Ed. Code, § 23003.
25
Ed. Code, § 23004; see Cal. Code Regs., tit. 5, §§ 27000, 27001.
26
Ed. Code, § 23005.
27
Ed. Code, § 23006.
28
Ed. Code, § 23008.
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reading is that the penalties may be assessed against the party (i.e., the direct report) who
has failed to perform, or inadequately or insufficiently performed, the duties that the
statute requires of that party. This reading draws further support from section 23010—
discussed below in response to the requestor’s second question—which assumes as much
by providing that “[a] person or entity that reports directly to the system that is assessed
penalties or interest pursuant to Section 23003, 23006, or 23008 may appeal the assessed
penalties or interest subject to the appeals process established pursuant to Section
22219.” 29
c. Historical practice
Our understanding of this statutory scheme accords with historical practice. The
Legislature has long imposed responsibility on the county superintendent for submitting
employer and employee retirement contributions and reports to CalSTRS on behalf of
local school districts. 30 Delinquencies in contributions or reporting would result in a
withholding of subsequent State School Fund payments to the county school service fund
until the error was rectified. 31 The Legislature further provided that:
Such county superintendent of schools may in turn assess and collect from
any reporting school district, reporting to such county superintendent of
schools, any amount assessed by the board, including said interest, against
the county superintendent of schools, where the reporting school district
caused the county superintendent of schools to fail to report or to pay. 32
As we have shown, successor statutes similarly provide for assessment of penalties
on the county superintendent. 33 CalSTRS’s consistent application of these statutes over a
29
Ed. Code, § 23010, italics added.
30
See, e.g., Stats. 1969, ch. 896, § 2, pp. 1768, 1770 (former Ed. Code, §§ 14105,
14109), subd. (a) [“For members whose compensation is paid by the school districts, the
county superintendent shall draw requisitions against the funds of the respective school
districts within the county . . . .”]); see also, id, pp. 1763 (former Ed. Code, § 14056
[requiring superintendent to file annual report of members and contributions]) and 1770
(former Ed. Code, § 14109 [requiring county superintendent to draw requisitions against
school district funds for employer contributions and remit to the system, “along with such
reports relating thereto as the board may require”]); see Ed. Code, §§ 23001, 23004.
31
Stats. 1969, ch. 896, § 2, pp. 1763-1764 (former Ed. Code, § 14056). The county
school services fund is used by the county superintendent of schools to pay expenses as
authorized by law. (See Ed. Code, §§ 1600-1606.)
32
Stats. 1971, ch. 906, § 6, p. 1754 (former Ed. Code, § 14056).
33
Stats. 1976, ch. 1010, § 2, pp. 2952 (former Ed. Code, § 23003), 2953 (former Ed.
Code, § 23006); see Ed. Code, §§ 23003, 23006.
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period of time is an indication that the Legislature intended this settled administrative
construction to establish a normative practice. 34
In 2000, the Legislature enacted Education Code section 47611.3, which
references and further specifies the county superintendent’s reporting responsibility to
include charter schools participating in CalSTRS. 35 This statute requires the chartering
authority of a charter school—either a school district or the county board of education—
to create any reports required by CalSTRS when requested by the charter school to do so.
But regardless of which chartering authority creates the reports, the statute mandates that
“[t]he county superintendent of schools, employing agency, or school district that reports
to those systems . . . shall submit the required reports on behalf of the charter school.” 36
The statute thus confirms the Legislature’s expectation that the county superintendent (or,
in some cases, an authorized chartering school district) reports on behalf of charter
schools. Considering the plain language of the relevant statutes, and the history of their
application, we are satisfied that CalSTRS’s practice of assessing penalties against a
county superintendent who reports on behalf of an errant charter school comports with
the Legislature’s expectations.
We recognize that an intermediary county superintendent who is not the chartering
authority of an errant charter school may have limited ability to supervise the charter
school’s administrative practices. 37 Some county offices of education have attempted to
See, e.g., Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 708-709;
34
Wotton v. Bush (1953) 41 Cal.2d 460, 468; 64 Ops.Cal.Atty.Gen. 776, 779-780 (1981).
35
Ed. Code, § 47611.3; Stats. 2000, ch. 466, § 1. The Legislature enacted the Charter
Schools Act in 1992. (Stats. 1992, ch. 781, § 1.) At that time, the county
superintendent’s responsibility for submitting member and employer contributions on
behalf of charter-school teachers was already encompassed by section 23001—whether
those teachers are employed by the school’s chartering school district or by the charter
school itself as the employer for purposes of sections 22901, 22901.7, 22950, and
22950.5.
36
Ed. Code, § 47611.3, subd. (a); see CalSTRS Employer Directive 2001-
01 (Jan. 19, 2001), note 15, ante.
37
But see Ed. Code, §§ 47604.3 (“A charter school shall promptly respond to all
reasonable inquiries, including, but not limited to, inquiries regarding its financial
records, from . . . the county office of education that has jurisdiction over the school’s
chartering authority . . . and shall consult with . . . the county office of education . . .
regarding any inquiries”); 47604.4, subd. (a) (“[A] county superintendent of schools may,
based upon written complaints by parents or other information that justifies the
investigation, monitor the operations of a charter school located within that county and
conduct an investigation into the operations of that charter school”).
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address this problem by contract with the charter school. 38 In any event, our task is not to
judge the wisdom of legislation, but rather “to ascertain the Legislature’s intent so as to
effectuate the purpose of the law.” 39 Education Code section 22213 mandates that the
Board regulate the duties imposed by the Teachers’ Retirement Law on employers and
other public authorities, and section 22214 authorizes the Board to “take any action it
deems necessary to ensure the continued right of members or beneficiaries to receive
monthly payments.” 40 We believe that our construction of sections 23003, 23006, and
23008 effectuates the Legislature’s purpose. 41
2. An Intermediary County Superintendent May Seek and Obtain
Administrative Review of CalSTRS Penalty Assessments
Given our conclusion that CalSTRS may assess penalties against an intermediary
county superintendent based on contribution or reporting errors attributable to a charter
school on whose behalf the superintendent was acting, we now address the question
whether that county superintendent may appeal a CalSTRS penalty imposed on account
of such errors. We conclude that the superintendent does have a right of appeal in this
circumstance.
As mentioned above, Education Code section 23010 provides that “[a] person or
entity that reports directly to the system that is assessed penalties or interest pursuant to
Section 23003, 23006, or 23008 may appeal the assessed penalties or interest subject to
38
See, e.g., Santa Clara County Office of Education, Direct Funded Charter School Retir
ement Reporting Agreement for Fiscal Year 2021- 2, available at https://tinyurl.com/377f
axab (as of June 3, 2025); San Diego County Office of Education, “Agreement For Chart
er School Retirement Reporting Services,” available at” https://tinyurl.com/mw3cvbt7 (as
of June 3, 2025).
Dyna-Med, Inc., supra, 43 Cal.3d at p. 1386; see also Wells Fargo Bank v. Superior
39
Court (1991) 53 Cal.3d 1082, 1099; 96 Ops.Cal.Atty.Gen. 29, 34 & fn. 32 (2013).
40
Ed. Code, §§ 22213, 22214.
41
The requestor notes that it is “likewise unclear” whether the Board can properly
withhold a county office of education’s funding under Education Code section 23007 if
that office fails to pay a penalty that the Board assesses. (See Ed. Code, § 23007 [“If any
county superintendent, . . . , or other employing agency that reports directly to the system
fails to make payment of any assessment by the board, the Controller shall, upon order of
the board, withhold subsequent payments from the State School Fund to the county for
deposit in the county school service fund . . . .”].) That concern was premised on an
asserted lack of clarity as to whether the Board could lawfully assess penalties against an
intermediary school superintendent in the first instance. Given our conclusion that it may
indeed do so, it follows that the Board is authorized to withhold funding under section
23007 when faced with a superintendent’s failure to pay lawfully assessed penalties.
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the appeals process established pursuant to Section 22219.” 42 The descriptor “person or
entity that reports directly to the system” includes an intermediary county superintendent,
but not the charter school on whose behalf the superintendent reports. Education Code
section 22219 vests the Board with discretion to “hold a hearing for the purpose of
determining any question presented to it involving any right, benefit, or obligation of a
person under [Part 13, pertaining to the State Teachers’ Retirement System].” 43 Any
such hearing must be conducted pursuant to statutes governing formal administrative
adjudications. 44
Teachers’ Retirement Board regulation 27009—which implements section
23010—provides that an administrative hearing “shall be available” for disagreements
over the Board’s assessment of penalties. 45 The phrase “shall be available” has been
construed to refer to “a mandatory requirement, not a conditional one.” 46 And the word
“shall” is generally used in laws, regulations, or directives to express what is mandatory;
“may,” on the other hand, is usually permissive. 47 Thus, we may readily conclude that an
42
Ed. Code, § 23010, italics added.
43
Ed. Code, § 22219, subd. (a); see id. §§ 22000-25115 [Part 13].
44
Ed. Code, § 22219, subd. (b); see Gov. Code, § 11500 et seq.
45
Cal. Code Regs., tit. 5, § 27009, italics added (“An administrative hearing shall be
available to an employer that reports directly to the system when there is disagreement
over the assessment of penalties, interest, or both, pursuant to this article. . . .”); see
generally Cal. Code Regs., tit. 5, div. 3, ch. 1, art. 15.5 (“Penalties and Interest for Late
Remittances and Late and Unacceptable Reporting by Employers”), § 27000 et seq.
Although regulation 27009 uses the term “employer that reports directly to the system,”
and a county superintendent is usually not the employer of the charter school’s
employees, the county superintendent is nevertheless both an “employer” as defined by
Education Code section 22131 with respect to its own employees and a direct report to
CalSTRS on behalf of charter school employers. (See Ed. Code, § 47611.3; see also
CalSTRS Employer Directive 2001-01, note 15, ante.) In any case, the controlling
statute—Education Code section 23010—makes clear that “the person or entity that
reports directly to the system” may appeal from penalties assessed under section 23003,
23006, or 23008. That phrasing plainly encompasses an intermediary county
superintendent. Administrative regulations must be construed in a manner consistent
with the legislative purpose and may not conflict with the statute under which they are
promulgated. (See Transworld Systems, Inc. v. County of Sonoma (2000) 78 Cal.App.4th
713, 717; see also Gov. Code, § 11342.2.)
46
See, e.g., Alameda County Waste Management Authority v. Waste Connections US,
Inc. (2021) 67 Cal.App.5th 1162, 1180.
47
Ed. Code, §§ 10 (“Unless the provisions or the context otherwise requires these general
(continued…)
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intermediary county superintendent is entitled to seek and obtain an adjudicative
administrative hearing in a case of disagreement with CalSTRS concerning the
assessment of penalties or interest under section 23003, 23006, or 23008, arising from
errors attributable to a charter school for which the county superintendent is reporting. 48
Before turning to the next question, however, we note that the requestor expresses
some concern over how an intermediary county superintendent could sufficiently “defend
itself” in an appeal from a penalty assessed due to an employer charter school’s
contribution or reporting error. The requestor observes that a superintendent may lack
sufficient knowledge of the charter’s “reporting practices, employment relationships, job
duties, or contribution data,” and the charter school may have “little incentive” to help the
superintendent litigate the appeal.
We appreciate the requestor’s concern, but as discussed immediately below, an
intermediary county superintendent ultimately has the authority to recover funds used to
pay penalties assessed due to the charter school’s errors from the funds allotted to the
errant charter school. So there is an apparent financial incentive for the charter school to
provide relevant information, evidence, and explanations, and otherwise to cooperate
with the county superintendent in any appeal that the superintendent takes on the
charter’s behalf. The Legislature has crafted a penalty assessment and appeal scheme in
which an intermediary county superintendent is charged with representing the interests of
an errant charter school in an appeal taken under these circumstances. No other
administrative remedies are prescribed. We understand that some may question the
provisions, rules of construction, and definitions shall govern the construction of this
code”), 75 (“ʻShall’ is mandatory and ‘may’ is permissive”); see also People v. Standish
(2006) 38 Cal.4th 858, 869-870 (presumption is that the word “shall” in a statute is
ordinarily deemed mandatory); Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 133
(same). We also note that, with respect to forfeiture of an administrative hearing for lack
of a timely request, regulation section 27009 is similarly cast in mandatory terms: “If no
request for an administrative hearing is made within the time prescribed, the penalties,
interest, or both assessed shall be final and any right to an administrative hearing or
judicial review shall be deemed forfeit and waived.” In this case, we have no basis for
concluding that the Board intended “shall” to mean discretionary with respect to the grant
of a hearing but mandatory with respect to its forfeiture.
48
See Cal. Code Regs., tit. 5, § 27009. An administrative agency’s adjudicative decision
is judicially reviewable via a petition for administrative mandamus under Code of Civil
Procedure section 1094.5, while a denial of an adjudicative hearing is ordinarily subject
to judicial review via traditional mandamus under Code of Civil Procedure section 1085.
(See Gov. Code, § 11523 [“Judicial review may be had by filing a petition for a writ of
mandate in accordance with the provisions of the Code of Civil Procedure, . . .”]; see also
Morton v. Hollywood Park (1977) 73 Cal.App.3d 248, 254 [Section 1085 “anticipates an
arbitrary . . . refusal of a duly constituted board to hold a hearing.”].)
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wisdom of the policy embodied by this scheme. But it is not our role to consider what
may be the most desirable or effective policy, only to determine what the law provides. 49
Any change in current policy and the law that embodies it is a matter for the Legislature.
3. An Intermediary County Superintendent May Recover Funds Used to Pay
an Assessment or Penalty Imposed by CalSTRS as a Result of a Charter
School’s Contribution or Reporting Error from the Funds Allotted to the
Errant Charter School
Finally, we consider whether the county superintendent may recover funds used to
pay penalties assessed as a result of a charter school’s contribution or reporting error
from the funds allotted to the errant charter school. We conclude that a county
superintendent may do so.
As we noted earlier, the Legislature described its theory for allocating
responsibility between an intermediary county superintendent of schools and the
employers for whom the county superintendent directly reports in 1971. 50 It restated that
theory in Education Code section 24616.2(a)(3), in connection with recovery of benefit
overpayments. That statute provides that if overpayments are made due to errors of the
county superintendent, the overpayments must be recovered “from that county
superintendent”; but “if an overpayment resulted from an error of an employer, the
county superintendent of schools may recover the amounts required from that employer
pursuant to Section 23012.” 51
The Legislature enacted section 23012 at the same time as section 24616.2. 52 But
section 23012 is not limited to recovery of benefit overpayments. To the contrary,
subdivision (a) grants broad authority to the county superintendent to recover the cost of
penalties from errant employing agencies:
For the purpose of remitting contributions, assessments, or any other
payment required by the system, the county superintendent of schools that
reports directly to the system may, on an annual basis or as otherwise
directed by the system, draw requisitions against the county school service
fund and the funds of the county’s respective employing agencies in
amounts equal to the total required to be paid by the employing agency. 53
49
See Dyna-Med, Inc., supra, 43 Cal.3d at p. 1386.
50
See note 32, ante, and accompanying text.
51
Ed. Code, § 24616.2, subd. (a)(3); Stats. 2022, ch. 754, § 11.
52
Stats. 2022, ch. 754, § 9.
53
Ed. Code, § 23012, subd. (a).
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We have little difficulty construing section 23012(a) to encompass assessments
imposed pursuant to section 23003, 23006, or 23008. On its face, section 23012(a)
defines its purpose as “remitting contributions, assessments, or any other payment
required by the system.” 54 The word “assessment” is used frequently in connection with
penalties imposed by the Board. 55 The statutory language itself is the best indicator of
legislative intent. 56 Moreover, unlike section 24616.2, section 23012 was deliberately
situated in Chapter 17 of the Retirement Law, relating to “Employer Collection and
Reporting Procedures.” 57 This placement is further evidence that the Legislature
intended subdivision (a) to encompass payments or penalties owing under chapter 17. 58
Indeed, an early version of the bill that enacted section 23012 read in its entirety as
subdivision (a) reads today, which might have been construed to limit the statute’s
application only to assessments made under chapter 17. 59 To eliminate any confusion,
the bill was later amended to add subdivision (b), with its express cross-reference to
section 24616.2:
(b) Additionally, the county superintendent of schools may draw
requisitions against the county school service fund and the funds of the
county’s respective employing agencies, as applicable, in amounts
necessary for recovering payments made pursuant to Section 24616.2. 60
We are persuaded that the Legislature intended section 23012 to permit an intermediary
county superintendent to recover from an errant charter school employer, for whom the
county superintendent reports, penalties and assessments imposed by CalSTRS on the
superintendent because of errors committed by that charter school.
54
Ed. Code, § 23012, subd. (a), italics added.
55
See Ed. Code, §§ 23003, 23006, 23008.
56
Khajavi v. Feather River Anesthesia Medical Group (2000) 84 Cal.App.4th 32, 45-46;
91 Ops.Cal.Atty.Gen. 19, 20 (2008).
57
Ed. Code, tit. 1, div. 1, pt. 13, ch. 17, § 23000 et seq.; see official heading, Stats. 1993,
ch. 893, § 2, p. 4930.
58
Ed. Code, tit. 1, div. 1, pt. 13, ch. 17, § 23000 et seq. For purposes of discerning
legislative intent, courts may consider statute headings that are official and not merely
added by the publisher. (See 99 Ops.Cal.Atty.Gen. 56, 57, fn. 10 (2016), and authorities
collected there.)
59
See Assem. Bill No. 1667 (2021-2022 Reg. Sess.), as amended March 24, 2022, § 8.
60
Assem. Bill No. 1667 (2021-2022 Reg. Sess.) as amended Aug. 1, 2022, § 9.
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