The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
_________________________
:
OPINION : No. 87-703
:
of : NOVEMBER 5, 1987
:
JOHN K. VAN DE KAMP :
Attorney General :
:
RODNEY O. LILYQUIST :
Deputy Attorney General :
:
________________________________________________________________________
THE HONORABLE CATHIE WRIGHT, MEMBER OF THE
CALIFORNIA ASSEMBLY, has requested an opinion on the following question:
May the Superintendent of Public Instruction designate the Director of
Public Relations for the State Department of Education to act in his place as a member of
the Commission on the Status of Women?
CONCLUSION
The Superintendent of Public Instruction may not designate the Director of
Public Relations for the State Department of Education to act in his place as a member of
the Commission on the Status of Women.
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ANALYSIS
The Commission on the Status of Women ("Commission") was created by
the Legislature (Gov. Code, §§ 8240-8246)1 to study the educational, employment, and
legal rights of women, to provide information concerning these rights, and to develop
"programs to encourage and enable women to be fully contributing members of society"
(§ 8245). (See Miller v. California Com. on Status of Women (1984) 151 Cal.App.3d
693, 696.) The Commission has 17 members, one of whom is the Superintendent of
Public Instruction ("Superintendent"). (§ 8241.)
The Superintendent holds a constitutional office to which he is elected by
the voters of the state. (Cal. Const., art. IX, § 2.)2 The question presented for analysis is
whether the Superintendent may designate the Director of Public Relations for the State
Department of Education ("Director") to act on his behalf as a member of the
Commission. We conclude that he may not.
Unless the Constitution specifically provides otherwise, the Legislature
may create whatever commissions it deems appropriate, designating their duties and the
members thereof. (See 56 Ops.Cal.Atty.Gen. 399, 400-401 (1973); 24 Ops.Cal.Atty.Gen.
56, 58 (1954).) The statutes dealing expressly with the Commission do not indicate that
the Superintendent (or any other Commission member) may choose someone else to act
in his place.
We have previously concluded that sections 7 through 7.9 limit and control
the authority of a state officer to designate another person to take his or her place on a
state commission, absent a specific statute (see, e.g., § 94304, subd. (a)(1)) granting such
authority. (62 Ops.Cal.Atty.Gen. 479, 486-487 (1979); 29 Ops.Cal.Atty.Gen. 145, 148-
149 (1957); 24 Ops.Cal.Atty.Gen. 56, 58-59 (1954).) Since neither the statutory scheme
dealing with the Commission nor any other specific statute provides otherwise, we must
look exclusively to these provisions for whatever authority the Superintendent may have
to appoint the Director to act in his place on the Commission. We find only sections 7.6
and 7.9 applicable with respect to the Superintendent.
1
All references hereafter to the Government Code are by section number only.
2
While the Superintendent is a member of the Commission in his role as a constitutional
officer, we note that he also serves as the Director of Education, the statutory executive officer of
the State Department of Education. (See §§ 33300-33305; 56 Ops.Cal.Atty.Gen. 556, 560
(1973).)
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Section 7.6 states:
"Whenever, by any law, any officer whose office is created by the
California Constitution is made a member of a state board, commission, or
committee, or of the governing body of any state agency or authority, such
officer may designate a deputy of his or her office holding a position
specified in subdivision (c) of Section 4 of Article VII of the California
Constitution to act as the member in the constitutional officer's place and
stead, . . .
".........................
"The Superintendent of Public Instruction may designate any person in his
or her office holding a position specified in Section 2.1 of Article IX of the
California Constitution to act as a deputy for the purposes of this
section. . . ."3
Pursuant to section 7.6, the Superintendent is authorized to "designate a
deputy of his or her office holding a position specified in subsection (c) of Section 4 of
Article VII of the California Constitution." This constitutionally specified position is one
that is filled by the Superintendent, with the holder of the position exempt from the state
civil service system. The Legislature has implemented this constitutional provision by
enacting Education Code section 33110:
"The Superintendent of Public Instruction may employ one Deputy
Superintendent of Public Instruction and necessary clerical and expert
3
Section 4 of article VII of the Constitution provides:
"The following are exempt from civil service:
". . . . . . . . . . . . . . . . . . . . . .
"(c) Officers elected by the people and a deputy and an employee selected by
each elected officer.
". . . . . . . . . . . . . . . . . . . . . ."
Section 2.1 of article IX of the Constitution states in part:
"The State Board of Education, on nomination of the Superintendent of Public
Instruction, shall appoint one Deputy Superintendent of Public Instruction and
three Associate Superintendents of Public Instruction who shall be exempt from
State civil service and whose terms of office shall be four years."
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assistants, and may fix the compensation of all statutory and other
employees as provided by law, except as otherwise provided."4
The Director is not the Deputy Superintendent of Public Instruction as provided in article
VII of the Constitution and Education Code section 33110.
Under an additional provision of section 7.6, the Superintendent is
specifically allowed to "designate any person in his or her office holding a position
specified in Section 2.1 of Article IX of the California Constitution to act as a deputy" for
purposes of the statute. This constitutional provision refers to the positions of "one
Deputy Superintendent of Public Instruction and three Associate Superintendents of
Public Instruction" appointed by the State Board of Education. The Director is neither a
Deputy Superintendent of Public Instruction nor an Associate Superintendent of Public
Instruction appointed by the State Board of Education. Hence, section 7.6 provides no
authority for the Superintendent to designate the Director as his replacement on the
Commission.5
Subdivision (a) of section 7.9 provides:
"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. . . ."
4
This grant of authority to the Superintendent to appoint one deputy is in distinct contrast to
the authority given other constitutional officers. The Treasurer, for example, is authorized to
"appoint . . . any officer or employee of his office . . . to have the powers and liabilities of a
deputy" (§ 12302), while the Controller may "appoint such deputy controllers . . . as may be
necessary for the proper conduct of his office" (§ 12402). Of course, some state officials have no
deputies. (See 62 Ops.Cal.Atty.Gen. 24, 26 (1979); 34 Ops.Cal.Atty.Gen. 24, 26 (1959).) A
government official may not appoint a deputy without appropriate legal authority. (Rauer v.
Lowe (1885) 107 Cal. 229, 232-233; 62 Ops.Cal.Atty.Gen. 479, 489 (1979); 59
Ops.Cal.Atty.Gen. 97, 100-101 (1976).)
5
We recognize that a Deputy Superintendent of Public Instruction or an Associate
Superintendent of Public Instruction could conceivably hold the title and position of Director.
The question presented, however, is limited to whether the Director is eligible for designation
without any other title, office, or position. We thus can categorically state that the
Superintendent has no authority under section 7.6 to make such designation.
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Section 7.9 provides a wholly separate and independent authority for the
Superintendent to designate a replacement on a state commission or board. The operative
words of the statute are: "the Superintendent of Public Instruction may designate any
deputy of his or her office to act in his or her place . . . ." Such language requires that the
designated person be a deputy6 to be eligible for the designation. (See 62
Ops.Cal.Atty.Gen. 479, 486, 488 (1979).)
In determining which persons are eligible for designation under section 7.9,
we may apply several well-established principles of statutory construction. The primary
rule in interpreting a statute is to "ascertain the intent of the Legislature so as to effectuate
the purpose of the law." (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640,
645; accord, People v. Craft (1986) 41 Cal.3d 554, 559.) "[W]hen interpreting a statute,
if its provisions are unclear, its purpose is paramount." (People v. Davis (1981) 29
Cal.3d 814, 828.) "[T]he legislative history of the statute and the wider historical
circumstances of its enactment are legitimate and valuable aids in divining the statutory
purpose." (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844.)
Of particular significance here is the rule that "[i]t will be presumed that the Legislature
adopted the proposed legislation with the intent and meaning expressed in committee
reports." (Curtis v. County of Los Angeles (1985) 172 Cal.App.3d 1243, 1250; see San
Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 863;
Southern Cal. Gas Co. v. Public Utilities Com. (1979) 24 Cal.3d 653, 659; Kern River
Access Com. v. City of Bakersfield (1985) 170 Cal.App.3d 1205, 1223; Wolfe v. Lipsy
(1985) 163 Cal.App.3d 633, 642, fn. 2.)
6
"A deputy is one authorized to exercise the office or rights which the officer possesses, for
and in place of the latter." (Wilbur v. Office of City Clerk (1956) 143 Cal.App.2d 636, 643-644;
see also People v. Horiuchi (1931) 114 Cal.App. 415, 432; 50 Ops.Cal.Atty.Gen. 120, 121
(1967); 34 Ops.Cal.Atty.Gen. 24, 26 (1959); 1 Ops.Cal.Atty.Gen. 78, 80-81 (1943).) In People
ex rel. State Lands Commission v. Superior Court (1974) 36 Cal.App.3d 727, 741, the court
stated:
"It is generally understood that there is a distinction between an employee,
agent or representative and a deputy. 'A deputy, by the very act and authority
which constitutes him such, has power to do any act which his principal may do,
and to do the act in his principal's name.'"
The functions of the principal that a deputy may perform are subject to legislative and
executive control. (See §§ 7, 7.7, 1194, 18572; Ed. Code, § 7; People v. Woods (1970) 7
Cal.App.3d 382, 387; People v. Hagan (1954) 128 Cal.App.2d 491, 493-494; 62
Ops.Cal.Atty.Gen. 479, 482, 486, 491 (1979); 56 Ops.Cal.Atty.Gen. 399, 401-402 (1973); 52
Ops.Cal.Atty.Gen. 75, 77 (1969); 31 Ops.Cal.Atty.Gen. 121, 125-126 (1958); 24
Ops.Cal.Atty.Gen. 56, 59 (1955).)
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Prior to 1985, section 7.9 made no reference to the Superintendent. (See
Stats. 1985, ch. 192, § 1; Stats. 1983, ch. 257, § 1.) He therefore had to rely upon his
limited authority under section 7.6 to designate persons specified in that statute to act in
his place on state commissions and boards. The legislative history of the 1985
amendment to section 7.9 is clear with respect to the purpose of the legislation. The
author of the bill gave the following statement:
"Under current law, only deputies appointed under Article 7, Section 4 (c)
and article 9, section 2.1 of the State Constitution can represent the
Superintendent on any boards or commissions.
"At the present time there are only three deputies who meet the criteria in
the Government Code. The Superintendent serves on 18 statutorily created
boards and commissions, in addition to the Regents of the University of
California, the California State University Board of Trustees, and the State
Board of Education. The latter three are not affected by this legislation.
"AB 967 would enable the Superintendent to dispatch his statutory and
constitutional duties, with education as a paramount concern. I urge an
'Aye' vote on this measure."
The report of the Senate Committee on Governmental Organization stated:
"The Department of Education argues that the Superintendent, like other
constitutional officers, is a member of more commissions, and committees,
etc. than he can serve on personally. AB 967 will permit the
Superintendent to utilize a total of six employees to represent him, rather
than the three authorized under current law."
This same statement was contained in the report of the Senate Rules Committee.
As previously indicated, the Director is not currently eligible for
designation by the Superintendent under section 7.6. Such was also the case prior to
1985 when section 7.9 was amended. It is equally apparent that the amendment of
section 7.9 was not intended to make the Director eligible. The three additional persons
intended to be covered by the 1985 legislation were deputy superintendents of public
instruction appointed by the Governor. Education Code section 33143, enacted in 1983
(Stats. 1983, First Ex. Sess., ch. 3, § 1), provides:
"In addition to the positions authorized by Section 2.1 of Article IX of the
California Constitution, the Governor, with the recommendation of the
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Superintendent of Public Instruction, shall appoint three deputy
superintendents of public instruction and three associate superintendents of
public instruction who shall be exempt from state civil service."
These three deputy superintendents of public instruction were not eligible to sit in place
of the Superintendent under section 7.6. Section 7.9 was amended in 1985 to allow for
their designation by the Superintendent.
Since the 1985 amendment of section 7.9, the Legislature has not created
any additional offices of deputy superintendent of public instruction; it has not authorized
the Superintendent to appoint any new deputies.7 As previously mentioned, the
Superintendent may not appoint deputies without constitutional or statutory authorization.
Also, formal procedures must generally be followed in order to appoint a deputy,
including the taking of an oath of office and the filing of the written appointment. (See
§§ 1190-1194; 62 Ops.Cal.Atty.Gen. 479, 492-493 (1979); 50 Ops.Cal.Atty.Gen. 120,
123 (1967).)
The Director does not hold the office or title of deputy superintendent of
public instruction or of associate superintendent of public instruction.8 Sections 7.6 and
7.9 were intended by the Legislature to allow the Superintendent to designate only certain
specified individuals to act in his place on state commissions and boards. The Director is
not one of these eligible individuals. Since the two statutes control the delegation
authority of the Superintendent with respect to his membership on the Commission, we
conclude that the Superintendent may not designate the Director to act in his place as a
member of the Commission.
*****
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