State Board of Education v. Honig (13 Cal. App. 4th 720, 1993)

Court of Appeal of the State of California 1993-02-18

Citations

Full opinion text

Opinion

NICHOLSON, J.

The California Department of Education (Department) is administered through a State Board of Education (Board), appointed by the Governor and confirmed by the Senate, and an elected Superintendent of Public Instruction (Superintendent). (Cal. Const., art. IX, § 2; Ed. Code, §§ 33000, 33301, 33303.) The Board is “the governing and policy determining body of the department.” (§ 33301, subd. (a).) The Superintendent is vested with all executive and administrative functions. (§ 33301, subd. (b).) Although the statutory division of responsibility for administration of the Department appears clear, its implementation has fostered occasional turf battles between the Board and various Superintendents for more than 70 years. This original proceeding represents the latest skirmish.

The Board seeks a peremptory writ of mandate ordering the Superintendent to implement a series of policies adopted by the Board in September 1990 and April 1991. The Superintendent responds he has voluntarily implemented some of the policies, but argues he is under no clear, present, and ministerial duty to implement any of them.

The policies involve four areas of governance: approval of the Department’s program guidelines; appointment of constitutionally authorized deputy and associate superintendents; approval of the Department’s proposed budget and continuing oversight of that budget; and appointment of Board staff. Also at issue are requests the Superintendent prepare a Department organizational chart consistent with the legal opinion of the Board’s special counsel, and process a $150,000 legal services contract to enable the Board to pay independent counsel hired to pursue litigation against the Superintendent.

We conclude the Board is entitled to a writ of mandate directing the Superintendent to (1) implement Policy No. 2 by submitting to the Board his nominations for deputy and associate superintendents under article IX, section 2.1 of the California Constitution; (2) implement Policy No. 5 which concerns the Board’s request for additional staff; (3) implement the continuing budget oversight policy relating to the Board’s periodic review of performance evaluations for key Department employees; and (4) process the Board’s legal services contract in the manner requested by the Board. The petition is denied in all other respects for reasons we shall explain.

Historical and Procedural Background

I

Historical Perspective

The constitutional and statutory scheme which divides administrative responsibility between the Superintendent and the Board has existed for more than 70 years.

California’s first Constitution, enacted in 1849, stated “[t]he legislature shall provide for the election, by the people, of a superintendent of public instruction, who shall hold his office for three years, . . .” (Cal. Const, of 1849, art. IX, § 1.) Although provisions relating to the term of office and manner of election have been amended from time to time (Cal. Const, of 1849, art. IX, § 1, as amended in 1862; Cal. Const, of 1879, art. IX, § 2, as amended in 1960, and in 1990 by Prop. 140), the position of Superintendent remains an elective office. (Cal. Const., art. IX, § 2.)

In 1852, the Legislature established the first Board, which consisted of the Governor, Surveyor-General, and the Superintendent. (Stats. 1852, ch. 53, art. I, § 1, pp. 117-118; see Ferris, Judge Marvin and the Founding of the California Public School System (1962) p. 80.) The Board advised and supervised the Superintendent on apportionment of state school funds to the counties. (Stats. 1852, ch. 53, art. IV, § 1, subd. 5, pp. 122-123.)

Legislation enacted in 1870 changed the composition of the Board to include “the Governor, the Superintendent of Public Instruction, the Principal of the State Normal School, the Superintendent of Public Schools of the City and County of San Francisco, the Superintendent of Common Schools of the respective Counties of Sacramento, Santa Clara, Alameda, Sonoma and San Joaquin, and of two professional teachers, who shall be nominated by the Superintendent of Public Instruction, and elected by and with the advice and consent of said Board; . . .” (Stats. 1869-1870, ch. 556, § 1, p. 824.)

An 1884 constitutional amendment granted the Board authority to establish a uniform system of textbooks. However, Board members still served “ex officio,” that is, by virtue of their positions as Governor, Superintendent, and principals of the normal and common schools. In 1894, the president of the University of California, “and the professor of pedagogy therein” became ex officio members of the Board. (Cal. Const, of 1879, art. IX, § 7, as amended in 1884 and 1894; see also Mem. to Art. IX Com. Members, Const. Revision Com. (Nov. 22, 1966) p. I.)

In 1912, a constitutional amendment abolished the ex officio Board, stating “[t]he Legislature shall provide for the appointment or election of the State Board of Education . . . .” (Cal. Const, of 1879, art. IX, § 7, as amended in 1912.) In 1913, the Legislature amended section 1517 of the Political Code thereby establishing a Board of seven members to be appointed by the Governor to serve four-year terms. (Stats. 1913, ch. 328, § 1, p. 659.) It also amended section 1518 of the Political Code to outline the respective duties of the Board and Superintendent: “The superintendent of public instruction shall be secretary of the board. Such secretary shall have charge of all correspondence and keep a record of its proceedings. The superintendent of public instruction shall act as the executive officer of the state board of education. It shall be the duty of the state board of education to determine all questions of policy, it shall be the duty of the superintendent of public instruction to execute, under direction of the board, the policies which have been decided upon, and to direct, under such general rules and regulations as the state board of education may adopt, the work of all assistant superintendents of public instruction, and such other appointees and employees of the board as may be provided by law.” (Stats. 1913, ch. 328, § 2, pp. 659-660, italics added.)

The Superintendent was also responsible for superintending the schools of the state. (Former Pol. Code, § 1532.) A historian later observed: “The constitutional amendment of 1912 and the legislation of 1913 resulted in a new attitude toward the agency for public education at Sacramento. Previously it had been dominated by the superintendent, and the unofficial term ‘Department of Public Instruction’ was frequently employed. From 1913 on, the State Board of Education became of increasing importance, and the unofficial term ‘Department of Education’ was more often employed in speaking of the activities of the public education agency. Previously the board had been a professional ex-officio body advising and assisting the superintendent; now there was a lay body assuming responsibility for a growing number of functions.” (Johnson, Development of the Central State Agency for Public Education in California, 1849-1949 (1952) p. 77.)

The practical result of the foregoing constitutional and statutory scheme was that two educational agencies functioned within the state government. Although the Board and Superintendent cooperated effectively for a number of years to expand California’s educational services, observers predicted trouble. In 1919, the Blue Bulletin, a publication of the State Department of Education, warned: “The fact that the two state departments of education have in the past succeeded in working together, and that the recent promotion of an officer of the state board to the position of Superintendent of Public Instruction insures the welding together of the two departments for the present, should not lull the people into forgetfulness of the fact that legally we have two more or less distinct state departments. No one can say how soon a change in personnel in these two departments may bring them into conflict. They are both administrative departments and conflict between them would be disastrous to educational leadership in this state.” (E. R. Snyder, State Department Reorganization (Mar. 1919) Cal. Blue Bul., p. 2.)

The Legislature also recognized an appointed Board and elected Superintendent were destined for conflict. A special legislative committee on education, chaired by Senator Herbert Jones (Mem. to Art. IX Com. Members, Const. Revision Com., supra, p. 3), reported in 1920: “. . . that part of the state educational organization represented by the State Board of Education is clearly responsible to the Governor and the Legislature for its acts, while that part represented by the Superintendent of Public Instruction remains independent of both State Board of Education and Governor, and largely independent of the Legislature as well, and may work with the State Board of Education or against it, according to the character of the official elected to the office of Superintendent. [1] . . . [f] Still more, an antagonized or antagonistic Superintendent might at some time raise the constitutional question as to the right of the State Board of Education to do anything whatever in the nature of supervision, claiming that it has no power other than regulatory power. In support of this he could claim that the superintending function, in its very nature, is an integral and indivisible function— that there cannot be two superintending agencies.” (Rep. of the Special Legis. Com. on Ed. (Cal. State Printing Off. 1920) p. 19.)

The “Jones Report” found “[t]he present state school administrative organization in California is double-headed, and contains elements that could easily produce discord and destroy its efficiency.” (Rep. of the Special Legis. Com. on Ed., supra, at p. 30; Mem. to Art. IX Com. Members, supra, at p. 3.) It recommended a constitutional amendment to abolish the elected office of Superintendent and replace it with a Commissioner of Education appointed by the Board. (Rep. of the Special Legis. Com. on Ed., supra, p. 30.) It also recommended the educational organization be unified under a State Department of Education. {Ibid.)

In 1921, the Legislature created a unified Department of Education. The Department was to be “conducted under the control of an executive officer to be known as director of education, . . .” (Stats. 1921, ch. 605, § 1, pp. 1033-1035.) Under this statute, the Superintendent was ex officio Director of Education. {Ibid.) The implementing legislation added former Political Code section 362b which provided the Department “. . . shall succeed to and is hereby invested with all the duties, powers, purposes, responsibilities and jurisdiction of the state board of education” and various other existing boards. (Stats. 1921, ch. 605, § 1, pp. 1034-1035.)

The 1921 reorganization did not significantly alter the relationship between the Board and Superintendent. Predictions of open conflict were realized in 1926, when a newly appointed Board refused to confirm the candidates the Superintendent appointed as presidents for the state colleges at San Francisco and San Jose. (Mem. to Art. IX Com. Members, supra, at p. 3; Bull. No. G-2, Cal. State Dept, of Education (Cal. State Printing Off. 1928) p. 8.) In 1927, the Legislature amended the Political Code to provide for Senate confirmation of the Governor’s appointments to the Board. (Stats. 1927, ch. 453, § 1, p. 774.)

As a result of this impasse, the November 1928 ballot included Proposition 6, a proposed constitutional amendment expanding the Board to 10 members, and extending the Board’s term to 10 years. The proposed amendment also authorized the Legislature to eliminate the elected position of Superintendent and create a Director of Education to be appointed by the Board. (Ballot Pamp., Proposed Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 6, 1928), arguments for and against Prop. 1, pp. 12-13.) The proposed amendment was defeated by voters. (Mem. to Art. IX Com. Members, supra, at p. 3; Statement of Vote, Gen. Elec. (Nov. 6, 1928) p. 32.)

In 1929, the Legislature enacted a separate School Code. (Sch. Code (Cal. State Printing Off. 1929) p. 1.) Section 2.1321 of that School Code provided: “The state department of education shall be administered through: [f] (1) The state board of education which shall be the governing and policy determining body of the department; [j[] (2) The state director of education in whom all executive and administrative functions of the department are vested and who is the executive officer of the state board of education.” (Stats. 1929, ch. 162, p. 303; Sch. Code, supra, p. 107.) This statutory language is now found in section 33301.

There was little legislative activity in the education field during the next two decades. However, near the end of World War II, the State Reconstruction and Reemployment Commission issued a report recommending various educational reforms, including a constitutional amendment to “provide for the selection of [the Superintendent] by a lay board rather than by popular vote.” (State Reconstruction and Reemployment Com., The Administration, Organization and Financial Support of the Public School System, State of Cal. (Feb. 1945) p. 8.) However, the proposed constitutional amendment, designated Proposition 13, did not appear until November 1958. (Ballot Pamp., Proposed Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 4, 1958), arguments for and against Prop. 13, pp. 17-18.) It was rejected by the voters. (Statement of Vote, Gen. Elec. (Nov. 4, 1958) p. 32.)

The commission report also recommended the Superintendent be given authority to nominate four non-civil-service (exempt) administrators for election by the Board to assist the Superintendent “in the development of state-wide policy.” (State Reconstruction and Reemployment Com., The Administration, Organization and Financial Support of the Public School System, State of Cal., supra, at p. 16.) Submitted as a constitutional amendment on the November 1946 ballot, Proposition 9 was approved by the voters. (Ballot Pamp., Proposed Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 5, 1946), arguments for and against Prop. 9, p. 9; Statement of Vote, Gen. Elec. (Nov. 5, 1946) p. 34.) The constitutional provision appears as article IX, section 2.1, and provides: “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, [f] This section shall not be construed as prohibiting the appointment, in accordance with law, of additional Associate Superintendents of Public Instruction subject to State civil service.” (Cal. Const., art. IX, § 2.1, italics added.)

In 1968, the voters defeated Proposition 1, a constitutional amendment which included a provision changing the manner of selecting the Superintendent. The proposed amendment stated in part: “The Superintendent of Public Instruction shall be elected by the people, unless the Legislature by enactment of a statute passed by two-thirds vote of all members elected to each house provides for a different method of selection.” (Ballot Pamp., Proposed Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 5,1968), full text of Prop. 1, pt. II, p. 1; Statement of Vote, Gen. Elec. (Nov. 5, 1968) p. 27.)

II

Attorney General Opinions on Governance Questions

We have described how the constitutional and statutory division of labor between the Board and Superintendent raised concerns about governance of the state educational system. On at least three occasions in the last fifty years, the Board and Superintendent sought the Attorney General’s legal opinion on questions relating to governance.

In 1943, the Board requested the Attorney General’s opinion “ ‘as to the legal position of the State Board of Education and the State Department of Education.’ ” (1 Ops.Cal.Atty.Gen. 36 (1943).) The Attorney General reviewed various sections of the Constitution, School Code, and Political Code outlined above, and acknowledged the statutes were “quite contradictory and ambiguous in their terms ...” (Id. at p. 38.) He nonetheless concluded the Department was “administered jointly by a governing and policy determining body, the state board of education, and executive officer, the director of education [Superintendent]. [][] The only alternative interpretation would be that [the applicable sections of the School Code] leave the state board of education with no function except the adoption of elementary texts. . . . [1] The relative positions of the director [Superintendent] and board are not unlike the relationship between the executive head of a corporation and its board of directors.” (Ibid.)

Beyond that, the Attorney General refused to address conflicts that might arise between the Board and Superintendent in the future. However, he suggested the ambiguous language be called to the attention of the Legislature “so that it may, if it deems it proper, clarify the code sections relative to the respective powers, duties and functions of the State Board of Education, the Superintendent of Public Instruction and the State Department of Education.” (1 Ops.Cal.Atty.Gen., supra, at p. 39.) As we have seen, the Legislature took no action in that regard.

In 1954, the Superintendent asked whether the Board could set different admission standards for the 10 state colleges, and delegate to the Superintendent authority to modify those standards. (24 Ops.Cal.Atty.Gen. 215, 215-216 (1954).) The Attorney General concluded the Board had authority to set separate standards, but the Superintendent must act within the standards set by the Board. Pertinent to our inquiry is the Attorney General’s explanation of what it meant to execute Board policy concerning admission standards: “the director [Superintendent] has the duty to see that the standards set by the state board are carried into effect and may fill in the details within the framework set by the board. The board may delegate to the director [Superintendent] as administrative officer the power to determine specific facts upon which an application of the board’s rule is made to depend. By such delegation the director is vested with mere ministerial and administrative functions which are to be exercised in obedience to and in conformity with the definite rules, guides and standards.” (Id. at p. 218.)

A more heated governance question gave rise to the Attorney General’s “Rafferty Opinion.” (41 Ops.Cal.Atty.Gen. 105 (1963).) Max Rafferty, the Superintendent, supported certain legislation relating to education. The Board adopted a resolution directing the Superintendent to inform the Legislature of the Board’s opposition to the legislation and the reasons for that opposition. At the same time, the Board encouraged the Superintendent to make his own recommendations to the Legislature, so long as he indicated they were not the Department’s recommendations. (Id. at p. 107.)

The Superintendent asked the Attorney General to advise him whether “the Superintendent of Public Instruction as an elected constitutional officer [has] the legal right to refuse to execute an order of the board to perform an act which would be contrary to his beliefs and wishes[.] Specifically, can he, in his capacity as Superintendent of Public Instruction, lawfully support a legislative bill which the state board has ordered to be opposed by the executive officer of the board and by the department?” (41 Ops.Cal.Atty.Gen., supra, at p. 105.)

The Attorney General looked to the Constitution and statutes to determine the scope of authority of the Board and Superintendent. (41 Ops.Cal.Atty.Gen., supra, at p. 108.) Repeating the corporate analogy (1 Ops.Cal.Atty.Gen., supra, at p. 38), he concluded “the ultimate governing and policy making body for the department and its officers and employees ... is the State Board of Education. Without ultimate control over the conduct of the officers and employees of the Department of Education, the State Board of Education cannot insure the implementation of its policies.” (41 Ops.Cal.Atty.Gen., supra, at p. Ill, italics added.) Thus, the Superintendent may not properly refuse to execute an order solely because the order is contrary to his own personal beliefs and wishes. (Id. at p. 106.) The Attorney General closed with the observation: “This analysis of the respective powers and duties of the State Board of Education and the Superintendent of Public Instruction once again underscores the long-recognized problem existing in this area. It would be fruitless here to discourse upon the difficulty of requiring a policy-making board appointed by the Governor [and confimed by the Senate] to have its policies carried out by and through an individual who is elected by the people.” (Id. at pp. 114-115.)

With this historical foundation in mind, we turn to the specifics of the case before us.

III

The Procedural Context of This Case

In February 1990, the Little Hoover Commission issued a report entitled, “K-12 Education in California: A Look at Some Policy Issues” (1990 Little Hoover Commission Report). The commission found the structure of the California educational system was not operating as legally intended. It observed “the Superintendent of Public Instruction has assumed the role of policy maker and the State’s schools are without the benefits associated with an educational policy governed by a strong state board.” (1990 Little Hoover Com. Rep., p. 1.) Two of the commission’s eight recommendations are relevant to the current dispute.

First, the commission urged enactment of legislation giving the Board express authority to approve proposed Department budgets. “Such an amendment should make it clear that the Board’s authority is superior to the authority of the Department over the proposed budget for the Board’s activities as well as the activities of the Department.” (1990 Little Hoover Com. Rep., supra, at p. 35.) Second, based on a concern the Department was circumventing the State’s regulatory process in its approval and distribution of program guidelines, the commission recommended the Attorney General file an action to prevent further alleged violations of the Administrative Procedure Act. (Id. at pp. 35-36.)

The 1990 Little Hoover Commission Report prompted Board action. On September 14, 1990, the Board adopted five policies and approved related amendments to its bylaws. Policy No. 1 provides for review and approval of all Department program guidelines. Policy No. 2 pertains to nomination of constitutionally authorized deputy and associate superintendents. Policy No. 3, which involves appointment of an acting Board secretary when the Superintendent is out of the state, is not at issue in these proceedings. Policy No. 4 relates to approval and oversight of the Department budget. Policy No. 5 provides for the funding and appointment of additional staff to the Board. The Board directed the Superintendent to perform the administrative work necessary to implement its policies.

At the October 12, 1990, Board meeting, the Superintendent presented a legal memorandum prepared by the Department’s general counsel which asserted four of the five policies were not authorized by law and could not be adopted by the Board. The Superintendent stated the Board could obtain advice from independent legal counsel if conflict arose over specific policies. The Board identified five areas of existing or potential conflict with general counsel’s legal opinion. It requested separate legal counsel to review the challenged policies with the Superintendent, and identify areas of agreement. On October 15, 1990, following consultation among Board President Dr. Joseph Carrabino, Board member Joseph Stein, and the Superintendent, the Department entered into a legal services contract with Howard Dickstein, an attorney who had previously worked with the Little Hoover Commission on educational issues.

Dickstein submitted his legal opinion to the Board on December 7, 1990. He concluded the Board had “the authority to achieve each of the objectives it sought to achieve when it adopted the policies . . . .” He recommended revisions “to more clearly express the intent of the Board and to limit their scope to coincide with the Board’s legal authority over policy and governance.” The Department’s general counsel prepared a brief response to Dickstein’s opinion.

The Board, Superintendent, and their respective counsel attempted to resolve the governance issues. Two proposed memoranda of understanding were prepared over a period of several months. Dickstein’s first proposed memorandum of understanding (First Memorandum), dated December 4, 1990, included a budget oversight provision. A second proposed memorandum of understanding (Second Memorandum), dated January 8, 1991, omitted the budget oversight provision. Dickstein presented the Second Memorandum at the January 11, 1991, Board meeting. The Superintendent urged the Board to approve it. After lengthy discussion, the Board voted to postpone its vote.

On March 6, 1991, the Board rejected the Second Memorandum. It also rejected legal opinions prepared by the Department’s general counsel on October 10, 1990, and December 13, 1990, which were in conflict with Dickstein’s December 7, 1990, legal opinion, and accepted the latter. The Board confirmed “it was the Board’s intent in adopting the September 1990 policies to exercise budget oversight and approval authority over the California Department of Education Budget.” Finally, the Board directed the Superintendent to prepare policies, procedures, bylaw changes, and regulations necessary to implement the Board’s budget approval and oversight authority.

The Board reaffirmed its rejection of the Second Memorandum at the April 12, 1991, Board meeting. It also adopted a resolution “that the Board obtain independent counsel for the purpose of seeking declaratory relief action to clarify the governance and authority of the Board and the Superintendent.” The Superintendent described the procedure to be followed to secure funding for outside counsel, stating “the Board must send a formal request to him and . . . pass a motion.” He also suggested the Board go to the Legislature for funding for legal counsel because there was no money in the Department budget for that purpose.

On April 18, 1991, Carrabino asked the Superintendent to respond at the next Board meeting to the Board’s recent actions on authority and governance. On May 1, 1991, the Superintendent requested clarification of “significant inconsistencies” between the Board’s actions and Dickstein’s December 7, 1990, legal opinion.

Carrabino responded on May 8,1991, that the action taken by the Board at its April meeting confirmed its intent to adopt the September 1990 policies. The policies and any administrative work necessary to implement those policies were to incorporate the changes suggested in Dickstein’s legal opinion of December 7, 1990. Implementation of the budget oversight provision was to be consistent with the First Memorandum. Organizational charts were to be consistent with Dickstein’s legal opinion. Carrabino told the Superintendent he expected the Superintendent to advise the Board at its June meeting that he had made a good faith effort to comply with the Board’s directions.

Attempts at clarification continued at the June 14, 1991, Board meeting. The Board sought the Superintendent’s response regarding implementation of policies that required no clarification. The Superintendent did not respond to this request. The Board ratified Carrabino’s May 8 memo to the Superintendent as the expression of its intent to have budget oversight implemented in accordance with the provisions of the First Memorandum. The Board then authorized Carrabino to “enter into contract with a private counsel for the purpose of seeking legal advice to explore the possibility of litigation in the event litigation is necessary . . . .” It also directed the Superintendent to allocate Department funds to pay independent counsel, but the Superintendent responded no funds would be expended for that purpose.

Several months before, counsel for the Little Hoover Commission asked the Office of Administrative Law to determine whether certain Department program guidelines were prescriptive regulations subject to the Administrative Procedure Act. In June 1991, the Department’s general counsel sent its response to the Office of Administrative Law. The Superintendent represents the action is still pending before that agency.

On July 11, 1991, the Superintendent sent Carrabino his “latest, and perhaps final response” to the policies adopted by the Board. He reiterated his legal position that four of the five policies were not authorized by law. The Superintendent indicated he was unsure what direction he would take with respect to the constitutional appointments, but would decide when an opening occurs. He explained the extent to which he intended to cooperate with the Board by providing advance draft copies of program guidelines. He also stated he would submit the proposed Department budget to the Board before forwarding it to the Department of Finance. However, the Superintendent refused to alter the current Department organizational chart or authorize expenditure of public funds to pay for independent counsel.

The Board filed its petition for writ of mandate in the California Supreme Court on November 14, 1991. The Supreme Court transferred the petition to this court, and we issued an alternative writ. After the parties submitted extensive briefing and exhibits, we requested supplemental briefing to clarify certain legal and factual questions.

Discussion

I

Writ of Mandate

A court may issue a writ of mandate “to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; . . .” (Code Civ. Proc., § 1085.) Mandate will lie only where (1) the respondent has a clear, present, and usually ministerial duty to act, and (2) the petitioner has a clear, present, and beneficial right to performance of that duty. (People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 491 [96 Cal.Rptr. 553, 487 P.2d 1193].) However, the writ will not lie to control the discretion conferred upon a public officer or agency. (Ibid.) The latter rule derives from the view “ ‘[c]ourts should let administrative boards and officers work out their problems with as little judicial interference as possible. . . ” (Lindell Co. v. Board of Permit Appeals (1943) 23 Cal.2d 303, 315 [144 P.2d 4].)

These proceedings focus on the question whether the Superintendent has a clear, present, and ministerial duty to implement the policies adopted by the Board. Neither party questions the Board’s beneficial right to performance of the duty, if the duty, in fact, exists.

II

No Present Duty to Implement Four of the Disputed Policies

The Superintendent offers various reasons the Board is not entitled to a writ of mandate. Among these is the assertion he is under no present duty to implement five of six disputed policies because (1) he has already satisfied the Board’s requests to the extent he is able, or (2) his action is not yet required. We now review the legal principles which assist us in determining whether the question of the Superintendent’s duty to act is either moot or unripe for resolution, analyze four of the disputed policies, and briefly discuss the legal impact of potential recurrence of conflict.

A. Mootness

Because equitable principles apply in mandamus proceedings, we may properly consider all relevant evidence, including facts which arose after the Board filed its petition for writ of mandate. (Cooke v. Superior Court (1989) 213 Cal.App.3d 401, 407 [261 Cal.Rptr. 706].) If such evidence demonstrates the Superintendent’s “willingness to perform without coercion, the writ [of mandate] may be denied as unnecessary; and if he shows actual compliance, the proceeding will be dismissed as moot.” (8 Witkin, Cal. Procedure (3d ed. 1985) Extraordinary Writs, § 73, p. 712.) No purpose would be served in directing the Superintendent to do what has already been done. (Bruce v. Gregory (1967) 65 Cal.2d 666, 671 [56 Cal.Rptr. 265, 423 P.2d 193].)

However, when a pending case involves a question of broad public interest which is likely to recur between the same parties or others, “the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot.” (In re William M. (1970) 3 Cal.3d 16, 23 [89 Cal.Rptr. 33, 473 P.2d 737]; see also In re Jeanette H. (1990) 225 Cal.App.3d 25, 29-30 [275 Cal.Rptr. 9].)

B. Ripeness

In Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158 [188 Cal.Rptr. 104, 655 P.2d 306], the California Supreme Court considered two actions consolidated on appeal. The second of the two involved a lawsuit by the Pacific Legal Foundation and a group of coastal owners seeking a declaratory judgment, injunctive relief, and a writ of mandamus challenging the policies embodied in the commission’s public access guidelines. (Id. at p. 163.) The court stated, “a basic prerequisite to judicial review of administrative acts is the existence of a ripe controversy.” (Id. at p. 169.)

The ripeness requirement prevents courts from issuing purely advisory opinions. (Pacific Legal Foundation, supra, 33 Cal.3d at p. 170.) “It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion. It is in part designed to regulate the workload of courts by preventing judicial consideration of lawsuits that seek only to obtain general guidance, rather than to resolve specific legal disputes. However, the ripeness doctrine is primarily bottomed on the recognition that judicial decisionmaking is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy. On the other hand, the requirement should not prevent courts from resolving concrete disputes if the consequence of a deferred decision will be lingering uncertainty in the law, especially when there is widespread public interest in the answer to a particular legal question.” (Ibid.)

Quoting Abbott Laboratories v. Gardner (1961) 387 U.S. 136,148-149 [18 L.Ed.2d 681, 691, 87 S.Ct. 1507], the Supreme Court in Pacific Legal Foundation adopted the federal court’s approach to the ripeness doctrine in the context of an action challenging administrative regulations prior to their application: “ ‘The injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy “ripe” for judicial resolution. Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’ ” (Pacific Legal Foundation, supra, 33 Cal.3d at p. 171.)

The Supreme Court applied Abbott Laboratories’ s two-pronged federal test for ripeness and considered: (1) the fitness of the issues for judicial decision, and (2) the hardship to the parties of withholding court consideration. (Pacific Legal Foundation, supra, 33 Cal.3d at p. 171.) The Supreme Court concluded the challenge to the commission’s public access guidelines failed both prongs of this test, and ruled the case was not ripe for judicial review. (Id. at pp. 172-173.)

C. Four Policies Which May Not Be Enforced by Writ of Mandate

1. Review of Program Guidelines

Policy No. 1 states that all program guidelines “shall be reviewed and approved by the Board prior to distribution to schools and/or school officials.” The policy statement sets forth detailed requirements for submission of proposed advisories and guidelines by the Superintendent and Department to the Board for review and approval.

The petition alleges the Superintendent has a clear and present duty to execute the policies adopted by the Board, but refuses to do so. It asserts the Superintendent is required to implement the policy within the specific standards set by the Board. The Superintendent maintains only he has statutory authority under section 33308.5 to review and approve program guidelines. However, events which occurred after the petition was filed demonstrate the question of the Superintendent’s alleged failure to execute Policy No. 1 is not appropriate for review.

In response to Policy No. 1, the Superintendent initially made the proposed program guidelines available to individual Board members for review. In February 1992, the Board’s executive director informed Department deputies the Board members found the procedure unsatisfactory. The Board put a place holder on its monthly agenda to permit discussion of the proposed guidelines. The Superintendent agreed to the procedure proposed by the executive director for bringing the guidelines before the full Board for its input.

The Superintendent brought approximately 10 proposed guidelines to the Board’s attention during 1992. Through April 1992, agenda place holders submitted by Joseph H. Stein, Jr., who succeeded Carrabino as Board president, permitted the Board to discuss and act on the guidelines. However, the Board took no action to approve or disapprove proposed program guidelines during this period.

Inexplicably, agenda place holders submitted in May, June, and July 1992, indicated proposed program guidelines were presented for information only, not for Board action. Two of those place holders were submitted by Stein. Stein claims in a declaration filed with the Board’s supplemental letter brief, “Because [the place holder] indicates that the department advisory item is for information only, no formal State Board action may be taken. It restricts this item to discussion and debate. Without formal State Board action, DOE does not have to act on the comments of individual State Board members. This method does not accomplish the policy’s purpose or intent.”

The Board president directs preparation of agendas for Board meetings in consultation with the executive committee. The Superintendent had no control over the monthly agenda place holders which restricted Board action on the program guidelines beginning in May 1992.

The record demonstrates the Superintendent complied with the executive director’s February 1992 request that proposed program guidelines be submitted to the full Board for review no less than 10 days before the Board meeting. Given the Superintendent’s “willingness to perform without coercion,” we conclude the writ of mandate is unnecessary. (8 Witkin, Cal. Procedure, Extraordinary Writs, supra, § 73, p. 712.)

Moreover, the Board’s ability to approve or disapprove the proposed program guidelines was limited by the Board president’s discretion to set the matter for action or information only, not by any action or inaction on the part of the Superintendent. From this perspective, the issue is not ripe for judicial decision. (Pacific Legal Foundation, supra, 33 Cal.3d at p. 171.) It would be a different matter if the Superintendent had refused to present proposed guidelines for Board action. Accordingly, we deny the Board request for a writ of mandate to compel the Superintendent to implement Policy No. 1.

2. Budget Review and Approval

Policy No. 4 states, “It is the policy of the California State Board of Education that it shall review and approve an annual operating budget for the State Department of Education.” The policy outlines the procedure to be followed by the Superintendent when submitting the Department budget to the Board. A related matter, Board oversight of the budget once approved and allocated, is addressed in other sections of this opinion.

The Board asserts the Superintendent refused to implement Policy No. 4, thereby breaching his clear and present duty to do so. The Superintendent responds he submitted both the 1991-1992 and 1992-1993 budgets to the Board for review and action. Although the Board concedes in its supplemental brief that the 1991-1992 and 1992-1993 budgets were placed on the Board agenda, it claims the manner of presentation prevented the Board from taking any action.

The record fails to demonstrate the Superintendent’s failure to comply with Policy No. 4. The Board does not show how the Superintendent’s manner of presentation was inadequate, or why the Board was prevented from taking action. The budget was placed on the agenda for both information and action. If there had been serious and legitimate concerns about the manner of presentation, the Board had the option of disapproving the budget and informing the Superintendent how it was deficient. The Board did neither. Accordingly, we conclude the issue of budget review and approval is both moot—because the Board failed to rebut facts showing the Superintendent complied with Policy No. 4—and unripe—because there is no actual dispute appropriate for judicial resolution at this time.

3. Continuing Budget Oversight

The budget oversight policy, articulated in the First Memorandum and adopted by the Board in June 1991, includes a requirement the Superintendent give the Board advance notice of audit meetings, including entrance and exit conferences. It also requires him to provide the Board with monthly reports on pending litigation.

The Superintendent does not object to provisions of the budget oversight policy requiring notice of audit meetings and reports on litigation, declaring the practice of providing information relating to audits and litigation will continue.

The Board’s petition does not specifically allege the Superintendent refuses to comply with these portions of the budget oversight policy. Nor is there any evidence to rebut the Superintendent’s representation of compliance with the notice and reporting provisions. To the extent the question is before us, we conclude the issue is moot given the Superintendent’s continuing effort to provide the Board with the requested information. We consider the Superintendent’s refusal to comply with other portions of the budget oversight policy in part III.D. of this opinion.

4. Preparation of the Department Organizational Chart

In October 1990, Carrabino submitted an organizational chart for approval by the Board. He stated the Department organizational chart showed the Board as an “appendage” to the Department. The Superintendent recommended the Board postpone action on the question of organizational charts until he and the Board worked out their differences. He stated that “placing the Board over the Superintendent is appropriate with regard to policy but [did] not reflect other organizational relationships." In spite of this admonition, the Board approved the revised organizational chart submitted by Carrabino.

At its March 1991 meeting, the Board resolved to direct the Superintendent ‘to prepare . . . organizational charts consistent with Special Counsel’s legal opinion, . . .’’ That opinion reviewed the legality of the policies adopted by the Board at its September 1990 meeting. Special counsel affirmed the Board’s legal authority as the governing and policy determining body of the Department. In raising the question of organizational charts, the Board was concerned “the State Board [had] come to be perceived by many as outside the State Department of Education chain of command.”

The Superintendent responded in aletter dated July 11, 1991, stating: “On the topic of organizational charts, I do not intend to alter the current CDE [Department] chart. The current chart is consistent with all of the previous charts we have located. . . . However, if a majority of the SBE [Board] is so inclined, it surely may promulgate any chart it wishes to depict its own view of the organizational framework of the CDE.”

The organizational chart issued by the Department on January 1, 1992, depicts the Board on the same level as the Superintendent with the chain of command moving horizontally from the Board to the Superintendent, and vertically from the Superintendent to the Department.

The Board fails to demonstrate the inaccuracy of the January 1, 1992, organizational chart, or the manner in which it places the Board outside the chain of command. From our reading of the chart, informed solely by the record, the chain of command flows from the Board, through the Superintendent, to the Department. In the absence of more specific guidelines, we conclude nothing more is required of the Superintendent and the issue is moot.

Nor will we issue an advisory opinion based on little more than the Board’s concern about the possible impact an organizational chart may have on public perception of its role. As we stated earlier, courts must focus their attention on concrete disputes fit for judicial resolution. (Pacific Legal Foundation, supra, 33 Cal.3d at pp. 170-171.)

D. Questions of Public Interest Likely to Recur

The Board contends we should address the merits of claims that might otherwise be considered moot. It argues the Superintendent’s voluntary efforts to accommodate the Board do not render its petition for writ of mandate moot because the misconduct may recur. (See Marin County Bd. of Realtors, Inc. v. Palsson (1976) 16 Cal.3d 920 [130 Cal.Rptr. 1, 549 P.2d 833], disapproved on other grounds in State of California ex rel. Van de Kamp v. Texaco, Inc. (1988) 46 Cal.3d 1147, 1168-1169 [252 Cal.Rptr. 221, 762 P.2d 385].) The Board notes the Superintendent continues to challenge the Board’s view of the governance issues, and refuses to “surrender[] his own specific authority” in spite of his voluntary compliance with some of the Board’s policies.

As we stated in Cooke v. Superior Court, supra, 213 CaI.App.3d at page 417, a similar argument was rejected in George v. Beaty (1927) 85 Cal.App. 525 [260 P. 386]. In George, petitioners sought a writ of mandate to compel the supervisors of the Los Angeles Flood Control District to proceed with construction of a dam in accordance with specifications approved by the voters in a special bond election. After the petition was filed, the board resolved to construct the dam as mandated by the voters. (Id. at p. 527.) Petitioners then argued the writ should issue because the board of supervisors might change its mind and adopt a new policy. The court denied the writ. It stated, ‘the writ of mandamus is in no sense a preventative . . . remedy.” (Id. at p. 531.) The court continued, “The board of supervisors [has] taken all action which we might at this time compel them to take and we cannot assume that they will not continue [to perform]. In fact we are bound to presume, in line with the presumption contained in [Evidence Code section 664] ‘that official duty’ will be ‘regularly performed.’ ” (Id. at pp. 528-529.) Although the rule imposed the need for “continued vigilance” on the part of petitioners, “if [the rule] were otherwise courts might be continually called upon to direct and supervise the conduct of public officials vested with ministerial powers.” (Id. at p. 531.)

In spite of his conflicting rhetoric, we presume the Superintendent will continue to exercise good faith in complying with the Board’s procedures for Board review and approval of proposed program guidelines, and Board review and approval of proposed budgets. (Cooke v. Superior Court, supra, 213 Cal.App.3d at p. 418, citing Evid. Code, § 664 [“It is presumed that official duty has been regularly performed. . . .”].) We also presume the Board will continue its vigilance to insure compliance. (See the “Rafferty Opinion,” 41 Ops.Cal.Atty.Gen., supra, at p. 114, citing former Code Civ. Proc., § 1963, subd. 15, now Evid. Code, § 664, Stats. 1965, ch. 299, §§ 2, 110, pp. 1310, 1363.)

We also reject the contention the matters we have declared moot should be resolved on their merits because they raise questions of grave public concern. We address many of the governance issues raised by the Board in other sections of this opinion. There is no need to consider those issues as they relate to Policy No. 1 and Policy No. 4 where the Superintendent’s voluntary compliance makes it unnecessary to do so.

Ill

The Remaining Governance Issues

Having disposed of the questions that are moot or unripe for review, we turn to four remaining issues. These include the Board’s allegations the Superintendent has a clear, present, and ministerial duty to implement its policies concerning (1) nomination of deputy and associate superintendents under article IX, section 2.1 of the California Constitution; (2) allocation of additional staff to the Board, (3) continuing budget oversight, and (4) the Board’s legal services contract with outside counsel. We begin by reviewing the law regarding delegation of legislative powers, a principal basis for the Superintendent’s refusal to implement Board policies. Next, we address the constitutional question relating to nomination of key personnel pursuant to article IX, section 2.1 of the California Constitution. Finally, we consider whether the Board exceeded its statutory authority by adopting and seeking implementation of policies on allocation of additional staff, continuing budget oversight, and the legal services contract.

A. Delegation of Legislative Power

Educational boards and administrative officers have no inherent powers—only those powers granted them by the Constitution and Legislature. Thus, the law governing educational agencies’ exercise of delegated powers plays an important role in school governance. (Rapp, Education Law (1992) State Control, § 3.02[4][b], p. 3-17; Valente, Education Law: Public and Private (1985) Public Schools, § 2.3, p. 17.) We begin by reviewing legal principles applicable to legislative delegation of power to administrative agencies.

Essentials of the legislative function include the determination and formulation of legislative policy. “Generally speaking, attainment of the ends, including how and by what means they are to be achieved, may constitutionally be left in the hands of others. The Legislature may, after declaring a policy and fixing a primary standard, confer upon executive or administrative officers the ‘power to fill up the details’ by prescribing administrative rules and regulations to promote the purposes of the legislation and to carry it into effect, . . .” (First Industrial Loan Co. v. Daugherty (1945) 26 Cal.2d 545, 549 [159 P.2d 921].) In the educational setting, legislatures rarely control public school operations directly, but delegate authority which permits state, regional, and local education agencies to establish school policies and practices. (Rapp, Education Law, supra, § 3.02[4][b], p. 3-17; Valente, Education Law: Public and Private, supra, § 2.3, p. 17.)

However, administrative regulations may not exceed the scope of authority conferred by the Legislature. (See Hartzell v. Connell (1984) 35 Cal.3d 899, 914 [201 Cal.Rptr. 601, 679 P.2d 35]; Comite de Padres de Familia v. Honig (1987) 192 Cal.App.3d 528, 532-533 [237 Cal.Rptr. 517].) “An unconstitutional delegation of legislative power occurs when the Legislature confers upon an administrative agency unrestricted authority to make fundamental policy decisions.” (People v. Wright (1982) 30 Cal.3d 705, 712 [180 Cal.Rptr. 196, 639 P.2d 267].) “ ‘This doctrine rests upon the premise that the legislative body must itself effectively resolve the truly fundamental issues. It cannot escape responsibility by explicitly delegating that function to others or by failing to establish an effective mechanism to assure the proper implementation of its policy decisions.’ ” (Ibid., quoting Kugler v. Yocum (1968) 69 Cal.2d 371, 376-377 [71 Cal.Rptr. 687, 445 P.2d 303].)

Practical necessity limits strict enforcement of the nondelegation doctrine. The California Supreme Court recognized as early as 1917 “that legislative bodies have neither the resources nor the expertise to deal adequately with every minor question potentially within their jurisdiction. ‘Even a casual observer of governmental growth and development must have observed the ever-increasing multiplicity and complexity of administrative affairs—national, state, and municipal—and even the occasional reader of the law must have perceived that from necessity, if for no better grounded reason, it has become increasingly imperative that many ^wow-legislative and gwaw-judicial functions, which in smaller communities and under more primitive conditions were performed directly by the legislative or judicial branches of the government, are intrusted to departments, boards, commissions, and agents. No sound objection can longer be successfully advanced to this growing method of transacting public business. These things must be done in this way or they cannot be done at all . . . (Kugler v. Yocum, supra, 69 Cal.2d at pp. 383-384, quoting Gaylord v. City of Pasadena (1917) 175 Cal. 433, 436 [166 P. 348]; see also Davis, Administrative Law Treatise (1978) Delegation and Subdelegation, § 3:3, pp. 152-157; and Rapp, Education Law, supra, § 3.02[4][b], p. 3-17.)

Citing Hartzell v. Connell, supra, 35 Cal.3d 899, the Board contends it may make rules and regulations on any topic reasonably related to its policymaking role so long as there is no express statute to the contrary. The Superintendent asserts the Board may not adopt rules and regulations on a particular topic without express statutory authority to do so. The proper rule lies between these two extremes.

The nondelegation doctrine does not invalidate reasonable grants of power to an administrative agency as long as there are adequate safeguards to protect against misuse of that power. However, the standards to guide adoption of administrative rules and regulations need not be expressly set forth in the authorizing statute. (People v. Wright, supra, 30 Cal.3d at pp. 712-713.) They may be implied from the statutory purpose (id. at p. 713; Wilkinson v. Madera Community Hospital (1983) 144 Cal.App.3d 436, 442-443 [192 Cal.Rptr. 593]) or related statutes (Cal. State Auto etc. Bureau v. Downey (1950) 96 Cal.App.2d 876, 906-907 [216 P.2d 882]). More stringent and specific standards are required only where necessary to prevent abuse, for example, in cases in which representatives from private industry serve on administrative boards with power to make rules affecting board members’ competitors. (See State Board v. Thrift-D-Lux Cleaners (1953) 40 Cal.2d 436 [254 P.2d 29]; and Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1 [97 Cal.Rptr. 431].)

Once we determine the scope of quasi-legislative power delegated to the Board, we may turn to the question whether the Board exceeded the scope of that power when it adopted the challenged policies. In this connection, our sole function is to determine “ ‘whether the [Board] reasonably interpreted the legislative mandate.’ ” (Hartzell v. Connell, supra, 35 Cal.3d at p. 914.) Specifically, we must determine whether the agency regulations are consistent, not in conflict with the statutory scheme, and reasonably necessary to effectuate its purpose. (Mooney v. Pickett (1971) 4 Cal.3d 669, 678 [94 Cal.Rptr. 279, 483 P.2d 1231].) “ ‘Such a limited scope of review constitutes no judicial interference with the administrative discretion in that aspect of the rulemaking function which requires a high degree of technical skill and expertise. [Citation.] Correspondingly, there is no agency discretion to promulgate a regulation which is inconsistent with the governing statute.’ ” (Ontario Community Foundations, Inc. v. State Bd. of Equalization (1984) 35 Cal.3d 811, 816 [201 Cal.Rptr. 165, 678 P.2d 378], quoting Woods v. Superior Court (1981) 28 Cal.3d 668, 679 [170 Cal.Rptr. 484, 620 P.2d 1032, italics added in Ontario].) Because policies adopted by the Board come before the court with a presumption of correctness and regularity, the burden of demonstrating invalidity is placed upon the Superintendent. (Credit Ins. Gen. Agents Assn. v. Payne (1976) 16 Cal.3d 651, 657 [128 Cal.Rptr. 881, 547 P.2d 993]; Evid. Code, § 664.)

Before considering the remaining four policies challenged by the Superintendent, we set forth the constitutional provisions which define legislative powers relating to education, and the statutes under which the Legislature delegates specific powers to the Board and Superintendent. In construing these provisions in the sections which follow, we apply familiar principles. “ ‘[W]e begin with the fundamental rule that a court “should ascertain the intent of the Legislature so as to effectuate the purpose of the law.” ’ [Citations.] ‘An equally basic rule of statutory construction is, however, that courts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them.’ [Citations.] Although a court may properly rely on extrinsic aids, it should first turn to the words of the statute to determine the intent of the Legislature. [Citations.]” (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698 [170 Cal.Rptr. 817, 621 P.2d 856].) “If the words, given their ordinary and popular meaning, are reasonably free from uncertainty there is no need for construction, and we may not indulge in it. [Citations.]” (Comite de Padres de Familia v. Honig, supra, 192 Cal.App.3d at p. 532.) These principles recognize that courts “ “must follow the language used and give to it its plain meaning, whatever may be thought of the wisdom, expediency, or policy of the act, even if it appears probable that a different object was in the mind of the legislature.” ’ ” (People v. Weidert (1985) 39 Cal.3d 836, 843 [218 Cal.Rptr. 57, 705 P.2d 380], quoting Woodmansee v. Lowery (1959) 167 Cal.App.2d 645, 652 [334 P.2d 991].)

Article IX, section 1 of the California Constitution sets forth broad legislative policy on education: “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.” Section 5 states the Legislature shall provide for a system of common and free schools. The Constitution also outlines the manner by which the Legislature shall apportion funds to operate public schools. (Cal. Const., art. IX, § 6.)

The Legislature, in turn, delegated certain powers to the Board and Superintendent. Pursuant to section 33030, “[t]he board shall determine all questions of policy within its powers.” The Board is authorized to “adopt rules and regulations not inconsistent with the laws of this state (a) for its own government, (b) for the government of its appointees and employees,” and the government of the various schools which receive state funds. (§ 33031.)

The Legislature delegated to the Superintendent the power to “execute, under direction of the State Board of Education, the policies which have been decided upon by the board and shall direct, under general rules and regulations adopted by the State Board of Education, the work of all appointees and employees of the board.” (§ 33111.)

As we have stated, section 33301 describes how