Untitled California Attorney General Opinion ( 1998 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 98-504
of :
: July 29, 1998
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE GEORGE RUNNER, MEMBER OF THE CALIFORNIA STATE
ASSEMBLY, has requested an opinion on the following question:
Is a school district required to allow a pupil or a pupil's parent or guardian to be represented
at an expulsion hearing by a non-attorney such as an "educational advocate" or "administrative law advisor"?
CONCLUSION
A school district is not required to allow a pupil or a pupil's parent or guardian to be
represented at an expulsion hearing by a non-attorney such as an "educational advocate" or "administrative
law advisor," but it may allow such representation under duly adopted rules and regulations.
ANALYSIS
The question presented concerns the authority of a school district to restrict representation of
a pupil or a pupil's parent or guardian at an expulsion hearing conducted pursuant to Education Code section
48918. Footnote No. 1 Is a school district required to allow a pupil or his parent or guardian to be represented
by someone other than an attorney? We conclude that while a school district may permit representation at an
expulsion hearing by a non-attorney, it is not required to do so.
Section 48918 states in part:
"The governing board of each school district shall establish rules and regulations
governing procedures for the expulsion of pupils. These procedures shall include, but are not
necessarily limited to, all of the following:
"(a) The pupil shall be entitled to a hearing to determine whether the pupil should be
expelled . . . ."
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"(b) Written notice of the hearing shall be forwarded to the pupil at least 10 calendar
days prior to the date of the hearing. The notice shall include: the date and place of the hearing; a
statement of the specific facts and charges upon which the proposed expulsion is based; a copy
of the disciplinary rules of the district that relate to the alleged violation; a notice of the parent,
guardian, or pupil's obligation pursuant to subdivision (b) of Section 48915.1; and notice of the
opportunity for the pupil or the pupil's parent or guardian to appear in person or employ and be
represented by counsel, to inspect and obtain copies of all documents to be used at the hearing,
to confront and question all witnesses who testify at the hearing, to question all other evidence
presented, and to present oral and documentary evidence on the pupil's behalf, including
witnesses . . . ." (Italics added.)
The language of section 48918 raises two questions: (1) does the phrase "represented by counsel" include
non-attorneys and (2) may a school district's rules and regulations authorize representation by persons in
addition to those specifically enumerated in the statute?
In analyzing the provisions of section 48918, we are guided by well-established principles of
statutory interpretation. The overriding objective of statutory construction is to ascertain and effectuate the
Legislature's intent. (Larson v. State Personnel Bd. (1996) 28 Cal. App. 4th 265, 276.) In ascertaining such
intent, we turn initially to the statutory language itself (Freedom Newspapers, Inc. v. Orange County
Employees Retirement System (1993) 6 Cal. 4th 821, 826), giving each word its usual and ordinary meaning
(Da Fonte v. UpRight, Inc. (1992) 2 Cal. 4th 593, 601). Every word, phrase, and sentence in a statute should,
if possible, be accorded significance. (Penasquitos, Inc. v. Superior Court (1991) 53 Cal. 3d 1180, 1186.) A
statute must be construed in the context of the entire statutory scheme of which it is a part, in order to achieve
consistency among the related provisions. (People v. Hull (1991) 1 Cal. 4th 266, 272.)
"Counsel" in this context commonly means "a person professionally engaged in the trial or
management of a cause in court," "a legal advocate managing a case at law," "a lawyer appointed or engaged
to advise and represent in legal matters a particular client, public officer, or public body," or "one called on to
advise." (Webster's Third New Internat. Dict. (1971) p. 518.)
Based upon this dictionary definition alone, it would appear that under section 48918,
representation of a pupil or his parent or guardian at an expulsion proceeding would be by an attorney rather
than a non-attorney. Such construction of the terms of section 48918 is supported by the types of tasks a
counsel may perform at the hearing: questioning witnesses and presenting oral and documentary evidence on
the pupil's behalf (§ 48918, subd. (b)), objecting to hearsay evidence as the basis for the decision to expel (§
48918, subd. (f)), and requesting the issuance of subpoenas (§ 48918, subd. (i)). Footnote No. 2
Another indicator of the Legislature's intent in its use of the term "counsel" in section 48918
is contained in the language of a related statute, section 48925. There, for purposes of suspension or
expulsion, "pupil" is defined to include "a pupil's parent or guardian or legal counsel." (§ 48925, subd. (e).)
Consequently, any right that may be exercised by the pupil may also be exercised on his behalf by the parent
or guardian or by legal counsel. This definition of "pupil" may be viewed as providing the underlying
definition of "counsel" for the procedural requirement that the pupil be notified of the opportunity to "employ
and be represented by counsel." (§ 48918, subd. (b).)
Also of significance is the fact that, in the context of another type of hearing, the Legislature
has differentiated between "counsel" and other persons appearing on behalf of the pupil. Section 56505
authorizes non-attorneys to advise special education pupils during the dispute resolution process. It states that
any party to a hearing has the "right to be accompanied and advised by counsel and by individuals with
special knowledge or training relating to the problems of children and youth with disabilities." (§ 56505,
subd. (e)(1).) This language indicates that, when using the term "counsel" in section 48918, the Legislature
t f i t tt d i
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was not referring to non-attorney advisers.
On balance, while the matter is not free from doubt, we believe that when the Legislature
used the term "counsel" in subdivision (b) of section 48918, it was referring to an attorney licensed to
practice law.
We turn now to a consideration of the effect of the introductory language contained in
section 48918. Does it permit a district board to adopt rules and regulations that would allow representation
by a non-attorney in an expulsion hearing, even though the term "counsel" in subdivision (b) of section
48918 refers only to attorneys? We believe that a district board may authorize representation by a
non-attorney.
While the district board is empowered to "establish the rules and regulations governing
procedures for the expulsion of pupils," it is required to "include" only those procedures specifically
identified by the Legislature. (§ 48918.) Our review of the legislative history of section 49818 discloses that
the procedures which the statute mandates for inclusion were designed to establish uniform minimum
standards of due process for the protection of both pupils and the school district. In Garcia v. Los Angeles
County Bd. Of Education (1981) 123 Cal. App. 3d 807, 812, the court examined the legislative history of
section 49818 (then section 48914) and declared:
"It appears from the history and from the reading of the statute that the intent of the
legislation is to provide a student with the protection of due process when faced with the possible
forfeiture of the 'legitimate entitlement to a public education as a property interest.' [Citation.]"
Accordingly, so long as notification of the opportunity to be represented by an attorney is
preserved, we see no impediment to a district board's adoption of rules and regulations permitting pupils to be
represented by non-attorney advocates or advisors. Whether a district board chooses to allow such
representation or not, the due process concerns of section 48918 would be satisfied.
We recently reached a similar conclusion in 80 Ops.Cal.Atty.Gen. 221 (1997), where we
examined a statute allowing the parties at a Public Utilities Commission hearing "to be heard in person or by
attorney." (Id., at p. 222.) We concluded that although the term "attorney" used in the statute did not include
non-attorneys, the commission could authorize representation by non-attorneys at its administrative hearings.
(Id., at p. 223 ["we perceive nothing in section 1706 that would negate the PUC's power to authorize
representation at a formal proceeding by a nonattorney"].) In reaching our conclusion, we relied in part upon
the following language contained in Consumers Lobby Against Monopolies v. Pub. Util. Com. (1979) 25
Cal. 3d 891, 913-914:
"'Nonattorneys are generally not permitted to participate in judicial proceedings;
rather, with a few limited exceptions, a person must be licensed as an attorney before he can
appear in court. In Public Utility Commission proceedings, by contrast, the participants are not
required to be licensed attorneys, and it is common for such persons to make appearances on
behalf of others. The commissions's own rules explicitly acknowledge this practice. [Citation.]
Moreover, even a brief perusal of the California Public Utilities Commission Reports
demonstrates that appearances by nonattorneys comprise a substantial and important part of the
practice before that body. We must infer that the commission believes such persons are
competent to participate in its proceedings in a representative capacity.'" (Id., at p. 223.) Footnote
No. 3
We conclude that a school district is not required to allow a pupil or a pupil's parent or
guardian to be represented at an expulsion hearing by a non-attorney such as an "educational advocate" or
"administrative law advisor," but it may allow such representation under duly adopted rules and regulations.
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Footnote No. 1
All references hereafter to the Education Code are by section number only.
Footnote No. 2
The hearing may become more trial-like if the district board refers the matter to a county hearing officer or to a hearing
officer of the State Office of Administrative Hearings. (§ 48918, subd. (d).) However, we note that the technical rules of
evidence do not apply in an expulsion hearing (§ 48918, subd. (h)), and we are informed that representation by a
non-attorney is generally permitted in hearings conducted by an administrative hearing officer.
Footnote No. 3
In our 1997 opinion, we noted that representation of clients by non-attorneys before administrative tribunals "has long been
recognized by the courts of this state. (Welfare Rights Org. v. Crisan (1993) 33 Cal. 3d 766, 770 [welfare hearings];
Consumers Lobby Against Monopolies v. Pub. Util. Com, supra, 25 Cal.3d at 913-914 [PUC hearings]; Staley v. California
Unemp. Ins. App. Bd. (1970) 6 Cal. App. 3d 675, 678 [unemployment insurance appeals]; Bland v. Reed (1968) 261
Cal. App. 2d 445, 449 [workers' compensation appeals].)" (80 Ops.Cal.Atty.Gen., supra, 224.)
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