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"?
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.
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 . . . ."
"(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 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.