1

Filed 7/14/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

MILAGROS AZUCENA WENDZ,

Plaintiff and Appellant,

v.

CALIFORNIA DEPARTMENT OF 

EDUCATION et al.,

Defendants and Respondents.

 A162648

 (San Francisco County

 Super. Ct. No. CPF20517067)

The Legislature charged respondent Superintendent of Public 

Instruction (Superintendent) with “ensur[ing] effective parental involvement” 

in the Migrant Education Program (MEP), the purpose of which is to address 

the unique educational needs of migrant children. (Ed. Code, §§ 54440, 

54444.2, subd. (a).)1 As part of this mandate, the Superintendent must

establish regional parent advisory councils (RPACs) to consult with local 

educational agencies in the planning, operation, and evaluation of migrant 

education programs. (§ 54444.2, subd. (a)(1).) In 2019, the Superintendent 

adopted regulations concerning the formation and governance of RPACs, 

including regulations that could affect the size and makeup of the councils.2 

1 All undesignated statutory references are to the Education Code.

2 In 2020, after the Superintendent adopted the challenged regulations, 

the Legislature amended section 54444.2. (Stats. 2020, ch. 24, § 60.) As 

relevant to this appeal, the amendments made non-substantive changes to 
2

Appellant Milagros Azucena Wendz sought to invalidate the 

regulations in a petition for a writ of mandate, and she appeals from the trial 

court’s denial in part of her petition. Wendz argues the trial court should 

have granted her petition in its entirety because the Superintendent’s 

adoption of the regulations was outside his statutory authority, as section 

54444.2 provides migrant parents the “sole authority” to “decide on the 

composition of the council.” (§ 54444.2, subd. (a)(1)(A).) She also argues that 

the regulations conflict with the statute because they place impermissible 

restrictions on migrant parents’ authority to nominate and elect RPAC 

members from the community. She further argues that the necessity of the 

regulations to effectuate the purpose of the MEP was not supported by 

substantial evidence. Finally, she argues that respondents failed to comply 

with several procedural requirements of the Administrative Procedure Act 

(APA, Gov. Code, § 11340 et seq.).

3

We conclude the Superintendent acted within his authority in adopting 

the challenged regulations. We agree, however, that the Superintendent

violated the APA’s notice requirements when he adopted a regulation 

prohibiting RPAC members’ use of alternates without adequate notice to the 

public. He otherwise complied with the APA in adopting the regulations, and 

subdivision (a) of section 54444.2, and therefore we consider the current 

version of that subdivision. 

3 The Superintendent is the director of respondent California 

Department of Education (CDE). (§§ 33301, 33303.) Throughout her opening 

brief, Wendz uses “SPI,” “Superintendent,” and “respondents” 

interchangeably when arguing that the regulations are invalid. The record 

shows that the Superintendent adopted the regulations pursuant to his 

authority under section 54444.2, while CDE staff assisted him in the 

rulemaking proceeding. Thus, for the sake of consistency, we refer to the 

Superintendent as the party who proposed and adopted the regulations.
3

the necessity of the regulations is supported by substantial evidence. We 

therefore conclude the regulations are valid except for the prohibition on 

alternates and the portions of the regulations the trial court invalidated, and 

the petition for a writ of mandate is granted only to the extent it seeks to 

compel respondents to refrain from enforcing those portions of the 

regulations.

I. BACKGROUND

A. The Migrant Education Act

In 1976, the Legislature created the MEP by enacting the Migrant 

Education Act (the Act) in recognition that the unique problems facing 

migrant children in the state educational system “are of such magnitude and 

severity that local school districts have been unable to solve them with the 

resources normally available. It is, therefore, necessary for the state to aid 

local school districts through regional coordinating offices and the provision 

of special programs of educational and related services for these children.” 

(§ 54440, subd. (b).)

Under the Act, the State Board of Education must adopt a master plan 

for services to migrant children, which is to include instructional activities 

designed to identify and address migrant children’s academic deficiencies, 

health and welfare services, and supportive services for migrant families. 

(§ 54442, subds. (a), (b), (d).) The plan requires “[t]he active involvement of 

parents, teachers, and community representatives in the local 

implementation of migrant education.” (§ 54442, subd. (f).) The Act charges 

the Superintendent with implementing the plan adopted by the State Board 

of Education (§ 54444), and authorizes the State Board of Education to adopt 

rules and regulations “necessary to implement the provisions of this article” 

(§ 54445).
4

B. Regional Migrant Parent Advisory Councils

In 1981, the Legislature amended the Act, adding several sections. The 

purpose of the amendments was to provide state standards for migrant 

education “in the absence of regulations by the State Board of 

Education . . . .” 

As relevant to this appeal, one of the sections added by the 

amendments is section 54444.2, which provides that “[t]he Superintendent 

shall take the steps necessary to ensure effective parental involvement 

throughout the state migrant education program . . . .” (§ 54444.2, subd. (a).) 

Those steps “shall include, but need not be limited to,” the adoption of “rules 

and regulations requiring each operating agency receiving migrant education 

funds or services to actively solicit parental involvement in the planning, 

operation, and evaluation of its programs through the establishment of, and 

consultation with, a parent advisory council.” (§ 54444.2, subd. (a)(1).) An 

“operating agency” means “a local educational agency operating under a 

subgrant of state migrant education funding, or a public or private nonprofit 

agency . . . .” (§ 54441, subd. (e).) These parent advisory councils are what 

the parties have termed regional parent advisory councils (or RPACs). 

Subdivision (a)(2) requires the Superintendent to separately establish a 

statewide parent advisory council (or SPAC). (§ 54444.2, subd. (a)(2).) 

Subdivision (a)(1)(A) of section 54444.2 provides standards for the 

formation of regional parent advisory councils: “The membership of each 

parent advisory council shall be composed of members who are 

knowledgeable of the needs of migrant children, and shall be elected by the 

parents of migrant children enrolled in the operating agency’s programs. The 

composition of the council shall be determined by the parents at a general 

meeting to which all parents of pupils enrolled in the migrant program shall 
5

be invited. Parents shall be informed, in a language they understand, that 

the parents have the sole authority to decide on the composition of the 

council. All parent candidates for the council shall be nominated by parents; 

nonparent candidates shall be nominated by the groups they represent: 

teachers by teachers, administrators by administrators, other school 

personnel by other school personnel, and pupils by pupils. All other 

community candidates shall be nominated by the parents.” (§ 54444.2, subd. 

(a)(1)(A).) That section further provides that “[a]t least two-thirds of the 

members of each parent advisory council shall be the parents of migrant 

children.” (§ 54444.2, subd. (a)(1)(B).) 

C. The Regulations Promulgated by the Superintendent

In 2018, the Superintendent began drafting regulations “to promote the 

orderly and efficient operation of the [regional parent advisory councils] 

throughout the State.” Over a period of almost 1 year, the Superintendent 

and CDE staff drafted proposed regulations, received public comments, and 

held a hearing on the proposed regulations. In November 2019, the 

Superintendent adopted regulations. Wendz challenges several of those 

regulations on the ground that they undermine migrant parents’ authority 

under subdivision (a)(1)(A) of section 54444.2 to determine the “composition” 

of regional parent advisory councils and to nominate and elect community 

members.

1. Nominations of Community Members

California Code of Regulations, title 5, section 12013 delineates the 

nomination process for community RPAC members. (Cal. Code Regs., tit. 5, 

§ 12013, subd. (a).) The specific parts of the regulation that Wendz

challenges are the provisions stating that individual council members “may” 

nominate eligible community members (Cal. Code Regs., tit. 5, § 12013, subd. 
6

(a)) and that a candidate’s name shall be withdrawn from nomination if the 

migrant region determines that a candidate is ineligible (Cal. Code Regs., 

tit. 5, § 12013, subd. (a)(7)).

2. Member Term Limits

The challenged portions of California Code of Regulations, title 5, 

section 12014, subdivision (a), provide that “[a] term of office for eligible 

parent members shall not exceed two years[,]” and an eligible parent member 

cannot be elected for more than two terms. (Cal. Code Regs., tit. 5, § 12014, 

subd. (a).) Similarly, a term of office for community members cannot exceed 

one year, and community members are limited to two terms. (Cal. Code 

Regs., tit. 5, § 12014, subd. (b).)

3. Size and Makeup of Regional Councils

California Code of Regulations, title 5, section 12011, provides that, 

“The RPAC shall be comprised of up to 15 eligible parent members with no 

alternate members.” (Cal. Code Regs., tit. 5, § 12011, subd. (a).) That section 

further provides that regional councils “may include up to three optional 

community members . . . .” (Cal. Code Regs., tit. 5, § 12011, subds. (b), (c).)

4. Community Member Candidate Qualifications

California Code of Regulations, title 5, section 12010 defines “eligible 

community member” as a person who “is knowledgeable about the needs of 

migrant children, and is either an eligible migrant child or a professional 

working in the field of education and social and health services . . . .” (Cal. 

Code Regs., tit. 5, § 12010, subd. (b)(1).) It further provides that “eligible 

community member” excludes parent members and employees “of a Migrant 

Education Program at the district, county, or state level,” or employees of the 

CDE. (Cal. Code Regs., tit. 5, § 12010, subd. (b)(2), (3).)
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5. Disqualifying Regional Council Members

Finally, Wendz challenges the provisions in California Code of 

Regulations, title 5, section 12015, that allows for the disqualification of 

RPAC members under certain circumstances. That regulation authorizes the 

County Superintendent to terminate a member from the regional council on 

specified grounds, including “good cause[,]” which includes “but is not limited 

to, severe or repetitive conduct that is abusive to other persons or disruptive 

to the meetings or other official business of the RPAC.” (Cal. Code Regs., tit. 

5, § 12015, subd. (a)(2).) The County Superintendent may also terminate 

members that do not attend two meetings in a “given term” or for “[e]ngaging 

in inappropriate conduct that discredits the RPAC or the County 

Superintendent.” (Cal. Code Regs., tit. 5, § 12015, subd. (a)(1), (3).) 

D. The Mandate Proceedings

In March 2020, Wendz filed a petition for a writ of mandate and 

complaint for declaratory and injunctive relief against respondents, alleging 

that the above regulations were beyond the scope of authority conferred on 

the Superintendent by the Legislature and “place[d] invalid restrictions on 

the criteria for membership, [and on] the composition of and the manner by 

which the Regional Parent Advisory Council members are nominated or 

elected,” in conflict with the mandate in section 54444.2, subdivision (a)(1)(A) 

that “the parents have the sole authority to decide on the composition of the 

council . . . .” The petition additionally alleged that respondents’ 

determination that the regulations were “reasonably necessary” to effectuate 

the purpose of the Act was not supported by substantial evidence. The 

petition further alleged that California Code of Regulations, title 5, section 

12011, subdivision (a) violated the APA because the Superintendent added 

the prohibition on members’ use of alternates after the initial comment 
8

period had ended without providing an additional 45-days’ notice, despite the 

prohibition constituting a substantive change to the regulation. Finally, the 

petition alleged that respondents failed to comply with the APA because they

did not describe reasonable alternatives to the regulations in their initial 

statement of reasons.

In November 2020, Wendz moved for entry of writ of mandate, 

asserting the same arguments as in her petition for writ of mandate. Wendz

further argued that respondents violated the APA by failing to provide 

supporting information in their final statement of reasons regarding the lack 

of reasonable alternatives. 

In opposition, respondents argued that the regulations fell within the 

scope of authority granted by the Legislature to the Superintendent, because 

section 54444.2, subdivision (a), charges the Superintendent with taking “the 

steps necessary to ensure effective parental involvement[,]” and the 

regulations seek to increase parent participation. Respondents further 

argued that none of the regulations were inconsistent with the Act, as they 

preserved migrant parents’ authority to determine the composition of 

regional councils. Respondents also argued that the administrative record 

and judicially-noticeable evidence supported respondents’ promulgation of 

the regulations as reasonably necessary to ensure effective parental 

involvement. 

In February 2021, after hearing argument and taking the matter under 

submission, the court granted in part and denied in part the petition for writ 

of mandate. The court concluded that the Superintendent had the authority 

to adopt rules and regulations regarding RPACs under section 54444.2, and 

that the statute provided parents the authority to elect members and “no 

more.” The court invalidated subdivision (c) of California Code of 
9

Regulations, title 5, section 12014 and the phrase “[t]o the extent possible” in 

subdivision (d) of California Code of Regulations, title 5, section 12019 as 

inconsistent with the Act but concluded that the rest of the challenged 

regulations were consistent with the Act.4 Finally, the court concluded that 

respondents did not violate the APA in adopting the regulations. The court 

therefore rescinded subdivision (c) of California Code of Regulations, title 5, 

section 12014 and the phrase “[t]o the extent possible” in subdivision (d) of 

California Code of Regulations, title 5, section 12019, and in all other 

respects, it denied Wendz’s application for a writ of mandate and entered 

judgment on her complaint in favor of respondents.

This appeal followed.

II. DISCUSSION

A. The Superintendent Has the Authority to Adopt the Regulations.

“Administrative agencies have only the powers conferred on them, 

either expressly or impliedly, by the Constitution or by statute, and 

administrative actions exceeding those powers are void.” (Terhune v. 

Superior Court (1998) 65 Cal.App.4th 864, 872.) “If the court determines that 

a challenged administrative action was not authorized by or is inconsistent 

with acts of the Legislature, that action is void.” (Id. at p. 873.) Here, Wendz

argues that the Superintendent lacked authority to adopt the challenged 

regulations, and that the regulations conflict with the Act because section 

54444.2, subdivision (a)(1)(A), gave migrant parents the “sole authority” to 

determine the “composition” of the councils. She additionally argues that the 

4 Neither party challenges on appeal the trial court’s invalidation of 

subdivision (c) of California Code of Regulations, title 5, section 12014 and 

the phrase “[t]o the extent possible” in subdivision (d) of California Code of 

Regulations, title 5, section 12019. We therefore presume the trial court was 

correct in invalidating those portions of the regulations.
10

regulations conflict with certain provisions of section 54444.2, subdivision 

(a)(1)(A), that deal specifically with community members. We address these 

arguments in turn.

1. Standard of Review

Where, as here, a party challenges a regulation on the ground that it 

conflicts with the governing statute or exceeds the lawmaking authority 

delegated by the Legislature, “the issue of statutory construction is a 

question of law on which a court exercises independent judgment.” (Western 

States Petroleum Assn. v. Board of Equalization (2013) 57 Cal.4th 401, 415–

416.) “A court does not, in other words, defer to an agency’s view when 

deciding whether a regulation lies within the scope of the authority delegated 

by the Legislature.” (Yamaha Corp. of America v. State Bd. of Equalization

(1998) 19 Cal.4th 1, 11, fn. 4.) “The court, not the agency, has ‘final 

responsibility for the interpretation of the law’ under which the regulation 

was issued.” (Ibid.) 

2. The Regulations Are a Valid Exercise of the Superintendent’s 

Authority to “Fill Up the Details” of Section 54444.2.

The creation of an agency’s regulatory power is a delegation of 

legislative authority. “Essentials of the legislative function include the 

determination and formulation of legislative policy.” (State Bd. of Education 

v. Honig (1993) 13 Cal.App.4th 720, 746–747.) “ ‘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 . . . .’ ” (Id. at p. 747.) Where an agency 

exercises discretion explicitly conferred on it, it is presumed to act within 
11

legislative intent. (California Chamber of Commerce v. State Air Resources 

Bd. (2017) 10 Cal.App.5th 604, 620.)

To determine whether the Superintendent had the authority to adopt 

the challenged regulations, we begin with the Legislature’s express grant of 

authority to him in section 54444.2: “The Superintendent shall take the 

steps necessary to ensure effective parental involvement throughout the state 

migrant education program . . . .” (§ 54444.2, subd. (a).) The broad grant of 

authority to the Superintendent to “take the steps necessary” and the 

generality of the legislative goal to “ensure effective parental involvement” in 

the MEP show that the Legislature has deferred to the Superintendent’s 

expertise and granted him considerable discretion to determine what steps 

are necessary to accomplish that goal. (See California Chamber of Commerce 

v. State Air Resources Bd., supra, 10 Cal.App.5th at p. 622 [holding that 

because the statutory scheme only “broadly set forth its goals[,] . . . [the] 

Legislature obviously intended the program to be a creature of the Board”]; 

Credit Ins. Gen. Agents Assn. v. Payne (1976) 16 Cal.3d 651, 656 [holding that 

statutes provided the commissioner with “broad discretion” to determine 

what reasonable rules and regulations in the area of credit insurance are 

necessary to promote the public welfare].) 

Despite the Superintendent’s broad discretionary power under section 

54444.2, Wendz points out that the statute does not expressly grant him the 

authority to adopt regulations pertaining to RPAC member qualifications and 

the size of the councils and their overall structure; the only explicit grant of 

regulatory authority is that found in subdivision (a)(1), which directs the 

Superintendent to “adopt rules and regulations requiring each operating 

agency . . . to actively solicit parental involvement . . . through the 

establishment of, and consultation with, a parent advisory council [or 
12

RPAC].” (§ 54444.2, subd. (a)(1)). Wendz appears to suggest that because 

this is the sole grant of regulatory authority in the statute, the 

Superintendent only has the regulatory power to ensure that local agencies 

establish and consult with RPACs and not the authority to adopt regulations 

concerning “the makeup of those councils, including how large they are or 

who can serve on them.” But “ ‘[a]n administrative agency is not limited to 

the exact provisions of a statute in adopting regulations to enforce its 

mandate. “[T]he absence of any specific [statutory] provisions regarding the 

regulation of [an issue] does not mean that such a regulation exceeds 

statutory authority. ...” [Citations.] [The administrative agency] is authorized 

to “ ‘fill up the details’ ” of the statutory scheme. [Citation.]’ [Citations.]” 

(Batt v. City and County of San Francisco (2010) 184 Cal.App.4th 163, 171.) 

Moreover, “ ‘where power is given to perform an act, the authority to employ 

all necessary means to accomplish the end is always one of the implications of 

the law.’ ” (Manteca Union High School Dist. v. City of Stockton (1961) 197 

Cal.App.2d 750, 755.) Here, in addition to section 54444.2’s broad grant of 

authority to the Superintendent, the statute’s language and its context 

support a conclusion that the Superintendent’s power to regulate the RPACs 

is not limited to ensuring local agencies establish and consult with RPACs, 

and instead extends to the formation and structure of the councils.

Subdivision (a)(1) of section 54444.2 is part of a non-exhaustive list of 

steps the Superintendent is required to take to fulfill his mandate: “the steps 

necessary to ensure effective parental involvement throughout the state 

migrant education program . . . shall include, but need not be limited to, all of 

the following” steps set forth in five enumerated subparts, including 

subdivision (a)(1). (§ 54444.2, subd. (a), italics added; see Dyna-Med, Inc. v. 

Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1389, superseded 
13

by statute on another issue [the phrase “shall include, but need not be limited 

to” is a “phrase of enlargement”].) Based on the plain language in subdivision 

(a), the Legislature intended for the subparts under subdivision (a) to

represent steps the Superintendent is required to take to ensure effective 

parental involvement, but not to limit the Superintendent’s discretion to take 

other steps he deems necessary to ensure effective parental involvement, 

including adopting other rules and regulations. Nothing in the legislative 

history of the Act indicates otherwise. Had the Legislature intended to 

establish an exhaustive list of the steps the Superintendent is permitted to 

take to ensure effective parental involvement in the MEP or to limit the 

Superintendent’s regulatory power, it could have easily done so. 

Section 54444.2 does not otherwise limit the Superintendent’s 

discretion to supplement its directives, including those pertaining to RPACs.

Subdivision (a)(1) is divided into subdivision (a)(1)(A) and (B), which sets

forth certain directives concerning the formation and structure of RPACs, 

including some limits on who can nominate candidates and elect members. 

(§ 54444.2, subd. (a)(1)(A), (B).) But section 54444.2 ultimately provides few 

details on those matters, and there is no indication in the statute that the 

Legislature determined those statutory directives were sufficient on their 

own to ensure effective parental involvement in the RPACs.

In sum, this case involves a statutory scheme that sets forth a general 

goal and broadly empowers the Superintendent to take whatever steps are 

necessary to achieve that goal, and within the same subdivision, identifies

RPACs as one way to accomplish that goal and certain requirements for 

RPACs. (§ 54444.2, subd. (a).) Given this hierarchal organization and the 

statutory language previously discussed, it is clear to us that the 

Superintendent’s power to “fill up the details” of the statute through adoption 
14

of regulations that supplement the statutory directives pertaining to RPACs 

is an “ ‘additional power[] . . . necessary for the due and efficient 

administration of powers expressly granted’ ” by section 54444.2 or “ ‘fairly . . 

. implied from the [provision] granting the powers.’ ” (Leslie Salt Co. v. San 

Francisco Bay Conservation etc. Com. (1984) 153 Cal.App.3d 605, 617.) 

The Superintendent has properly exercised this power by adopting the 

challenged regulations, as they clarify the nomination and election process 

for RPACs and specify additional criteria for their formation and structure, 

matters that could impact the effectiveness of parental involvement in the 

RPACs. The lack of specific statutory provisions on many of the issues 

addressed by the Superintendent’s regulations—including member term 

limits and member disqualification—does not mean that regulations as to 

such issues exceed his statutory authority, but only that the Legislature did 

not itself choose to determine the issues and instead deferred to and relied 

upon the expertise of the Superintendent. (See Credit Ins. Gen. Agents Assn. 

v. Payne, supra, 16 Cal.3d at p. 656 [“Courts have long recognized that the 

Legislature may elect to defer to and rely upon the expertise of 

administrative agencies”].)

Wendz appears to acknowledge the Superintendent’s broad implied 

powers under section 54444.2. Her primary argument on appeal is that the 

Superintendent’s implicit authority does not “trump” the express authority 

the Legislature granted migrant parents under the statute. However, as we 

find below, the regulations are consistent with the statute. 

3. The Regulations Are Consistent with Parents’ Authority to 

Determine the “Composition” of the RPACs

Subdivision (a)(1)(A) of section 54444.2 provides in full: “The 

membership of each parent advisory council shall be composed of members 
15

who are knowledgeable of the needs of migrant children, and shall be elected 

by the parents of migrant children enrolled in the operating agency’s 

programs. The composition of the council shall be determined by the parents

at a general meeting to which all parents of pupils enrolled in the migrant 

program shall be invited. Parents shall be informed, in a language they 

understand, that the parents have the sole authority to decide on the 

composition of the council. All parent candidates for the council shall be 

nominated by parents; nonparent candidates shall be nominated by the 

groups they represent: teachers by teachers, administrators by 

administrators, other school personnel by other school personnel, and pupils 

by pupils. All other community candidates shall be nominated by the parents. 

Each parent advisory council shall hold meetings on a regular basis during 

the operation of the regular program, but not less than six times during the 

year.” (§ 54444.2, subd. (a)(1)(A), italics added.)

Wendz contends that the emphasized language in that paragraph 

shows that the Legislature vested exclusive authority in migrant parents to 

determine the composition of RPACs. She argues that the terms 

“determine[]” and “decide on the composition” refer to “the setting of 

qualifications for serving on the council, the size of the council, the 

breakdown of the council, etc.” Thus, according to Wendz, the regulations 

adopted by the Superintendent that place a limit on the number of parent 

and community RPAC members, that impose member term limits, that 

provide a definition of “eligible community member,” and that specify 

grounds for member disqualification conflict with section 54444.2 because 

they restrict parents’ exclusive authority to determine the composition of the 

councils. In response, respondents define the terms narrowly, arguing that 

as used in section 54444.2, they refer only to parents’ authority to elect RPAC
16

members. 

“A regulation cannot restrict or enlarge the scope of a statute.” (Home 

Depot, U.S.A., Inc. v. Contractors’ State License Bd. (1996) 41 Cal.App.4th 

1592, 1600, modified by statute on other grounds as stated in Denver D. 

Darling, Inc. v. Controlled Environment Const., Inc. (2001) 89 Cal.App.4th

1221, 1231, fn. 4.) It is therefore incumbent on us to begin by interpreting 

the phrase “decide on the composition” as it is used in section 54444.2, 

subdivision (a)(1)(A). (Angelucci v. Century Supper Club (2007) 41 Cal.4th 

160, 168 [“In interpreting a statute, we first consider its words, giving them 

their ordinary meaning and construing them in a manner consistent with 

their context and the apparent purpose of the legislation”].) If the terms of 

the statute are unambiguous, we presume the lawmakers meant what they 

said, and the plain meaning of the language governs. (Day v. City of Fontana

(2001) 25 Cal.4th 268, 272.)

a. Parents’ Authority to Determine the “Composition” of RPACs 

Is Limited to Electing Members

The Act does not define “composition” or “decide on the composition.” 

“ ‘When a term goes undefined in a statute, we give the term its ordinary 

meaning.’ ” (De Vries v. Regents of University of California (2016) 6 

Cal.App.5th 574, 590–591; see Arnall v. Superior Court (2010) 190 

Cal.App.4th 360, 369 [“we look first to the term’s ‘plain meaning’ for 

guidance” when the statute does not define the term].) In discerning a term’s 

ordinary meaning, courts regularly turn to general and legal dictionaries. 

(See Outfitter Properties, LLC v. Wildlife Conservation Bd. (2012) 207 

Cal.App.4th 237, 244 [“[w]e use the ordinary dictionary meaning of terms 

when terms are not defined in the statute”]; E.W. Bliss Co. v. Superior Court 

(1989) 210 Cal.App.3d 1254, 1258, fn. 2 [“[a] dictionary is a proper source to 
17

determine the usual and ordinary meaning of a word or phrase in a 

statute”].) 

When viewed in isolation, the word “composition” is reasonably 

susceptible to both parties’ interpretation. Dictionary definitions of 

“composition” show that it can mean “the general makeup” of something 

(Webster’s 9th New Collegiate Dict. (1989) pp. 270, 719) or “the nature of 

something’s ingredients or constituents; the way in which a whole or mixture 

is made up.” (Encyclopedia.com https://www.encyclopedia.com/literature-andarts/art-and-architecture/artgeneral/composition#:~:text=com%C2%B7po%C2%B7si%C2%B7tion,the%20s

ocial%20composition%20of%20villages. [as of July 12, 2023].) Thus, 

determining the composition of the council may mean something more than 

simply electing members. (See Webster’s 9th New Collegiate Dict. (1989) p. 

400 [defining “elect” as “to select by vote for an office, position, or 

membership”].) Under a broad definition of “composition,” deciding on the 

composition of a council can reasonably include determining the size of the 

council and the characteristics of the members that will form the council. On 

the other hand, “composition” is capable of a narrower definition. (See The 

American Heritage Dictionary 

https://www.ahdictionary.com/word/search.html?q=compositions [as of July 

12, 2023].) [defining “composition” as “[t]he combining of distinct parts or 

elements to form a whole”].) Thus, when “composition” is narrowly defined, 

determining or deciding on the composition of the council may refer to the act 

of selecting the individual members that will form the council.

But when viewing that language in the context of the entire subdivision 

(a)(1)(A), as we must, Wendz’s construction fails. (Jarman v. HCR 

ManorCare, Inc. (2020) 10 Cal.5th 375, 381 [“We do not examine that 
18

language in isolation, but in the context of the statutory framework as a 

whole in order to determine its scope and purpose and to harmonize the 

various parts of the enactment”].) 

The subdivision begins with the sentence, “The membership of each 

parent advisory council shall be composed of members knowledgeable of the 

needs of migrant children, and shall be elected by the parents of migrant 

children . . . .” (§ 54444.2, subd. (a)(1)(A), italics added.) The plain meaning 

of the term “composed” as used in the first clause establishes that the RPAC 

membership will be formed from members who are knowledgeable of the 

needs of migrant children. (See Webster’s 9th New Collegiate Dict. (1989) p. 

270 [defining “compose” as “to form by putting together”]; Dictionary.com 

https://www.dictionary.com/browse/compose [as of July 12, 2023] [“to make or 

form by combining things, parts, or elements”].) In juxtaposing that clause 

with the second clause requiring that the “membership” be “elected” by 

parents, the Legislature appears to have intended the first sentence to 

provide parents the right to compose the council by electing eligible members. 

The second sentence states that “[t]he composition of the council shall 

be determined by the parents at a general meeting to which all parents . . . 

shall be invited.” (§ 54444.2, subd. (a)(1)(A).) Because the preceding 

sentence establishes that parents are to elect RPAC members, the terms

“determine[]” the “composition” as used in the second sentence clearly refer to 

that authority. Thus, the second sentence merely specifies that parents are 

to exercise their election power at a general meeting. The Legislature’s use of 

the term “composition” in this sentence and of “composed of” in the first 

sentence further supports such a construction. “ ‘[U]nless a contrary intent 

appears,’ we presume the Legislature intended that we accord the same 

meaning to similar phrases.” (Scottsdale Ins. Co. v. State Farm Automobile 
19

Ins. Co. (2005) 130 Cal.App.4th 890, 899 [holding that “operated by” and 

“operation” have the same meaning in Insurance Code section 11580.1, 

subdivision (d)(1)].) 

Similarly, the third sentence, when read in context, provides a directive 

for the general meeting referenced in the prior sentence: “Parents shall be 

informed, in a language they understand, that the parents have the sole 

authority to decide on the composition of the council.” (§ 54444.2, subd. 

(a)(1)(A), italics added.) In other words, parents are to be informed that they 

alone have the power to elect RPAC members at the general meeting.

The next two sentences in subdivision (a)(1)(A) further support a 

narrow reading of “composition,” as they impose limitations on who can be 

nominated for election to the RPACs, and thus also concern the election 

process. (§ 54444.2, subd. (a)(1)(A).) 

In sum, the first five sentences of subdivision (a)(1)(A), when read 

together, all concern the election of RPAC members, and not the overall 

structure of RPACs. Wendz’s broad interpretation of the second and third 

sentences would require us to ignore the immediately preceding and following 

sentences, which we cannot do. 

Moreover, the Legislature used the phrase “sole authority” without 

qualification in subdivision (a)(1)(A), while at the same time listing certain 

criteria for who can serve as a member and the overall makeup of the council

(e.g., members “shall be knowledgeable of the needs of migrant children,” at 

least two-thirds of the members of the RPACs “shall be” migrant parents, and 

nonparent groups shall nominate candidates from their respective groups). (§ 

54444.2, subd. (a)(1)(A).) This suggests that the Legislature intended to 

exclude from migrant parents’ “sole” authority the power to set member 

qualifications and to determine the categories and breakdown of membership. 
20

If the Legislature intended to grant migrant parents the exclusive authority 

to determine those matters beyond the minimum requirements set forth in 

subdivision (a)(1)(A) of section 54444.2, it could have so specified. (See, e.g., § 

69525, subd. (a) [providing that one member of the board shall be an 

employee and one member shall be a student, and that the “commission shall 

determine the composition of the remainder of the board of directors, 

including both the size and categories of membership of the board,” italics 

added]; see City of Oakland v. Public Employees’ Retirement System (2002) 95 

Cal.App.4th 29, 50–51 [holding that there was no limitation period applicable 

to administrative reclassification proceedings under the Public Employees’ 

Retirement Law, because other statutes “demonstrate the Legislature knows 

how to draft time limits applicable to specific types of cases when it wants 

to”].) 

Finally, and perhaps most fundamentally, Wendz’s construction

conflicts with the purpose of the statute “to ensure effective parental 

involvement” in the MEP. (§ 54444.2, subd. (a), italics added.) “ ‘A statute 

“will not be given an interpretation in conflict with its clear purpose, and . . . 

general words used therein will be given a restricted meaning when reason 

and justice require it, rather than a literal meaning which would lead to an 

unjust and absurd consequence.” ’ ” (People v. Bratis (1977) 73 Cal.App.3d 

751, 757.) To accept her interpretation would mean that no matter how 

inefficient or exclusionary RPACs might become, the Superintendent would 

be powerless to take regulatory action to fulfill his statutory mandate to 

“ensure effective parental involvement through the state migrant education 

program.” (§ 54444.2, subd. (a).) That is not a sound construction of the 

statute. In contrast, an interpretation that “decid[ing] on” or 
21

“determine[ing]” the “composition” is stated in the alternative to “elect” would 

preserve the Superintendent’s ability to fulfill his mandate.

5 

In reaching that determination, we achieve harmony between the 

various parts of section 54444.2. Every phrase and word—including “sole 

authority”—serves a function. And the result of our holding accomplishes the 

intended purpose of the Legislature that the Superintendent discharge his

duty to ensure effective parental involvement in the MEP. 

b. Legislative History

Wendz argues that the legislative history of the Act supports her 

interpretation of the term “composition.” She specifically points out that in

5 Wendz argues that this interpretation ignores the distinction the 

Legislature made between subdivision (a)(1)(A) of section 54444.2—which 

governs RPACs—and subdivision (a)(2)—which governs the state parent 

advisory council. The latter subdivision also provides parents the authority 

to elect members to the state parent advisory council but does not include 

similar language to that in the second and third sentences in subdivision 

(a)(1)(A) that parents are to determine the composition of the council at a 

general meeting and that they are to be informed of their “sole authority” to 

decide on the composition. (§ 54444.2, subd. (a)(1)(A), (2).) According to 

Wendz, this omission from subdivision (a)(2) of section 54444.2 shows that 

the Legislature intended to define “elect” and “decide on the composition” 

differently. However, subdivision (a)(2) of section 54444.2 grants only 

parents the authority to elect and nominate members for the state parent 

advisory council, while subdivision (a)(1)(A) authorizes nonparent groups to 

nominate candidates for the RPACs. (§ 54444.2, subd. (a)(1)(A), & (2).) The 

language that nonparent groups have the authority to nominate candidates 

from their respective groups immediately follows the directive that parents 

are to be informed of their “sole authority” to “decide on the composition of 

the council.” That contrast and the distinctions between subdivisions 

(a)(1)(A) and (a)(2) of section 54444.2 support a construction that the second 

and third sentences in subdivision (a)(1)(A) are intended to clarify the role of 

parents in electing members to the RPACs.
22

the penultimate amendment to Assembly Bill No. 1384 (1981–1982 Reg. 

Sess.) (Assembly Bill 1382), the Legislature added the second and third 

sentences to subdivision (a)(1)(A) of section 54444.2 without adding similar 

language to subdivision (a)(2) pertaining to the statewide parent advisory 

council. Having independently reviewed that legislative history, we find that 

the legislative history does not clearly indicate an intent to define 

“composition” broadly to include member qualifications and the size and 

breakdown of RPACs. We therefore adhere to the interpretation dictated by 

contextual considerations and the apparent purpose of the statute. 

“We rely on the legislative history of an ambiguous statute as 

dispositive only when that history is itself unambiguous.” (Medical Board v. 

Superior Court (2003) 111 Cal.App.4th 163, 179.) “The members of the 

Legislature have no opportunity to disapprove legislative history, and the 

Governor has no chance to veto it. Legislative history directly represents only 

the views of the few actors in the legislative process, including lobbyists and 

committee staff people, who are intimately involved with particular 

legislation.” (J.A. Jones Construction Co. v. Superior Court (1994) 27 

Cal.App.4th 1568, 1577–1578.) Only “[a] clear statement of intent allows a 

court to reasonably indulge the inference that the individual members of the 

Legislature may have given at least a little thought to the statement before 

voting on the bill.” (Id. at p. 1579.) 

Assembly Bill 1384, as originally proposed in March 1981, did not 

include section 54444.2 or any similar provision. But the bill was amended 

the following month to add the mandate that the Superintendent is to “take 

the steps necessary” to ensure “effective parental involvement” in the MEP, 

which included establishing RPACs. In that version of the bill, the only 

requirements for RPACs was that the “membership of each parent advisory 
23

council shall be comprised of members who are knowledgeable of the needs of 

migrant children and shall be elected” by migrant parents, and that “[a]t 

least 75 percent of the members” of the RPACs “shall be the parents of 

migrant children.” The bill also added language requiring the 

Superintendent to establish a statewide parent advisory council with the 

same requirements.

In early August 1981, the Legislature amended Assembly Bill 1382 to 

state, for both the RPACs and the statewide parent advisory council, that the 

members shall be “nominated and” elected by migrant parents. At the end of 

the month, however, the Legislature deleted the language “nominated and” in 

the paragraph regarding RPACs and added what would become the second 

and third sentences of subdivision (a)(1)(A) of section 54444.2 (i.e., “The 

composition of the council shall be determined by the parents at a general 

meeting to which all parents of pupils enrolled in the migrant program shall 

be invited. Parents shall be informed . . . that the parents have the sole 

authority to decide on the composition of the council”). The Legislature also 

added language providing nonparent groups nominating power over the 

RPACs. The Legislature did not remove “nominated and” from the 

paragraph concerning the state parent advisory council, meaning that 

migrant parents alone had the authority to nominate and elect members to 

the statewide parent advisory council.

Wendz argues that the late August 1981 amendments show that the 

Legislature “added a new guarantee for regional councils” in addition to 

providing migrant parents election power. But the amendments alone do not 

provide a “clear statement of intent” to grant migrant parents additional 

authority, as they do not define the scope of the terms “determine[]” or

“decide on the composition.” Given the timing and substance of the 
24

amendments—the Legislature added the “[p]arents shall be informed . . . that 

the parents have the sole authority” language at the same time it added 

language providing nonparent groups the right to nominate candidates for 

the RPACs—we could just as easily infer that the Legislature intended to

ensure that parents were aware that they alone have the authority to elect 

RPAC members.

Wendz points to nothing else in the statute’s legislative history 

supporting her interpretation of section 54444.2. In our independent review

of that history, we found only a few references to section 54444.2, and they 

shed little light on the correct interpretation of the terms “determine[]” or

“decide on the composition” as used in the statute. The Legislative Counsel’s 

Digest of Assembly Bill 1382 stated that the first amendment to Assembly 

Bill 1382 “would require the superintendent to take the steps necessary to 

assure effective parental involvement throughout the state migrant 

education program, as specified, including the requirement that parent 

advisory councils be established and consulted by the operating agencies and 

at the state level in a specified manner.” The Legislative Counsel’s Digest 

characterized subsequent amendments using the same language.

Similarly, the analyses of various versions of the bill prepared by the 

staffs of the Ways and Means Committee and the Subcommittee on 

Educational Reform generally state that the bill would require the 

Superintendent to take specified steps to establish regional parent advisory 

councils. 

A document prepared by the Assembly Office of Research and

introduced in the Senate, entitled “Concurrence in Senate Amendments,” 

more specifically describes the provisions of section 54444.2 at issue. It 

states that the amendments to Assembly Bill 1382 “[s]pecify the composition 
25

and selection process of parent advisory councils, further specify that at least 

66% of the members of each advisory council . . . must be parents of migrant 

children . . . [and]. . .[¶]. . . [s]pecify that the composition of State Parent 

Advisory Council must be at least 2/3 parents of migrant children.” Although 

the author uses the term “composition” to refer to one of the criteria for the 

makeup of the councils, this does not constitute a “ ‘clear statement of intent’ 

” by the Legislature to provide migrant parents the sole authority to 

determine the overall structure of the RPACs, as the author is not purporting 

to interpret the term as used in the statute. (See Medical Board v. Superior 

Court, supra, 111 Cal.App.4th at p. 179; J.A. Jones Construction Co. v. 

Superior Court, supra, 27 Cal.App.4th at p. 1583 [statements in legislative 

history were “equivocal” and did “not qualify as a clear statement” of 

legislative intent].) Moreover, considering the clear purpose of the statute to 

ensure effective parental involvement in the MEP and the resulting statutory 

analysis discussed above, we decline to find that this passing reference to the 

“composition” of the parent advisory councils requires a construction of 

subdivision (a)(1)(A) of section 54444.2 as providing migrant parents broad 

authority to decide the makeup and size of the councils.

We are therefore left with no clear indication of the intent behind the 

amendments to section 54444.2 ultimately enacted.6 Because the legislative 

6 The case relied on by Wendz—People v. Watie (2002) 100 Cal.App.4th 

866—is distinguishable. There, the Third District construed former Penal 

Code section 12022.53 (Watie, at p. 884), which provides sentence 

enhancements for persons convicted of enumerated felonies who use a 

firearm in the commission of the crime. (Former Pen. Code, § 12022.53, 

subds. (b), (c), (d), added by Stats. 1998, ch. 936, § 19.5.) The defendant 

argued that the life term enhancement in former Penal Code section 

12022.53 did not apply in cases where the shooting “ ‘was done in selfdefense, perfect or imperfect.’ ” (Watie, at p. 883.) The Third District 
26

history is itself ambiguous, it is not useful in construing section 54444.2, and 

it offers us no reason to depart from the interpretation of section 54444.2 

suggested by contextual considerations and the purpose of the statute.

c. Other Statutes that Use “Composition”

Wendz next argues that the use of “composition” in sections 69525, 

subdivision (a), and 99202, subdivision (b), supports her interpretation of 

section 54444.2. Section 69525, subdivision (a), provides that the auxiliary 

organization established by the Student Aid Commission (§ 69522, subd. (a)), 

“shall be governed by a board of directors nominated and appointed by the 

commission. . . . The commission shall determine the composition of the 

remainder of the board of directors, including both the size and categories of 

membership of the board.” (§ 69525, subd. (a).) Section 99202 similarly 

provides that the “composition of each advisory board shall” be comprised of 

“[o]ne representative” from each of ten enumerated groups and agencies (§ 

99202, subd. (b).) Wendz argues that because sections 99202 and 69525 

“confirm[]” that the power to determine composition includes the size and 

categories of membership, the Legislature intended for compositional 

decisions under section 54444.2 to likewise encompass such matters. 

“To understand the intended meaning of a statutory phrase, we may 

consider use of the same or similar language in other statutes, because 

disagreed, finding that the plain language of former Penal Code section 

12022.53 did not exempt imperfect self-defense. (Id. at p. 884.) The court 

found that the legislative history supported its interpretation because the 

“Legislature’s use of perfect and imperfect self-defense in the various versions 

of the statute demonstrates it knew how to include and exclude these 

concepts when it so chose.” (Id. at p. 885.) Thus, the language of the statute 

and the legislative history clearly showed an intent to exclude the concept of 

imperfect self-defense. Here, in contrast, the legislative history of section 

54444.2 does not clearly define the terms we are tasked with interpreting. 
27

similar words or phrases in statutes in pari materia ordinarily will be given 

the same interpretation.” (In re Bittaker (1997) 55 Cal.App.4th 1004, 1009.) 

“Two ‘ “[s]tatutes are considered to be in pari materia when they relate to the 

same person or thing, to the same class of person[s or] things, or have the 

same purpose or object.” ’ ” (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 

1091; see Neville v. County of Sonoma (2012) 206 Cal.App.4th 61, 76 [holding 

that Labor Code section 2924 had no bearing on the interpretation of Food 

and Agricultural Code section 2181 and Business and Professions Code 

section 12214, because it was not “related to” and did not have “the same 

purpose or objective” of those statutes].) 

Section 69525 deals with the governance of an auxiliary organization 

that the Student Aid Commission established “for the purpose of providing 

operational and administrative services for the participation by the 

commission in the Federal Family Education Loan Program, or for other 

activities approved by the commission . . . .” (§ 69522.) It is part of a 

statutory scheme with the object of enhancing the effectiveness of state 

student aid programs. (§ 69500.) Section 99202 concerns the establishment 

of project advisory boards to further the legislative goal of developing 

teachers’ subject matter and content knowledge. (§§ 99200, subd. (a)(1), 

99202.) Those statutes do not address the specific educational needs of 

migrant children. Even if there may be some overlap in the subject matter of 

those statutes and the MEP, they do not have the same purpose. (§ 54440, 

subd. (b); see Walker v. Superior Court (1988) 47 Cal.3d 112, 124, fn. 4 

[“Characterization of the object or purpose is more important than 

characterization of subject matter in determining whether different statutes 

are closely enough related to justify interpreting one in light of the other”].) 

They are therefore not in pari materia, and are irrelevant. 
28

Even if the statutes are in pari materia, canons of statutory instruction 

are not dispositive, and serve as “ ‘mere[] aids to ascertaining probable 

legislative intent.’ ” (Ferra v. Loews Hollywood Hotel, LLC (2021) 11 Cal.5th

585, 879.) Courts will not accord the same meaning to similar phrases if “a 

contrary intent appears.” (Scottsdale Ins. Co. v. State Farm Mutual 

Automobile Ins. Co., supra, 130 Cal.App.4th at p. 899.) As previously 

discussed, the application of other principles of statutory construction to 

section 54444.2 reveals a legislative intent contrary to the broad definition of 

“composition” in sections 69525 and 99202.

We therefore conclude that the regulations do not conflict with migrant 

parents’ authority to “determine[]” or “decide on” the “composition” of the 

RPACs. We thus turn to Wendz’s remaining arguments. 

4. The Regulations Regarding Community Members Are Consistent 

with Section 54444.2

Wendz next makes three arguments that the regulations conflict with 

certain provisions of section 54444.2, subdivision (a)(1)(A), that deal with 

community members. We consider and reject each in turn.

a. Definition of Eligible Community Member

First, Wendz argues that California Code of Regulations, title 5, section 

12010, subdivision (b)(1) conflicts with the provision in subdivision (a)(1)(A) 

of section 54444.2 that migrant parents nominate “ ‘[a]ll other community 

candidates’ ” for the RPACs aside from school personnel and students, 

because the regulation includes a definition of “ ‘[e]ligible community 

member.’ ” The regulation defines “[e]ligible community member” as 

“knowledgeable about the needs of migrant children, and is either an eligible 

migrant child or a professional working in the field of education and social 

and health services.” (Cal. Code Regs., tit. 5, § 12010, subd. (b)(1).) 
29

According to Wendz, this definition prevents parents from nominating the 

“vast majority” of community members.

Because Wendz is making a facial challenge to the validity of the 

regulation, she “can prevail only if the text of the regulation, on its face, is 

inconsistent with the relevant statute[s].” (PacifiCare Life & Health Ins. Co. 

v. Jones (2018) 27 Cal.App.5th 391, 403; see Gov. Code, § 11349, subd. (d) 

[“ ‘Consistency’ means being in harmony with, and not in conflict with or 

contradictory to, existing statutes, court decisions, or other provisions of 

law”].) “ ‘A facial challenge is “ ‘the most difficult challenge to mount 

successfully, since the challenger must establish that no set of circumstances 

exists under which the [law] would be valid.’ ” ’ ” (PacifiCare Life & Health 

Ins. Co. v. Jones, at p. 403.) 

Here, the regulation does not, on its face, conflict with section 54444.2, 

as it preserves parents’ authority to elect eligible members and nominate 

community member candidates. Although the regulation may limit the 

community candidates that are eligible to serve as RPAC members, parents 

still have the authority to nominate and elect specific individuals from the 

community. (See PaintCare v. Mortensen (2015) 233 Cal.App.4th 1292, 1310–

1311 [regulation properly “ ‘fill[ed] up the details’ ” of the statutory scheme 

where it did not usurp manufacturers’ authority to set specific goals in their 

paint stewardship plans; rather, it clarified that the manufacturer is to 

calculate a baseline and “set a goal based on a change in the baseline”].) 

Wendz’s assertion that the regulation conflicts with parents’ authority 

to nominate “[a]ll other community candidates” requires us to find that the 

statute provides parents the authority to set RPAC member eligibility 

requirements. Indeed, Wendz argues that the statute provides migrant 

parents the authority “without restriction” to nominate all other community 
30

candidates. But as previously mentioned, section 54444.2 already imposes in 

subdivision (a)(1)(A) a requirement for member eligibility: “The membership 

of each parent advisory council shall be composed of members who are 

knowledgeable of the needs of migrant children . . . .” (§ 54444.2, subd. 

(a)(1)(A).) This suggests that the Legislature did not intend the language 

that parents “shall” nominate “[a]ll other community candidates” to confer on 

parents the exclusive authority to set community member qualifications. 

Instead, when read in context of the entire subdivision, that sentence and the 

one before it— “nonparent candidates shall be nominated by the groups they 

represent: teachers by teachers, administrators by administrators, other 

school personnel, and pupils by pupils” (§ 54444.2, subd. (a)(1)(A))—merely 

specify which groups have the power to nominate candidates from the general 

categories set forth in the statute. 

We further observe that section 54444.2 does not prohibit the 

Superintendent from imposing additional eligibility requirements, nor does it 

state that requiring RPAC members be “knowledgeable of the needs of 

migrant children” is sufficient to ensure “effective” parental involvement in 

the MEP. This lack of specificity in the statute and the Legislature’s broad 

grant of authority to the Superintendent to “take the steps necessary” to 

ensure effective parental involvement in the MEP support the issuance of 

regulations that impose RPAC member eligibility requirements “more 

exacting than those already imposed by statute” (County of San Diego v. 

Bowen (2008) 166 Cal.App.4th 501, 512), as it demonstrates a legislative 

awareness that the Superintendent might determine that more exacting 

requirements are necessary to ensure effective parental involvement in the 

RPACs. 
31

The language of section 54444.2 and its context therefore suggest that 

the Legislature did not intend to prohibit the Superintendent from 

establishing additional eligibility criteria for RPAC members. California 

Code of Regulations, title 5, section 12010, subdivision (b)(1) is therefore 

consistent with section 54444.2 and is a proper exercise of the 

Superintendent’s authority under that statute.

b. Members’ Nominating Power 

Wendz next argues that subdivision (a) of California Code of 

Regulations, title 5, section 12013 conflicts with the language in subdivision 

(a)(1)(A) of section 54444.2 that “the parents” are to nominate certain 

community candidates and other groups are to nominate community 

candidates from their respective groups. Wendz challenges the portion of the 

regulation that states “[i]ndividual RPAC members may nominate eligible 

community members to the RPAC.” (Cal. Code Regs., tit. 5, § 12013, subd. 

(a).) 

Contrary to Wendz’s assertion, however, this portion of the regulation 

does not confer exclusive nominating power to existing regional council 

members, nor does it purport to provide individual council members the 

authority to nominate community member candidates from any of the groups 

enumerated in section 54444.2. Rather, the regulation is concerned with 

delineating the community member nomination process, and it provides, 

among other provisions, that “individual parent members of the RPAC shall 

solicit nominations for community member positions from the districts within 

its boundaries” and that “[e]ligible community members shall be nominated 

by the group they represent.” (Cal. Code Regs., tit. 5, § 12013, subd. (a).) 

Thus, when read in context, the challenged portion of the regulation merely 

clarifies that individual regional council members are permitted to nominate 
32

eligible community members to the RPACs. (See Woodbury v. BrownDempsey (2003) 108 Cal.App.4th 421, 433 [“Ordinarily, the word ‘may’ 

connotes a discretionary or permissive act”].) Clarification of nomination 

procedures for RPACs is a matter which falls within the Superintendent’s 

broad regulatory power under section 54444.2. (See, e.g., PaintCare v. 

Mortensen, supra, 233 Cal.App.4th at p. 1313 [“CalRecycle has ‘filled up the 

details’ to clarify the criteria for evaluation of manufacturer Plans”].) Thus, 

the regulation is consistent with section 54444.2.

c. Requirement that Two-Thirds of RPAC Members Be Parent 

Members 

Finally, Wendz argues that California Code of Regulations, title 5, 

section 12011, which imposes a three-member cap on community members

(Cal. Code Regs., tit. 5, § 12011, subd. (a)), conflicts with the language in 

subdivision (a)(1)(B) of section 54444.2 that two-thirds of the members of 

RPACs “shall be parents.” According to Wendz, the latter “reflects the 

Legislature’s conscious decision to allow migrant parents to compose regional 

councils with as many as one-third of members who are not migrant parents.” 

Thus, Wendz contends, the regulation conflicts with that statutory 

requirement because the three-member cap would effectively raise the twothirds requirement in any situation where migrant parents choose to form a 

council with more than nine members. We disagree that the regulation 

conflicts with subdivision (a)(1)(B) of section 54444.2.

Subdivision (a)(1)(B) of section 54444.2 on its face is concerned with 

ensuring effective parental involvement in the RPACs by mandating a 

minimum number of parent members. (§ 54444.2, subd. (a)(1)(B).) Based on 

its plain language, that subdivision imposes a floor: “At least two-thirds of 

the members of each parent advisory council shall be the parents of migrant 
33

children.” The subdivision does not state that no more than or only twothirds of the RPAC members shall be parents, nor does it state that parents 

shall have the authority to determine whether one-third of the members of 

the RPACs will be nonparent members. (Ibid.) As the statute does not 

impose any limit on the number of parent members on RPACs, California 

Code of Regulations, title 5, section 12012 does not facially conflict with 

section 54444.2. (County of San Diego v. Bowen, supra, 166 Cal.App.4th at 

pp. 511–512 [finding that an agency’s regulation that imposed additional 

tallying requirements did not conflict with statute providing a statewide 1 

percent manual postelection tally, because the latter statute did not expressly 

limit vote tallying].)

Wendz’s argument depends on a finding that migrant parents have the 

“sole authority” to determine the makeup of the RPACs beyond the twothirds parent members requirement. But as previously discussed, 

subdivision (a)(1) of section 54444.2 provides migrant parents only the power 

to elect members and nominate certain candidates. It is the Superintendent 

who has the authority to “ ‘fill up the details’ ” of the statute to effectuate the 

goal of ensuring effective parental involvement in the MEP (Batt v. City and

County of San Francisco, supra, 184 Cal.App.4th at p. 171), which includes 

the authority to adopt regulations supplementing the statutory directives

pertaining to the size and makeup of the RPACs. Given the plain language of 

subdivision (a)(1)(B) to impose a mere floor and its placement within the 

subdivision granting the Superintendent broad discretionary authority, the 

Legislature has delegated to the Superintendent the power to impose 

requirements “more exacting than those already imposed by statute . . . .”

(County of San Diego v. Bowen, supra, 166 Cal.App.4th at p. 511 [“The 

authority of an agency to alter or enhance the scope of existing statutory law 
34

is primarily a question of Legislative intent”]; see also Agricultural Labor 

Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 420 [“The Legislature 

can surely accomplish indirectly that which it could do directly”].) The 

Superintendent has properly exercised his discretionary authority under 

section 54444.2 by imposing a rule that in some situations would require 

migrant parents to form RPACs with more than two-thirds parent members. 

Wendz points to the legislative history of the statute as support for her 

argument. This history shows that as originally proposed in Assembly Bill

1382, section 54444.2 would require that “[a]t least 75 percent of the 

members of each parent advisory council shall be the parents of migrant 

children.” The staff of the Minority Ways and Means Committee objected to 

this version, stating that the federal MEP only required a “majority” of 

members on parents advisory councils be parent members. And the staff of 

the Subcommittee on Educational Reform proposed striking the words “[a]t 

least 75 percent” and substituting the words “[t]he majority” for the same 

reason, and additionally commented that “[i]t is difficult to see how the 

district’s and school’s sense of membership will be increased by mandating 

parent advisory councils (PAC’s) that are 75 percent parents.” The 

Legislature subsequently lowered this requirement to “[a]t least two-thirds” 

of the members. 

Contrary to Wendz’s contention, this history does not provide a “clear 

statement of intent” to reserve for parents the right to compose RPACs with 

as many as one-third members who are not parents. (See J.A. Jones 

Construction Co. v. Superior Court, supra, 27 Cal.App.4th at p. 1579.) The 

amendments suggest instead that the Legislature was compromising with 

objectors by lowering the 75 percent requirement to two-thirds instead of a 

majority. Accordingly, California Code of Regulations, title 5, section 12011
35

is a proper exercise of the Superintendent’s authority to take the steps 

necessary to ensure effective parental involvement in the MEP. 

B. Reasonable Necessity of Regulations

Under the APA, “no regulation adopted is valid or effective unless . . . 

reasonably necessary to effectuate the purpose of the statute.” (Gov. Code, § 

11342.2.) Wendz argues that the regulations are invalid because there is no 

substantial evidence to support the Superintendent’s determination that the 

regulations were reasonably necessary to effectuate the purpose of section 

54444.2. We disagree. 

Wendz’s emphasis on substantial evidence “obscures the principle that 

courts are deferential of an agency’s determination of reasonable necessity.” 

(California Assn. of Medical Products Suppliers v. Maxwell-Jolly (2011) 199 

Cal.App.4th 286, 315 (Maxwell-Jolly).) “ ‘[R]easonable necessity . . . generally 

does implicate the agency’s expertise; therefore it receives a much more 

deferential standard of review.’ ” (Ibid.) That said, a regulation “may” be 

declared invalid for lack of substantial evidence to support an agency’s 

determination that the regulation is reasonably necessary to effectuate the 

purpose of the statute. (Gov. Code, § 11350, subd. (b)(1).) “ ‘Necessity’ means 

the record of the rulemaking proceeding demonstrates by substantial 

evidence the need for a regulation to effectuate the purpose of the statute . . . 

that the regulation implements, interprets, or makes specific, taking into 

account the totality of the record.” (Gov. Code, § 11349, subd. (a).) 

In Maxwell-Jolly, the State Department of Health Care Services 

(Department) adopted regulations that set upper billing limits for providers 

of durable medical equipment and certain medical supplies to Medi-Cal 

recipients. (Maxwell-Jolly, supra, 199 Cal.App.4th at p. 291.) According to 

the Department, the regulations closed a loophole in Medi-Cal regulations, 
36

under which some providers were purchasing discounted products, or 

obtaining them at no cost, and billing Medi-Cal for reimbursement without 

accounting for the actual product purchase prices. (Ibid.) The Department 

determined that the regulations were “ ‘necessary to prevent and curtail 

provider fraud and abuse’ ” regarding medical supplies and durable medical 

equipment. (Id. at p. 316.) An association of medical product suppliers 

challenged the regulations in a petition for a writ of mandate, which the trial 

court denied. (Id. at p. 291.) On appeal, the association argued that there 

was not substantial evidence supporting the reasonable necessity of the 

regulations because the Department did not actually produce evidence 

showing that fraud or abuse was occurring. (Id. at pp. 315–316.) 

Our colleagues in Division 2 of this court disagreed that there was no 

substantial evidence supporting the Department’s determination of 

reasonable necessity. (Maxwell-Jolly, supra, 199 Cal.App.4th at pp. 316–

317.) The court first concluded that the loophole itself was substantial 

evidence to support the reasonable necessity of the regulations. (Id. at p. 

316.) “Even if the Department had no evidence that any providers had yet to 

exploit this loophole, it would have been entitled to adopt the [regulations] to 

‘prevent’ abuse in the future under [Welfare and Institutions Code] section 

14043.75.” (Id. at pp. 316–317.) This court further found that statements the 

Department made in its initial and final statements of reasons supported its 

determination of reasonable necessity. (Id. at p. 317.) Those statements 

included that the Department “ ‘routinely reviews the billing practices of 

Medi-Cal providers’ ” and “ ‘conducts audits of providers’ accounting and 

billing practices,’ ” that the regulations were “ ‘based on the findings of those 

reviews and audits,’ ” and that the Department’s “investigations . . . ‘reveal 

exploitation of the Medi-Cal reimbursement system by providers . . . .’ ” 
37

(Ibid.) Finally, the court found that comments made by the public during the 

notice-and-comment period further supported the reasonable necessity of the 

regulations, as the comments suggested that fraud in the Medi-Cal program 

was rampant. (Id. at p. 294.) Thus, based on the loophole itself and the 

statements in the record, the court concluded that there was substantial 

evidence to support the reasonable necessity of the regulations to prevent and 

curtail fraud and abuse pursuant to Welfare and Institutions Code section 

14043.75. (Id. at p. 318.) 

Here, Wendz is challenging the regulations that place a limit on the 

number of parent and community RPAC members, that impose term limits 

on members, that provide a definition of “eligible community member,” and 

that specify grounds for member disqualification.7 The Superintendent

adopted those regulations pursuant to section 54444.2 because of his 

determination that regulations were needed to “provide necessary guidance 

to assist all RPACs to operate effectively, meet statutory requirements, and 

safeguard the effectiveness of parent involvement at the regional and district 

level.” 

As in Maxwell-Jolly, the record in this case contains statements in the 

initial and final statements of reasons that provide factual support for the 

Superintendent’s determination of the need for regulations to effectuate the 

purpose of section 54444.2. The Superintendent remarked in his initial 

statement of reasons that the CDE implements the MEP by “monitoring 

program compliance with program and fiscal requirements . . . .” and that 

“[d]uring routine compliance visits, the CDE has found that RPACs are often 

7 Wendz is also challenging the regulation prohibiting members’ use of 

alternates. However, for the reasons discussed below, the prohibition is 

invalid, and we strike it from the regulations.
38

out of compliance with” the requirement that at least two-thirds of the 

members of each RPAC be parent members, and that “[i]n current practice, 

council membership varies greatly across regions and, at times, can include 

dozens of individuals.” The Superintendent’s initial and final statements of 

reasons provided that the “CDE program reviews” and “monitoring visits” 

revealed “many councils [were] dominated by the same non-parents’ [sic] 

members across long periods of time[,]” which “has stifled and limited 

participation from new or current migrant parents and instead encouraged 

participation from former members, who no longer migrate nor do they have 

children eligible for the program.” The Superintendent stated that the issues 

with the RPACs’ statutory compliance and with limited opportunities for 

parent participation have emerged because local bylaws currently determine 

RPAC governance, and those bylaws “vary widely” in their provisions and 

effectiveness. These statements provide substantial evidence of the need for 

regulations regarding the size and makeup of RPACs to ensure effective 

parental involvement in the MEP.

8

8 The initial statement of reasons also declares that the regulations 

“will address the federal non-compliance findings for the MEP” but does not 

provide any information about those findings. Wendz argues that this bare 

assertion does not constitute substantial evidence of the necessity of the 

regulations. Wendz also argues that documents produced in the trial court 

reflecting at least some of the CDE’s monitoring reviews show that no recent 

reviews predating the Superintendent’s rulemaking found compliance issues 

with the RPACs. 

We agree that the reference to federal non-compliance findings does not 

constitute substantial evidence of the reasonable necessity of the regulations. 

Even assuming that “federal non-compliance findings” refers to the 2011 

report prepared by the U.S. Department of Education Office of Migrant 

Education, which we discuss later in the opinion, we do not consider that 

report in deciding whether substantial evidence supports the challenged 

regulations, because the report does not appear in the rulemaking file. We

nonetheless find that there is substantial evidence in the record supporting 
39

We further conclude that the need for some regulation was self-evident 

from the statute itself, given the paucity of standards in the Act that govern 

RPACs. (§ 54444.2, subd. (a)(1).) Even if the Superintendent had no 

evidence before him that parental involvement in the RPACs was currently 

ineffective or out of compliance with statutory requirements, the 

Superintendent was entitled to adopt regulations to “ensure” effective 

parental involvement in the MEP in the future under section 54444.2. (See 

Maxwell-Jolly, supra, 199 Cal.App.4th at pp. 316–317.) Indeed, the 

Superintendent concluded that the regulations would “safeguard” the 

effectiveness of parental involvement in the MEP, and that “clear rules” for 

governance of the RPACs and for elections would “maximize” parent 

participation and “encourage” cooperative governance among council 

members and with the operating agencies.

The case upon which Wendz relies as support for her argument that 

there is no substantial evidence of reasonable necessity—Light v. State Water 

Resources Control Bd. (2014) 226 Cal.App.4th 1463—does not compel a 

different conclusion. There, the State Water Resources Control Board 

(Board) adopted a regulation that was likely to require a reduction in 

diversion of water from the stream system for frost protection. (Id. at p. 

1472.) The Board adopted the regulation to protect salmonids in the stream 

system from stranding mortality due to sudden drops in water level. (Id. at 

p. 1495.) The trial court found no substantial evidence to support the Board’s 

the Superintendent’s determination of reasonable necessity. The record 

suggests that the CDE’s findings from its “routine” compliance reviews and 

monitoring visits cited by the Superintendent in his initial notice are 

independent of the OME’s findings in the 2011 report. And the CDE 

monitoring review documents produced by respondents does not mean that 

CDE staff did not make oral reports of their compliance review findings 

regarding issues with the RPACs.
40

finding of regulatory necessity, concluding that the Board had not collected 

sufficient data to demonstrate the need for the regulation. (Ibid.) 

On appeal, this court concluded that while it was “uncertain from the 

record precisely what type of regulation of frost protection diversion [was] 

necessary to protect salmonids, the need for some type of regulation [was] 

supported by substantial evidence.” (Light v. State Water Resources Control

Bd., supra, 226 Cal.App.4th at p. 1497.) The four scientific studies the Board 

relied on in adopting the regulation did not directly connect salmonid 

strandings with water diversion for frost protection, but the court concluded 

that the Board made reasonable inferences associating salmonid mortality 

with the sudden declines observed during periods of low temperature and 

connecting those declines with diversion for the purpose of frost protection. 

(Id. at pp. 1496–1497.) “Giving due deference to the Board’s expertise, and 

recognizing our obligation to resolve conflicts and draw inferences in the 

Board’s favor, we conclude the foregoing provides substantial evidence to 

support the Board’s conclusion that some regulation of growers’ diversion of 

water for frost protection was necessary to prevent unwarranted salmonid 

mortality.” (Id. at p. 1496.) 

So too, here, the Superintendent reasonably inferred from the lack of 

consistent rules governing the RPACs and from CDE compliance reviews and 

monitoring visits that some regulation of the size and makeup of the RPACs 

was necessary to ensure effective parental involvement in the MEP, even if it 

is not clear from the record the precise regulations needed to accomplish that 

goal. We cannot substitute our own deductions for those of the agency. 

(Light v. State Water Resources Control Bd., supra, 226 Cal.App.4th at p. 

1495.) 
41

Wendz argues that the Superintendent could not rely on the references 

in the initial and final statements of reasons to “routine compliance visits,” 

“program reviews,” and “monitoring visits,” but instead was required to 

present “support” for those reviews and visits. But Wendz does not cite any 

legal authority in support of this assertion, nor does she argue that the 

Superintendent in his rulemaking capacity was required to follow formal 

rules of evidence. Here, as we have indicated, the Superintendent needed 

only to provide some factual basis in the administrative record for his

determination that the regulations were reasonably necessary to effectuate 

the purpose of section 54444.2. (See Gov. Code, § 11349, subd. (a) [“evidence” 

of “ ‘[n]ecessity’ ” includes “facts”]; Maxwell-Jolly, supra, 199 Cal.App.4th at 

p. 317.)

Wendz further argues that even if substantial evidence existed showing 

noncompliance with the statutory requirement that at least two-thirds of the 

RPAC members must be parent members, the Superintendent made no 

showing that the regulations will “have any effect on whether regional 

councils comply with existing proportionality requirements.” However, an 

agency is entitled to make its own policy judgment on how best to implement 

its regulatory authority. “Our function in passing upon the efficacy of the 

means employed by the agency to effectuate the statutory purposes is . . . a 

very limited one . . . ‘[A court] will not ... superimpose its own policy judgment 

upon the agency in the absence of an arbitrary and capricious decision’.... [¶] 

Nor, in reaching this conclusion, can we consider alternative methods of 

regulation available to the department.” (Ralphs Grocery Co. v. Reimel

(1968) 69 Cal.2d 172, 179–180.) Because Wendz does not contend that the 

regulations are not rational or that they are arbitrary and capricious, we 

assume without deciding that the regulations were a rational response to the 
42

Superintendent’s efforts to ensure effective parental involvement in the MEP, 

and were not arbitrary or capricious.

Accordingly, we have no basis for invalidating the regulations for lack 

of reasonable necessity.

C. Compliance with the APA

A regulation “may be declared to be invalid for a substantial failure to 

comply with [the APA] . . . .” (Gov. Code, § 11350, subd. (a).) Wendz argues 

that the trial court erred in upholding the regulations because the 

Superintendent failed to substantially comply with four of the APA’s 

procedural requirements in adopting the regulations. First, she argues that 

the Superintendent failed to comply with Government Code section 11346.2, 

because he did not disclose in his initial statement of reasons that he relied 

on a 2011 report from the U.S. Department of Education Office of Migrant 

Education in proposing the adoption of the regulations. Second, she contends 

that the Superintendent’s initial statement of reasons failed to describe and 

justifiably reject reasonable alternatives available to the Superintendent at 

that time. (Gov. Code, § 11346.2, subd. (b)(4).) Third, and relatedly, Wendz

argues that the Superintendent’s final statement of reasons failed to describe 

and justifiably reject reasonable alternatives presented to him through the 

notice-and-comment period. (Gov. Code, § 11346.9, subd. (a)(4).) Finally, 

Wendz argues that the Superintendent failed to give the public a 45-day 

notice of a proposed regulation prohibiting RPAC members’ use of alternates. 

(Gov. Code, § 11346.4, subd. (a).) Reviewing the Superintendent’s compliance 

with those rule-making procedures de novo (California Advocates for Nursing 
43

Home Reform v. Bonta (2003) 106 Cal.App.4th 498, 506), we conclude that 

only the latter argument has merit, and so we begin with that contention.

1. The Superintendent Failed to Give the Public the Requisite 45 

Days’ Notice of the Prohibition on Alternates.

The prohibition on RPAC members’ use of alternates is found in 

subdivision (a) of California Code of Regulations, title 5, section 12011. 

Initially, the proposed text of the regulation stated that “[t]he RPACs shall be 

comprised of ten eligible parent members and three community members . . . 

.” The initial statement of reasons noted that currently, council membership 

“varies greatly across regions and, at times, can include dozens of 

individuals.” Therefore, the purpose of the proposed rule was to “limit RPAC 

membership” in order to “ensure efficient and effective meetings” and to 

“ensure the RPAC functions as a decision-making body for the larger program 

rather than the current practice which is a large parent meeting that does 

not include representative governance.” 

After receiving several comments on the proposed regulations, 

including a couple of comments urging the Superintendent to allow members 

to use alternates, the Superintendent issued a 15-day notice of modifications 

to the text of the proposed regulation. As pertinent here, the Superintendent 

amended the proposed regulation to increase eligible parent members up to 

15 and to “specify” that alternate members were not allowed. The final rule 

stated in relevant part that “[t]he RPAC shall be comprised of up to 15 

eligible parent members with no alternate members.” (Cal. Code Regs., tit. 5, 

§ 12011, subd. (a).)

Wendz argues that the trial court erred in holding that the 

Superintendent did not need to provide the minimum 45-day notice required 

under Government Code section 11346.4 for proposed regulatory action for 
44

the modification prohibiting alternates. In response, respondents argue that 

the modification was “sufficiently related” to the original text such that they 

only needed to provide a 15-day notice under Government Code section 

11346.8, subdivision (c).

a. The Law Governing Notice in APA Rulemaking

Government Code section 11346.4 provides that “[a]t least 45 days 

prior to the hearing and close of the public comment period on the 

adoption . . . of a regulation,” notice of the proposed action “shall” be mailed 

to specified individuals and entities, published in the California Regulatory 

Notice Registrar, and posted on the state agency’s website if the agency has a 

website. (Gov. Code, § 11346.4, subd. (a).) Under Government Code section 

11346.8, the agency cannot adopt a regulation which has been changed from 

that which was originally made available to the public in the notice, “unless 

the change is . . . sufficiently related to the original text that the public was 

adequately placed on notice that the change could result from the originally 

proposed regulatory action.” (Gov. Code, § 11346.8, subd. (c).) If the change 

is a “sufficiently related” change, then the agency must make the full text of 

the resulting regulation available to the public “for at least 15 days before the 

agency adopts . . . the resulting regulation.” (Ibid.)

The parties cite no case, and we are aware of none, determining when 

an amendment to a regulation is “sufficiently related” to the original text 

under Government Code section 11346.8 such that the public had adequate 

notice of the potential modification. Several federal cases have addressed the 

issue of adequate notice in the rulemaking context under the federal version 

of the APA. Wendz has relied on one such case—Long Island Care at Home, 

Ltd. v. Coke (2007) 551 U.S. 158—as support for her argument. At issue in 

Long Island Care was a Labor Department regulation interpreting a Fair 
45

Labor Standard Act (FLSA) provision exempting from the FLSA’s minimum 

wage and maximum hour rules “companionship” workers. (Long Island Care 

at Home, Ltd. v. Coke, at p. 158.) The Labor Department initially proposed a 

rule that would have placed outside the exemption individuals employed by 

third-party employers. (Id. at p. 174.) The final regulation, however, 

exempted all third-party-employed companionship workers from the FLSA. 

(Long Island Care at Home, Ltd. v. Coke, at pp. 158, 175.) The respondent 

argued that this regulation violated the federal APA because the notice-andcomment procedure leading to the promulgation of the regulation provided 

inadequate notice. (Id. at p. 174.) 

In determining whether there was adequate notice, the Court first 

noted that the federal APA requires an agency conducting notice-andcomment rulemaking to publish in its notice of proposed rulemaking “ ‘either 

the terms or substance of the proposed rule or a description of the subjects 

and issues involved.’ ” (Long Island Care at Home, Ltd. v. Coke, supra, 551 

U.S. at p. 174.) “The Courts of Appeals have generally interpreted this to 

mean that the final rule the agency adopts must be ‘a “logical outgrowth” of 

the rule proposed.’ ” (Ibid.) “The object, in short, is one of fair notice.” (Ibid.) 

The Court concluded that it was “reasonably foreseeable” that the Labor 

Department, after considering the matter, would withdraw the proposed 

regulation for “special treatment of employees of ‘covered enterprises,’ ” and 

therefore notice was not inadequate. (Id. at p. 175.) 

The reasoning of Long Island Care at Home, Ltd. v. Coke, supra, 551 

U.S. 158 is consistent with the concept of adequate notice in the rulemaking 

context articulated by our Supreme Court in a case that involved rulemaking 

that occurred prior to the enactment of Government Code section 11346.8. In 

Western Oil & Gas Ass’n v. Air Resources Board (1984) 37 Cal.3d 502, the 
46

State Air Resources Board (ARB) adopted standards for sulfates pursuant to 

its authority to adopt standards of ambient air quality. (Id. at pp. 507–508.) 

The initial notice stated that the “ ‘staff’s data tend to confirm the validity of 

the previously adopted .04 ppm standard, or a more stringent standard,’ ” 

and that the ARB would consider all evidence, including evidence supporting 

a more stringent or lenient standard. (Id. at p. 526.) The trial court 

concluded that the notice “should have proposed a specific standard and if the 

evidence at the hearing showed that some other standard was appropriate, a 

new notice followed by a hearing would be required.” (Ibid.)

Our high court disagreed: “To require a new notice and hearing would 

tie the agency into time consuming, circular proceedings transcending the 

statutory purpose: to advise the public of the subject under consideration and 

to afford a reasonable opportunity to present evidence, views and arguments. 

Accordingly, the regulation adopted need not be the same as that proposed as 

long as it deals with the same subject or issue dealt with by the notice.” 

(Western Oil & Gas Ass’n v. Air Resources Board, supra, 37 Cal.3d at p. 526.) 

In the case before it, the court found that the standard adopted by the ARB 

“clearly deals with the subject mentioned in the notices, and the notices were 

not so broad as to preclude effective comment by plaintiffs and other 

members of the public.” (Id. at p. 527.) “The determination of the 

appropriate standard can only be made by comparing it to other potential 

standards, and no matter how many hearings are held, essentially the same 

weighing process will be required.” (Ibid.)

The court cited with approval Schenley Affiliated Brands Corp. v. Kirby

(1971) 21 Cal.App.3d 177, superseded by statute on another ground as stated 

in Western Growers Assn. v. Occupational Safety & Health Standards Bd.

(2021) 73 Cal.App.5th 916, 933, fn. 4. (Western Oil & Gas Ass’n v. Air 
47

Resources Board, supra, 37 Cal.3d at p. 526.) There, the Department of 

Alcoholic Beverage Control amended a regulation to restrict wholesalers in 

the varieties and rates of discounts offered from the single-case price of 

distilled spirits. (Schenley Affiliated Brands Corp. v. Kirby, at p. 182.) The 

petitioners argued that the amended regulation the agency ultimately 

adopted “differed widely from that described in the notice . . . .” (Id. at pp. 

191, 193.) In determining the adequacy of the notice, the court held that the 

agency was not confined substantially to the proposal described in the 

published notice: “A prime objective is to persuade the agency into action 

differing from its pre-hearing proposal. . . . [¶] Thus, eventual adoption of a 

regulation differing from that described in the pre-hearing notice is one 

objective of the hearing process. Fairness too is a statutory desideratum. 

After an opportunity for participation in a hearing considering the subject or 

issue evoked by the pre-hearing draft or summary, affected interests cannot 

claim unfairness when the agency’s consideration of new information and 

views persuades it into a different enactment dealing with the identical 

subject or issue.” (Id. at p. 193.) The court concluded that the notice was 

adequate because it “sufficiently communicated awareness of proposed 

restrictions upon the number and kinds of discounts to be filed[,]” and the 

final rule “dealt with the very subject or issue evoked by the notice of 

hearing.” (Ibid.) 

Government Code section 11346.8, enacted almost a decade after the 

Schenley decision, appears to codify the standard for adequate rulemaking 

notice in that case, as it prohibits the adoption of a final rule different than 

that originally proposed unless it is “sufficiently related” to the original text 

such “that the public was adequately placed on notice that the change could 

result from the originally proposed regulatory action.” (Gov. Code, § 11346.8, 
48

subd. (c); see Pacific Intermountain Express v. National Union Fire Ins. Co.

(1984) 151 Cal.App.3d 777, 783 [“the Legislature is presumed ‘to have 

knowledge of existing judicial decisions and to have enacted statutes in light 

thereof’ ” absent a clear intent to the contrary].) 

b. Application of Notice Principles to this Case

Applying the principles of the notice cases, we must focus on whether 

the final rule adopted by the Superintendent concerned the same subject or 

issue as the initial notice and whether the Superintendent made his views 

known in a “ ‘concrete and focused form so as to make criticism or 

formulation of alternatives possible.’ ” (Small Refiner Lead Phase-Down Task 

Force v. United States E.P.A. (D.D.C. 1983) 705 F.2d 506, 548; see Western 

Oil & Gas Ass’n v. Air Resources Board, supra, 37 Cal.3d at pp. 526–527; 

National Black Media Coalition v. F.C.C. (2d Cir. 1986) 791 F.2d 1016, 1023 

[“ ‘[u]nfairness results unless persons are “sufficiently alerted to likely 

alternatives” so that they know whether their interests are “at stake” ’ ”].) If 

the notice does not provide any “specific indication” of the changes the 

Superintendent might try to make, or if the final rule concerns a different 

issue altogether, notice may be inadequate because commenters will be 

“hampered in effectively opposing those changes.” (Small Refiner Lead 

Phase-Down Task Force v. E.P.A, at p. 548.)

We conclude that the original text of the regulation and the notice of 

proposed regulations did not provide the public adequate notice of the final 

rule. The initial rule placed a cap on the number of members; it does not, on 

its face, address members’ use of alternates. And the notice of proposed 

rulemaking provides no specific indication that the Superintendent might 

prohibit the use of alternates. It focuses instead on the problems arising 

from RPAC meetings that involve a large number of members, and it 
49

specifies in detail other issues with parent member participation. This 

specificity, together with total silence concerning members’ use of alternates, 

indicates that alternates were not at issue. (See Chocolate Mfrs. Ass’n of U.S. 

v. Block (4th Cir. 1985) 755 F.2d 1098, 1106–1107 [finding that the agency 

did not provide adequate notice that elimination of flavored milk would be 

considered in rule-making procedure where discussion in preamble to 

proposed rule was detailed and identified specific foods which agency was 

examining for excess sugar].) In comparison, the final rule places a cap on 

the number of members and prohibits the use of alternates, thereby imposing 

an additional restriction on migrant parents. (Cal. Code Regs., tit. 5, § 

12011, subd. (a).) 

Although in some cases courts have found adequate notice of a final 

rule that imposes different or additional measures than those originally 

proposed, the proposed rule and the changes to the rule addressed the same 

issue. (See, e.g., South Terminal Corp. v. E.P.A. (1st Cir. 1974) 504 F.2d 646, 

656–657 [finding that the final rule, which added transportation controls 

different than those in the proposed rule, was in “character with the original 

scheme” because both the proposed and final regulations “stress VMT 

reducing controls”].) That is not the case here, because the final statement of 

reasons states that the prohibition on alternates was necessary to address 

“inconsistent attendance” and to ensure the members are “fully informed and 

up-to-date on discussion topics at every meeting,” issues the Superintendent 

did not identify in the initial statement of reasons. Under these 

circumstances, it cannot be said that the public had adequate notice that the 
50

Superintendent might adopt a regulation prohibiting the use of alternates by 

RPAC members.9

Because the prohibition on alternates was not a “sufficiently related” 

change under Government Code section 11346.8, subdivision (c), the 

Superintendent was required to provide the public 45 days’ notice under 

Government Code section 11346.4, subdivision (a). He failed to do so. The 

trial court therefore erred in finding that the prohibition on alternates was 

valid, and we strike it from section 2011, subdivision (a).10 (Gov. Code, § 

11350, subd. (a).)

9 Although, as noted, there were a couple of comments prior to the 15-

day notice urging the Superintendent to allow alternates, the Superintendent 

“ ‘cannot bootstrap notice from a comment.’ ” (Fertilizer Institute v. U.S. 

E.P.A. (D.D.C. 1991) 935 F.2d 1303, 1312.) It is the Superintendent’s 

responsibility to provide adequate notice of a regulatory proposal. (Ibid.; 

Gov. Code, § 11346.8, subd. (c) [a final rule must be “sufficiently related” to 

the “original text,” italics added].)

10 The parties do not address the issue whether we can sever the 

prohibition on alternates from the rest of the regulation, although the issue is 

necessarily raised by Wendz’s argument that the prohibition on alternates is 

invalid. Because the prohibition on alternates is grammatically severable 

and its severance “would not change or alter the substance” of the rest of the 

regulation, which is valid, we conclude that the proper remedy is to sever the 

prohibition. (Pulaski v. California Occupational Safety and Health 

Standards Board (1999) 75 Cal.App.4th 1315, 1342 [finding that a small 

employer exemption in a regulation imposing requirements to address 

repetitive motion injuries in the workplace was an abuse of the agency’s 

rulemaking discretion, and severing the exception from the rest of the 

regulation].) Thus, there is no reason to return the entire regulation to the 

Superintendent for more rulemaking, and the regulation should go into effect 

with the prohibition on alternates deleted. 
51

2. The Superintendent Was Not Required to Disclose the 2011 

OME Report in His Initial Statement of Reasons

Wendz argues that the Superintendent failed to substantially comply 

with the APA because he did not disclose in his initial statement of reasons a 

2011 report prepared by the U.S. Department of Education Office of Migrant 

Education (OME) that he allegedly relied on in adopting the regulations. 

Respondents disagree that this omission violated the APA, because 

Government Code section 11346.2 only requires disclosure in the initial 

statement of reasons of “each technical, theoretical, and empirical study, 

report, or similar document, if any, upon which the agency relies in proposing 

the adoption . . . of a regulation[,]” and the OME report is not a technical, 

theoretical, or empirical report. We conclude that respondents have the 

better argument.11 

a. Factual and Procedural Background

In September 2011, the OME transmitted to the Superintendent the its

findings from its monitoring review of the CDE’s compliance with the federal 

11 In addition to Government Code section 11346.2, Wendz cites as 

support for her argument Sims v. Department of Corrections & Rehabilitation

(2013) 216 Cal.App.4th 1059 (Sims) for the proposition that one of the 

procedural requirements of the APA “is to disclose ‘the information or 

documents the agency relied upon in proposing . . . the regulation.’ ” The 

Sims court, however, did not determine whether the agency violated the 

requirement in Government Code section 11346.2 that the initial statement 

of reasons disclose certain documents relied upon by the agency in proposing 

the regulation. The language quoted by Wendz reflects the Sims court’s 

general discussion of the procedural requirements of the APA. (Sims, at p. 

1074.) Wendz also notes that the Sims court invalidated the regulations in 

part because the agency did not substantially comply with the requirement 

that the “ ‘rulemaking file’ ” is to “disclose” documents the agency relied on in 

drafting the regulations. In doing so, the court relied on Government Code 

section 11347.3, which pertains to the required contents of the rulemaking 

file. (Sims, at pp. 1066–1067.) However, Wendz does not address 

Government Code section 11347.3 in her appellate briefs, nor does she argue 
52

MEP grant program (the OME report). The federal MEP’s purpose is to 

assist states in meeting the special educational needs of migrant children. 

States are to use federal MEP funds to carry out this purpose by establishing 

and improving education programs for migrant children. The OME report 

provides an overview of the California MEP and discusses its areas of 

noncompliance with the federal MEP and the required corrective actions. 

As relevant to this appeal, one of the areas of noncompliance identified 

in the OME report is parent advisory councils. According to the report, the 

OME notified the CDE that it had received numerous complaints concerning 

the governance, operations, and actions of the state parent advisory council, 

and about staff misconduct at the state and regional levels. The CDE 

investigated the complaints by collecting and examining emails, letters, and 

meeting minutes, and concluded from those documents that the state parent 

advisory council failed to comply with notice and agenda requirements. 

Additionally, the CDE concluded that the council executive members 

interfered with member participation in meetings by, among other things, 

passing bylaws that unlawfully removed members and prohibited members 

from voting and otherwise participating in meetings. The CDE further found 

that the state parent advisory council did not comply with the two-thirds 

in her opening brief that the Superintendent was required to and failed to 

include the 2011 OME report in the rulemaking file. Rather, her argument 

focuses on the fact that the Superintendent’s initial statement of reasons does 

not disclose the report. Our review is limited to those issues that have been 

adequately raised and supported in Wendz’s brief. (Lee v. Kim (2019) 41 

Cal.App.5th 705, 721.) To the extent her reply brief attempts to make up for 

this shortcoming by arguing that “the failure to disclose that report in the 

administrative record violated the APA,” she is too late. (Eyford v. Nord

(2021) 62 Cal.App.5th 112, 126 [“arguments made in a reply brief for the first 

time are too late”].)
53

parent member requirement. The OME concluded from the CDE’s findings 

that the “continued dominance of [state parent advisory council] by nonparent members” was a “serious impediment to the effective involvement of 

parents of migrant children in the MEP.” Although the OME report largely 

concerns issues with the state parent advisory council, the OME concluded 

that the CDE’s failure to correct the identified issues was “likely to result in 

the continued dysfunctional operation of the [state parent advisory council]

and regional PACs in California until CDE has addressed the problems it 

identified.”

As Wendz points out, the Superintendent did not mention the OME 

report in his initial statement of reasons. Under the heading “Studies, 

Reports or Documents Relied Upon – Gov. Code Section 11346.2(b)(3),” his 

initial statement of reasons states that he “did not rely upon any technical 

reports or documents, including theoretical or empirical studies, in proposing

the adoption of these regulations.”

In the trial court, however, respondents argued in their opposition to 

the petition for writ of mandate that the OME report and the evidence in the 

administrative record “supports the Superintendent’s and CDE’s lawful 

promulgation of regulations . . . .” Respondents cited the facts in the report 

that the OME had received complaints about the misconduct of regional and 

state MEP staff, that RPACs had similar issues to the state parent advisory 

council, including non-parent members “hindering effective parental 

involvement at the regional level,” and that the OME had concerns about the 

operation of RPACs. 

In her reply, Wendz argued that the Superintendent was attempting to 

cure his noncompliance with subdivision (b) of Government Code section 

11346.2 by adding the OME report to the record after the fact.
54

The trial court concluded that the Superintendent did not have to 

support his initial statement of reasons with documents. It noted that 

subdivision (b)(3) of Government Code section 11346.2 requires the 

identification of a “ ‘document, if any, upon which the agency relies in 

proposing . . . a regulation.’ ” Because the Superintendent relied on oral 

reports of “routine compliance visits” and “program reviews” by CDE staff to 

support the regulations, the trial court concluded that the Superintendent’s 

“reliance was lawful and their stated reasons sufficed.”

b. The Report Does Not Fall Within the Scope of Government 

Code Section 11346.2.

The APA requires the agency to prepare and make available to the 

public an initial statement of reasons for proposing the adoption of a 

regulation. (Gov. Code, § 11346.2, subd. (b).) The initial statement of 

reasons “shall include, but not be limited to” certain information not at issue 

here (Gov. Code, § 11346.2, subd. (b)(1), (2), (4)) and an “identification of each 

technical, theoretical, and empirical study, report, or similar document, if 

any, upon which the agency relies in proposing the adoption . . . of a 

regulation” (Gov. Code, § 11346.2, subd. (b)(3)). 

The parties disagree on the meaning of the term “empirical” as used in 

subdivision (b)(3) of Government Code section 11346.2. Wendz argues in her 

reply that the dictionary definition of “empirical” is “originating in or based 

on observation or experience,” and thus the report was an empirical report 

because it made factual findings based on observation or experience. 

Respondents suggest a narrower construction of “empirical” based on an 

interpretation of that term in the context of the entire subdivision. We 

therefore begin our analysis by giving the statutory language its ordinary 
55

meaning. (California Public Records Research, Inc. v. County of Yolo (2016) 4 

Cal.App.5th 150, 167.)

Dictionary definitions of the term “empirical” vary, including the 

definition relied on by Wendz—“originating in or based on observation or 

experience.” (Merriam-Webster < https://www.merriamwebster.com/dictionary/empirical> [as of March 28, 2023].) In arguing that 

the report falls within this definition, Wendz cites the OME’s findings of the 

CDE’s noncompliance with various areas of the federal MEP grant program. 

Those findings are based, at least in part, on observations and experience, in 

the sense that the OME received information from the CDE and third parties 

regarding the CDE’s compliance with the program and formed opinions based 

on that information and its expertise. Thus, when the term “empirical” is 

viewed in isolation, it is difficult to dispute that the term is arguably

susceptible to Wendz’s interpretation.

However, when viewed in context of the entire subdivision, the word 

“empirical” takes on a narrower meaning. (Kaanaana v. Barrett Business 

Services, Inc. (2021) 11 Cal.5th 158, 169 [“words used in a statute are 

considered in context, not in isolation”].) Government Code section 11346.2, 

subdivision (b)(3) refers to an “empirical study, report, or similar document.” 

(Gov. Code, § 11346.2, subd. (b)(3), italics added.) An “empirical study” is 

commonly understood to mean a research study that relies on empirical 

evidence; it is designed to test a theory or hypotheses by collecting 

independently verifiable data or information and making conclusions based 

on that information. (See, e.g., Eisenberg & Miller, Incentive Awards to Class 

Action Plaintiffs: An Empirical Study (2006) 53 UCLA L.Rev. 1302;

Merchants’ Responses to Shoplifting: An Empirical Study (1976) 28 Stan. 

L.Rev. 589; Notes, Testing Three Commonsense Intuitions About Judicial 
56

Conduct Commissions (2012) 64 Stan. L.Rev. 1021; see also Webster’s 9th

New World College Dictionary (1989) [defining “empirical” as “relying or 

based solely on experiment and observation rather than theory,” as in “the 

empirical method”].) Empirical studies set forth the methodology used, which 

is important in the context of APA rulemaking because it allows the public to 

test the accuracy and reliability of the study results. (See Portland Cement 

Ass’n v. Ruckelshaus (D.D.C. 1973) 486 F.2d 375, 392–393, superseded by 

statute on other grounds as stated in American Trucking Ass’ns, Inc. v. 

United States EPA (D.D.C. 1999) 175 F.3d 1027 [remanding to the agency for 

further review where the agency failed to make available to the public the 

test methodology used on existing cement plants which formed a partial basis 

for the emission control level adopted by the agency].) 

A reading of the term “empirical” in Government Code section 11346.2 

as referring to a specific type of research study comports with the statutory 

construction doctrine of noscitur a sociis. Under the rule of noscitur a sociis, 

“[a] word of uncertain meaning may be known from its associates and its 

meaning ‘enlarged or restrained by reference to the object of the whole clause 

in which it is used. ’ ” (Oden v. Board of Administration (1994) 23 

Cal.App.4th 194, 203.) “ ‘In accordance with this principle of construction, a 

court will adopt a restrictive meaning of a listed item if acceptance of a more 

expansive meaning would make other items in the list unnecessary or 

redundant, or would otherwise make the item markedly dissimilar to the 

other items in the list.’ ” (People ex rel. Lungren v. Superior Court (1996) 14 

Cal.4th 294, 307.) From this perspective, the term “empirical” is best 

interpreted in light of its semantic relationship to the terms “theoretical” and 

“technical.” 
57

In reviewing the common meanings of the three terms, a central theme 

emerges. The terms “theoretical” and “empirical” are commonly used to refer 

to different methods of research. (See People v. Giani (1956) 145 Cal.App.2d 

539, 543 [explaining how research in “sexual deviation” has been “theoretic 

and speculative rather than empiric”]; Dictionary.com

<https://www.dictionary.com/compare-words/empirical-vs-theoretical> [as of 

March 26, 2023].) And the term “technical report” ordinarily refers to a 

report that discusses the results of technical or scientific research. (See, e.g., 

OEHHA Defends Use of NTP Reports in Listing Decisions (2003) vol. 17, No. 

4, Cal. Envtl. Insider 16 [discussing how the results of studies designed by 

the National Toxicology Project on toxic chemicals are published as technical 

reports]; Barclay Hollander Corp. v. California Regional Water Quality 

Control Bd. (2019) 38 Cal.App.5th 479, 490 [noting that company “conducted 

the requested environmental investigation, including collecting analytical 

data, and compiled technical reports based on 2,400 samples taken at several 

locations on the Site”].) Together, these terms refer to different types of 

research reports or studies. Therefore, in using the term “empirical,” it 

appears that the Legislature intended to require agencies to identify in their 

initial statement of reasons documents similar to an empirical study, rather 

than any report that contains findings based on a party’s observations or 

experience.

Moreover, in construing the term “empirical” in the context of the 

entire statutory scheme, we observe that a different statute concerning APA 

procedural requirements uses an almost identical phrase. Subdivision (b) of 

Government Code section 11347.3, which concerns the required contents of 

the “rulemaking” file, requires the inclusion of “technical, theoretical, and 

empirical studies or reports” relied on by the agency in adopting the 
58

regulation. (Gov. Code, § 11347.3, subd. (b)(7).) It also requires, in a 

separate subdivision, the inclusion in the rulemaking file of “[a]ll data and 

other factual information” submitted to the agency or relied on by the agency 

in adopting the regulation, thus distinguishing between that category of 

information and “technical, theoretical, and empirical” reports. (Gov. Code, § 

11347.3, subds. (b)(6), (b)(7).) Only the latter must be identified in an initial 

statement of reasons, whereas the rulemaking file must additionally contain 

“[a]ll data and other factual information” relied on by the agency. Where, as 

here, “the Legislature makes express statutory distinctions, we must 

presume it did so deliberately, giving effect to the distinctions, unless the 

whole scheme reveals the distinction is unintended.” (Jurcoane v. Superior 

Court (2001) 93 Cal.App.4th 886, 894.)

Based on the foregoing, we conclude that the OME report is not the 

type of report contemplated by subdivision (b)(3) of Government Code section 

11346.2. It does not concern technical, theoretical, or empirical research.

12 

Rather, the report is more properly classified as “other factual information,” 

as it discusses the OME’s opinions on respondents’ compliance with the 

federal MEP program based on information it received from third parties and 

the proper corrective actions for any noncompliance. (See POET, LLC v. 

State Air Resources Bd. (2013) 218 Cal.App.4th 681, 752–753 [e-mails to 

12 Wendz further argues that even if the report is not an empirical 

report, it falls within the “catchall” phrase “or similar document” in 

subdivision (b)(3) of Government Code section 11346.3. But given the syntax 

of that subdivision, the phrase “technical, theoretical, and empirical” modifies 

“study, report, or similar document.” Thus, a document must be similar to a 

technical, theoretical or empirical study or report to fall within the scope of 

subdivision (b)(3) of Government Code section 11346.3. For the reasons 

discussed above, that is not the case here.
59

agency from its technical consultants contained “factual information” as that 

term is used in Government Code section 11347.3, subdivision (b)(6), because 

they conveyed “nonopinion information,” “ ‘knowledge of a particular event or 

situation,’ ” and a “narrative” of the experts’ opinions].) As mentioned, only 

“technical, theoretical, or empirical” reports are required to be disclosed in 

the initial statement of reasons. (See Pulaski v. California Occupational 

Safety and Health Standards Board, supra, 75 Cal.App.4th at pp. 1330–1331 

[“the fact that the Board cited only six documents [in its initial and final 

statements of reasons] is not determinative, given that it was not required to 

cite any”].) 

Accordingly, the Superintendent’s failure to disclose the OME report in 

his initial statement of reasons does not constitute substantial 

noncompliance with the APA.

3. The Superintendent Complied with the APA Requirements 

Concerning Reasonable Alternatives.

Wendz next argues that the Superintendent failed to comply with the 

APA because his initial statement of reasons failed to describe and justifiably 

reject reasonable alternatives available to him at the time, and his final 

statement of reasons failed to describe and justifiably reject reasonable 

alternatives presented to him through the notice-and-comment period.

a. Initial Statement of Reasons

We first consider the Superintendent’s initial statement of reasons. 

Government Code section 11346.2, subdivision (b)(4) provides that an initial 

statement of reasons “shall” include “[a] description of reasonable 

alternatives to the regulation and the agency’s reasons for rejecting those 

alternatives. Reasonable alternatives to be considered include, but are not 

limited to, alternatives that are proposed as less burdensome and equally 
60

effective in achieving the purposes of the regulation in a manner that ensures 

full compliance with the authorizing statute or other law being implemented 

or made specific by the proposed regulation.” (Gov. Code, § 11346.2, subd. 

(b)(4).) Notwithstanding this requirement, “an agency is not required to 

artificially construct alternatives or describe unreasonable alternatives.” 

(Gov. Code, § 11346.2, subdivision (b)(4)(C).) 

In his initial statement of reasons, under the heading “Reasonable 

Alternatives Considered or Agency’s Reasons for Rejecting Those 

Alternatives,” the Superintendent stated that “[n]o other alternatives were 

presented to or considered by the SSPI.” Wendz interprets this statement as 

the Superintendent admitting that he did not consider alternatives, and she 

argues that the failure to do so is “inexcusable” because section 54444.2, 

subdivision (a)(5) already requires the Superintendent to “ ‘establish and 

implement training programs for members of the statewide and [regional] 

parent advisory councils to enable them to carry out their responsibilities.’ ” 

The Superintendent disagrees that he failed to substantially comply with 

Government Code section 11346.2, because there were no reasonable 

alternatives to consider, and he was not obligated to artificially construct or 

describe unreasonable alternatives. Based on the record before us, we agree 

with the Superintendent.

“Substantial compliance with a statute is dependent on the meaning 

and purpose of the statute.” (Freeman v. Vista de Santa Barbara Associates 

LP (2012) 207 Cal.App.4th 791, 793.) Thus, “noncompliance [with the APA] 

is insubstantial, or ‘harmless,’ only where it does not compromise any 

‘reasonable objective’ of the APA.” (Sims, supra, 216 Cal.App.4th at p. 1073.) 

The objectives of the APA are “ ‘to provide a procedure whereby people to be 

affected may be heard on the merits of the proposed rules’ ” and to ensure 
61

“ ‘meaningful public participation in the adoption of administrative 

regulations by state agencies.’ ” (Ibid.)

Here, there is no evidence in the record that any reasonable 

alternatives to the regulations existed at the time the Superintendent issued 

his initial statement of reasons. Thus, his failure to describe any reasonable 

alternatives in his initial statement of reasons does not constitute substantial 

noncompliance with the APA because there is no evidence that the failure 

deprived individuals or groups affected by the regulations of meaningful 

participation in the adoption of the regulations. (Sims, supra, 216 

Cal.App.4th at p. 1073; see also People v. Superior Court (Zamudio) (2000) 23 

Cal.4th 183, 207–208 [trial court’s failure to comply with Penal Code section 

1016.5 by advising a defendant of only some of the potential immigration 

consequences of accepting a guilty or no contest plea was not substantial 

noncompliance: “if defendant’s circumstances at the time of his 1992 plea did 

not, in fact, allow for the [omitted potential immigration consequence], the 

advisements he received . . . would have been in substantial compliance with 

the requirements of section 1016.5, in that they would have informed 

defendant of the only consequences pertinent to his situation”].) 

Wendz points to subdivision (a)(5) of section 54444.2 as evidence of the

existence of a reasonable alternative, but that section does not on its face 

provide a reasonable alternative to the regulations. It states, “The 

Superintendent and each operating agency shall establish and implement 

training programs for members of the statewide and operating agency parent 

advisory council to enable them to carry out their responsibilities.” (§ 54444.2, 

subd. (a)(5), italics added.) The RPAC members’ responsibilities are set forth 

in section 54444.4, and include the establishment of migrant education 

program goals, objectives, and priorities and advice on the selection, 
62

development, and reassignment of migrant education program staff. (§ 

54444.4, subd. (a)(1), (3).) At most, those responsibilities are only 

tangentially related to the issues the regulations seek to address—noncompliance with the statutory requirement of two-thirds parent membership, 

limited opportunities for parent participation on regional councils, and 

cooperative governance among councilmembers and with operating agencies. 

Wendz does not explain how the training required under subdivision (a)(5) of 

section 54444.2 would be “less burdensome and equally effective” as the 

regulations adopted by the Superintendent in addressing those issues. (Gov.

Code, § 11346.2, subd. (b)(4)(A); American Chemistry Council v. Department 

of Toxic Substances Control (2022) 86 Cal.App.5th 146, 198 [finding that an 

alternative proposal was not reasonable because it “would not be equally 

effective in achieving the purpose of the statute”].) The Superintendent 

therefore was not required to describe this alternative in the initial 

statement of reasons. 

b. Final Statement of Reasons

The Superintendent’s final statement of reasons also does not identify 

any specific alternatives he considered; it states only that all alternatives he 

considered were “in the form of public comments” and that “no alternative 

would be more effective and less burdensome to affected private persons than 

the proposed regulations or would be more cost effective to affected private 

persons and equally effective in implementing the statutory policy of other 

provisions of law.” 

Government Code section 11346.9 requires that the agency’s final 

statement of reasons include “[a] determination with supporting information 

that no alternative considered by the agency would be more effective in 

carrying out the purpose for which the regulation is proposed, and would be 
63

as effective and less burdensome to affected private persons than the adopted 

regulation, or would be more cost effective. . . to affected private persons and 

equally effective in implementing the statutory policy or other provision of 

law.” (Gov. Code, § 11346.9, subd. (a)(4).) Although Government Code 

section 11346.9 does not specify that alternatives must be reasonable to be 

considered, the parties’ arguments proceed on that assumption. We therefore 

accept the premise that only reasonable alternatives must be considered for 

purposes of this appeal. 

Wendz argues that the Superintendent’s final statement of reasons 

does not comply with Government Code section 11346.9 because he failed to 

specifically mention or justifiably reject an alternative of training programs

proposed by a public comment. The public comment she is referring to states 

that the “concerns about bringing new voices to the RPACs” could “be 

adequately addressed with governance guidance and/or training as opposed 

to regulatory mandates.” 

As we have indicated, however, an agency need not respond to every 

alternative proposal presented by the comments if those proposals are not

reasonable. Here, beyond the single, vague reference to “training,” the 

comment cited by Wendz does not provide a specific way to deal with the 

problem of limited opportunities for new parent participation in the RPACs.

(See American Min. Congress v. E.P.A. (9th Cir. 1992) 965 F.2d 759, 771 

[holding that under the federal APA, “an agency need only respond to 

‘significant’ comments, i.e., those which raise relevant points and which, if 

adopted, would require a change in the agency’s proposed rule”]; 

International Ladies’ Garment Workers’ Union v. Donovan (D.D.C. 1983) 722 

F.2d 795, 815–816 [agency failed to consider “substantial testimony” and 

“[s]pecific proposals” for alternative actions].) In other words, the comment
64

does not, on its face, demonstrate that the alternative proposal of training 

will effectively address the issues raised by the Superintendent. (American 

Chemistry Council v. Department of Toxic Substances Control, supra, 86 

Cal.App.5th at p. 198; Wyoming v. USDA (10th Cir. 2011) 661 F.3d 1209, 

1244 [holding that alternatives that do not accomplish the objective of the 

proposed action are not reasonable].) Wendz has the burden of 

demonstrating error (People v. Giordano (2007) 42 Cal.4th 644, 666), but she 

does not explain how this alternative proposal is reasonable other than again 

citing section 54444.2, subdivision (a)(5). We therefore cannot fault the 

Superintendent for failing to expressly address it in his final statement of 

reasons. 

Moreover, the Superintendent determined that specific rules were 

needed to ensure effective parental involvement in the RPACs throughout the 

state. As the Superintendent pointed out, local RPAC bylaws varied widely 

throughout the state, resulting in the dominance of nonparent members and 

many RPACs’ noncompliance with the MEP’s statutory requirements. Thus, 

the Superintendent determined—reasonably in our view—that establishing 

clear rules for governance of the RPACs would ensure that they are meeting 

statutory requirements and would “safeguard” the effectiveness of parental

involvement on the councils. Because the Superintendent adequately 

explained its decision to adopt regulations, its failure to expressly address the 

proposed alternative to regulations—training programs—does not constitute 

substantial noncompliance with the APA.13 

13 We need not and do not address respondents’ argument that the trial 

court properly found that training programs were not a reasonable 

alternative because the RPACs had no authority to implement election 

procedures.
65

Accordingly, Wendz has not shown that the Superintendent failed to 

substantially comply with the APA’s requirement to consider reasonable 

alternatives.

III. CONCLUSION

We conclude that, except for the prohibition on alternates and the 

portions of the regulations the trial court previously invalidated, the 

regulations adopted by the Superintendent are valid. The petition for a writ 

of mandate is granted to the extent it seeks to compel respondents to refrain 

from enforcing the prohibition on alternates in subdivision (a) of California 

Code of Regulations, title 5, section 12011 and the portions of the regulations 

the trial court invalidated—subdivision (c) of California Code of Regulations, 

title 5, section 12014 and the phrase “[t]o the extent possible” in subdivision 

(d) of California Code of Regulations, title 5, section 12019. In all other 

respects, the petition for a writ of mandate is denied. The parties should bear 

their own costs.
66

SWOPE, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

A162648P

 Judge of the San Mateo County Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution. 
67

San Francisco Superior Court

Judge Richard B. Ulmer

Munger, Tolles and Olson, Rohit K. Singla, Richard T. Johnson; California 

Rural Legal Assistance, Cynthia L. Rice; and Lawyers’ Committee for Civil 

Rights- San Francisco, Deborah Escobedo for Plaintiff and Appellant.

California Department of Education, Amy Bisson Holloway, Virginia Jo 

Dunlap and Terri A. McFarland for Defendants and Respondents.