______________________________________ 

______________________________________________________________________________ 

TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 State of California
 

DANIEL E. LUNGREN
 Attorney General
 

OPINION : 

: No. 93-1204 

of : 

: July 20, 1994

DANIEL E. LUNGREN : 

Attorney General : 

: 

ANTHONY S. Da VIGO : 

Deputy Attorney General : 

: 

The CALIFORNIA POSTSECONDARY EDUCATION COMMISSION has 

requested an opinion on the following question: 

May the California Postsecondary Education Commission adopt formal regulations

setting forth the standards of review required by Congress for the state postsecondary review

program? 

CONCLUSION 

The California Postsecondary Education Commission may not adopt formal

regulations setting forth the standards of review required by Congress for the state postsecondary

review program.

 ANALYSIS 

The state postsecondary review program was established by Congress as part of the

1992 reauthorization of the Higher Education Act (20 U.S.C. § 1099a et seq.). The program is

intended to ensure accountability of those postsecondary institutions within each state that

participate in federal student financial aid programs. The stated goal is reduce the number of student 

loan defaults. 

In order to carry out the purposes of the program, the Secretary of the United States

Department of Education ("Secretary") is directed to enter into an agreement with an agency in each

state, designated according to state law, to be known as the state postsecondary review entity. (20 

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U.S.C. § 1099a-1.) The entity designated in California is the California Postsecondary Education

Commission ("Commission").1 

Pursuant to its agreement with the Secretary, the Commission is responsible for

conducting a review of the institutions of higher education reported to it by the Secretary. The 

review must be conducted "in accordance with published State standards that are consistent with the

constitution and laws of the State, developed in consultation with the institutions in the State, and

subject to disapproval by the Secretary." (20 U.S.C. § 1099a-3(d).) The review is to assess 

institutional compliance in enumerated specified areas, e.g., availability of admission requirements,

methods to assess a student's ability to succeed, enforcement of standards relating to academic

progress, maintenance of health and safety standards, financial and administrative capacity,

availability of information relating to market and job prospects, and licensure requirements in

particular occupational, professional, and vocational fields. (Ibid.) 

If, upon such a review, the Commission determines that an institution of higher

education should not be eligible for participation in federal student aid programs, it must so notify

the Secretary who in turn is required to terminate the participation of the institution in such 

programs. (20 U.S.C. § 1099a-3(h)(1).) 

The inquiry presented for determination is whether the Commission may adopt

regulations in accordance with procedures established under the California Administrative Procedure

Act (Gov. Code, §§ 11340-11529; "Act")2

 setting forth the "published State standards" required by 

Congress. We conclude that the Commission has not been granted authority to promulgate such

standards as regulations. 

A "regulation" is a rule, regulation, order, or standard that has the force of law and

which has been adopted by a public entity pursuant to authority conferred upon it by the Constitution

or laws of this state, to implement, interpret, or make specific a law enforced or administered by it.

(§ 811.6; Peterson v. Long Beach (1979) 24 Cal.3d 238, 245; Associated Beverage Company v. 

Board of Equalization (1990) 224 Cal.App.3d 192, 201.) For purposes of the Act, a "regulation"

is specifically defined in section 11342, subdivision (b) as follows: 

"`Regulation' means every rule, regulation, order, or standard of general

application . . . adopted by any state agency to implement, interpret, or make specific

the law enforced or administered by it, or to govern its procedure, except one that

relates only to the internal management of the state agency. . . ." 

Regulations do not include informal guidelines, policy manuals, or recommended procedures which,

while useful in establishing statutory standards, lack the force of law. (Posey v. State of California 

(1986) 180 Cal.App.3d 836, 849.) 

We may assume for our purposes that the standards in question would be of general

application adopted to implement, interpret, or make specific the law administered by the 

1

In his letter to the Secretary designating the Commission, the Governor observed in part: "The 

responsibilities identified in federal law for the new state postsecondary review entity are consistent

with the existing responsibilities mandated for the Commission under existing state law." The new 

federal mandate does not appear to constitute a "major or substantial change" in the existing

functions of the Commission as discussed below. (Cf. 64 Ops.Cal.Atty.Gen. 503, 520 (1981).) 

2

Unidentified section references prior to footnote seven are to the Government Code. 

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Commission, would govern the Commission's procedures and not relate solely to the internal

management of the Commission, and hence would meet the definition of a regulation as expressed

in section 11342, subdivision (b). 

Ordinarily, it would follow that the standards, regardless of how denominated, would

be subject to adoption by the Commission in accordance with the procedures set forth in the Act.

(See § 11347.5, subd. (a); State Water Resources Control Board v. Office of Administrative Law 

(1993) 12 Cal.App.4th 697, 703.) However, the enactment of formal regulations is an exercise of 

quasi-legislative power. (§ 11346; Horwath v. Local Agency Formation Commission (1983) 143

Cal.App.3d 177, 182.) Such power must be conferred upon an administrative agency by an express

or implied delegation of legislative authority. (§ 11342.2; 56 Ops.Cal.Atty.Gen. 25, 30 (1973).)3 

In the absence of a statutory grant of authority, regulations may not be adopted by an administrative 

agency. (People v. French (1978) 77 Cal.App.3d 511, 519.)4 

Specifically, section 11346 provides that "the provisions of this article [establishing

the procedures for adopting regulations] are applicable to the exercise of any quasi-legislative power

conferred by any statute heretofore or hereafter enacted." Section 11342.1 states that "[e]ach

regulation adopted, to be effective, shall be within the scope of authority conferred and in

accordance with standards prescribed by other provisions of law."5 For purposes of the Act, section

11349, subdivision (b) defines "authority" as "the provision of law which permits or obligates the

agency to adopt, amend, or repeal a regulation." The Office of Administrative Law, pursuant to its

authority to adopt regulations in administering the Act (§§ 11342.4; 11349.1, subd. (c)),6 has defined 

the term "authority" as: 

"(1) A California constitutional or statutory provision which expressly

permits or obligates the agency to adopt, amend, or repeal the regulation; or 

3

An unauthorized attempt by an administrative agency to exercise legislative power would violate

the doctrine of the separation of powers. (Cal. Const., art. III, § 3.) Article IV, section 1, of the 

Constitution provides that "[t]he legislative power of this state is vested in the California Legislature

which consists of the Senate and Assembly, but the people reserve to themselves the powers of

initiative and referendum." 

4

In State Water Resources Control Board v. Office of Administrative Law, supra, 12 Cal.App.4th

697, no issue was presented in regard to the respective agencies' underlying authority to adopt

regulations. (See Wat. Code, §§ 185, 13140 [State Water Resources Control Board]; §§ 13222,

13240 [regional water quality control boards].) Rather, the agencies argued that they were not 

required to exercise such authority. Thus, the views expressed in French were neither distinguished

nor discussed by the court in ruling that the standards in question were regulations subject to the

Act's procedural requirements. 

5

Section 11342.4 authorizes the Office of Administrative Law to adopt, amend, and repeal

regulations, but otherwise provides that nothing in sections 11340-11356 "confers authority upon

or augments the authority of any state agency to adopt, administer, or enforce any regulations." 

6

It is well settled that the administrative construction of a statute by those charged with its

enforcement is entitled to great weight, and courts will not depart from such construction unless it

is clearly erroneous or unauthorized. (Dix v. Superior Court (1991) 53 Cal.3d 442, 460; State Water 

Resources Control Board v. Office of Administrative Law, supra, 12 Cal.App.4th at 701.) 

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 "(2) A California Constitutional or statutory provision that grants a power

to the agency which impliedly permits or obligates the agency to adopt, amend, or

repeal the regulation in order to achieve the purpose for which the power was

granted." (Cal. Code Regs., tit. 1, § 14, subd. (a).) 

While we are thus directed to look solely to provisions of state law in ascertaining

whether the Commission has been granted authority to adopt the standards in question as

regulations, it is to be noted that the governing federal law does not attempt to delegate quasilegislative power to the Commission. All that the federal Higher Education Act requires is for a

state's program review to be conducted "in accordance with published State standards" consistent

with state law. (20 U.S.C. § 1099a-3(d).) The requirement of publication does not, expressly or

impliedly, grant the Commission the power to adopt regulations. 

Has the Legislature expressly or impliedly delegated to the Commission the authority

to promulgate the proposed standards as regulations? With respect to implied authority, the court 

expounded in Addison v. Department of Motor Vehicles (1977) 69 Cal.App.3d 486, 498: 

"But the doctrine of implied powers is not without limitations. It cannot be 

invoked where the grant of express powers clearly excludes the exercise of others,

or where the claimed power is incompatible with, or outside the scope of, the express 

power. For a power to be justified under the doctrine, it must be essential to the

declared objects and purposes of the enabling act -- not simply convenient, but

indispensable. Any reasonable doubt concerning the existence of the power is to be

resolved against the agency." 

With these principles of law in mind, we turn to the provisions of the Education 

Code7

 creating and defining the activities of the Commission. Section 66900 expresses the

Legislature's intent to create a statewide agency to assure the effective utilization of public

postsecondary education resources, to promote diversity, innovation, and responsiveness to student

and societal needs through planning and coordination, and to make educational policy

recommendations to the Legislature. The Legislature has expressly created the Commission to "be

advisory to the Governor, the Legislature, other appropriate governmental officials, and institutions

of postsecondary education." (§ 66901.) 

Sections 66902 and 66903 grant specific powers and functions to the Commission.

Section 66902 states: 

"The commission shall have power to require the governing boards and the

institutions of public postsecondary education to submit data on plans and programs,

costs, selection and retention of students, enrollments, plant capacities and other

matters pertinent to effective planning, policy development, articulation and

coordination, and shall furnish information concerning such matters to the Governor

and to the Legislature as requested by them." 

Section 66903 provides in part: 

"The commission shall have the following functions and responsibilities in

its capacity as the statewide postsecondary education planning and coordinating

agency and advisor to the Legislature and Governor: 

7

Hereafter, unidentified section references are to the Education Code. 

4. 93-1204
 
"(1) It shall require the governing boards of the segments of public

postsecondary education to develop and submit to the commission institutional and

systemwide long-range plans in a form determined by the commission after

consultation with the segments. 

"(2) It shall prepare a five-year state plan for postsecondary education which

shall integrate the planning efforts of the public segments and other pertinent plans. . . . 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

"(19) It shall report annually . . . to the Legislature and the Governor

regarding the financial conditions of independent institutions, their enrollment and

application figures, the number of student spaces available, and the respective cost

of utilizing those spaces as compared to providing additional public spaces. . . . 

"(20) It shall, upon request of the Legislature or the Governor, submit to the

Legislature and the Governor a report on all matters so requested which are

compatible with its role as the statewide postsecondary education planning and

coordinating agency. . . . 

"(21) It may undertake such other functions and responsibilities as are

compatible with its role as the statewide postsecondary education planning and

coordinating agency." 

Neither in the foregoing nor in any other statutory provision relating to the Commission may the

authority, express or implied, be found to exercise quasi-legislative power in adopting the proposed

standards as regulations. 

Had the Legislature intended for the Commission to adopt the federally required

standards as formal regulations, it easily could have so provided. For example, the Board of

Governors of the California Community Colleges has been delegated "full authority to adopt rules

and regulations necessary and proper to execute the functions specified in this section. . . ." (§

70901, subd. (c).) The Legislature clearly knows how to delegate quasi-legislative powers; it simply

has not done so with respect to the adoption of the standards in question. (Cf. Safer v. Superior

Court (1975) 15 Cal.3d 230, 236, 238; Board of Trustees v. Judge (1975) 50 Cal.App.3d 920, 927.) 

Here, the federally required standards are not authorized to be adopted by the

Commission pursuant to a delegation of legislative power and thus are not cognizable under the

Act's provisions. It is concluded that the Commission may not adopt formal regulations setting forth

the standards of review required by Congress for the state postsecondary review program. 

* * * * * 

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