______________________________________ 

______________________________________________________________________________ 

OFFICE OF THE ATTORNEY GENERAL
 State of California
 

JOHN K. VAN DE KAMP
 Attorney General
 

OPINION : 

: No. 89-301 

of : 

: AUGUST 31, 1989 

JOHN K. VAN DE KAMP : 

Attorney General : 

: 

RODNEY O. LILYQUIST : 

Deputy Attorney General : 

: 

THE COMMISSION ON TEACHER CREDENTIALING has requested an opinion

on the following questions: 

1. May information disclosed at an executive session of the Commission on Teacher

Credentialing to the designee of the Superintendent of Public Instruction be discussed by the

designee with the Superintendent without the authorization of the Commission? 

2. May information disclosed at an executive session of the Commission on Teacher

Credentialing be discussed by the Superintendent of Public Instruction with legal counsel for the

Department of Education without the authorization of the Commission? 

CONCLUSIONS 

1. Information disclosed at an executive session of the Commission on Teacher 

Credentialing to the designee of the Superintendent of Public Instruction may be discussed by the

designee with the Superintendent without the authorization of the Commission. 

2. Information disclosed at an executive session of the Commission on Teacher 

Credentialing may be discussed by the Superintendent of Public Instruction with legal counsel for

the Department of Education without the authorization of the Commission. 

ANALYSIS 

The Commission on Teacher Credentialing ("Commission") is a state administrative

body with duties that include (1) adopting standards for the accreditation of teacher preparation

programs, (2) establishing professional standards, (3) determining the scope of teacher credentials,

and (4) specifying the requirements for obtaining and renewing various types of teacher credentials,

certificates, and permits. (Ed. Code, § 44225; see 66 Ops.Cal.Atty.Gen. 212 (1983); 54 

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Ops.Cal.Atty.Gen. 257 (1971).)1/ The Commission is also responsible for denying, suspending, and

revoking teacher credentials pursuant to specified procedures. (§§ 44242-44246; see 61

Ops.Cal.Atty.Gen. 353, 363-364 (1978).) 

The two questions presented for resolution concern confidential information that is

disclosed during an executive session of the Commission held to consider the revocation of a teacher

credential. Attending the session is a designee of the Superintendent of Public Instruction

("Superintendent"). May the designee disclose the information to the Superintendent without the

authorization of the Commission? If the designee may do so or if the Superintendent is personally

present during the executive session, may the Superintendent disclose the information to the legal

counsel for the Department of Education ("Department") without the authorization of the

Commission? We conclude that the designee may disclose the information to the Superintendent

and the Superintendent may disclose the information to the Department's legal counsel without the

authorization of the Commission. 

The Legislature has established the Commission under the provisions of section

44210, which states in part: 

"There is hereby established in the state government the Commission on

Teacher Credentialing, to consist of 15 voting members, 14 of whom shall be

appointed by the Governor with the advice and consent of the Senate, as specified

in subdivisions (b) to (g), inclusive. The commission shall consist of the following 

members: 

"(a) The Superintendent of Public Instruction or his or her designee. 

"(b) Six practicing teachers from public elementary and secondary schools

in California. 

"(c) One person who is employed on the basis of a services credential other

than an administrative services credential. 

"(d) One member of a school district governing board. 

"(e) Four representatives of the public. . . . 

"(f) One school administrator in a public elementary or secondary school in 

California. 

"(g) One faculty member from a college or university that grants 

baccalaureate degrees. 

"With the exception of the four representatives of the public and the

Superintendent of Public Instruction, the appointment of a member shall terminate

if he or she is no longer a practicing teacher in a public elementary or secondary

school, or a person who is employed on the basis of a valid services credential, or a

school administrator, or a faculty member of a college or university that grants 

1. All references hereafter to the Education Code are by section number only. 

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baccalaureate degrees, or a school district governing board member, as may be the

case, in California . . . ." (Emphasis added.)2/ 

The meetings of the Commission are normally open to members of the public. (§

44231.) Section 44245, however, states: 

"All meetings and hearings of the commission and Committee of Credentials

to consider the suspension or revocation of credentials shall be executive and closed

sessions with only commission members, committee members, staff members, the

certified employee whose application or credential is in issue, the counsel of such

employee, and any material witnesses in attendance."3/ 

With this statutory background in mind, we turn to the central statute requiring

interpretation and application to the factual situations presented. Subdivision (a) of section 44248

provides: 

"Any member of the commission, commission staff member, member or staff

member of the Committee of Credentials, [or] State Department of Education

employee who releases or gives out information received at a commission or

committee meeting or hearing or through the investigation of a certified employee

without authorization of the commission or committee, is guilty of a misdemeanor." 

Under the provisions of section 44248, therefore, it would be a crime for a Commission member to

give out information received at a Commission meeting without the authorization of the 

Commission. Does this statutory prohibition have any effect upon disclosures made by the

Superintendent's designee to the Superintendent and by the Superintendent to the Department's legal

counsel? 

1. Designee Disclosing to Superintendent 

In determining whether the disclosure prohibition of section 44248 would prevent

the contemplated discussions between the designee and the Superintendent, we first consider which

of the two is the "member of the commission." Is the Superintendent the Commission member

whether or not he chooses a designee, or is the designee the Commission member once the

designation is made? 

Subdivision (a) of section 44210 seemingly indicates that the designee is the

Commission member by its use of the conjunction "or" in the phrase "or his or her designee." Such 

a construction of the statute would give significance to the term and phrase, and "[i]t is a settled

axiom of statutory construction that significance should be attributed to every word and phrase of

a statute." (People v. Woodhead (1987) 43 Cal.3d 1002, 1010.) The remainder of section 44210, 

on the other hand, suggests that the Superintendent is the member, since it refers only to the

Superintendent and makes no reference to the Superintendent's designee where it otherwise would

be expected. 

2. The Commission also has four ex officio members who, with certain exceptions, have no

voting privileges. (§ 44212.)

 3. The Committee of Credentials is comprised of seven members selected by the Commission

to, among other duties, investigate allegations of misconduct by a credential holder. (§§ 44240-

44244.1.) 

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In resolving this statutory ambiguity, we are guided by principles of construction

recently summarized in Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d

1379, 1386-1387, where the Supreme Court said: 

"Pursuant to established principles, our first task in construing a statute is to

ascertain the intent of the Legislature so as to effectuate the purpose of the law. In 

determining such intent, a court must look first to the words of the statute

themselves, giving to the language its usual, ordinary import and according

significance, if possible, to every word, phrase and sentence in pursuance of the

legislative purpose. A construction making some words surplusage is to be avoided.

The words of the statute must be construed in context, keeping in mind the statutory

purpose, and statutes or statutory sections relating to the same subject must be

harmonized, both internally and with each other, to the extent possible. [Citations.]

Where uncertainty exists consideration should be given to the consequences that will

flow from a particular interpretation. [Citation.] Both the legislative history of the

statute and the wider historical circumstances of its enactment may be considered in

ascertaining the legislative intent. [Citations.]" 

As part of a statute's legislative history, the reports of legislative committees (see Hutnick v. United 

States Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 465, fn. 7) and of the state's Legislative 

Analyst (see Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 300) may

properly be considered in analyzing the meaning of the language employed. 

We have examined at length the legislative history of the amendment of section

44210 that made the Superintendent a voting member of the Commission. When this change

occurred in 1988 (Stats. 1988, ch. 1355, § 4.5), the report of the Senate Rules Committee described

the proposed change (referring to the Superintendent as the "SPI") as follows: 

"Reduces the voting membership of CTC from 17 to 15 members. The 

membership of CTC would include the SPI, six classroom teachers, four public

representatives, one school administrator, one other services credential holder,

one school board member, and one faculty member." 

This same declaration of the proposed amendment's effect was contained in the report of the

Assembly Committee on Education. The report of the state Legislative Analyst similarly 

declared: 

"Specifically, under this bill, the commission would be composed of six

teachers, four public representatives, and one representative each of school

administrators, other certificated employees, local school board members,

university faculty, and the Superintendent of Public Instruction." 

The legislative history of the 1988 amendment of section 44210 refers solely to

the Superintendent as the new voting member of the Commission. The Superintendent's designee

is not mentioned as a possible member; indeed, we have found no reference to the designee in

the legislative history of the 1988 amendment. 

The legislative history also fails to mention the Superintendent's authority in

choosing a designee. Is the selection to be made under the general language of section 44210 or

under some other statutory authorization? We are informed by the Superintendent that the 

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present designee has the qualifications of subdivision (f) of section 331124/ for purposes of

Government Code section 7.9. Subdivision (a) of section 7.9 of the Government Code states: 

"Notwithstanding any provision of law to the contrary, the Controller, the

Treasurer, the Director of Finance, or the Superintendent of Public Instruction

may designate any deputy of his or her office to act in his or her place and stead

on any state board, commission, committee, or governing board of a state agency

with respect to the exercise of statutory powers and duties of any of those bodies.

The deputy, while sitting on a board, commission, committee, or governing board

of a state agency may exercise the same powers that the Controller, the Treasurer,

the Director of Finance, or the Superintendent of Public Instruction may exercise

as if he or she were personally present. The Controller, the Treasurer, the 

Director of Finance, or the Superintendent of Public Instruction so designating a

deputy shall be responsible for the acts of the deputy acting under the designation

in the same manner and to the same extent that the Controller, the Treasurer, the 

Director of Finance, or the Superintendent of Public Instruction is responsible for

the acts of the deputy performing his or her official duties as deputy to the

Controller, the Treasurer, the Director of Finance, or the Superintendent of Public

Instruction."5/ 

Construing section 44210 in light of its legislative history and in conjunction with

these related statutes, we believe that the Superintendent is the Commission member even when

he selects a designee to serve in his place. He acts through the designee and is responsible for

all acts of the designee with respect to the Commission's activities. The participation by the

designee at an executive session of the Commission may be considered as though the 

Superintendent were personally present. The designee exercises the powers of and is subject to

the restrictions governing the Superintendent and does not have independent membership

authority on the Commission. 

Returning to the controlling language of subdivision (a) of section 44248, we find

that it refers to a Commission member "who releases or gives out" information without proper

authorization. To "give out" is "to make known to or as if to the public." (Webster's Third New 

Internat. Dict. (1966) p. 960.) "Release" may be similarly defined. (Id., at p. 1917.) 

4. Section 33112 provides: 

"The Superintendent of Public Instruction shall: 

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

"(f) Designate and appoint, or terminate the designation and appointment of,

any officer or employee of the department to have the powers and liabilities of a

deputy, including designation pursuant to Section 7.9 of the Government Code,

which appointment and termination of appointment shall be effective when filed in

writing in the office of the Secretary of State."

 5. Additionally, Government Code section 7.6 provides separate and independent authority for

the Superintendent to designate certain of his deputies "to act . . . in [his] place and stead, to all

intents and purposes as though [he] were personally present" during the proceedings of a state board,

commission, or committee of which he is a statutory member. (See 70 Ops.Cal.Atty.Gen. 250, 252-

253 (1987).) 

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Here, the Superintendent is not to be considered a member of the public but rather

is the Commission member. The Superintendent's designee does not "release or give out"

Commission information by disclosing the information to the Superintendent, a Commission

member. The latter participates in the Commission's activities through his designee; disclosures

between the two are outside the scope of section 44248. 

In answer to the first question, therefore, we conclude that information disclosed

at an executive session of the Commission to the designee of the Superintendent may be

discussed by the designee with the Superintendent without the authorization of the Commission. 

2. Superintendent Disclosing to Department Legal Counsel 

The Superintendent holds a constitutional office to which he is elected by the

voters of the state. (Cal. Const., art. IX, § 2.) He is also the Director of Education, the statutory

executive officer of the Department. (§§ 33300-33305; 56 Ops.Cal.Atty.Gen. 556, 560 (1973).)

The Department is authorized to have its own legal counsel. (§ 33110; Gov. Code, §§ 11041- 11042.) The Superintendent is a member of the Commission in his role as a constitutional 

officer. 

The Commission, as created under section 44210, is independent of the 

Department. However, "[t]he Department of Education shall assist the commission in any

manner the commission may request . . . ." (§ 44222.) Legislature has provided the Commission 

with its own staff. Section 44221 states in part: 

"The commission may employ such personnel as may be necessary to

carry out its duties and responsibilities. The staff of the commission shall be 

subject to the relevant system and procedures of the state civil service." 

The Commission has its own legal counsel who provides advice and representation independent

of the Department's legal counsel. 

Whether the Superintendent may disclose Commission information to the

Department's legal counsel without Commission authorization is not readily apparent from a

superficial reading of the relevant statutes. Nonetheless, we believe that the answer may be

found in the language of section 44248 when read in light of the Superintendent's unique role as

a Commission member. 

Section 44248 prohibits any "State Department of Education employee" from

disclosing Commission information without proper authorization. The statute thus expressly

covers disclosures by the Department's legal counsel. This indicates that disclosures to the legal

counsel would not be considered as "outside" disclosures by the Legislature, since the statute's

coverage extends to the legal counsel as well. 

The language of section 44248 clearly contemplates that at least some Department

employees will be in possession of confidential Commission information. The Legislature has

provided a close association between the Commission and the Department in the performance

of official duties. (See § 44222.) This is particularly true with respect to the Superintendent's 

status as a Commission member. 

The Superintendent is the only "ex officio" member of the Commission; he is a

Commission member by virtue of his constitutional office. His powers as a Commission member 

are by operation of law. (§ 44210.) In contrast, the other Commission members are selected by 

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the Governor with the advice and consent of the Senate. (Ibid.) Their Commission powers are

not conferred upon them by operation of law but rather by the act of an individual, the Governor. 

Various consequences flow from this distinction between an "ex officio" board

member and one who is not. (See 62 Ops.Cal.Atty.Gen. 479, 490-492 (1979); 49

Ops.Cal.Atty.Gen. 85, 86 (1967); 29 Ops.Cal.Atty.Gen. 145, 148-149 (1957); 24

Ops.Cal.Atty.Gen. 56, 58 (1954).) For our purposes, it is important to recognize that the

Superintendent's role on the Commission is to give the perspective of his office. 

The Legislature has provided the Superintendent with the Department's legal

counsel for consultation and advice in connection with the rendering of his public duties. To 

deny the Superintendent the legal assistance of his office established by statute would measurably

diminish the very purpose and perspective for which the Legislature has placed him on the

Commission. 

Under these circumstances, we are not prepared to say that Commission

authorization is required for the Superintendent to discuss Commission information with the

Department's legal counsel in order to fully perform his official duties. These private discussions

in the furtherance of official responsibilities do not constitute the "outside" disclosures prohibited

by section 44248. (See Parrott v. Rogers (1980) 103 Cal.App.3d 377, 383.) 

In answer to the second question, therefore, we conclude that information

disclosed at an executive session of the Commission may be discussed by the Superintendent

with legal counsel for the Department without the authorization of the Commission. 

* * * * * 

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