1 Filed 10/29/13 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

KERN, INYO & MONO COUNTIES PLUMBING, PIPEFITTER & REFRIGERATION/AIR CONDITIONING MECHANIC JOINT APPRENTICESHIP AND TRAINING COMMITTEE, Plaintiff and Respondent,

v. CALIFORNIA APPRENTICESHIP COUNCIL, Defendant and Respondent; PLUMBING, HEATING AND COOLING CONTRACTORS OF THE GREATER SACRAMENTO AREA PLUMBERS UNILATERAL APPRENTICESHIP COMMITTEE, Real Party in Interest and Appellant. A136680

(City and County of San Francisco Super. Ct. No. CPF-11-510995)

Appellant and real party in interest Pl umbing, Heating and C ooling Contractors of

the Greater Sacramento Area Plumbers Unilateral Apprenticeship Committee (the Applicant Committee) provides a plumbing apprenticeship training program in 46 northern California counties. In 2007, th e Applicant Committee sought and received approval from the Division of Apprenticeship Standards (DAS) to expand its apprenticeship program into Kern County . Respondent Kern, I nyo & Mono Counties Plumbing, Pipefitters & Refrigeratio n/Air Conditioning Mechanic Joint Apprenticeship and Traini ng Committee (the Existing Committee), which already conducts a plumbing apprenticeship training program in Kern County, opposed the2 expansion and appealed the approval to th e California Apprenticeship Council (Council). After the Council denied the appeal, the Existing Committee initiated the present writ proceedings, successfully obtaining a writ of mandate in the trial court overturning the

Council’s decision. On appeal, the Applicant Committee argues th at the trial court erred in interpreting

Labor Code 1 section 3075, subdivision (b)(3), wh ich authorizes approval of a new apprenticeship program if “[ e]xisting apprenticeship prog rams approved under this chapter that serve the same trade and geographic area ha ve been identified by the California Apprenticeship Council as deficient in meeting their obligations under this chapter.” We agree with th e Applicant Committee that the trial court incorrectly concluded that an existing program must have been identified as deficient during an audit conducted pursuant to section 3073.1 before section 3075, subdivision (b)(3) authorizes approval of a new apprenticeshi p program. Although no in terpretation of section 3075 can be perfectly squared with all of its term s, we conclude that under the construction

most consistent with the la nguage and apparent purpose of section 3075, subdivision (b)(3), the Council has author ity to identify deficiencies in an existing committee’s program during the process of reviewing an application for approval of a new apprenticeship and training program. Because substantial evidence supports the Council’s finding that the Existing Committee’s program was deficient based on its substandard graduation rates, its decisi on denying the Existing Committee’ s appeal from approval of the new program should not have been overturned. Accordin gly, we shall reverse the order granting the writ of mandate. Background A. Legal Background California regulates programs for the trai ning of apprentices in the construction trades under the Shelley–Maloney Apprentic eship Labor Standards Act of 1939 (Act). (§ 3070 et seq.; Southern California Cement Masons Joint Apprenticeship Committee v.

1 All statutory references are to th e Labor Code unless otherwise noted.3 California Apprenticeship Council (2013) 213 Cal.App.4th 1531, 1535 ( Southern California Cement Masons JAC ).) 2 “Oversight of apprenticeshi p programs is vested in the Division of Apprenticeship Standards (DAS), one of five divisions within the Department of Industrial Relations (Depar tment). [Citation.] The Council is a public body consisting largely of DAS officials a nd industry and trade union representatives appointed by the Gover nor. The Council's purpose is to ‘aid [ ] the Director [of Industrial Relations] in formulating policies for the effe ctive administration’ of the laws governing apprenticeship, including through the formula tion of regulations establishing standards for apprentice working conditio ns and assuring equal opportunities in apprenticeship programs. [Citations.] [¶] The Act encourag es construction industry trade unions and employers to create programs to train and regulate the employment of apprentices. [Citations.] Such an apprenticeship program can apply for official approval by the DAS. [Citation.] Although DAS approval is not requi red for the operation of a program, ‘strong financial incentives’ and other advantages are available to approved programs.” ( Southern California Ceme nt Masons JAC, supra , 213 Cal.App.4th at pp. 1535-1536, fns. omitted.) Since 1984, section 3075 ha s provided: “An apprenticeship program . . . may be approved by the chief [of the DAS] in any trad e in the state or in a city or trade area, whenever the apprentice training need s justify the establishment . . . .” (Stats. 1984, ch. 330, § 3; as amended by Stats. 1999, ch. 903, § 7.) Although, as recen tly observed by Division One of this court, the Act give s approved programs some protection from competition by other appr enticeship programs ( Southern California Cement Masons JAC,

supra , 213 Cal.App.4th at pp. 1536 -1537), this protection is not as broad as it once was, nor is it as broad as the Existing Comm ittee suggests. Under the Council’s former

2 For an explanation of the interrelationshi p between federal law, specifically the National Apprenticeship Act, commonly known as the Fitzgerald Act (29 U.S.C. § 50), and California law governing apprenticeship training, see Southern Cal. Ch. of Associated Builders et c. Com. v. California Apprenticeship Council (1992) 4 Cal.4th 422, 432-434.)4 regulations, the DAS was prohibited from appr oving a new program th at would adversely affect an existing program. 3 In Southern Cal. Ch. of Associ ated Builders etc. Com. v. California Apprentices hip Council, supra, 4 Cal.4th at pp. 450-453, our Supreme Court held that this regulation was not saved from federal preemption and therefore “the state may not demand that an apprenticeship program satisfy this state requirement in order to obtain Fitzgerald Act approval.” ( Id. at p. 453.) This provision therefore was removed from the regulations in 1995 (Register 95, No. 36 (Sept. 6, 1995)) and in 1999 a new

subdivision was added to section 3075 to define the circumstances under which apprentice training needs may be deemed to ju stify the approval of a new apprenticeship program. (Stats. 1999, ch. 903, § 7.) Rather than avoiding adverse effects to existing programs, the focus is placed on the need for an additional program. Under what is now subdivision (b) of se ction 3075, “the apprentice training needs in the building and construction trades shall be deemed to justify the approval of a new apprenticeship program only if” one or more of three conditio ns is satisfied. The three alternatives are: “(1) There is no existing apprenticeship program approved under this chapter serving the same craft or trad e and geographic area. [¶] (2) Existing apprenticeship programs approved under this ch apter that serve the same craft or trade and geographic area do not have the capacity, or neglect or refuse, to dispatch sufficient apprentices to qualified employers at a public works site who are willing to abide by the applicable apprenticeship standards. [¶] (3) Existing apprenticeship programs approved under this chapter that serve the same trade and geographic area have been identified by the California Apprenticeship Council as deficien t in meeting their obligations under this chapter.” ( Ibid .)

3 Title 8, section 212.2, subdiv ision (a) of the California Co de of Regulations formerly provided: “The Chief DAS [Chief of the Di vision] shall consult with the sponsor, or sponsors, of the existing program or progr ams in the area when the apprenticeship standards submitted for approval would result in establishing a program where a similar program is already establis hed and functioning or when it would affect an existing program or programs. Approval shall be deni ed when it is found th at existing prevailing conditions (including the training standards) in the area and in dustry would in any way be lowered or adversely aff ected. . . .” (Register 86, No. 36 (Aug. 29. 1986).)5 To obtain approval for a new appren ticeship program, a sponsoring committee must submit written program standards to the Chief of the DAS for approval. (Cal. Code Regs., tit. 8, § 212.2, subd. (a).) As part of the administrative review of the proposed program, the Chief is required serve a copy of the application on ea ch existing program in the apprenticeable occupation in the same geographic area and these programs may submit comments on the application. ( Id ., subd. (g).) In addition, the Chief may consult with the sponsors of any existing programs that could be affected by approval of the new program. ( Ibid .) A decision by the Chief to approve or deny an application to establish a new apprenticeship program ma y be appealed to the Counc il by the applicant or any union or existing program th at submitted comments to the proposed program. ( Id.

, subd. (k).) Appeals are initially referred to a three-member panel of the Council which provides a recommendation to the full Council. ( Id. , subd. (l).) Thereafter, the Council may affirm, reverse or modify the decision of the Chief or the recommendation of the panel. ( Id., subd. (m).) The decision of the Council is final ( id ., subd. (m)), subject only to judicial review by writ of mandate. In the same legislation that added subd ivision (b) to section 3075, section 3073.1 was added to the Act, calling for random au dits of existing apprenticeship programs. (Stats. 1999, ch. 903, § 5.) Under this provisi on, an apprenticeship pr ogram is subject to random audit performed by the DAS to, amo ng other things, “ensure that the program audited is complying with its standards” and “determine whether apprentices are graduating from the program on schedule or dropping out.” (§ 3073.1, subd. (a).) If deficiencies are recognized in the audit, the DAS must prepare an audit report recommending remedial action to correct the deficiencies and a proposed timeline for doing so. (§ 3073.1, subd. (b); Cal. Code Re gs., tit. 8, § 212.3, subd. (h).) The proposed audit report must be submitted to the progr am for comment and the DAS may reopen the audit in response to any comments. (Cal. C ode Regs., tit. 8, § 212.3, subd. (f).) A final audit report, taking into account any comment s by the program, must be submitted to the Council and made public. (§ 3073.1, subd. (b ); Cal. Code Regs., tit. 8, § 212.3, subd. (f).) At each regular meeting of the Council, “[t]he Chief DAS shall report . . . the status of6 each audit, including whether or not the deficiencies identifie d in the audit report have been corrected.” (Cal. Code Re gs., § 212.3, subd. (h).) The failu re to correct deficiencies within a reasonable period of time shall be gr ounds for withdrawing state approval of a program. (§ 3073.1, subd. (b).) 4 B. Procedural History In 2007 the Applic ant Committee sought and, on June 21, 2007, received approval from the Chief to expand its apprenticeship program into Kern County. The Existing Committee timely appealed the approval to the Council. On December 15, 2010, following an extended and complicated procedur al history in which two writs of mandate were granted, the Council issued the decision denying the appeal that is now before us. 5 In this decision, the Council fi nds that in the years 2002 th rough 2007, the graduation rate

4 Although the initial audit is random, the DAS may “conduct[] more frequent or random audits of apprenticeship programs where defi ciencies have been identified” and “shall give priority in conducting audits to progr ams that have been identified as having deficiencies.” (§ 3073.1, subds. (b), (c).)

5 Initially, both the Chief and the Council approved the Ap plicant Committee’s program for expansion into Kern County based on subd ivision (b)(2) of sec tion 3075. The Existing Committee obtained a writ of mandate from the superior court overturning that approval on the ground that the Council had improperly interpreted subdivision (b)(2). On remand, the Council referred the matter to a three-member panel, which conducted an evidentiary hearing, concluded that there wa s no evidence to support a finding of need under subdivision (b)(2), and recommended th at the Council grant the appeal. The Council voted to reject the recommendation a nd requested the Attorney General’s office to prepare an order for ad option by the Council denying th e appeal. The proposed order included findings of fact dem onstrating a training need un der both subdiv isions (b)(2) and (b)(3). The Existing Committ ee objected to the inclusion of the finding under subdivision (b)(3), arguing th at the Council had not reviewed the transcript of the evidentiary hearing and was in no position to make such a finding. After considerable discussion, the Council voted not to adopt the proposed or der, approved a contrary motion to adopt the panel’s recommendation, and an order was entered granting the appeal. The Applicant Committe e challenged this order and obtained a writ of mandate directing the Council to set aside that deci sion on the ground th at the Council had no authority to reconsider its prior decisi on denying the appeal. On remand, the Council adopted the proposed order initially presente d by the Attorney Gene ral’s office, including the factual finding under secti on 3075, subdivision (b)(3) that is at issue in the present appeal.7 for apprentices in the Existing Committee’s pr ogram was less than 30 percent, which is below the 55 percent graduation rate requi red by the plumbing industry’s minimum training standards. The Council concluded that this “low graduation ra te is deficient and therefore justifies a finding of a need for the [Applicant Committee’ s] expansion,” citing section 3075, subdivision (b)(3). The Existing Committee filed a petition for a writ of administrative mandate seeking to set aside the denial of its appeal. On July 24, 20 12, the superior court granted the petition.The court ruled, am ong other things, that the C ouncil “misinterpreted Section 3075(b)(3) by finding [the Existing Committee ] ‘deficient’ and such finding is not supported by substantial evidence.” The court explained, “The language of [Section 3075, subdivision (b)(3)] indica tes that the [Council’s] asser tion that the graduation rates is a ‘deficiency’ is mistaken . The Section provides that th e program(s) must ‘have been identified’ as deficient by the [Council]. The [Council] must have identified a program as deficient in meeting its obligations ‘under this chapter,’ i.e. Sections 3070 through 3099.5. [¶] Labor Code Section 3073.1 sets forth the manner in which apprenticeship programs are identified as ‘deficient.’ This is through an audit proc ess. . . . [¶] Read together, Subsections 3073.1(c) and 3075(b)(3) make clear that the phrase ‘identified . . . as deficient’ in 3075(b)(3) is a term of art relating to a deficiency identified in an audit per 3073.1(c). Because there is no evidence that [the Exis ting Committee’s program] had

been identified as ‘deficient ’ by the [Council] per Sectio n 3073.1 at the time of the [d]ecision, the [Council’s] . . . finding cannot stand.” The Applicant Committee timely filed a notice of appeal.

Discussion

A. Standard of Review When reviewing a decision issued by an administrative agen cy, the appellate

court’s “task . . . is the same as that of th e trial court: that is, to review the agency’s actions to determine whether the agency co mplied with procedures required by law.” ( Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 738.) “The appellate court reviews the admi nistrative record inde pendently; the trial8 court’s conclusions are not binding on it.” ( Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1375-1376.)

B. Administrative Mandamus Versus Traditional Mandamus The parties devote considerable briefing to the question of whether review of the Council’s decision is governed by Code of Civil Procedure section 1085, traditional mandamus, or section 1094.5, administrative mandamus. The complex ity of this question was recently addressed in Southern California Ceme nt Masons JAC, supra, 213 Cal.App.4th at p. 1541-1542: “Because the Co uncil’s decision falls between the statutory cracks of writ review, the choice between Code of Civil Procedure sections 1085 and 1094.5 is not straightforward. It is genera lly recognized that tr aditional mandamus under section 1085 applies to ‘quasi-legislative’ decisions, defined as those involving ‘ “the formulation of a rule to be applied to all future cases,” ’ while administrative mandamus under section 1094.5 applies to ‘quasi-judici al’ decisions, which involve ‘ “ ‘the actual application of such a rule to a specific set of existing facts .’ ” ’ [Citation.] The decision to approve an apprenticeship program, based as it is on the application of [Labor Code] section 3075 and the DAS regulations to the particular circumstances of the relevant programs, is far more adjudicat ory than legislative in natu re, placing it in the natural

domain of Code of Civil Procedure secti on 1094.5. Yet because the Chief and the

Council are not required to hold a hearing before appr oving or denying approval of an apprenticeship program (see § 30 75, subd. (a); Cal. Code Regs ., tit. 8, § 212.2, subds. (h), ( l )), their decisions do not fall within the litera l language of that section, which applies only to decisions rendered ‘as the result of a proceeding in which by law a hearing is required to be given[ and] evidence is require d to be taken’ (Code Civ. Proc., § 1094.5, subd. (a)). As a result, it is not readily apparent whic h statute should apply.” Having set forth the issue, the court c oncluded that it need not “resolve this

dilemma because the standard of review applicable to the partic ular issues raised . . . is not dependent on the type of writ review.” ( Southern California Ce ment Masons JAC,

supra, 213 Cal.App.4th at p. 1541.) The co urt explained, “Each of the Existing Committees’ three arguments contends the Chief and Council erred in interpreting9 section 3075. When reviewing an administra tive agency’s interpretation of a governing statute, including the type of informal in terpretation embodied in the decision under review, we must ‘independently judge the text of the statute, taking into account and respecting the agency’s interp retation of its meaning.’ ” ( Ibid ., citing Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7.) The court recognized that “[b]ecause the Council’s decision was the produc t of an agency with special expertise, operating in a complex area of commerce, the Council’s interpretation deserves significant deference” although “the ‘ “ ‘ultimat e responsibility for th e construction of the statute’ ” ’ is ours.” ( Southern California Cement Masons JAC, supra, at p. 1542.)

As in Southern California Cement Masons JAC, the dispositive issue on this appeal involves only the interpretation of se ction 3075, in this case the meaning of subdivision (b)(3). Thus, regardless of whether these proc eedings are governed by section 1085 or 1094.5, we must “ ‘independently ju dge the text of the statute, taking into account and respecting the agency ’s interpretation of its mean ing.’ ” (213 Cal.App.4th at p. 1541.)

C. Section 3075, subdivi sion (b)(3) does not requi re that the existing apprenticeship program be identified as deficient during a DAS audit before approval of a new apprenticeship program. The parties agree that under section 3075, subdivision (b)(3), an application for approval of a new apprenticeship program ca nnot be approved unless existing programs serving the same trade and geographic area “hav e been identified by the . . . Council as deficient in meeting their obligations unde r this chapter.” (§ 3075, subd.(b)(3)). The Existing Committee contends that the Council may identif y an existing program as deficient only if the Chief DAS has first made such a determination in an audit conducted pursuant to section 3073.1. The Applicant Committee contends that the Council may identify a deficiency in the first instance dur ing the administrative proceeding in which the need for a new program is considered. Initially, we note that neither interpre tation can be fully reconciled with all provisions of the Act. Under section 3073.1 , audits are conducted by the DAS. Audit10 reports are “presented” to the Council, but th ere is no provision for the Council to ratify

the results of the audit or to identify a program as deficien t other than as specified in section 3075, subdivision (b)(3). (See § 3073.1; Cal. Code Regs. § 212.3.) Under section 3075, subdivision (a), applica tions for approval of a new apprenticeship program are made to and considered by the Chief DAS. The application comes before the Council only on appeal from the Chief’s approval or de nial of the application. (Cal. Code Regs., tit. 8, § 212.2.) Thus, the Chief DAS may ap prove an application under section 3075, subdivision (b)(3) only if the Council has identified a defi ciency in existing programs, but

the Council has no occasion to make such an identification until considering an appeal from the Chief’s acceptance or rejection of an application for a new program. Read literally, therefore, a new program can virtua lly never be approved under section 3075, subdivision (b)(3) because th e Chief DAS cannot rely on that provision unless the Council has identified a deficiency, and the Council cannot identif y a deficiency unless an appeal is before it from a decision of the Chief DAS. 6 This dilemma exists whether the Council may identify a deficien cy in the first instance, as argued by the Applicant Committee, or only following a section 30 73.1 audit, as suggested by the Existing Committee. Clearly, corrective legislation is called for. 7

6 In the present case, the issue came before the Council following the unusual procedural history summarized in footnote 5, ante.

7 As initially proposed, section 3075, subdivision (b)(3 ) read “. . . identified by the chief or the [Council].” (Assem. Bill No. 921, as amended July 7, 1999.) For reasons unknown, but likely the result of a clerical error, A ssembly Bill No. 921 was amended so that subdivision (b)(3) read in releva nt part “identified by the chief of the [Council].” (Assem. Bill No. 921, as amended Aug. 17, 1999.) A subsequent amendm ent struck “the chief of” from the proposed legislation, since there is no chief of the Council, resulting in subdivision (b)(3) as enacted. (Assem. Bill No. 921, as amended Sept. 3, 1999.) The legislative history offers no explanation for the above ame ndments, suggesting that the removal of the Chief from subdivision (b)(3) was simply an inad vertent drafting error. For the reasons discussed below, we need not rewrite the st atute to resolve the present appeal. We note, however, that the inclusion of the Chief in subdivision (b)( 3), as initially proposed, would resolve the d ilemma identified above, and th at the conclusion we reach is consistent with a revision of the statute permitting an identification of a deficiency to be made either by the Chief DAS or the Council.11 The Existing Committee argues that sec tion 3075, subdivision (b)(3) must be interpreted within the context of “the stat utory scheme of which [it] is a part” ( Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1063), and th at section 3073.1 “spells out how apprenticeship programs are inde ntified as ‘deficient.’ ” It points out that the requirement in section 3075, subdivision (b)(3) that an existing program “have been identified” as deficient is stated in the past tense. Therefor e, it asserts, the provision must be understood to mean that the existing program has previous ly been identified as deficient in an audit conducted pursuant to section 3073.1. Moreover, section 3 073.1, subdivision (b) requires

the DAS to “recommend remedial action to corr ect deficiencies reco gnized in the audit report, and the failure to correct deficiencies within a reasonable period of time shall be grounds for withdrawing state approval of a program.” 8 Thus, the Existing Committee argues, “if an existing program has deficiencies that have been identified in an audit and that may render it at risk for withdrawal of state approval, this would create an apprenticeship training need in that trade a nd geographic area as described in [section 3075, subdivision (b)(3)] . [¶] This is the only constructio n of [section 3075, subdivision (b)(3)] that integrates the provision with ‘the statutory sc heme of which [it] is a part.” Although not implausible, the Existi ng Committee’s interpretation cannot be squared with the plain langua ge of section 3075, subdiv ision (b)(3). While, as the Existing Committee argues, that provision requires the deficiency in an existing program

to “have been identifie d,” the deficiency must “have been identified by the California Apprenticeship Council ”—language that the Existing Co mmittee ignores. There is no other point in the processe s created by the Act at wh ich the Council identifies a deficiency in an existing pr ogram than during its review of the Chief’s decision to

8 This is how the section re ad when the matter was befo re the Council. Among other amendments made to the statute in 2011, se ction 3073.1, subdivision (b) was amended to provide that “the failure to follow division recommendations or to correct deficiencies within a reasonable period of time shall be gr ounds for withdrawing state approval of a program.” (Stats. 2011, ch. 696, § 1.)12 approve or deny a new program applicatio n. Under section 3073.1 and the related regulations, the identification of deficiencies during the audit process is made by the DAS, not by the Council. Wh ile the Council receives the audit report, there is no provision for the Council to approve or ratify th e content of the report. The only point at which the Act requires th e Council to identify a deficiency in an existing program is as a predicate to approval of a new program under section 3075, subdivision (b)(3). The word “deficiency” (or “deficient”) is used through out the Act in its ordinary sense, referring in some places to omissions or misstatemen ts from program applications (§§ 3073.1, subd. (e); 3 075.5) and in others to a failure to comply with program standards or to achieve program goals (§§ 3073.1, su bds. (b), (c); 3075, subd. (b)(3)). There is no indication in the text or the history of the stat ute that the word is intended as a term of art meaning only a deficiency identifie d as such in a DAS audit. To interpret the statute as suggested by the Existing Committee, the court would be required to read out of section 3075, subdivision (b)(3) the requirement that the deficiency be identified by the Council and replace it with another requirement, that the deficiency has been identified in a DAS audit. Sections 3075 , subdivision (b) and 3073.1

were enacted at the same time . (Stats. 1999, ch. 903, §§ 5, 7 .) Had the Legislature wanted

to so restrict the manner in which deficienci es must be identified for purposes of section 3075, subdivision (b)(3), it would have been a simple matter to say so. Inserting into the statute the requirement that a deficiency in an existing program has been previously

identified in a DAS audit befo re the Council may approve a new program because of that deficiency would be at odds with the most basic rules of statutory construction. ( People v.

Guzman (2005) 35 Cal.4th 577, 587 [Courts will only e ngage in rewriting of a statute

“ ‘when it has been obvious th at a word or number had been erroneously used or omitted’ ” and “ ‘when compelle d by necessity and supported by firm evidence of the drafters’ true intent.’ ”]; Whaley v. Sony Computer En tertainment America, Inc. (2004)13 121 Cal.App.4th 479, 486 [Courts “may not ‘i nsert qualifying provisi ons not included in the statute.’ ”].) Interpreting the statute as it has been written gives appropriate deference to the Council’s interpretation of its provisions. ( Yamaha Corp. of America v. State Bd. of Equalization, supra, 19 Cal.4th 1.) And this interpretati on is not at odds with the broader statutory scheme. The audit process defined in section 3073.1 is designed to ensure that existing apprenticeship programs comply with applicable rules and standards and to

recommend remedial measures to correct defici encies, leading to pote ntial withdrawal of state approval if those deficiencies are not co rrected within a reasonable period of time. The approval process defined in section 3075 is not designed to correct deficiencies in existing programs, to disciplin e existing programs, or revo ke their right to operate. Permitting the Council to identif y an existing deficiency allo ws the Council to address a deficiency promptly, without awaiting an aud it report, and to do so by authorizing the operation of a new program without revoking the authorization of an existing program. In this case, the Chief’s decision includ es the factual finding that the program sponsored by the Existing Committee had a five-y ear graduation rate of 23.8 percent. On appeal before the Council, the Existing Co mmittee did not challeng e this factual finding

and the Council concluded that the substandard graduation rate was a deficiency within the meaning of section 3075, subdivision (b)(3 ). Because we conclude that section 3075, subdivision (b)(3) authorizes th e Council to make such a fi nding without the deficiency having been previously identified in a DAS a udit, and because the ev identiary support for the Council’s finding is not questioned, it follows that the Council did not err in approving the Applicant Committee’s program under section 3075, subdivision (b)(3). Hence, a writ of mandate shoul d not have been granted co mpelling the Council to set aside its order denying the appeal from th e approval of the Applicant Committee’s

program.14 Disposition The order granting writ of mandate is reversed.

_ ____________ ____________ Pollak, J.

We concur:

_____________ ____________ McGuiness, P. J.

_____________ ____________ Siggins, J.15 Trial Court: San Francisco County Superior Court

Trial Judge: Hon. Harold E. Kahn

Counsel for Real Party in Interest and Appellant: Carrie E. Bushman, and Grant R. Zehnder of Cook Brown

Counsel for Plaintiff and Respondent: Jeffrey L. Cutler and Elizabeth Rosenfeld of Wohlner Kaplon Phillips Young & Cutler

Counsel for Defendant and Respondent: Karen Wing Yiu Office of the Attorney General