                      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




                                                  1.                                         93-1204

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.

                                                   2.                                          93-1204

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.)

                                                   3.                                           93-1204

               "(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 quasi-
legislative 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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