                                     TO BE PUBLISHED IN THE OFFICIAL REPORTS

                                          OFFICE OF THE ATTORNEY GENERAL
                                                    State of California

                                                 DANIEL E. LUNGREN
                                                    Attorney General
                                        ______________________________________

                                     OPINION                :
                                                            :           No. 96-906
                                     of                     :
                                                            :           April 24, 1997
                           DANIEL E. LUNGREN                :
                              Attorney General              :
                                                            :
                          ANTHONY M. SUMMERS                :
                           Deputy Attorney General          :
                                                            :
                    ______________________________________________________________________

                         THE HONORABLE DICK MONTEITH, MEMBER OF THE CALIFORNIA SENATE, has
         requested an opinion on the following questions:

                          1. Under what circumstances may a pupil be expelled from school for "possessing" a
         firearm?

                          2. What circumstances constitute an abuse of discretion by a county board of education in
         reversing the decision of a governing board of a school district to expel a pupil?

                         3. May the governing board of a school district seek judicial review of a decision of the
         county board of education reversing the district board's decision to expel a pupil?

                                                        CONCLUSIONS

                          1. A pupil may be expelled from school for "possessing" a firearm if the pupil knowingly
         and voluntarily has direct control over the firearm. The only exceptions are where the pupil has the
         permission of school officials to possess the firearm or where the possession is brief and solely for the
         purpose of disposing of the firearm such as handing it to school officials.

                          2. A county board of education abuses its discretion in reversing the decision of a
         governing board of a school district to expel a pupil if it does not comply with the statutory requirements
         applicable to such review.

                         3. The governing board of a school district may seek judicial review of a decision of the
         county board of education reversing the district board's decision to expel a pupil.

                                                          ANALYSIS

                          The Legislature has enacted a comprehensive statutory scheme (Ed. Code, §§ 48900-48926)
         Footnote No. 1 governing the suspension and expulsion of pupils from elementary and secondary schools.


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         "Suspension" is the "removal of a pupil from ongoing instruction for adjustment purposes. . . ." (§ 48925,
         sub. (d).) "Expulsion" is the "removal of a pupil from (1) the immediate supervision and control, or (2) the
         general supervision, of school personnel. . . ." (§ 48925, subd. (b).)

                           The three questions presented for resolution concern the expulsion of a pupil for possessing
         a firearm on school property. What does "possession" mean, when does a county board of education abuse its
         discretion in reversing a school board's decision to expel a pupil, and may the school board seek judicial
         review of the county board's decision?

                          1. "Possession" of a Firearm

         Section 48900 states in part:

                                 "A pupil may not be suspended from school or recommended for expulsion
               unless the superintendent or the principal of the school in which the pupil is enrolled determines
               that the pupil has:

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

                                "(b) Possessed, sold, or otherwise furnished any firearm, knife, explosive, or
               other dangerous object unless, in the case of possession of any object of this type, the pupil had
               obtained written permission to possess the item from a certificated school employee, which is
               concurred in by the principal or the designee of the principal.

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

                                  "A pupil may not be suspended or expelled for any of the acts enumerated
               unless that act is related to school activity or school attendance occurring within a school under
               the jurisdiction of the superintendent or principal or occurring within any other school district.

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

         Section 48915 provides in part:

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

                                "(c) The principal or superintendent of schools shall immediately suspend,
               pursuant to Section 48911, and shall recommend expulsion of a pupil that he or she determines
               has committed any of the following acts at school or at a school activity off school grounds.

                                 "(1) Possessing, selling, or otherwise furnishing a firearm. This subdivision
               does not apply to an act of possessing a firearm if the pupil had obtained prior written permission
               to possess a firearm from a certificated school employee, which is concurred in by the principal
               or the designee of the principal. This subdivision applies to an act of possessing a firearm only if
               the possession is verified by an employee of a school district.

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

         The first question concerns the meaning of the terms "possessed" and "possessing" in sections 48900 and
         48915 as they related to the possession of a firearm.

                          In addressing this question, we rely on well established principles of statutory construction.
         We are to interpret statutes so as to effectuate the intent of the Legislature. (Brown v. Kelly Broadcasting Co.
         (1989) 48 Cal 3d 711 724 ) "In doing so we turn first to the statutory language since the words the

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         (1989) 48 Cal.3d 711, 724.) In doing so we turn first to the statutory language, since the words the
         Legislature chose are the best indicators of its intent. [Citation.]" (Freedom Newspapers, Inc. v. Orange
         County Employees Retirement System (1993) 6 Cal.4th 821, 826.) The words of a statute are to be given
         "their usual and ordinary meaning." (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) "Statutes are to
         be given a reasonable and commonsense interpretation . . . ." (Dyna-Med, Inc. v. Fair Employment &
         Housing Com. (1987) 43 Cal.3d 1379, 1392.)

                           "Possession" in this context has been defined by the courts as the immediate control of an
         object; the thing possessed must be under the dominion of the possessor. (People v. Bigelow (1951) 104
         Cal.App.2d 380, 385.) Possession may be in the hand, clothes, purse, bag, or other container. (People v. Sills
         156 Cal.App.2d 618, 622.) Having the object for even a limited time and purpose constitutes possession.
         (People v. Neese (1969) 272 Cal.App.3d 235, 245.) However, brief possession solely for the purpose of
         disposing of the object is not unlawful, as in the case where a person removes illegal drugs from the pocket
         of an unconscious friend and immediately throws them away. (People v. Mijares (1971) 6 Cal.3d 415; see
         also People v. Cole (1988) 202 Cal.App.3d 1439.) We believe that "disposing" of an object in this context
         includes transferring it to law enforcement officers or other proper authorities.

                           Accordingly, if a pupil is handed a firearm by another pupil, brings it to a restroom, and
         abandons it, such acts constitute a violation of section 48900 or 48915, unless the sole purpose of the brief
         possession is to dispose of the firearm. If a pupil places a firearm in the backpack of another pupil, tells the
         other pupil of the firearm's location, and the other pupil returns the firearm an hour later wrapped in a coat,
         both pupils have sufficient "possession" to constitute a violation of section 48900 or 48915; no intention to
         dispose of the firearm could be asserted based upon such limited facts. It also constitutes a violation of either
         statute if the pupil accepts a firearm from another pupil, hides it under his coat for a short time, and then
         returns the firearm. As long as the possession is knowing and voluntary and not for the purpose of disposing
         of the firearm, e.g., handing the firearm to school officials, the pupil "possesses" the firearm regardless of the
         length of time involved.

                            We conclude in answer to the first question that a pupil may be expelled from school for
         "possessing" a firearm if the pupil knowingly and voluntarily has direct control over the firearm. The only
         exceptions are where the pupil has the permission of school officials to possess the firearm (§§ 48900,
         48915) or where the possession is brief and solely for the purpose of disposing of the firearm such as handing
         it to school officials.

                          2. Abuse of Discretion

                           The second question presented concerns the circumstances under which a county board of
         education abuses its discretion in reversing the decision of a school board to expel a pupil. We conclude that
         the failure to comply with the governing statutory requirements would constitute an abuse of discretion.

                         Following expulsion by the governing board of a school district, an appeal to the county
         board of education is available to the pupil or the pupil's parent or guardian. (§ 48919.) The basis for the
         county board's decision is the record of the hearing before the district governing board. (§ 48921.) The scope
         of the county board's review is defined by section 48922:

                               "(a) The review by the county board of education of the decision of the
               governing board shall be limited to the following questions:

                                 "(1) Whether the governing board acted without or in excess of its jurisdiction.

                                 "(2) Whether there was a fair hearing before the governing board.

                                 "(3) Whether there was a prejudicial abuse of discretion in the hearing.


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                                "(4) Whether there is relevant and material evidence which, in the exercise of
               reasonable diligence, could not have been produced or which was improperly excluded at the
               hearing before the governing board.

                                 "(b) As used in this section, a proceeding without or in excess of jurisdiction
               includes, but is not limited to, a situation where an expulsion hearing is not commenced within
               the time periods prescribed by this article, a situation where an expulsion order is not based upon
               the acts enumerated in Section 48900, or a situation involving acts not related to school activity
               or attendance.

                                "(c) For purposes of this section, an abuse of discretion is established in any of
               the following situations:

                                "(1) If school officials have not met the procedural requirements of this article.

                              "(2) If the decision to expel a pupil is not supported by the findings prescribed
               by Section 48915.

                                "(3) If the findings are not supported by the evidence.

                                 A county board of education may not reverse the decision of a governing board
               to expel a pupil based upon a finding of an abuse of discretion unless the county board of
               education also determines that the abuse of discretion was prejudicial."

         A county board's decision is also circumscribed by the terms of section 48923:

                                "The decision of the county board shall be limited as follows:

                                "(a) Where the county board finds that relevant and material evidence exists
               which, in the exercise of reasonable diligence, could not have been produced or which was
               improperly excluded at the hearing before the governing board, it may do either of the following:

                                "(1) Remand the matter to the governing board for reconsideration and may in
               addition order the pupil reinstated pending such reconsideration.

                               "(2) Grant a hearing de novo upon reasonable notice thereof to the pupil and to
               the governing board. The hearing shall be conducted in conformance with the rules and
               regulations adopted by the county board under Section 48919.

                                "(b) In all other cases, the county board shall enter an order either affirming or
               reversing the decision of the governing board. In any case in which the county board enters a
               decision reversing the local board, the county board may direct the local board to expunge the
               record of the pupil and the records of the district of any references to the expulsion action and
               such expulsion shall be deemed not to have occurred."

         These statutes define the scope of the county board's discretion. If a county board should act in a manner not
         authorized by the statutes, such failure would constitute an abuse of discretion. (See Code Civ. Proc., §
         1094.5, subd. (b); Laupheimer v. State of California (1988) 200 Cal.App.3d 440, 463; City of Poway v. City
         of San Diego (1984) 155 Cal.App.3d 1037, 1041 ["the question of abuse of discretion, which is established if
         the agency has not proceeded as required by law . . ."].)

                           Accordingly, we conclude in answer to the second question that a county board of education
         abuses its discretion in reversing the decision of a governing board of a school district to expel a pupil if it

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         abuses its discretion in reversing the decision of a governing board of a school district to expel a pupil if it
         does not comply with the statutory requirements applicable to such administrative review.

                           3. Judicial Review

                          The final question presented is whether the governing board of a school district may seek
         judicial review of the decision of a county board of education reversing the school board's decision to expel a
         pupil. We conclude that it may.

                           Section 48924 provides:

                                 "The decision of the county board of education shall be final and binding upon
               the pupil and upon the governing board of the school district. The pupil and the governing board
               shall be notified of the final order of the county board, in writing, either by personal service or
               by certified mail. The order shall become final when rendered."

         Do the words "final" and "binding" contained in section 48924 preclude a school board from seeking judicial
         review of the county board's order?

                         In Fremont Union High Sch. Dist. v. Santa Clara County Bd. of Education (1991) 235
         Cal.App.3d 1182, the governing board of a school district sought judicial review of the decision of a county
         board of education reversing the school board's decision to expel a pupil. It was unquestioned that the school
         board could seek judicial review, and indeed the trial court granted the board's petition for a writ of mandate
         ordering the county board to set aside its decision; on appeal, the judgment in favor of the school board was
         affirmed.

                           While there is no explicit statutory directive for judicial review of a county board's decision
         concerning expulsion, it is the general rule that the decisions of administrative bodies rendering quasi-judicial
         decisions are reviewable under the administrative mandate provisions of Code of Civil Procedure section
         1094.5. (See Temescal Water Co. v. Dept. of Public Works (1955) 44 Cal.2d 90, 102.) The language of
         section 48923, that the decision of the county board is "final and binding upon the pupil and upon the
         governing board of the school district," in no way precludes either the school board or the pupil from seeking
         judicial review. Indeed, the statement that the decision is "final and binding" establishes one of the
         requirements for judicial review, since only final administrative decisions may be reviewed by a court. (See,
         e.g., State of California v. Superior Court (Veta) (1974) 12 Cal.3d 237, 245.)

                          We thus conclude in answer to the third question that the governing board of a school
         district may seek judicial review of a decision of the county board of education reversing the district board's
         decision to expel a pupil.

                                                                 *****

         Footnote No. 1
         All references hereafter to the Education Code are by section number only.




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