Petitions for writ of Certiorari denied.
ondents categorically reject the notion that the CSA expresses a preference for local charters because, as they argue, "the
substantive requirements for charter school approval are the same for local and state charter schools." (Italics added.) The fact that all charter schools must satisfy uniform standards is neither surprising nor relevant. The critical question in this matter is whether the CSA is designed to encourage local chartering. That question is not affected by the substantive requirements for charter schools.
We also reject respondents' characterization of former section 47605.8 as "an indisputable legislative mandate to the [State] Board to authorize state charter schools that may operate without geographic or site limitations," as well as their contention at oral argument that the authorization of statewide charters was one of the primary objectives of the 2002 amendments. It seems to us unlikely that the Legislature would use prescriptive terms ("may not approve [a statewide charter] unless. . . .") to declare a mandate. (Former § 47605.8, subd. (b).) Additionally, the notion that the statute constitutes a "mandate" runs contrary to the legislative history which shows that the primary impetus behind the 2002 amendments was to tighten oversight of charter schools by, inter alia, prohibiting the establishment of schools that would operate in locations geographically distant from their chartering agencies. (Sen. Education Analysis of Assem. Bill No. 1994, p. 2.)
The statewide charter school provisions were added very late in the legislative process, only two weeks before the bill's passage. (Assem. Bill No. 1994 (2001-2002 Reg. Sess.) as amended Aug. 15, 2002, p. 1.) The late amendment came on the heels of a lobbying effort aimed at the Senate Committee on Education (Letters to Sen. Com. on Education regarding Assem. Bill No. 1994 (2001-2002 Reg. Sess.) dated June 20-25, 2002) organized by the California Network of Educational Charters (CANEC Listserv Announcement, June 20, 2002, URGENT).
This statutory scheme, we conclude, reflects an intent to promote district chartered schools and local oversight while allowing for limited exceptions. Former section 47605.8 is one such exception, permitting the establishment of a charter school with no geographic restrictions only if it offers instructional services of a statewide benefit and only if that benefit would be frustrated if it operated its schools under district (or county) charters.
6. Respondents' Other Contentions
Respondents point to the regulation adopted by the State Board that requires statewide charter applicants to "[demonstrate success in operating charter schools previously approved in California." (Regs., § 11967.6, subd. (a)(7).) This regulation, respondents argue, negates the notion that the CSA favors local charters because this would place statewide charter applicants in a Catch-22 — "although the regulations require that they demonstrate success in operating previously approved charter schools, that same success would . . . constitute a valid reason to deny such petitioners."
We think respondents' argument gives undue weight to this section of the regulation. But that is of no moment. Whatever bearing the regulation may have on the approval or denial of a statewide charter, it cannot control the statute's meaning. The scope or intent of a statute cannot be diminished or altered by a regulation purporting to interpret or implement it. (Morris v. Williams (1967) 67 Cal.2d 733, 748 [ 63 Cal.Rptr. 689, 433 P.2d 697] [regulation cannot alter or amend a statute or enlarge or impair its scope].)
Respondents assert as "obvious" the proposition that former section 47605.8 was adopted to "provide[] a mechanism for charter school operators to avoid the patchwork quilt of local school district approval. If plaintiffs had their way," respondents argue, "Aspire would be required to open each and every campus pursuant to different local chartering agencies, each with their own unique approval processes, oversight mechanisms, academic reporting requirements, special-education arrangements, and admission preferences — thus eliminating the uniform, statewide nature of Aspire's educational program." (Italics omitted.)
First, as we have already noted, the 2002 amendments were specifically designed to encourage locally chartered schools and to impose geographic restrictions on charter school operations that would help to "clarify a district's sovereignty over public education provided within its boundaries and to enhance oversight of charter schools." (Sen. Finance Analysis of Assem. Bill No. 1994, p. 1.) Having chosen to impose such restrictions, it would make no sense for the Legislature to simultaneously create "a mechanism for charter school operators to avoid . . . local school district approval." We read former section 47605.8 as an exception to the CSA's chartering scheme, not as an equally available option for establishing a charter school.
In any event, respondents have not cited, and we have not located, anything in the record to support their assertions. There is no evidence that local chartering agencies have "unique" rules and requirements nor is there any evidence that "uniform, statewide" educational programming could not be achieved under a collection of district charters. To the contrary, Aspire's successful chartering of 17 schools in seven school districts — apparently utilizing a uniform model — suggests otherwise. As CDE's review of Aspire's charter application states, Aspire has achieved "moderate success" in improving academic achievement in their locally chartered schools, and the "curriculum and instructional methodologies proposed [for the statewide charter] are generally the same ones that have been used in Aspire's 11 other existing schools." In short, nothing in the record supports respondents' contention that former section 47605.8 was adopted so that schools could avoid the requirements of local chartering.
Two Aspire petitions for elementary schools in two school districts are included in the record. They appear to be virtually identical. Further, the statutory elements of Aspire's statewide charter petition are substantially similar to those elements of its district charter petitions. (See § 47605, subd. (b)(5).)
7. Was the Necessary Finding Made?
Although respondents contend the State Board was not required to make a finding that the statewide benefit proposed by Aspire cannot be provided under local charters, they also contend that such a finding was made. In support, they cite to the transcript of the State Board's meeting where the statutory language was recited and voted upon. They further point to the trial court's conclusion that the State Board's finding was based on evidence before the State Board — specifically, Aspire's petition — which showed that its "proposed educational program, and operational plan, included unique factors and circumstances that could only be accomplished as a statewide benefit charter and not as a single district- or single county-authorized charter."
The record is clear that the only finding made was the finding respondents contend was required, viz., the finding that Aspire's instructional services would provide a statewide benefit. The State Board did not have before it any evidence on the question of whether Aspire's "statewide benefit" could be provided under local charters. The State Board did not discuss or consider that question, and, in fact, two members of the State Board objected to the vote on Aspire's petition precisely because there was nothing before the State Board to support a finding that Aspire could not achieve its "statewide benefit" under local charters. Where an agency has a statutory duty to make findings, the mere recital of the statutory language does not satisfy the requirements of the statute. (Cf. City of Stockton v. Marina Towers LLC (2009) 171 Cal.App.4th 93, 114-115 [ 88 Cal.Rptr.3d 909].)
8. Statewide Benefit
Although the primary focus of the parties' briefing on appeal with respect to the first cause of action related to the construction of former section 47605.8, subdivision (b), the parties also disputed whether there was evidence in the record to support the State Board's finding that Aspire's program would provide "instructional services of statewide benefit." Petitioners alleged that such a finding could not be made because Aspire's proposed instructional services were not "materially different from the services provided by [its] existing charter schools operating in individual districts." Because we reverse the judgment on other grounds we need not address this question, but we pause to observe that the record contains no analysis of whether the elements of Aspire's statewide benefit constituted "[u]nique factors and circumstances" (regs., § 11967.6, subd. (b)(1)), or were merely restatements of the elements of its existing programs, being operated under local charters. It is for the trial court to make further determinations on this issue.
We also note in passing that there appeared to be no consensus among the members of the State Board as to the meaning of the term "instructional services of statewide benefit." A vote on Aspire's petition was nevertheless taken because the majority was unwilling to delay the decisionmaking process in order to resolve that issue, which was left for another day.
9. Conclusion
Petitioners have alleged that the State Board did not make the findings required by the statute in approving Aspire's charter petition. Because this allegation has merit, the joint demurrer should have been overruled. We, therefore, reverse the judgment and ruling on the first cause of action, and remand for further proceedings, consistent with this opinion.
B. Second Cause of Action: Failure to Enforce Charter Provisions
1. Petitioners' Allegations
For ease of reference, we repeat here the essential allegations of the second cause of action:
Aspire's charter was approved by the State Board subject to specific conditions relating to the opening and operation of school sites, including the execution of an MOU to govern specific operational details. "One of the conditions was that `CDE final findings and recommendations must be addressed in the specified timeframes' before any individual school sites could be opened. Another condition also provided that if any deadline was not met, approval was terminated `unless the [State Board] deletes or extends' the deadline."
Aspire's CEO thereafter filed an amended charter with the State Board and executed an MOU between Aspire and CDE. "The MOU contained approximately 22 pages of requirements with which Aspire was required to comply, almost all of which were required to be completed in advance of the opening of the schools in 2007 and which were made conditions of opening these schools." Based upon documents received by CSBA from the State Board in June and July of 2007, there was "almost [a] complete absence of compliance with the conditions of the MOU." Additionally, LAUSD and SUSD were not provided with the required 120-day notices for commencement of instruction. Further, there was no CDE determination that the proposed school facilities were in compliance with the MOU, and neither LAUSD nor SUSD received any notice of such determination, as required by regulation. (Regs., § 11967.7, subd. (a).)
Petitioners allege that this notice requirement was contained in the MOU. This is incorrect. The notice requirement is in the regulations. Regulations section 11967.6, subdivision (a)(10) requires that the statewide charter petition "[i]nclude an assurance that the school districts] and county superintendents where each school will be located will be notified at least 120 days prior to commencement of instruction."
As of October 2007, Aspire was operating its statewide charter schools in the LAUSD and the SUSD "notwithstanding the virtually complete failure to meet the conditions imposed by the charter and MOU, and [the State Board's] failure to enforce the legal requirements and/or the conditions of approval." The State Board's failure to enforce provisions of the CSA and its own conditions of approval, and its "continued failure or refusal to enforce such requirements is arbitrary and capricious, an abuse of discretion and contrary to law."
The petition sought a writ of mandate requiring that the State Board carry out its "clear, present, and ministerial duty to enforce the provisions of the CSA and the conditions of approval [of the charter], including those contained in the MOU, and to take affirmative actions to rescind and/or to revoke the approval of any charter wrongfully approved and/or operating in violation of the law and the conditions of its approval."
2. Aspire's Demurrer
The trial court sustained Aspire's demurrer to this cause of action on the ground, advanced by respondents, that the State Board did not have a "mandatory duty to terminate or revoke Aspire's charter based on (1) Aspire's alleged failure to comply with the conditions of the [MOU] or (2) [the State Board's] alleged failure to enforce those conditions or certain provisions and regulations of the [CSA]." Petitioners contended they were not seeking a writ of mandate requiring the State Board to revoke the charter under section 47607, but were seeking a writ of mandate requiring the State Board to enforce both the law and the deadlines and conditions imposed by the State Board which were never waived or extended by the State Board's action. The trial court rejected this argument, concluding that "revocation of Aspire's . . . charter and an injunction to force [the State Board] to revoke future charters is the only relief sought in the prayer to the Second Cause of Action."
3.
Revocation of Aspire's Charter Under Section 47607 Was Not the Only Relief Requested
In reviewing the sufficiency of a complaint against a general demurrer, it is long settled that "[t]he complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties." (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111 [ 62 Cal.Rptr.3d 59].) While the petitioners' pleading does engender some confusion, a liberal reading of its allegations manifests a request that the court order enforcement of the CSA, the MOU, and the conditions of approval including the condition that the approval would be rescinded for failure to comply with its preconditions in the absence of State Board action to extend or eliminate the applicable deadline. Petitioners also sought an order compelling the State Board to revoke and/or terminate the charter. Thus, revocation of Aspire's charter under section 47607 was not "the only relief sought in the prayer to the Second Cause of Action." (Italics added.) We, therefore, examine whether mandamus will lie either to enforce the charter's conditions of approval or to require the State Board to revoke the charter.
4.
Is Mandamus Available to Enforce Conditions of Approval?
The State Board is an agency authorized to exercise its discretion in the approval and formation of a statewide charter school, a quasi-legislative act. In this respect it is like any other state or local agency that can be the subject of a writ of mandate to implement quasi-legislative acts that have been duly adopted. Thus, in Harbach v. El Pueblo de Los Angeles etc. Com. (1971)14 Cal.App.3d 828 [ 92 Cal.Rptr. 757], a joint state and local commission adopted a resolution to relocate and restore a historical building, but refused to carry through with the project. The Court of Appeal affirmed the trial court's issuance of a writ of mandate concluding that, while adoption of the resolution was discretionary, its implementation was not. The resolution "was passed unanimously by the Commission . . .; it has never been rescinded or modified, and remains in full force and effect. The individual members of the Commission have thereby exercised their discretion in deciding to relocate the [building], and now it is the ministerial task of the Commission to implement the resolution. The Commission's duty remains until the resolution is effectively implemented, or the members of the Commission again exercise their discretion . . . to rescind or modify the resolution." (Id. at p. 834; see also Terminal Plaza Corp. v. City and County of San Francisco (1986) 186 Cal.App.3d 814, 834-835 [ 230 Cal.Rptr. 875] [if condition of approval imposed on a development project is clear and unambiguous, city has a ministerial duty to enforce it].) Accordingly, the conditions imposed by the State Board in its official, quasi-legislative action approving Aspire's charter can be a proper subject of mandamus.
Whether the specific conditions of approval imposed by the State Board on Aspire's charter are actually enforceable by writ of mandate involves many questions that cannot be answered on the bare pleading. After further proceedings it may be determined that most or all of the unsatisfied conditions are subject to discretionary interpretation and therefore are not amenable to mandamus (see, e.g., Blankenship v. Michalski (1957) 155 Cal.App.2d 672, 675-676 [ 318 P.2d 727]), or are only breaches of contractual obligations not subject to enforcement by writ of mandate (McDonald v. Stockton Met. Transit Dist. (1973) 36 Cal.App.3d 436, 442 [ 111 Cal.Rptr. 637]), or have been rendered moot by either the passage of time or corrective action (Environmental Protection Information Center, Inc. v. Maxxam Corp. (1992) 4 Cal.App.4th 1373, 1380 [ 6 Cal.Rptr.2d 665]). But at this very preliminary stage of the proceedings, we cannot conclude as a matter of law that no cause of action lies for enforcement of the conditions imposed on Aspire's charter.
5.
Is Mandamus Available to Compel Revocation of a Charter?
Respondents argue that all of the provisions of the MOU are merely contractual and are not subject to mandamus on that basis, because "[i]t is uncontested that the MOU was not required by law." The MOU and many of its provisions, however, were required by the State Board as conditions of approval and, therefore, the MOU itself is at least theoretically enforceable as a condition.
Former section 47607 provided, as here relevant, that "[a] charter may be revoked" (subd. (b), italics added) by the chartering agency if it finds that the charter school committed "a material violation of any of the conditions, standards, or procedures" of the charter (subd. (b)(1)) or a violation of "any provision of law" (subd. (b)(4)). By its plain language, the statute grants to chartering authorities broad discretion in initiating revocation proceedings against charter schools. This does not mean, however, that a chartering entity has absolute discretion to take no action against a school that violates the law or its charter.
The chartering of a school and the charter school's compliance with the law, the regulations, and the conditions imposed on its charter can be matters of serious concern to the public and to our public school system. More than 10 years ago, in Wilson v. State Bd. of Education (1999) 75 Cal.App.4th 1125, 1135 [ 89 Cal.Rptr.2d 745] (Wilson), the legitimacy of the CSA was challenged on the ground, among others, that it violated the constitutional mandate of state control over public schools because it transferred power over essential educational functions to the parents and teachers who write the charters and to the entities that operate the charter schools. In rejecting that challenge, Division Four of the First Appellate District concluded that charter schools are not just nominally, but are effectively, under the control of state officials through the charter approval process, through continuing oversight and monitoring powers, through unlimited access for inspection and observation, and through the power to revoke a charter in the face of serious breaches of financial or educational responsibilities or for violations of the law. (Id. at pp. 1138-1141; see id. at p. 1139 ["we wonder what level of control could be more complete than where, as here, the very destiny of charter schools lies solely in the hands of public agencies and offices . . ."].) As the court explained, "under this scheme, charter school officials are officers of public schools to the same extent as members of other boards of education of public school districts. So long as they administer charter schools according to the law and their charters, as they are presumed to do, they stand on the same constitutional footing as noncharter school board members. If they violate the law, the charter will be revoked." (Id. at p. 1141, italics added.)
It is, thus, the very control and oversight by public officials that legitimize charter schools. If monitoring and enforcement are, in reality, either lax or nonexistent, then the entire statutory scheme governing charter schools is called into question. Local school districts and county boards of education, as well as parents and teachers, have a right to expect that charter schools will hew not just to the law, but to their charters and the conditions imposed upon them through official action taken at a public hearing. We, therefore, cannot agree with the State Board's contention that because section 47607 authorizes but does not compel a chartering agency to revoke a charter, no person or entity can ever challenge the agency's failure to act by way of writ of mandate. Using an extreme example, if the State Board turned a blind eye to a statewide charter school that was charging tuition and promoting religious tenets in violation of its charter and of the law, an action in mandamus would lie seeking to compel the State Board to take corrective action.
We acknowledge that courts should generally "`let administrative boards and officers work out their problems with as little judicial interference as possible [because] boards are vested with a high discretion and its abuse must appear very clearly before the courts will interfere.'" (Lindell Co. v. Board of Permit Appeals (1943) 23 Cal.2d 303, 315 [ 144 P.2d 4].) But this does not mean that boards and officers may refuse to act, or may act with unfettered discretion. "Mandamus may issue . . . to compel an official both to exercise his discretion (if he is required by law to do so) and to exercise it under a proper interpretation of the applicable law." (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442 [ 261 Cal.Rptr. 574, 777 P.2d 610].) "Where only one choice can be a reasonable exercise of discretion, a court may compel an official to make that choice." (California Correctional Supervisors Organization, Inc. v. Department of Corrections (2002) 96 Cal.App.4th 824, 827 [ 117 Cal.Rptr.2d 595].)
Here, the State Board approved the petition "subject to" compliance with certain "conditions for the opening and operation of school sites." We are confronted with an allegation that these schools were operating in October 2007 "notwithstanding the virtually complete failure to meet the conditions imposed by the charter and MOU, and [the State Board's] failure to enforce the legal requirements and/or the conditions of approval." In the face of this allegation we cannot presume the school is operating "according to the law and [its] charter[]. . . ." (Wilson, supra, 75 Cal.App.4th at p. 1141.) And, although more than two years have passed, we must accept that this static set of facts remains; because this matter was decided on demurrer, there is no evidence before us concerning the satisfaction of any of the conditions.
The State Board argues there is evidence that all regulatory requirements were satisfied, and points to certain correspondence that was the subject of a request for judicial notice in the trial court. The content of the correspondence, however, is not a proper subject of judicial notice and the trial court correctly so noted, ruling that it "does not take judicial notice of the truth of [the] assertions or findings stated in those documents."
We must, therefore, conclude that petitioners stated a legally cognizable
claim and the demurrer to the second cause of action should have been overruled.
C. Third Cause of Action: Violation of the APA
Petitioners' third cause of action alleged that the State Board "is . . . using policies and procedures in connection with its consideration of statewide charter petitions that have not been adopted in compliance with Government Code [section] 11500 et seq., the [APA]" and, therefore, the court should compel the rescission of Aspire's charter which was approved pursuant to these policies and procedures. The question posed is a narrow one: Are the allegations of the petition and complaint sufficient to survive a demurrer? Our answer is yes. Petitioners' claim cannot be rejected as a matter of law on the pleadings and this limited record.
1. The APA
"The APA was enacted to establish basic minimum procedural requirements for the adoption, amendment, or repeal of administrative regulations promulgated by administrative agencies. [Citations.] A major purpose of the APA is to provide a procedure for persons or entities affected by a regulation to be heard on the merits in its creation, and to have notice of the law's requirements so they can conform their conduct accordingly. [Citation.] Because of this, any doubt as to the applicability of the APA's requirements should be resolved in favor of the APA. [Citations.] [¶] "`If a rule constitutes a `regulation' within the meaning of the APA . . . it may not be adopted, amended, or repealed except in conformity with `basic minimum procedural requirements' [citation] that are exacting . . . Any regulation or order of repeal that substantially fails to comply with these requirements may be judicially declared invalid. [Citation.]" [Citation.]'" (Morales, supra, 168 Cal.App.4th at pp. 735-736.)
"The agency must give the public notice of its proposed regulatory action ([Gov. Code], §§ 11346.4, 11346.5); issue a complete text of the proposed regulation with a statement of the reasons for it (id., § 11346.2, subds. (a), (b)); give interested parties an opportunity to comment on the proposed regulation (id., § 11346.8); respond in writing to public comments (id., §§ 11346.8, subd. (a), 11346.9); and forward a file of all materials on which the agency relied in the regulatory process to the Office of Administrative Law (id., § 11347.3, subd. (b)), which reviews the regulation for consistency with the law, clarity, and necessity. (Id., §§ 11349.1, 11349.3.)"'" (Morales v. California Dept. of Corrections Rehabilitation (2008) 168 Cal.App.4th 729, 736 [ 85 Cal.Rptr.3d 724] (Morales).)
The APA defines "`[regulation'" as "every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure." (Gov. Code, § 11342.600.) "A regulation subject to the APA . . . has two principal identifying characteristics. [Citation.] First, the agency must intend its rule to apply generally, rather than in a specific case. . . . Second, the rule must `implement, interpret, or make specific the law enforced or administered by [the agency], or . . . govern [the agency's] procedure.' [Citation.]" (Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 571 [ 59 Cal.Rptr.2d 186, 927 P.2d 296] (Tidewater).)
A regulation need not be adopted pursuant to the APA, however, if it would merely duplicate statutory standards or procedures. As explained in Morning Star Co. v. State Bd. of Equalization (2006) 38 Cal.4th 324, 336 [ 42 Cal.Rptr.3d 47, 132 P3d 249] (Morning Star), "`[i]f certain policies and procedures . . . are . . ."essentially [] a reiteration of the extensive statutory scheme which the Legislature has established" . . . then there is obviously no duty . . . to enact regulations to cover such reiterations. . . . [Citation.] But to the extent any of the contents of the [statement of policy or procedure] depart from, or embellish upon, express statutory authorization and language, the [agency] will need to promulgate regulations.' [Citation.]"
The APA also does not govern a "regulation that relates only to the internal management of the state agency." (Gov. Code, § 11340.9, subd. (d).)
2.
Whether Regulations Must Be Promulgated for the Policies and Procedures Governing Review and Approval of Statewide Charter Petitions Cannot Be Determined on Demurrer
Petitioners have alleged that, in considering statewide charter petitions, the State Board is using policies and procedures that have not been adopted under the APA. More particularly, petitioners alleged: "While the [State Board] has adopted regulations that specify the required contents of a statewide charter petition and define `instructional services of a statewide benefit,' the [State Board] has never adopted regulations governing the process of review or the role of the ACCS with respect to statewide charter petition review. Specifically, the use of the ACCS to review and make recommendations with respect to statewide charter petitions has never been subject to the rulemaking requirements of the [APA] and its public comment provisions. Nor has the [State Board] ever adopted regulations setting forth the process to be used for ACCS (or other) review of petitions for statewide charters, for hearings on those petitions, for amendments to petitions, for objections to such petitions, or for making decisions with respect to such petitions." Petitioners also alleged that the ACCS was formed in 2001 by California State Board of Education Policy No. 01-04 (Policy No. 01-04) to advise the State Board in a number of areas pertaining to charter schools but these do "not include consideration of statewide charter petitions."
On their face these allegations state a claim, albeit skeletal, for violation of the APA, which requires that "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" be adopted pursuant to the provisions of the APA. (Gov. Code, § 11342.600; see id., § 11340.5.)
Respondents do not directly address these allegations. Instead, they contend that petitioners are not really challenging the absence of valid regulations but are "trying to invalidate the [State] Board's use of an advisory body [the ACCS] . . . to review statewide charter petitions." (Italics added.) Having thus reframed the issue, respondents assert "there is not a single California case that supports the proposition that a state agency's use of a purely advisory body constitutes an `underground regulation.'" (Italics added.) According to respondents, four "undisputed facts" support the claim that "the [State] Board's use of the ACCS does not violate the APA": (1) the ACCS was "lawfully created pursuant to legislative mandate," (2) the ACCS provides recommendations to the State Board that are purely advisory, (3) the regulation that defines "instructional service., of a statewide benefit" was lawfully promulgated and was followed by the ACCS, and (4) the ACCS's meetings are subject to the Bagley-Keene Open Meeting Act (Gov. Code, § 11120 et seq.) and, therefore, open to the public.
While respondents' contention has its own internal logic, it is largely unmoored to the actual allegations of the complaint or to relevant legal principles. Putting aside for the moment the question of petitioners' actual theory, we observe that the four assertedly "undisputed facts" do not compel any dispositive legal conclusion.
3. The Formation and the Role of the ACCS
First, contrary to respondents' assertions, the formation of the ACCS had nothing to do with statewide charter schools. Its creation was authorized by statute for the purpose of recommending to the State Board criteria to be used in determining the funding mechanism for nonclassroom-based instruction in charter schools. (§ 47634.2.) The State Board thereafter adopted Policy No. 01-04, which expanded ACCS's role to include advice on "all aspects of the State Board's duties under the Charter Schools Act of 1992." (Italics omitted.) But that policy predates the adoption of former section 47605.8 and says nothing about using the ACCS to review statewide benefit charter school petitions. And, although it is undisputed that the ACCS is only an advisory body, this fact does not exempt its policies and procedures from the APA. (Cf. Engelmann v. State Bd. of Education (1991) 2 Cal.App.4th 47, 51-52, 62 [ 3 Cal.Rptr.2d 264] (Engelmann) [process utilized to select textbooks, including policies and procedures of advisory committees are subject to APA].)
The State Board asserts that Policy No. 01-04 does include as part of ACCS's duties advice regarding "`the selective granting of charters'" and that this "language applies to state charter schools as much as it does to local ones." This contention is misleading. Policy No. 01-04 refers to advice with respect to the board's role in the "[s]elective granting of charter petitions that have been denied or not renewed by local education agencies, but that the State Board determines to have met statutory requirements." (Italics added.) This provision quite clearly applies to appeals from denials of local charters and not to applications under former section 47605.8.
Further, respondents' assertion that the ACCS merely followed the regulatory definition of "instructional services of statewide benefit" in making its recommendation to the State Board is not supported by any citations to the record. In any case, this fact, even if true, does not respond to petitioners' allegations that there are no "regulations setting forth the process to be used for ACCS (or other) review of petitions for statewide charters, for hearings on those petitions, for amendments to petitions, for objections to such petitions, or for making decisions with respect to such petitions." (Italics added.)
Finally, it is undisputed that the ACCS is required by law to post its agendas on the Internet 10 days prior to its meetings (Gov. Code, § 11125, subd. (a)), and to hold meetings that are open to the public (id., § 11123). But this fact does not, as a matter of law, either satisfy or nullify APA requirements. The mere opportunity to be present at the end-stage of a behind-the-scenes evaluation process is not the equivalent of having an opportunity to be involved in the development of the standards, policies, and procedures that will govern that process. (Engelmann, supra, 2 Cal.App.4th at pp. 51-52, 62 [State Board made specific provision for applicants to be heard by advisory committees and to respond to their criticisms; the court nevertheless issued a writ of mandate requiring compliance with the APA to the extent procedures and policies departed from or embellished upon statutory scheme].)
Petitioners also contend that any salutary effects of the open-meeting rule were negated here because significant changes were made to the petition after it was voted upon by ACCS at its noticed public meeting. It is not clear, however, whether the earlier version of the petition contained in the record was the version actually voted on by the ACCS. Further, while there are substantial differences in the two petitions it cannot be known on this record whether the changes were made before or after the ACCS held its public meeting.
In sum, respondents' four factual assertions do not support the conclusion that its policies and procedures for review of statewide charter petitions do not violate the APA as a matter of law.
4.
Petitioners' Actual Theory and Respondents' Contentions
More fundamentally, we disagree with respondents' characterization of petitioners' theory underlying the APA claim. Although petitioners do call into question the legitimacy of the ACCS's role in the statewide charter petition process because neither its statutory authorization nor its formation document (Policy No. 01-04) assign it any such role, that is not their only complaint. Petitioners also allege that, having been assigned an active part in the process, the ACCS's policies and procedures in carrying out their responsibilities must be — and have not been — promulgated under the APA. As explained in their reply brief: "The issue is . . . not whether the APA `invalidates' or makes illegal the use of advisory bodies, as Respondents urge. . . . If the agency wishes to use an advisory committee, nothing in the APA proscribes it, but the agency must provide notice to the public by undertaking the required rulemaking process so that the pros and cons can be weighed and the scope of the committee's authority and the process by which it will operate is clear to the public."
Respondents argue that petitioners failed to state a cause of action under the APA because they did not allege that the ACCS is using any standards of general applicability to evaluate charter petitions other than the standards set out in the statutes and regulations governing statewide charter schools, and that petitioners cannot "reasonably argue[] that the ACCS recommendation was based on any criteria other than that which is set forth in section 47605.8 and Regulation[s section] 11967.6." Respondents assert that the ACCS simply "applied the formally adopted regulations" when it "analyzed Aspire's petition."
Respondents, however, do not cite to anything in the record that would support this assertion. Our own review of the record has uncovered nothing that describes the "`policies, procedures, standards, criteria, regulations and evaluation instruments'" (Engelmann, supra, 2 Cal.App.4th at p. 62) used by the ACCS to "implement, interpret, or make specific" (Gov. Code, § 11342.600) former section 47605.8 when it analyzed Aspire's petition and made its recommendation. Neither the statute, nor the regulation, nor Policy No. 01-04 provide any language that governs the ACCS's role in reviewing statewide charter petitions or the standards or policies it utilizes in making its recommendations to the State Board. Accordingly, the APA claim cannot be addressed on demurrer.
Respondents point to two admissions contained in the complaint: (1) that regulations section 11967.6 "specifies] the required contents of a statewide charter petition and define[s] `instructional services of a statewide benefit,'" and (2) that a "`recitation' of the proposed elements of Aspire's instructional services of a statewide benefit" occurred at the ACCS meeting. (We note that the "recitation" was made not by an ACCS member but by Aspire's CEO.) These bare admissions do not rule out the possibility that the ACCS relied on policies and procedures other than those found in the regulations.
We note that the legislative authorization for the ACCS — to assist the State Board in determining the proper level of funding for nonclassroom-based instruction in charter schools — resulted in the promulgation of exceedingly detailed regulations providing specific procedures as well as numerous standards and guidelines to be used by the ACCS in developing its recommendation to the State Board. (Regs., § 11963 et seq.) The comprehensive nature of these regulations is in sharp contrast to the complete absence of formal regulations governing ACCS's activities with respect to its recommendations on statewide charter petitions. In observing this contrast, however, we express no view as to the necessity of similar regulations in connection with the ACCS's review of statewide charter petitions.
Additionally, the record does not support respondents' characterization of the ACCS's action as being limited to making a recommendation that applied statutory and regulatory criteria to Aspire's petition. It appears, rather, that the ACCS took a far more hands-on approach. There is evidence that the chair of the ACCS reviewed a draft of Aspire's charter petition and sent a detailed e-mail to the CEO of Aspire advising him on how the petition could be improved, including how to formulate the petition in terms of strategic themes that would show a statewide benefit and garner State Board support. The ACCS member from CDE indicated "it had been a pleasure to work with Aspire . . . representatives in shaping statewide benefit charter petitions," and that "[u]nlike petitions being considered on appeal, there is much more flexibility to work collaboratively with petitioners," describing the process as "much more proactive." This indicates that the ACCS's analysis is not limited to the mere application of "formally adopted regulations" to review state charter petitions.
In so noting, we do not criticize the ACCS for the work it has done, which appears to us to be conscientious and commendable. Indeed, respondents defend these interactions as entirely proper and we do not disagree. We cite these facts only to demonstrate that the question of whether the ACCS's policies and procedures "`depart from, or embellish upon, express statutory authorization and language,'" or are merely "`"a reiteration of the . . . statutory [and regulatory] scheme"'" (Morning Star, supra, 38 Cal.4th at p. 336) cannot be decided on demurrer. Petitioners have alleged the State Board and the ACCS are using policies and procedures for consideration of statewide charter petitions that have not been adopted in compliance with the APA. Whether or not petitioners can prove these allegations, they are not required to prove them at the pleading stage.
5. The Internal Management Exception Does Not Apply
In the alternative, respondents claim the APA does not govern the ACCS's operations because "rules that relate only to the mechanics of [the State Board's] review process — such as the forwarding of charter petitions to CDE staff, or the inclusion of the ACCS's recommendation in the materials provided to [State] Board members — are provisions that relate to [the State Board's] internal management of its operations, and thus are exempt from the APA." This argument fails for two reasons. First, the record shows that the ACCS's role in the State Board's review process was not limited to forwarding the petition to CDE staff and making a recommendation to the State Board. Second, as we explain, the internal management exception to the APA does not apply to a decisionmaking process that implicates the interests of persons and entities outside the state agency.
Government Code section 11340.9, subdivision (d) does exclude from APA requirements any standard or rule that "relates only to the internal management of the state agency." (See Americana Termite Co. v. Structural Pest Control Bd. (1988) 199 Cal.App.3d 228, 233 [ 244 Cal.Rptr. 693] [board's methodology for determining which companies to select for investigation under its enforcement program was only an "internal enforcement and selection mechanism" and not a regulation].)
The internal management exception, however, is a narrow one, as demonstrated by a line of cases consistently rejecting its application — even where the policies govern internal administrative matters — if the policies or procedures affect the interests of persons other than the agency itself. (See, e.g., Grier v. Kizer (1990) 219 Cal.App.3d 422, 427-428, 436-438 [ 268 Cal.Rptr. 244], disapproved on another ground in Tidewater, supra, 14 Cal.4th at p. 577 [sampling method selected to audit physician claims, affects payments to physician]; Armistead v. State Personnel Board (1978) 22 Cal.3d 198, 203-204 [ 149 Cal.Rptr. 1, 583 P2d 744] (Armistead) [provision in personnel transactions manual governing manner in which resignation may be withdrawn relates to termination of employment, "a matter of import to all state civil service employees"]; Stoneham v. Rushen (1982) 137 Cal.App.3d 729, 731, 736 [ 188 Cal.Rptr. 130] [administrative bulletins issued by Director of Corrections creating point system to classify inmates for purpose of determining custody level and housing, affects the prison population]; Poschman v. Dumke (1973) 31 Cal.App.3d 932, 942-943 [ 107 Cal.Rptr. 596], disapproved on another ground in Armistead, supra, 22 Cal.3d at p. 204, fn. 3 [procedures governing the granting or denial of tenure, "a matter of serious consequence involving an important public interest"].)
Petitioners have alleged that they are directly affected by the approval of statewide charter schools and have an interest in ensuring their legitimacy. These allegations are sufficient to overcome the State Board's contention on demurrer that the policies and procedures governing the ACCS's review of and recommendations on statewide charters are merely matters of internal management.
VI. CONCLUSION AND DISPOSITION
The demurrers to the first three causes of action should not have been sustained. Accordingly, we reverse as to those causes of action and also as to the fourth and fifth causes of action seeking injunctive and declaratory relief predicated on the same allegations.
The judgment is reversed and the cause is remanded.
Ruvolo, P. J., and Sepulveda, J., concurred.
A Petition for a rehearing was denied August 24, 2010, and the opinion was modified to read as printed above. The petitions of all respondents for review by the Supreme Court were denied November 17, 2010, S186129.