Kern, Inyo & Mono Counties Plumbing v. California Apprenticeship Council

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 & A136680
REFRIGERATION/AIR CONDITIONING
MECHANIC JOINT APPRENTICESHIP (City and County of San Francisco
AND TRAINING COMMITTEE, Super. Ct. No. CPF-11-510995)
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.

Appellant and real party in interest Plumbing, Heating and Cooling 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, the Applicant Committee sought and received
approval from the Division of Apprenticeship Standards (DAS) to expand its
apprenticeship program into Kern County. Respondent Kern, Inyo & Mono Counties
Plumbing, Pipefitters & Refrigeration/Air Conditioning Mechanic Joint
Apprenticeship and Training Committee (the Existing Committee), which already
conducts a plumbing apprenticeship training program in Kern County, opposed the

1
expansion and appealed the approval to the 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 that the trial court erred in interpreting
Labor Code1 section 3075, subdivision (b)(3), which authorizes approval of a new
apprenticeship program if “[e]xisting apprenticeship programs approved under this
chapter that serve the same trade and geographic area have been identified by the
California Apprenticeship Council as deficient in meeting their obligations under this
chapter.” We agree with the 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 apprenticeship program. Although no interpretation of section 3075
can be perfectly squared with all of its terms, we conclude that under the construction
most consistent with the language and apparent purpose of section 3075, subdivision
(b)(3), the Council has authority 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 decision denying the Existing Committee’s appeal from approval of
the new program should not have been overturned. Accordingly, we shall reverse the
order granting the writ of mandate.
Background
A. Legal Background
California regulates programs for the training of apprentices in the construction
trades under the Shelley–Maloney Apprenticeship Labor Standards Act of 1939 (Act).
(§ 3070 et seq.; Southern California Cement Masons Joint Apprenticeship Committee v.

1
All statutory references are to the Labor Code unless otherwise noted.

2
California Apprenticeship Council (2013) 213 Cal.App.4th 1531, 1535 (Southern
California Cement Masons JAC).)2 “Oversight of apprenticeship programs is vested in
the Division of Apprenticeship Standards (DAS), one of five divisions within the
Department of Industrial Relations (Department). [Citation.] The Council is a public
body consisting largely of DAS officials and industry and trade union representatives
appointed by the Governor. The Council's purpose is to ‘aid[ ] the Director [of Industrial
Relations] in formulating policies for the effective administration’ of the laws governing
apprenticeship, including through the formulation of regulations establishing standards
for apprentice working conditions and assuring equal opportunities in apprenticeship
programs. [Citations.] [¶] The Act encourages 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 required for the operation of a program, ‘strong
financial incentives’ and other advantages are available to approved programs.”
(Southern California Cement Masons JAC, supra, 213 Cal.App.4th at pp. 1535-1536, fns.
omitted.)
Since 1984, section 3075 has provided: “An apprenticeship program . . . may be
approved by the chief [of the DAS] in any trade in the state or in a city or trade area,
whenever the apprentice training needs justify the establishment . . . .” (Stats. 1984,
ch. 330, § 3; as amended by Stats. 1999, ch. 903, § 7.) Although, as recently observed by
Division One of this court, the Act gives approved programs some protection from
competition by other apprenticeship 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 Committee suggests. Under the Council’s former

2
For an explanation of the interrelationship 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 etc. Com. v. California Apprenticeship Council (1992) 4 Cal.4th 422,
432-434.)

3
regulations, the DAS was prohibited from approving a new program that would adversely
affect an existing program.3 In Southern Cal. Ch. of Associated Builders etc. Com. v.
California Apprenticeship 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 justify 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 section 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 conditions is satisfied. The three
alternatives are: “(1) There is no existing apprenticeship program approved under this
chapter serving the same craft or trade and geographic area. [¶] (2) Existing
apprenticeship programs approved under this chapter 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 deficient in meeting their obligations under this
chapter.” (Ibid.)

3
Title 8, section 212.2, subdivision (a) of the California Code of Regulations formerly
provided: “The Chief DAS [Chief of the Division] shall consult with the sponsor, or
sponsors, of the existing program or programs in the area when the apprenticeship
standards submitted for approval would result in establishing a program where a similar
program is already established and functioning or when it would affect an existing
program or programs. Approval shall be denied when it is found that existing prevailing
conditions (including the training standards) in the area and industry would in any way be
lowered or adversely affected. . . .” (Register 86, No. 36 (Aug. 29. 1986).)

4
 To obtain approval for a new apprenticeship 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 each 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 may be appealed to the Council by the applicant or any
union or existing program that 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 subdivision (b) to section 3075, section 3073.1
was added to the Act, calling for random audits of existing apprenticeship programs.
(Stats. 1999, ch. 903, § 5.) Under this provision, an apprenticeship program is subject to
random audit performed by the DAS to, among 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 Regs., tit. 8, § 212.3, subd. (h).) The proposed
audit report must be submitted to the program for comment and the DAS may reopen the
audit in response to any comments. (Cal. Code Regs., tit. 8, § 212.3, subd. (f).) A final
audit report, taking into account any comments 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 of

5
each audit, including whether or not the deficiencies identified in the audit report have
been corrected.” (Cal. Code Regs., § 212.3, subd. (h).) The failure to correct deficiencies
within a reasonable period of time shall be grounds for withdrawing state approval of a
program. (§ 3073.1, subd. (b).)4
B. Procedural History
In 2007 the Applicant 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 procedural 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 finds that in the years 2002 through 2007, the graduation rate

4
Although the initial audit is random, the DAS may “conduct[] more frequent or random
audits of apprenticeship programs where deficiencies have been identified” and “shall
give priority in conducting audits to programs that have been identified as having
deficiencies.” (§ 3073.1, subds. (b), (c).)
5
Initially, both the Chief and the Council approved the Applicant Committee’s program
for expansion into Kern County based on subdivision (b)(2) of section 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 was no evidence to support a finding of need
under subdivision (b)(2), and recommended that the Council grant the appeal. The
Council voted to reject the recommendation and requested the Attorney General’s office
to prepare an order for adoption by the Council denying the appeal. The proposed order
included findings of fact demonstrating a training need under both subdivisions (b)(2)
and (b)(3). The Existing Committee objected to the inclusion of the finding under
subdivision (b)(3), arguing that 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 order, approved a contrary
motion to adopt the panel’s recommendation, and an order was entered granting the
appeal. The Applicant Committee challenged this order and obtained a writ of mandate
directing the Council to set aside that decision on the ground that the Council had no
authority to reconsider its prior decision denying the appeal. On remand, the Council
adopted the proposed order initially presented by the Attorney General’s office, including
the factual finding under section 3075, subdivision (b)(3) that is at issue in the present
appeal.

6
for apprentices in the Existing Committee’s program was less than 30 percent, which is
below the 55 percent graduation rate required by the plumbing industry’s minimum
training standards. The Council concluded that this “low graduation rate 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, 2012, the superior court granted
the petition.The court ruled, among other things, that the Council “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)] indicates that the [Council’s] assertion that the graduation rates
is a ‘deficiency’ is mistaken. The Section provides that the 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 process. . . . [¶] 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 Existing Committee’s program] had
been identified as ‘deficient’ by the [Council] per Section 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 agency, the appellate
court’s “task . . . is the same as that of the trial court: that is, to review the agency’s
actions to determine whether the agency complied 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 administrative record independently; the trial

7
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 complexity of this question
was recently addressed in Southern California Cement Masons JAC, supra, 213
Cal.App.4th at p. 1541-1542: “Because the Council’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 generally recognized that traditional 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-judicial’ 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 adjudicatory than legislative in nature, placing it in the natural
domain of Code of Civil Procedure section 1094.5. Yet because the Chief and the
Council are not required to hold a hearing before approving or denying approval of an
apprenticeship program (see § 3075, subd. (a); Cal. Code Regs., tit. 8, § 212.2, subds. (h),
(l)), their decisions do not fall within the literal 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 required to be taken’ (Code Civ. Proc., § 1094.5,
subd. (a)). As a result, it is not readily apparent which statute should apply.”
Having set forth the issue, the court concluded that it need not “resolve this
dilemma because the standard of review applicable to the particular issues raised . . . is
not dependent on the type of writ review.” (Southern California Cement Masons JAC,
supra, 213 Cal.App.4th at p. 1541.) The court explained, “Each of the Existing
Committees’ three arguments contends the Chief and Council erred in interpreting

8
section 3075. When reviewing an administrative agency’s interpretation of a governing
statute, including the type of informal interpretation embodied in the decision under
review, we must ‘independently judge the text of the statute, taking into account and
respecting the agency’s interpretation 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 product of an agency with special expertise,
operating in a complex area of commerce, the Council’s interpretation deserves
significant deference” although “the ‘ “ ‘ultimate responsibility for the 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 section 3075, in this case the meaning of
subdivision (b)(3). Thus, regardless of whether these proceedings are governed by section
1085 or 1094.5, we must “ ‘independently judge the text of the statute, taking into
account and respecting the agency’s interpretation of its meaning.’ ” (213 Cal.App.4th at
p. 1541.)

C. Section 3075, subdivision (b)(3) does not require 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 cannot be approved unless existing programs
serving the same trade and geographic area “have been identified by the . . . Council as
deficient in meeting their obligations under this chapter.” (§ 3075, subd.(b)(3)). The
Existing Committee contends that the Council may identify 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 during the administrative proceeding in which
the need for a new program is considered.
Initially, we note that neither interpretation can be fully reconciled with all
provisions of the Act. Under section 3073.1, audits are conducted by the DAS. Audit

9
reports are “presented” to the Council, but there is no provision for the Council to ratify
the results of the audit or to identify a program as deficient other than as specified in
section 3075, subdivision (b)(3). (See § 3073.1; Cal. Code Regs. § 212.3.) Under section
3075, subdivision (a), applications 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 denial of the application. (Cal. Code Regs.,
tit. 8, § 212.2.) Thus, the Chief DAS may approve an application under section 3075,
subdivision (b)(3) only if the Council has identified a deficiency 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 virtually never be approved under section 3075,
subdivision (b)(3) because the Chief DAS cannot rely on that provision unless the
Council has identified a deficiency, and the Council cannot identify 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 deficiency in the first instance, as argued by the Applicant
Committee, or only following a section 3073.1 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, Assembly Bill No. 921 was amended so that
subdivision (b)(3) read in relevant part “identified by the chief of the [Council].” (Assem.
Bill No. 921, as amended Aug. 17, 1999.) A subsequent amendment 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 amendments, suggesting that the
removal of the Chief from subdivision (b)(3) was simply an inadvertent drafting error.
For the reasons discussed below, we need not rewrite the statute to resolve the present
appeal. We note, however, that the inclusion of the Chief in subdivision (b)(3), as initially
proposed, would resolve the dilemma identified above, and that 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.

10
 The Existing Committee argues that section 3075, subdivision (b)(3) must be
interpreted within the context of “the statutory scheme of which [it] is a part” (Lopez v.
Superior Court (2010) 50 Cal.4th 1055, 1063), and that section 3073.1 “spells out how
apprenticeship programs are indentified 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. Therefore, it asserts, the provision must be understood
to mean that the existing program has previously been identified as deficient in an audit
conducted pursuant to section 3073.1. Moreover, section 3073.1, subdivision (b) requires
the DAS to “recommend remedial action to correct deficiencies recognized 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 and geographic area as described in [section
3075, subdivision (b)(3)]. [¶] This is the only construction of [section 3075, subdivision
(b)(3)] that integrates the provision with ‘the statutory scheme of which [it] is a part.”
Although not implausible, the Existing Committee’s interpretation cannot be
squared with the plain language of section 3075, subdivision (b)(3). While, as the
Existing Committee argues, that provision requires the deficiency in an existing program
to “have been identified,” the deficiency must “have been identified by the California
Apprenticeship Council”—language that the Existing Committee ignores. There is no
other point in the processes created by the Act at which the Council identifies a
deficiency in an existing program than during its review of the Chief’s decision to

8
This is how the section read when the matter was before the Council. Among other
amendments made to the statute in 2011, section 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 grounds for withdrawing state approval of a
program.” (Stats. 2011, ch. 696, § 1.)

11
approve or deny a new program application. 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. While the Council receives the audit report, there is no
provision for the Council to approve or ratify the content of the report. The only point at
which the Act requires the 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 throughout the Act in its ordinary
sense, referring in some places to omissions or misstatements from program applications
(§§ 3073.1, subd. (e); 3075.5) and in others to a failure to comply with program standards
or to achieve program goals (§§ 3073.1, subds. (b), (c); 3075, subd. (b)(3)). There is no
indication in the text or the history of the statute that the word is intended as a term of art
meaning only a deficiency identified 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 deficiencies 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 before 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 engage in rewriting of a statute
“ ‘when it has been obvious that a word or number had been erroneously used or
omitted’ ” and “ ‘when compelled by necessity and supported by firm evidence of the
drafters’ true intent.’ ”]; Whaley v. Sony Computer Entertainment America, Inc. (2004)

12
121 Cal.App.4th 479, 486 [Courts “may not ‘insert qualifying provisions 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 interpretation 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 deficiencies, leading to potential withdrawal of
state approval if those deficiencies are not corrected within a reasonable period of time.
The approval process defined in section 3075 is not designed to correct deficiencies in
existing programs, to discipline existing programs, or revoke their right to operate.
Permitting the Council to identify an existing deficiency allows the Council to address a
deficiency promptly, without awaiting an audit 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 includes the factual finding that the program
sponsored by the Existing Committee had a five-year graduation rate of 23.8 percent. On
appeal before the Council, the Existing Committee did not challenge 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 the Council to make such a finding without the deficiency
having been previously identified in a DAS audit, and because the evidentiary 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 should not have been granted compelling the Council to set
aside its order denying the appeal from the approval of the Applicant Committee’s
program.

13
 Disposition
The order granting writ of mandate is reversed.

_________________________
Pollak, J.

We concur:

_________________________
McGuiness, P. J.

_________________________
Siggins, J.

14
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

15