Untitled California Attorney General Opinion ( 1989 )

OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
----------------------------
:
OPINION :
: No. 88-901
of :
: MARCH 9, 1989
JOHN K. VAN DE KAMP :
Attorney General :
:
ANTHONY S. DaVIGO :
Deputy Attorney General :
:
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THE HONORABLE JOHN R. LEWIS, MEMBER OF THE ASSEMBLY, has requested
an opinion on the following question:
Is an elected county superintendent of schools or an "independent"
county board of education authorized to appoint, discipline, and establish the
salaries of certificated and classified county school employees?
CONCLUSION
The county superintendent of schools, rather than an "independent"
county board of education, is authorized to appoint, discipline, and establish
the salaries of certificated and classified county school employees.
ANALYSIS
California Constitution, article IX, provides for county
superintendents of schools (§ 3; and see Ed. Code, § 1200 et seq.), and for
county boards of education (§ 3.3; and see Ed. Code, § 1000 et seq.). 1/ This
opinion concerns the allocation of duties and powers respecting the employment
of county school personnel, between such superintendent and such board which is
"independent" by virtue of the transfer to it of certain powers under section
1080, infra.
1. Statutory references throughout this analysis are to the
Education Code.
1. 88-901
THE COUNTY SUPERINTENDENT OF SCHOOLS
The general duties and powers of the superintendent are set forth in
section 1240:
"The superintendent of schools of each county shall:
"(a) Superintend the schools of his or her county.
"(b) Visit and examine each school in his or her county
. . . .
"(c) Distribute all laws, reports, . . . for the use of the
school officers.
"(d) Keep in his or her office the reports of the
Superintendent of Public Instruction . . . .
"(e) Keep a record of his or her official acts, and of all
the proceedings of the county board of education . . . .
"(f) Enforce the course of study.
"(g) Enforce the use of state textbooks and of high school
textbooks regularly adopted by the proper authority.
"(h) Preserve carefully all reports of school officers and
teachers.
"(i) Deliver to his or her successor . . . all . . . papers
belonging to the office . . . .
"(j) Submit two reports during the fiscal year to the county
board of education. The first report shall cover the financial and
budgetary status of the county office of education for the period
ending no earlier than October 31 nor later than December 31. The
second report shall cover the period ending March 31. . . .
". . . . . . . . . . . . . . . . . . . . . . .
"(k) When so requested, act as agent for the purchase of
supplies for the city and high school districts . . . ."
Neither the foregoing nor other duties specified in sections 1240 through 1278
pertain directly to the employment of permanent classified or certificated
personnel.
THE COUNTY BOARD OF EDUCATION
The mandatory duties of the board are set forth in section 1040:
"County boards of education shall:
"(a) Adopt rules and regulations . . . .
"(b) Keep a record of their proceedings.
"(c) Approve the annual budget of the county superintendent
of schools . . . .
"(d) Approve the annual county school service fund budget of
the county superintendent of schools . . . .
2. 88-901
"(e) Review . . . the report of the annual audit provided for
by the county superintendent of schools under Section 41020."
Discretionary duties are set forth in section 1042:
"County boards of education may:
"(a) Adopt rules and regulations governing the administration
of the office of the county superintendent of schools.
"(b) Review the county superintendent of schools annual
itemized estimate of anticipated revenue and expenditures . . . and
make any revisions, reductions, or additions therein it deems
advisable and proper. . . .
"(c) In the name by which the board of education is
designated, acquire, lease, lease-purchase, hold and convey real
property for the purpose of housing the offices and services of the
county superintendent of schools . . . .
"(d) Contract with and employ any persons for the furnishing
to the board of special services and advice in financial, economic,
accounting, engineering, legal, or administrative matters, if these
persons are specially trained and experienced and competent to
perform the special services required. The board may pay from any
available funds such compensation to these persons as it deems
proper for the services rendered.
"(e) . . . fill by appointment any vacancy that occurs during
the term of office of the county superintendent of schools. . . .
". . . . . . . . . . . . . . . . . . . . . . . ."
The question assumes an "independent" board by virtue of the transfer
to it of certain powers under section 1080:
"The county board of supervisors, by resolution, may transfer
all of the following duties and functions of the county board of
supervisors to the county board of education:
"(a) Approval of the county superintendent's estimate of
anticipated revenue and expenditures pursuant to Section 1042
. . . .
"(b) Allowance of the actual and necessary travel expenses,
the expenses of the office of the county superintendent of schools
. . . .
"(c) By agreement with the county board of education, any
other duties and functions of an educational . . . nature which by
law are required or permitted to be performed by the county board of
supervisors.
"(d) By agreement with the county board of education, the
community recreation functions authorized by Chapter 10 (commencing
with Section 10900) of Part 7 of this division.
". . . . . . . . . . . . . . . . . . . . ."
With the exception of subdivision (d) of section 1042, supra,
expressly authorizing the board to contract with and employ any persons for the
furnishing to the board of "special services and advice" in financial, economic,
accounting, engineering, legal, or administrative matters (see generally Gov.
3. 88-901
Code, § 53060; Darley v. Ward (1982) 136 Cal. App. 3d 614, 627-628; 71
Ops.Cal.Atty.Gen. 266, 272 (1988)), we find no provisions among the foregoing
mandatory, discretionary, or transferred duties of the board pertaining directly
to the general employment of permanent classified or certificated personnel.
CERTIFICATED EMPLOYEES
We now examine the provisions relating specifically to certificated
county school employees. Section 1293 provides:
"A county superintendent of schools may enter into contracts
of employment with persons employed by him in positions requiring
certification qualifications for periods of not to exceed the end of
the school year in which the term for which the county
superintendent of schools was elected or appointed expires and in no
event, for more than four years and six months." (Emphasis added.)
Section 1294, pertaining to leaves of absence, sick leave, and bereavement leave,
begins with the words:
"Each person employed by a county superintendent of schools in
a position requiring certification qualifications, except employees
included in the civil service system or in any merit system. . . ."
(Emphasis added.)
Section 1294.5, concerning employment for contract services and categorically
funded projects, provides in part:
"Any county superintendent of schools may employ persons
possessing an appropriate credential as certificated employees in
programs and projects to perform services conducted under contract
with public or private agencies, or other categorically funded
projects of indeterminate duration. The terms and conditions under
which such persons are employed shall be mutually agreed upon by the
employee and the county superintendent and such agreement shall be
reduced to writing." (Emphasis added.)
In view of the foregoing, the superintendent is authorized to appoint
certificated county school employees.
The issues of discipline and compensation are more complex. Section
1296, subdivision (a), provides:
"If the average daily attendance of the schools and classes
maintained by a county superintendent of schools is 250 or more,
each person who, after being employed for three complete consecutive
school years by the superintendent in a teaching position in those
schools or classes requiring certification qualifications and whose
salary is paid from the county school service funds, is reelected
for the next succeeding school year to such a position in those
schools or classes, shall be classified as and become a permanent
employee of the county superintendent of schools. . . ."2/ (Emphases
added.)
2. For those who commenced employment during or after the
1983-1984 fiscal year, the probationary period is two years.
(§ 1296, subd. (b).)
4. 88-901
The latter section further provides that such a permanent employee "shall have
the same rights and duties as employees of school districts to which section
44882 [repealed, Stats. 1987, ch. 1452, § 367; see now, § 44929.21] applies."
Consequently, the rights and duties of a certificated county school
employee with permanent status, assuming an average daily attendance of 250 or
more, are the same as those of a school district with a similar attendance. Such
employees are employed by the governing board. (§§ 44830, 44831.) Disciplinary
charges may be filed with, and are heard by, the governing board provided that
a collective bargaining agreement has not been adopted. (§§ 44934, 44944.) The
governing board of a school district is required to fix and order paid the
compensation of certificated employees unless otherwise prescribed by law.
(§ 45022; 57 Ops.Cal.Atty.Gen. 199-200 (1974).)
However, we do not deem the reference in section 1296 to "the same
rights and duties" as an incorporation of the specific provisions applicable to
school district employees, including the designation of the governing board as
the agency authorized to appoint, discipline, and establish compensation. While
the extent of entitlements and obligations must be essentially equivalent,
including, for example, the right to notice and hearing upon a disciplinary
action, their specific mode and implementation would nevertheless be determined
according to the terms and conditions of the contract between the county school
employee and the superintendent as provided in section 1293. In addition, it
must be noted that section 1296 itself twice refers to the superintendent as
employer, once in the context of the employee's attainment of permanent status.
Consequently, the superintendent is authorized to appoint,3/ discipline, and
establish the salaries 4/ of certificated county school employees.
3. The superintendent is also authorized, through the county
school service fund, to provide for the coordination of educational
programs among school districts and community college districts.
(§ 1700.) In this regard, the superintendent may, with the
approval of the board employ qualified personnel for the
coordination of courses of study, guidance services, health
services, school library services, special education, and
attendance activities among the school districts under his
jurisdiction (§ 1703); employ supervisors to supervise instruction
in certain elementary schools (§ 1730); employ personnel to
supervise attendance (§ 1740), to provide health services (§ 1750),
and necessary guidance services (§ 1760), to pupils in certain
elementary, high school, and unified school districts.
4. In the context of collective bargaining, the Public
Employment Relations Board has determined that the superintendent
is the sole employer of certificated employees. (See Gov. Code,
§ 3540.1(k); Southern Alameda County Teachers Assn. v. Alameda
County Board of Education, etc., PERB dec. no. 323 (June 30,
1983).) PERB's construction of a statutory provision falling
squarely within its legislatively designated field of expertise is
to be regarded with deference by a court, and will generally be
followed unless clearly erroneous. (Highland Ranch v. ALRB (1981)
29 Cal. 3d 848, 859; 69 Ops.Cal.Atty.Gen. 268, 269, n. 1 (1986).)
5. 88-901
CLASSIFIED EMPLOYEES
It is clear that upon the transfer of powers to the board, the
employees assigned to those functions cease to be employees of the county.5/ In
this regard, section 1312, pertaining to classified county school employees,
provides:
"County employees assigned to the office of the county
superintendent of schools shall cease to be employees of the county
upon the establishment of a separate budget for the office of the
county superintendent of schools, and shall thereafter be paid from
the county school service fund. Other county employees assigned to
functions transferred to the county board of education pursuant to
Article 3 (commencing with Section 1080) of Chapter 1 of this part
shall cease to be employees of the county upon the effective date of
such transfer, and shall thereafter be paid from the county school
service fund."
Section 1311 provides:
"Each person employed by a county superintendent of schools in
a position not requiring certification qualifications and whose
salary is paid from the county school service fund shall be employed
in accordance with the provisions of Chapter 1 (commencing with
Section 44000) and Chapter 5 (commencing with Section 45100) of Part
25 of Division 3 of Title 2, and Chapter 1 (commencing with Section
87000) and Chapter 4 (commencing with Section 88000) of Part 51 of
Division 7 of Title 3." (Emphasis added.) 6/
The italicized words suggest that the employer is the superintendent. 7/ The
section further provides, however, that classified employees "shall be employed
in accordance with the provisions [following §§ 44000 & 45100 respectively]."
Under those provisions, the governing board of a school district shall employ
persons for positions not requiring certification qualifications. (§ 45103.)
Unless otherwise prescribed by law, compensation is established by the governing
board. (§§ 45160, 45162.) Where a merit system is in effect (§ 1317; cf. 56
Ops.Cal.Atty.Gen. 421 (1973)), the governing board is required to employ and
compensate classified personnel. (§ 45241; 54 Ops.Cal.Atty.Gen. 77 (1971); and
5. It is assumed for purposes of this discussion that the
county, having transferred functions under section 1080 to the
county board of education, has adopted a resolution making the
provisions following section 1310 operative.
6. The county school service fund is established by section
1600. The fund shall be employed by the superintendent to pay such
charges against the fund as are provided in the Education Code.
(§ 1602.)
7. See also section 1319:
"The county superintendent of schools may employ, in
accordance with the provisions of Chapter 5 (commencing
with Section 45100) of Part 25 of Division 3 of Title 2,
such personnel as may be necessary to act as guards at
pedestrian crossings to ensure the safety of
schoolchildren who use such intersections."
6. 88-901
cf. Sonoma County Bd. of Educ. v. Pub. Emp. Rel. Bd. (1980) 102 Cal. App. 3d 689:
the board is under a duty to bargain in good faith with representative of
classified service.) Disciplinary charges are filed with and heard by a
personnel commission. (§§ 45304, 45305.)
However, we did not deem the reference in section 1311 to employment
"in accordance with" the provisions of section 45100 and following as an
incorporation of the specific provisions applicable to school district employees,
including the designation of the governing board as the agency authorized to
appoint, discipline, and establish compensation. While essential rights, duties,
and procedural prerequisites including, for example, the right to notice and
hearing upon a disciplinary action, must be recognized, nothing in sections 1311
and 1312 pertaining to county school employees indicates that the board, as
distinguished from the superintendent, is authorized to appoint, discipline, and
establish the compensation of those employees.
On the contrary, section 1311 refers expressly to persons "employed
by the county superintendent of schools." If section 45103, for example, to
which section 1311 refers, providing that the governing board of a school
district shall employ classified personnel, were construed to require the
employment of such personnel at the county level by the county board, we would
be faced with an unwarranted contradiction. Finally, section 45100 itself
provides that that and succeeding sections apply "to all persons who are part of
the classified service who are employed by the county superintendent of schools
. . . ."
In our view of the statutory scheme as a whole, the superintendent
is authorized to appoint, discipline, and establish the salaries of the
classified county school employees. The focus of the conclusions reached herein
are narrow and specific. While we identify the agency responsible for specified
functions, it is not suggested that the performance of those functions is not
constrained or regulated by other provisions of law.
* * * * *
7. 88-901