Untitled California Attorney General Opinion ( 1995 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 95-310
of :
: September 13, 1995
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. Da VIGO :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE BROOKS FIRESTONE, MEMBER OF THE CALIFORNIA
STATE ASSEMBLY, has requested an opinion on the following questions:
1. For purposes of submitting a petition for the establishment of a charter school, may
a petitioner collect signatures from teachers at an already existing charter school?
2. Where an elementary school district and high school district are separately
operated, may a petitioner for the establishment of a charter high school collect signatures from
teachers employed by the elementary school district?
CONCLUSIONS
1. For purposes of submitting a petition for the establishment of a charter school, a
petitioner may not collect signatures from teachers at an already existing charter school.
2. Where an elementary school district and high school district are separately
operated, a petitioner for the establishment of a charter high school may not collect signatures from
teachers employed by the elementary school district.
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ANALYSIS
The two questions presented for consideration require an examination of the recently
enacted provisions of the Charter Schools Act of 1992 (Ed. Code, '' 47600-47616; "Act"). 1
Specifically, subdivision (a) of section 47605, pertaining to the establishment of charter schools, states
as follows:
"A petition for the establishment of a charter school within any school district
may be circulated by any one or more persons seeking to establish the charter school.
After the petition has been signed by not less than 10 percent of the teachers currently
employed by the school district, or by not less than 50 percent of the teachers currently
employed at one school of the district, it may be submitted to the governing board of
the school district for review."
The first inquiry is whether a petition which has been signed by 50 percent of the teachers employed at
an existing charter school would qualify under the terms of section 47605. The second is whether a
petition containing the signatures of 50 percent of the teachers at an elementary school would qualify in
establishing a charter high school where the two districts are separately operated.
In resolving the issues presented, we are mindful that "[w]hen interpreting a statute our
primary task is to determine the Legislature's intent." (Freedom Newspapers, Inc. v. Orange County
Employees Retirement System (1993) 6 Cal. 4th 821, 826.) "To discern legislative intent, we must
examine the legislative history and statutory context of the act under scrutiny." (Sands v. Superior
Court (1983) 34 Cal. 3d 567, 570; accord, Long Beach Police Officers Assn. v. City of Long Beach
(1988) 46 Cal. 3d 736, 743.) "[I]t is well established that reports of legislative committees and
commissions are part of a statute's legislative history and may be considered when the meaning of a
statute is uncertain. [Citations.]" (Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal. 3d
456, 465, fn. 7.) "``The words of the statute must be construed in context, keeping in mind the statutory
purpose, and statutes or statutory sections relating to the same subject must be harmonized, both
internally and with each other, to the extent possible.'" (Walnut Creek Manor v. Fair Employment &
Housing Com. (1991) 54 Cal. 3d 245, 268.)
1. Signatures Collected At A Charter School
Section 47605 requires the signatures of "10 percent of the teachers currently employed
by the school district" or "50 percent of the teachers currently employed at one school of the district" on
any petition submitted to the district's governing board. Do teachers employed at a charter school meet
either qualification?
As stated in the report of the Senate Committee on Education for its hearing of April 1,
1992, the Act:
1
All section references herein are to the Education Code except as otherwise indicated.
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"Allows credentialed teachers to circulate a petition for the establishment of a
charter school within any school district. Requires the petition to be signed by not less
that 10% of the teachers employed at a school district, or not less than 50% of the
teachers employed at a school site and authorizes the petitioners to submit the petition
to the governing board of the school district for review and action."
The purpose of the legislation is described in the report of the Assembly Committee on Education for
its hearing on June 24, 1992, as "to provide teachers with the opportunity to create new public schools
that are teacher, parent and community-initiated and outcome-based."
In light of such declarations of legislative intent, we do not view teachers at an existing
charter school as being eligible to submit a petition for the establishment of another charter school.
Rather, the evident purpose of the legislation is to require teachers at traditional schools of the district
to demonstrate support for the establishment of a charter school prior to submission of a petition.
Under various provisions of the Act, the Legislature has distinguished between teachers
at traditional schools and those at charter schools. Charter school teachers are "employed by the
[charter] school." (' 47605, subd. (b)(5).) An "employee of the school district upon leaving the
employment of the school district" may "work in the charter school," with possible "rights of return to
the school district after employment at a charter school." (' 47605, subd. (b)(13).) An employee of
the school district may not be required by the district board "to be employed in a charter school." ('
47605, subd. (e).) Charter school teachers are "employees of the charter school" for purposes of
participation in the State Teachers' Retirement System. (' 47611.) No indication in the statutory
language may be found that the Legislature considered charter school teachers to be "employed by the
school district" for purposes of section 47605.2
The same is true with respect to whether charter school teachers are "employed at one
school of the district." An existing charter school does not constitute a "school of the district" when
determining the requisite teacher support for the establishment of a new charter school. Charter
schools are intended by the Legislature to "operate independently from the existing school district
structures." (' 47601.) They are "exempt from the laws governing school districts except as specified
in Section 47611." (' 47610.)3
2
It is recognized that the conditions, standards, and procedures set forth in a particular charter (see ' 47610) may include
one or more provisions respecting personnel which, if considered in isolation, could be construed as indicia of employment by
the district (e.g., wages and benefits determined according to the district's collective bargaining procedures). Nevertheless,
we deem the express terms of the statutory scheme as a whole to be dispositive for purposes of construing the particular
language of section 47605.
3
As indicated above, section 47611 pertains to participation in the State Teachers' Retirement System. We recently
concluded that the state funding requirements of section 51747.3 were also applicable to charter schools. (78
Ops.Cal.Atty.Gen. 253 (1995).)
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Accordingly, while the governing board of a school district may be responsible for
approving any petition establishing a charter school (' 47605) and may revoke a charter that it has
granted (' 47606), a charter school cannot be considered a "school of the district" for purposes of
section 47605. We interpret the phrases "teachers currently employed by the school district" and
"teachers currently employed at one school of the district" in a consistent manner in view of the
Legislature's intent as described in the statute's legislative history.4
We thus conclude in answer to the first question that for purposes of submitting a
petition for the establishment of a charter school, a petitioner may not collect signatures from teachers
at an already existing charter school.
2. Signatures Collected At A Different District's School
We are advised that an elementary school is located across the street from a high
school. The two schools are operated by two separate school districts. (Cf. ' 35111.) A charter high
school is proposed. May the petitioners submit a petition to the high school district board containing
the signatures of the elementary school teachers?
While the elementary school teachers are obviously employed by a school district, they
are not "employed by the school district" whose board must review the petition under the terms of
section 47605. A charter high school must receive approval of a high school district board, with
requisite support from high school teachers. The teachers of one district may not act on behalf of those
of another.5
Similarly, while the elementary school teachers would be currently employed at one
school located within the geographical boundaries of the high school district, they would not be
"employed at one school of the district." The elementary school is not one of the high school district's
schools.
Section 44831 provides: "Governing boards of school districts shall employ persons in
public school service requiring certification qualifications as provided in this code." Section 44830,
subdivision (a), provides in part: "A governing board of a school district shall employ for positions
requiring certification qualifications, only persons who possess the qualifications therefor prescribed by
law." It is well settled that the governing board of a school district has the general power of
assignment with respect to certificated employees in general, and teachers in particular, to any position
within the district for which the teacher is certified. ('' 44830, 35035; Centinela Valley Secondary
Teachers Assn. v. Centinela Valley Union High Sch. Dist. (1974) 37 Cal. App. 3d 35, 40; 61
4
Teachers are generally referred to throughout the Education Code as employees of a school district. (See, e.g., ' 41401,
subd. (d) ["``Teacher' means an employee of a school district, employed in a position requiring certification qualifications and
whose duties require him or her to provide direct instruction to pupils in the schools of that district for the full time for which
he or she is employed"].)
5
It is to be emphasized here that the elementary school district and the high school district are not deemed to be a single
school district for any purpose. (Cf. ' 35111.)
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Ops.Cal.Atty.Gen. 353, 355-356 (1978).) A certificated employee is subject to suspension or dismissal
by the district in which he is employed. ('' 44934-44944.)
It is beyond the realm of dispute, then, that notwithstanding the overlapping territories
of an elementary school district and high school district, an employee of an elementary school district is
not "currently employed by the [high] school district" or "currently employed at one school of the [high
school] district" within the meaning of section 47605, subdivision (a).
It is concluded that where an elementary school district and a high school district are
separately operated, a petitioner for establishment of a charter high school may not collect signatures
from teachers employed by the elementary school district.
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5. 95-310