Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
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OPINION :
:
of :
:
JOHN K. VAN DE KAMP : No. 87-303
Attorney General :
: JUNE 4, 1987
RODNEY O. LILYQUIST :
Deputy Attorney General :
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THE STATE PERSONNEL BOARD has requested an opinion on the following
question:
Are the officers in the "student affairs officer class series" at the California
Maritime Academy included in the state civil service system?
CONCLUSION
The officers in the "student affairs officer class series" at the California Maritime
Academy are included in the state civil service system.
ANALYSIS
The California Maritime Academy is a state institution within the Department of
Education (Ed. Code, § 70010)1 and has as its purpose "to provide instruction on the nautical
sciences, marine engineering, and related fields" (§ 70000). It is a four-year, accredited,
post-secondary institution governed by a board of governors and located on San Francisco Bay.
(See §§ 70000-70001; 70010, 70020, 70021, 70034.)
The question presented for analysis concerns persons at the academy having
employment positions in the "student affairs officer class series." Are these officers subject to
the state civil service system, or are they exempt from the system? The duties of the officers are
1
All references hereafter to the Education Code are by section number only.
limited to providing recruitment, admissions, registration, financial aid, career placement, and
counseling services at the academy. The officers are not part of the faculty giving instruction to
the students in the curriculum of the academy. We conclude that the officers are within the state
civil service system as required by the Constitution and Government Code section 18598.
The Legislature has given to the academy's board of governors the authority to
"provide, maintain, manage, and control" the academy (§ 70020), and the board has the specific
power to "[a]ppoint, and may remove, a superintendent of the school and all necessary
instructors and other employees" and to "[d]etermine the powers, duties, and compensation of
the superintendent, instructors, and employees" (§ 70021, subds. (a), (b)). 2
Pursuant to this grant of authority, the board of governors has adopted a
regulation (Cal. Admin. Code, tit. 5, § 60001, subd. (d)) defining its "instructional staff" as
follows:
"(1) The faculty of the Academy, which faculty shall consist of persons
qualified to give instruction in authorized curriculum and who shall report to the
Academic Dean or the Commanding Officer of the Training Ship; and
"(2) Academic Employees who are qualified to give instruction in the
professional development of the midshipmen and who shall report to the
Commandant of Midshipmen; and
"(3) Academic employees in very closely related professional activities
such as administrative assistant to the president, financial aid, admissions,
counseling, placement, recruiting and director of adult maritime education.
"The classes of civil service exempt positions whose incumbents may be
eligible for inclusion in one of these categories will be determined by the
President." (Emphases added.)
It has also by regulation (Cal. Admin. Code, tit. 5, § 60002, subd. (e)) prescribed the duties of its
2
The Legislature has also directed the Department of Personnel Administration to "establish
and adjust the salaries of the superintendent, members of the teaching staff, officers and
employees of the California Maritime Academy in the same manner and following the same
procedures as in the establishment and adjustment of state civil service salaries." (§ 70031,
subd. (a).) The State Personnel Board is directed to "establish and adjust the classifications of
the superintendent, members of the teaching staff and officers and employees of the California
Maritime Academy in the same manner and following the same procedures as in the
establishment and adjustment of state civil service classifications." (§ 70031.1.)
2. 87-303
"academic employees" as follows:
"(1) Academic Employees reporting to the Academic Dean or
Commanding Officer of the Training Ship shall be appointed by the President,
upon the recommendation of the Dean or the Commanding Officer of the Training
Ship and shall have primary responsibility for the following instructional duties:
"(A) To educate each midshipman in an accredited college program in
Nautical Industrial Technology, Marine Engineering Technology and related
fields; and
"(B) To train each midshipman in the skills and knowledge essential to
licensing in the United States Merchant Marine.
"(2) Academic Employees reporting to the Commandant of Midshipmen
shall be appointed by the President, upon the recommendation of the
Commandant of Midshipmen and shall have primary responsibility for the
following instructional duties:
"(A) To develop in each midshipman a strong sense of duty, honor and
service to country and instill in him a pride in his profession; and
"(B) To develop in each midshipman a sound body and the physical
attributes necessary to meet successfully the rigors of the sea.
"(3) Academic employees in very closely related professional activities
shall be appointed by the President upon the recommendation of the executive
assistant to whom the designated position reports, and shall have primary
responsibility for the following instructional duties: (a) Administrative Assistant.
The Administrative Assistant, under the direction of the President, shall perform
administrative duties including those related to instructional activities. (b)
Financial Aid Officer. The Financial Aid Officer, under the direction of the
Administrative Officer, shall provide financial aid services for all midshipmen.
(c) Admissions and Recruiting Officer. The Admissions and Recruiting Officer,
under the direction of the Administrative Officer, shall provide admissions
services for the midshipmen and recruiting services for the Academy. (d)
Registrar. The Registrar, under the direction of the Administrative Officer, shall
provide registration and records services for all midshipmen. (e) Placement
Officer. The Placement Officer, under the direction of the Administrative
Officer, shall provide placement services for all midshipmen and graduates. (f)
Director of Adult Maritime Education. The Director of Adult Maritime
Education, under the general direction of the Academic Dean, shall plan, organize
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and supervise the adult maritime education program. (g) Additional employees.
Additional assignments in this category shall be made by the President and in
each such assignment the duties shall be established by the President. It is
recognized that more than one assignment may be held by one person.
"All academic employees in this category shall assist each midshipman to
utilize effectively and receive maximum benefits from available academic and
closely related professional services and will instill in each midshipman an
awareness of and a commitment to individual responsibility." (Emphases added.)
The regulations of the board of governors define the persons in the student affairs officer class
series as part of the "instructional staff" and as "academic employees" exempt from state civil
service. (Cal. Admin. Code, tit. 5, § 60004.)
It is well-recognized that "the construction of a statute by officials charged with
its administration, including their interpretation of the authority invested in them to implement
and carry out its provisions, is entitled to great weight. . . ." (Morris v. Williams (1967) Cal.2d
733, 748; accord Association for Retarded Citizens v. Department of Developmental Services
(1985) 38 Cal. 3d 384, 391.) As stated by the Supreme Court in Ontario Community
Foundations, Inc. v. State Bd. of Equalization (1984) 35 Cal. 3d 811, 816:
"In determining the proper interpretation of a statute and the validity of an
administrative regulation, the administrative agency's construction is entitled to
great weight, and if there appears to be a reasonable basis for it, a court will not
substitute its judgment for that of the administrative body. [Citations.]"
On the other hand, "Where a statute empowers an administrative agency to adopt regulations,
such regulations 'must be consistent, not in conflict with the statute, and reasonably necessary to
effectuate its purpose.'" (Woods v. Superior Court (1981) 28 Cal. 3d 668, 679; see Gov. Code, §
11342.2.) Administrative regulations that "alter or amend the statute or enlarge or impair its
scope are void. . . ." ( Morris v. Williams, supra, 67 Cal. 2d 733, 748; accord Ontario Community
Foundations, Inc. v. State Bd. of Equalization, supra, 35 Cal. 3d 811, 816-817.) A regulation is
invalid not only when "in conflict with the statute which created the agency or which the agency
is authorized to administer" but also where it "contravenes a provision of a different statute."
(Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal. 3d 392, 420.) "'It is
fundamental that an administrative agency may not usurp the legislative function, no matter how
altruistic its motives are.'" (Id. at p. 419.)
The state civil service system was instituted in 1934 by means of a constitutional
amendment. The primary provision defining the system is now found in subdivision (a) of
section 1 of article VII of the Constitution: "The civil service includes every officer and
employee of the state except as otherwise provided in this constitution." As stated in the ballot
4. 87-303
pamphlet at the time the constitutional amendment was adopted:
"The purpose of this constitutional amendment is to promote efficiency
and economy in State government. The sole aim of the act is to prohibit
appointments and promotion in State service except on the basis of merit,
efficiency and fitness ascertained by competitive examination. Appointments of
inefficient employees for political reasons are thereby prohibited, thus eliminating
the 'spoils system' from State employment." (Ballot Pamp., Proposed Amends. to
Cal. Const. with arguments to voters, Gen. Elec. (Nov. 6, 1934), p. 12.)
It is regularly stated that the Constitution itself must be examined to determine
whether a particular officer or employee of the state is exempt from the civil service system.
(See 67 Ops.Cal.Atty.Gen. 27, 28 (1984); 65 Ops.Cal.Atty.Gen. 475, 479-480 (1982); 63
Ops.Cal.Atty.Gen. 858, 859 (1980); 61 Ops.Cal.Atty.Gen. 68, 71 (1978).)
Here we are directed to two exemptions contained in section 4 of article VII of
the Constitution:
"The following are exempt from civil service:
" .....................
"(h) Officers and employees of the University of California and the
California State Colleges.
"(i) The teaching staff of schools under the jurisdiction of the Department
of Education or the Superintendent of Public Instruction."
These are the only constitutional exemptions that arguably may be applicable to the officers in
question.
The academy is authorized to share facilities and to exchange students and
instructors with the California State University. (§ 70037.) Its board of governors may contract
with the trustees of the California State University for legal services, legislative representation
and assistance in curriculum development. (§§ 70022, 89003.) Moreover, section 89004 states
in part:
"The trustees, or a designated committee thereof, shall be a board of
visitors to the Board of Governors of the California Maritime Academy and shall
meet with the board of governors to discuss policies and concepts common to the
two institutions, and to advise the board of governors."
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Despite these ties, however, the academy is neither a part of the California State University nor
of the University of California. (See §§ 70000, 70002, 70010, 89001, 89004 ["the California
State University or the trustees shall not be legally responsible in any way for the acts or
omissions of the California Maritime Academy or the board of governors"].) The student affairs
officers of the academy thus do not come under article VII, section 4, subdivision (h) of the
Constitution.
As for the "teaching staff" exemption (Cal. Const., art. VII, § 4, subd. (i)), we
have previously mentioned that the academy "is within the Department of Education." (§ 70010.)
We believe this organizational structure suffices for the academy to meet the constitutional test
of being a school "under the jurisdiction of the Department of Education" even though the board
of governors has the statutory responsibility to "provide, maintain, manage, and control" the
affairs of the academy (§ 70020). In 56 Ops.Cal.Atty.Gen. 44, 45-46 (1973), we so concluded.
The question remains, however, whether the academy personnel in the student
affairs officer class series constitute "teaching staff." The "teaching staff" language has been in
the Constitution since 1934. In California State Employees' Assn. v. Trustees of the California
State Colleges (1965) 237 Cal. App. 2d 530, 539, the Court of Appeal noted "the expressed will of
the people that professors and teachers shall not be within civil service." No other reported case
has considered this provision.
The student affairs officers are not professors or teachers. They do not give
instruction in the curriculum of the academy, have teaching credentials, perform in a classroom
setting, assign work in an academic subject, or issue grades evaluating the progress of the
students. While no single factor is dispositive, we do not view providing recruitment,
admissions, registration, financial aid, career placement, and counseling services in the same
light as "teaching." The latter term is commonly defined as "to cause to know a subject," "guide
the studies of," or "conduct through a course of studies." (Webster's New Internat. Dict. (3d ed.
1971), p. 2346.) Something more is required than imparting information. "Teaching" may be
compared with similarly defined words as follows:
"Teach is a general term for causing one to acquire knowledge or skill,
usu. with the imparting of necessary incidental information and the giving of
incidental help and encouragement . . . . INSTRUCT may suggest methodical,
continuing, or formal teaching . . . . EDUCATE may apply to more pretentious
processes of teaching and instruction designed to ensure full development of the
capacities of a more intelligent person . . . . TRAIN may suggest methodical,
thorough instruction and guidance with a specific end in mind until rapid and
successful execution of duties and tasks is assured . . . . DISCIPLINE calls
attention to subordination to a master or subjection to control, sometimes one's
own . . . . SCHOOL often interchangeable with others in this set, perhaps more
often has suggestions of TRAIN although it lacks the specificity of this latter
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word . . . . COACH is likely to refer to training with demonstration and practice
in some specialized, often extracurricular activity . . . . TUTOR usu. applies to
teaching on an individual basis in some specialized subject . . . ." (Ibid.)
If the entire staff of the academy, including nonteaching positions, were intended
to be excluded from state civil service, the academy need only have been placed in the same
constitutional exemption as the University of California and California State University.
Our analysis of the Constitution is supported by the Legislature's statutory scheme
implementing the constitutional provision establishing the state civil service system. (Gov.
Code, §§ 18500-19798; see 63 Ops.Cal.Atty.Gen. supra, 859). With respect to the officers and
employees of the academy, the Legislature has provided:
"The 'state civil service' shall include all personnel appointed or employed
at the state nautical school except personnel whose duties consist of instructing
students or supervising such instructional personnel and except students enrolled
at the school who are working part time as students assistants." (Gov. Code, §
18598.)3
The "personnel whose duties consist of instructing students" would be the academy's teaching
staff. "Instructing" students is the equivalent of "teaching" them. (See Webster's, supra, p.
1172.) The duties of the officers in question do not "consist of instructing students." They do
not meet the test for exclusion from civil service under the terms of Government Code section
18598.
As noted, we must accord great weight to the administrative regulations of the
academy's board of governors that exclude the student affairs officers from state civil service.
Nevertheless, it is not the view of the board of governors that is controlling but rather "the intent
and objective of the drafters of the provision and the people by whose vote it was adopted"
(Mosk v. Superior Court (1979) 25 Cal. 3d 474, 495) in placing the state civil service provisions
in the Constitution. Not even the Legislature may create exemptions from state civil service.
(67 Ops.Cal.Atty.Gen. supra, 479-480.)
"A constitutional amendment should be construed in accordance with the natural
and ordinary meaning of its words." (Amador Valley Joint Union High Sch. Dist. v. State Bd. of
Equalization (1978) 22 Cal. 3d 208, 245; see In re Quinn (1973) 35 Cal. App. 3d 473, 482.) We
reject the argument that the providing of recruitment, admissions, registration, financial aid,
career placement, and counseling services may be equated with the services of the "teaching
staff" as that term was contemplated by those drafting and voting for the constitutional provision.
3
The academy is also known as the state nautical school. (§ 70002.)
7. 87-303
The administrative regulations appear to recognize this dichotomy by referring to
the duties of the student affairs officers as not being part of the faculty of the academy but rather
"in very closely related professional activities." (Cal. Admin. Code, tit. 5, § 60002.) These
officers are not considered "[a]cademic employees who are qualified to give instruction in the
professional development of the midshipmen." (Ibid.) They do not have the duties "[t]o educate
each midshipman in an accredited college program," "[t]o train each midshipman in the skills
and knowledge essential to licensing in the United States Merchant Marine," "[t]o develop in
each midshipman a strong sense of duty, honor and service to country and instill in him a pride
in his profession," or "[t]o develop in each midshipman a sound body and the physical attributes
necessary to meet successfully the rigors of the sea." (Ibid.)
In sum, the regulations of the board of governors are in conflict with article VII of
the Constitution and Government Code section 18598. The officers "in very closely related
professional activities" to that of teachers and instructors are not the "teaching staff" of the
academy and do not have duties that "consist of instructing students." Concededly, the
constitutional and statutory provisions must prevail over the regulations of the board of
governors.
In answer to the question presented, therefore, we conclude that the officers in the
student affairs officer class series at the academy are included in the state civil service system as
required by the Constitution and Government Code section 18598.
8. 87-303