BILL NUMBER: SBX8 61 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Huff
FEBRUARY 12, 2010
An act to repeal and add Sections 45103.1, 45103.5, 88003.1, and
88004.5 of the Education Code, and to add Section 3562.3 to the
Government Code, relating to public education.
LEGISLATIVE COUNSEL'S DIGEST
SB 61, as introduced, Huff. Contracting for noninstructional
services.
(1) Existing law authorizes school districts and community college
districts to contract for personal services currently or customarily
performed by classified employees to achieve cost savings when
specified conditions are met. Existing law requires the overall cost
savings to be clearly demonstrated and sets forth certain
requirements relating to comparing costs.
This bill would repeal those provisions. The bill would instead
authorize school districts and community college districts to
contract for any noninstructional services of any type, if awarded
pursuant to certain provisions of existing law governing public
contracts, and if the governing board of the school district or
community college determines that the contract will provide a benefit
for the school district or community college district. The bill
would prohibit the contract from being invalidated for specified
circumstances relating to food service functions and positions.
(2) Existing law requires contracts for management consulting
services relating to food services not exceed a term of one year, and
that contract renewals be considered on a year-to-year basis.
Existing law prohibits a contract for food service management
consulting services to eliminate any food service classified
personnel or position, result in any adverse effect upon any food
service classified food service personnel or position, or result in
the supervision of food service classified personnel.
This bill would repeal those provisions. The bill would define the
term "food service management services" to include specified
functions, and would authorize school districts and community college
districts to enter into contracts for food service management
services for a mutually agreed upon term, subject to specified
conditions. The bill would prohibit a contract for food service
management services from being invalidated for specified
circumstances, including that it results in or causes the elimination
of a food service classified personnel or position.
(3) Existing law sets forth certain requirements relating to
higher education employer-employee relations, including, but not
limited to, the requirement to meet and confer in good faith
regarding terms and conditions of employment.
This bill would declare that these employer-employee relations
provisions do not limit the authority of the University of
California, the Hastings College of the Law, and the California State
University to enter into contracts with 3rd parties for
noninstructional services, as prescribed.
The California Constitution authorizes the Governor to declare a
fiscal emergency and to call the Legislature into special session for
that purpose. The Governor issued a proclamation declaring a fiscal
emergency, and calling a special session for this purpose, on January
8, 2010.
This bill would state that it addresses the fiscal emergency
declared by the Governor by proclamation issued on January 8, 2010,
pursuant to the California Constitution.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 45103.1 of the Education Code is repealed.
45103.1. (a) Notwithstanding any other provision of this chapter,
personal services contracting for all services currently or
customarily performed by classified school employees to achieve cost
savings is permissible, unless otherwise prohibited, when all the
following conditions are met:
(1) The governing board or contracting agency clearly demonstrates
that the proposed contract will result in actual overall cost
savings to the school district, provided that:
(A) In comparing costs, there shall be included the school
district's additional cost of providing the same service as proposed
by a contractor. These additional costs shall include the salaries
and benefits of additional staff that would be needed and the cost of
additional space, equipment, and materials needed to perform the
function.
(B) In comparing costs, there shall not be included the school
district's indirect overhead costs unless these costs can be
attributed solely to the function in question and would not exist if
that function was not performed by the school district. Indirect
overhead costs shall mean the pro rata share of existing
administrative salaries and benefits, rent, equipment costs,
utilities, and materials.
(C) In comparing costs, there shall be included in the cost of a
contractor providing a service any continuing school district costs
that would be directly associated with the contracted function. These
continuing school district costs shall include, but not be limited
to, those for inspection, supervision, and monitoring.
(2) Proposals to contract out work shall not be approved solely on
the basis that savings will result from lower contractor pay rates
or benefits. Proposals to contract out work shall be eligible for
approval if the contractor's wages are at the industry's level and do
not undercut school district pay rates.
(3) The contract does not cause the displacement of school
district employees. The term "displacement" includes layoff,
demotion, involuntary transfer to a new classification, involuntary
transfer to a new location requiring a change of residence, and time
base reductions. Displacement does not include changes in shifts or
days off, nor does it include reassignment to other positions within
the same classification and general location or employment with the
contractor, so long as wages and benefits are comparable to those
paid by the school district.
(4) The savings shall be large enough to ensure that they will not
be eliminated by private sector and district cost fluctuations that
could normally be expected during the contracting period.
(5) The amount of savings clearly justify the size and duration of
the contracting agreement.
(6) The contract is awarded through a publicized, competitive
bidding process.
(7) The contract includes specific provisions pertaining to the
qualifications of the staff that will perform the work under the
contract, as well as assurance that the contractor's hiring practices
meet applicable nondiscrimination standards.
(8) The potential for future economic risk to the school district
from potential contractor rate increases is minimal.
(9) The contract is with a firm. A "firm" means a corporation,
limited liability corporation, partnership, nonprofit organization,
or sole proprietorship.
(10) The potential economic advantage of contracting is not
outweighed by the public's interest in having a particular function
performed directly by the school district.
(b) Notwithstanding any other provision of this chapter, personal
services contracting shall also be permissible when any of the
following conditions can be met:
(1) The contract is for new school district functions and the
Legislature has specifically mandated or authorized the performance
of the work by independent contractors.
(2) The services contracted are not available within the district,
cannot be performed satisfactorily by school district employees, or
are of such a highly specialized or technical nature that the
necessary expert knowledge, experience, and ability are not available
through the school district.
(3) The services are incidental to a contract for the purchase or
lease of real or personal property. Contracts under this criterion,
known as "service agreements," shall include, but not be limited to,
agreements to service or maintain office equipment or computers that
are leased or rented.
(4) The policy, administrative, or legal goals and purposes of the
district cannot be accomplished through the utilization of persons
selected pursuant to the regular or ordinary school district hiring
process. Contracts are permissible under this criterion to protect
against a conflict of interest or to ensure independent and unbiased
findings in cases where there is a clear need for a different,
outside perspective. These contracts shall include, but not be
limited to, obtaining expert witnesses in litigation.
(5) The nature of the work is such that the criteria for emergency
appointments apply. "Emergency appointment" means an appointment
made for a period not to exceed 60 working days either during an
actual emergency to prevent the stoppage of public business or
because of the limited duration of the work. The method of selection
and the qualification standards for an emergency employee shall be
determined by the district. The frequency of appointment, length of
employment, and the circumstances appropriate for the appointment of
firms or individuals under emergency appointments shall be restricted
so as to prevent the use of emergency appointments to circumvent the
regular or ordinary hiring process.
(6) The contractor will provide equipment, materials, facilities,
or support services that could not feasibly be provided by the school
district in the location where the services are to be performed.
(7) The services are of such an urgent, temporary, or occasional
nature that the delay incumbent in their implementation under the
district's regular or ordinary hiring process would frustrate their
very purpose.
(c) This section shall apply to all school districts, including
districts that have adopted the merit system.
(d) This section shall apply to personal service contracts entered
into after January 1, 2003. This section shall not apply to the
renewal of personal services contracts subsequent to January 1, 2003,
where the contract was entered into before January 1, 2003,
irrespective of whether the contract is renewed or rebid with the
existing contractor or with a new contractor.
SEC. 2. Section 45103.1 is added to the Education Code, to read:
45103.1. (a) As used in this section, "school district" means a
school district or a county office of education.
(b) Notwithstanding any provision of law to the contrary, a school
district may contract for any noninstructional services of any type,
if the contract is awarded in accordance with the applicable
provisions of the Public Contract Code, and the governing board of
the school district has determined, in its sole discretion, that the
contract will provide a benefit for the school district.
(c) The authority to contract for noninstructional services
granted by this section includes, but is not limited to, the right to
contract for consulting, management, supervision, and the direct
provision of services, in any noninstructional area, including, but
not limited to, any of the following:
(1) Facilities construction and renovation.
(2) Engineering, mechanical, maintenance, and repair.
(3) Food preparation and food service.
(4) Procurement, distribution, and transportation.
(5) Information technology, clerical, payroll, security,
accounting, skilled trades, and landscaping.
(d) The contract shall be for a mutually agreed upon term, unless
otherwise provided by this chapter or required by federal law.
(e) The following circumstances may not be the basis for
invalidating a contract entered into pursuant to this section:
(1) That it results in or causes the elimination of any food
service classified personnel or position.
(2) That it results in or causes any adverse effect upon any food
service classified personnel or position with respect to wages,
benefits, or other terms and conditions of employment.
(3) That food service functions, either managerial or direct, are
to be performed under the contract by nondistrict personnel.
(f) This section is to be administered in a manner that is
consistent with Section 35160 authorizing the governing board of any
school district to initiate and carry on any program or activity, or
to otherwise undertake any action in a manner that is not in conflict
with or inconsistent with the purposes for which school districts
are established.
(g) Sections 45122 to 45126, inclusive, and any other health
criteria established by the school district, are applicable to all
persons providing food service management consulting services under
contracts entered into pursuant to this section.
(h) The section shall apply only to contracts entered into or
amended after January 1, 2010.
(i) This section shall apply to all school districts, including,
but not limited to, school districts that have adopted the merit
system. Notwithstanding subdivision (e), this section may not be
implemented in a manner that conflicts with the merit system adopted
by the school district, or that impairs preexisting contractual
rights or obligations.
SEC. 3. Section 45103.5 of the Education Code is repealed.
45103.5. All contracts for management consulting services
relating to food service shall be governed by this section.
(a) Notwithstanding Sections 39902, 45103, 45104, and 45256, any
school district may enter into a contract for management consulting
services relating to food service for a term not to exceed one year.
Any renewal of that contract, or further requests for proposals to
provide food service management consulting services, shall be
considered on a year-to-year basis. A contract for food service
management consulting services shall not cause or result in the
elimination of any food service classified personnel or position. A
contract for food service management consulting services shall not
cause or result in any adverse effect upon any food service
classified personnel or position with respect to wages, benefits, or
other terms and conditions of employment.
(b) A contract made pursuant to subdivision (a) shall not provide
for or result in the supervision of food service classified personnel
by the food service management consultant. This section shall not be
construed to prevent an entity providing food service management
consulting services from interacting or consulting with the food
service manager or director, supervisors, or food service classified
employees of a school district on matters relating to food services
except those prohibited by subdivision (a).
(c) Sections 45122, 45123, 45124, 45125, 45125.5, and 45126, and
any other health criteria established by the school district, are
applicable to all persons providing food service management
consulting services under this section.
(d) This section shall apply to all school districts, including
districts that have adopted the merit system.
SEC. 4. Section 45103.5 is added to the Education Code, to read:
45103.5. (a) For the purposes of this section, "school district"
means a school district or a county office of education.
(b) Notwithstanding any other provision of law to the contrary, in
furtherance of, and without limiting, the authority to enter into
contracts pursuant to Section 45103.1, this section shall also govern
all contracts entered into by a district for food service management
services.
(c) A school district may enter into a contract for food service
management services for a mutually agreed upon term, unless otherwise
provided by this chapter or required by federal law.
(d) A contract for food service management services may include,
but need not be limited to, management services that provide for, or
result in, the supervision of district food service classified
personnel by the food service management contractor.
(e) "Food service management services" pursuant to this section
means any of the following related to the delivery of meals and other
food to pupils, but only to the extent that providing the food
service management services by the contractor is not inconsistent
with, or prohibited by, federal law:
(1) Assistance, direction, supervision, or other conduct related
to the procurement, menu planning and selection, food preparation,
presentation, and serving of food products.
(2) Maintenance of food service and preparation facilities.
(3) Recordkeeping and inventory.
(4) Reimbursements, financial transactions, and the administration
of working capital.
(5) Any and all other component services associated with the food
service function traditionally provided by a school district.
(f) The following circumstances may not invalidate a contract
entered into pursuant to this section:
(1) That it results in or causes the elimination of any food
service classified personnel or position.
(2) That it results in or causes any adverse effect upon any food
service classified personnel or position with respect to wages,
benefits, or other terms and conditions of employment.
(3) That food service functions, either managerial or direct, are
to be performed under the contract by nondistrict personnel.
(g) This section is to be administered in a manner that is
consistent with Section 35160 authorizing the governing board of any
school district to initiate and carry on any program or activity, or
to otherwise undertake any action in a manner that is not in conflict
with or inconsistent with the purposes for which school districts
are established.
(h) This section does not release a school district from the
obligation to retain authority, oversight, and control over its food
service program as otherwise required by federal law.
(i) This section applies to all school districts, including
districts that have adopted the merit system. Notwithstanding
subdivision (f), this section may not be implemented in a manner that
conflicts with the merit system adopted by the school district, or
that impairs preexisting contractual rights or obligations.
SEC. 5. Section 88003.1 of the Education Code is repealed.
88003.1. (a) Notwithstanding any other provision of this chapter,
personal services contracting for all services currently or
customarily performed by classified school employees to achieve cost
savings is permissible, unless otherwise prohibited, when all the
following conditions are met:
(1) The governing board or contracting agency clearly demonstrates
that the proposed contract will result in actual overall cost
savings to the community college district, provided that:
(A) In comparing costs, there shall be included the community
college district's additional cost of providing the same service as
proposed by a contractor. These additional costs shall include the
salaries and benefits of additional staff that would be needed and
the cost of additional space, equipment, and materials needed to
perform the function.
(B) In comparing costs, there shall not be included the community
college district's indirect overhead costs unless these costs can be
attributed solely to the function in question and would not exist if
that function was not performed by the community college district.
Indirect overhead costs shall mean the pro rata share of existing
administrative salaries and benefits, rent, equipment costs,
utilities, and materials.
(C) In comparing costs, there shall be included in the cost of a
contractor providing a service any continuing community college
district costs that would be directly associated with the contracted
function. These continuing community college district costs shall
include, but not be limited to, those for inspection, supervision,
and monitoring.
(2) Proposals to contract out work shall not be approved solely on
the basis that savings will result from lower contractor pay rates
or benefits. Proposals to contract out work shall be eligible for
approval if the contractors wages are at the industry's level and do
not undercut community college district pay rates.
(3) The contract does not cause the displacement of community
college district employees. The term "displacement" includes layoff,
demotion, involuntary transfer to a new classification, involuntary
transfer to a new location requiring a change of residence, and time
base reductions. Displacement does not include changes in shifts or
days off, nor does it include reassignment to other positions within
the same classification and general location or employment with the
contractor, so long as wages and benefits are comparable to those
paid by the school district.
(4) The savings shall be large enough to ensure that they will not
be eliminated by private sector and community college district cost
fluctuations that could normally be expected during the contracting
period.
(5) The amount of savings clearly justify the size and duration of
the contracting agreement.
(6) The contract is awarded through a publicized, competitive
bidding process.
(7) The contract includes specific provisions pertaining to the
qualifications of the staff that will perform the work under the
contract, as well as assurance that the contractor's hiring practices
meet applicable nondiscrimination standards.
(8) The potential for future economic risk to the community
college district from potential contractor rate increases is minimal.
(9) The contract is with a firm. A "firm" means a corporation,
limited liability corporation, partnership, nonprofit organization,
or sole proprietorship.
(10) The potential economic advantage of contracting is not
outweighed by the public's interest in having a particular function
performed directly by the community college district.
(b) Notwithstanding any other provision of this chapter, personal
services contracting shall also be permissible when any of the
following conditions can be met:
(1) The contract is for new community college district functions
and the Legislature has specifically mandated or authorized the
performance of the work by independent contractors.
(2) The services contracted are not available within community
college districts, cannot be performed satisfactorily by community
college district employees, or are of such a highly specialized or
technical nature that the necessary expert knowledge, experience, and
ability are not available through the community college district.
(3) The services are incidental to a contract for the purchase or
lease of real or personal property. Contracts under this criterion,
known as "service agreements," shall include, but not be limited to,
agreements to service or maintain office equipment or computers that
are leased or rented.
(4) The policy, administrative, or legal goals and purposes of the
community college district cannot be accomplished through the
utilization of persons selected pursuant to the regular or ordinary
hiring process. Contracts are permissible under this criterion to
protect against a conflict of interest or to ensure independent and
unbiased findings in cases where there is a clear need for a
different, outside perspective. These contracts shall include, but
not be limited to, obtaining expert witnesses in litigation.
(5) The nature of the work is such that the criteria for emergency
appointments apply. "Emergency appointment" means an appointment
made for a period not to exceed 60 working days either during an
actual emergency to prevent the stoppage of public business or
because of the limited duration of the work. The method of selection
and the qualification standards for an emergency employee shall be
determined by the community college district. The frequency of
appointment, length of employment, and the circumstances appropriate
for the appointment of firms or individuals under emergency
appointments shall be restricted so as to prevent the use of
emergency appointments to circumvent the regular or ordinary hiring
process.
(6) The contractor will provide equipment, materials, facilities,
or support services that could not feasibly be provided by the
community college district in the location where the services are to
be performed.
(7) The services are of such an urgent, temporary, or occasional
nature that the delay incumbent in their implementation under the
community college district's regular or ordinary hiring process would
frustrate their very purpose.
(c) This section shall apply to all community colleges, including
community college districts that have adopted the merit system.
(d) This section shall apply to personal service contracts entered
into after January 1, 2003. This section shall not apply to the
renewal of personal services contracts subsequent to January 1, 2003,
where the contract was entered into before January 1, 2003,
irrespective of whether the contract is renewed or rebid with the
existing contractor or with a new contractor.
SEC. 6. Section 88003.1 is added to the Education Code, to read:
88003.1. (a) Notwithstanding any provision of law to the
contrary, a community college district may contract for any
noninstructional services of any type, without any limitation, if the
contract is awarded in accordance with the applicable provisions of
the Public Contract Code, and the governing board of the community
college district has determined, in its sole discretion, that the
contract will provide a benefit for the community college district.
(b) The authority to contract for noninstructional services
pursuant to this section includes, but is not be limited to, the
right to contract for consulting, management, supervision, and the
direct provision of services in any noninstructional area, including,
but not limited to, any of the following:
(1) Facilities construction and renovation.
(2) Engineering, mechanical, maintenance, and repair.
(3) Food preparation and food service.
(4) Procurement, distribution, and transportation.
(5) Information technology, clerical, payroll, security,
accounting, skilled trades, and landscaping.
(c) The contract shall be for a mutually agreed upon term.
(d) The following circumstances may not be the basis for
invalidating a contract entered into pursuant to this section:
(1) That it results in or causes the elimination of any food
service classified personnel or position.
(2) That it results in or causes any adverse effect upon any food
service classified personnel or position with respect to wages,
benefits, or other terms and conditions of employment.
(3) That food service functions, either managerial or direct, are
to be performed under the contract by nondistrict personnel.
(e) This section is to be administered in a manner that is
consistent with Section 70902 authorizing the governing board of any
community college district to initiate and carry on any program or
activity, or to otherwise undertake any action in a manner which is
not in conflict with or inconsistent with the purposes for which
community college districts are established.
(f) Sections 88021 to 88025, inclusive, and any other health
criteria established by the community college district, are
applicable to all persons providing services under contracts entered
into pursuant to this section.
(g) This section applies only to contracts entered into, renewed,
or amended after January 1, 2010.
(h) This section applies to all community college districts,
including, but not limited to, community college districts that have
adopted the merit system. Notwithstanding subdivision (d), this
section may not be implemented in a manner that conflicts with the
merit system adopted by the community college district or that
impairs preexisting contractual rights or obligations.
SEC. 7. Section 88004.5 of the Education Code is repealed.
88004.5. All contracts for management consulting services
relating to food service shall be governed by this section.
(a) Notwithstanding Sections 88003, 88004, 88020.5, and 88076, any
community college district may enter into a contract for management
consulting services relating to food service
for a term not to exceed one year. Any renewal of
that contract, or further requests for proposals to provide food
service management consulting services, shall be considered on a
year-to-year basis. A contract for food service management consulting
services shall not cause or result in the elimination of any food
service classified personnel or position. A contract for food service
management consulting services shall not cause or result in any
adverse effect upon any food service classified personnel or position
with respect to wages, benefits, or other terms and conditions of
employment.
(b) A contract made pursuant to subdivision (a) shall not provide
for, or result in the supervision of, food service classified
personnel by the food service management consultant. This section
shall not be construed to prevent an entity providing food service
management consulting services from interacting or consulting with
the food service manager or director, supervisors, or food service
classified employees of the community college district on matters
relating to food services except those prohibited by subdivision (a).
(c) Sections 88021, 88022, 88023, 88024, and 88025, and any other
health criteria established by the local community college district,
are applicable to all persons providing food service management
consulting services under this section.
(d) This section shall apply to all community college districts,
including districts that have adopted the merit system.
SEC. 8. Section 88004.5 is added to the Education Code, to read:
88004.5. (a) Notwithstanding any other provision of law to the
contrary, in furtherance of, and without limiting, the authority to
enter into contracts pursuant to Section 88003.1, this section shall
also govern all contracts entered into by a community college
district for food service management services.
(b) A community college district may enter into a contract for
food service management services for a mutually agreed upon term.
(c) A contract for food service management services may include,
but need not be limited to, management services that provide for or
result in the supervision of district food service classified
personnel by the food service management contractor.
(d) "Food service management services" pursuant to this section
means any of the following related to the delivery of meals and other
food to students:
(1) Assistance, direction, supervision, or other conduct related
to procurement, menu planning and selection, food preparation, and
the serving of food products.
(2) Maintenance of food service and preparation facilities.
(3) Recordkeeping and inventory.
(4) Reimbursements, financial transactions, and the administration
of working capital.
(5) Any and all other component services associated with the food
service function traditionally provided by a community college
district.
(e) The following circumstances may not be the basis for
invalidating a contract entered into pursuant to this section:
(1) That it results in or causes the elimination of any food
service classified personnel or position.
(2) That it results in or causes any adverse effect upon any food
service classified personnel or position with respect to wages,
benefits, or other terms and conditions of employment.
(3) That food service functions, either managerial or direct, are
to be performed under the contract by nondistrict personnel.
(f) This section is to be administered in a manner that is
consistent with Section 70902 authorizing the governing board of any
community college district to initiate and carry on any program or
activity, or to otherwise undertake any action in a manner that is
not in conflict with or inconsistent with the purposes for which
community college districts are established.
(g) This section applies to all community college districts,
including districts that have adopted the merit system.
Notwithstanding subdivision (e), this section may not be implemented
in a manner that conflicts with the merit system adopted by the
community college district, or that impairs preexisting contractual
rights or obligations.
SEC. 9. Section 3562.3 is added to the Government Code, to read:
3562.3. (a) This chapter does not limit the authority, power,
right, or ability, of the University of California, the Hastings
College of the Law, and the California State University, to enter
into contracts with third parties for any noninstructional services,
regardless of whether those services were previously performed or
could be performed by an employee of the University of California,
the Hastings College of the Law, or the California State University.
(b) Notwithstanding Section 3562, for purposes of the University
of California, the Hastings College of the Law, or the California
State University, "scope of representation" shall not include a
decision by the covered entity to contract out for noninstructional
services.
(c) This section may not be implemented in a manner that conflicts
with the merit system, as applicable, or that impairs preexisting
contractual rights or obligations.
SEC. 10. This act addresses the fiscal emergency declared by the
Governor by proclamation on January 8, 2010, pursuant to subdivision
(f) of Section 10 of Article IV of the California Constitution.