Amended in Assembly May 14, 2015

Amended in Assembly April 6, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 1066


Introduced by Assembly Member Gonzalez

February 26, 2015


An act to amend Sectionsbegin delete 45103, 45103.1, 45104, 45256, 45286, 88003, 88003.1, 88004, 88076, and 88105end deletebegin insert 45103 and 88003end insert of the Education Code, relating to classified employees.

LEGISLATIVE COUNSEL’S DIGEST

AB 1066, as amended, Gonzalez. Classified employees:begin delete nonemployee contractors: limited-term, short-term, and substituteend deletebegin insert short-termend insert employees.

(1) Existing law requires school districts and community college districts to employ persons for positions not requiring certification qualifications and to classify, as defined, these persons. These employees are generally known as classified employees.begin delete Existing law also authorizes school districts and community college districts to contract for personal services currently or customarily performed by classified employees to achieve cost savings, unless otherwise prohibited, when certain conditions are met.end deletebegin insert Existing law provides that substitute and short-term employees, as defined, employed and paid for less than 75% of a school year or college year, shall not be part of the classified service.end insert

begin delete

This bill would recast and revise the statutes relating to the use of nonemployee contractors and limited-term, short-term, and substitute employees in the classified service of school districts and community college districts. Among numerous other changes, the bill would declare that school districts and community college districts have a mandatory duty to classify all of their employees and positions not requiring certification qualifications.

end delete
begin delete

The

end delete

begin insertThisend insert bill would revise the definition of “short-term employee” to require thatbegin delete the working days counted to determine whether an employee had short-term status take place in a single school year or college year. The bill would also include a definition of “limited-term employee” that requires that the service provided by the employee to the school district or community college district be calculated within a single school year or college year.end deletebegin insert a short-term employee position not continue on a year-after-year basis.end insert

To the extent that this bill would impose new duties on school districts and community college districts, it would constitute a state-mandated local program.

(2) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 45103 of the end insertbegin insertEducation Codeend insertbegin insert is amended
2to read:end insert

3

45103.  

(a) The governing board of begin deleteany end deletebegin inserta end insertschool district shall
4employ persons for positions not requiring certification
5qualifications. The governing boardbegin insert of a school districtend insert shall,
6except where Article 6 (commencing with Section 45240) or
7Section 45318 applies, classify all of these employees and
8positions. The employees and positions shall be known as the
9classified service.

10(b) (1) Substitute and short-term employees, employed and
11paid for less than 75 percent of a school year, shall not be a part
12of the classified service.

P3    1(2) Apprentices and professional experts employed on a
2temporary basis for a specific project, regardless of length of
3employment, shall not be a part of the classified service.

4(3) Full-time students employed part time, and part-time students
5employed part time in any college workstudy program, or in a
6work experience education program conducted by a community
7college district pursuant to Article 7 (commencing with Section
851760) of Chapter 5 of Part 28 and that is financed by state or
9federal funds, shall not be a part of the classified service.

10(4) Part-time playground positions shall not be a part of the
11classified service, where the employee is not otherwise employed
12in a classified position. Part-time playground positions shall be
13considered a part of the classified service when the employee in
14the position also works in the same school district in a classified
15position.

16(c) Unless otherwise permitted, a person whose position does
17not require certification qualifications shall not be employed bybegin delete aend deletebegin insert end insert
18begin insertthe end insertgoverningbegin delete board,end deletebegin insert board of a school district, end insertexcept as
19authorized by this section.

20(d) As used in this section:

begin delete

21(1) “Substitute employee” means any person employed to
22replace any classified employee who is temporarily absent from
23duty. In addition, if the district is then engaged in a procedure to
24hire a permanent employee to fill a vacancy in any classified
25position, the governing board may fill the vacancy through the
26employment, for not more than 60 calendar days, of one or more
27substitute employees, except to the extent that a collective
28bargaining agreement then in effect provides for a different period
29of time.

end delete
begin insert

30(1) “Seventy-five percent of a school year” means 195 working
31days, including holidays, sick leave, vacation, and other leaves of
32absence, irrespective of the number of hours worked per day.

end insert

33(2) “Short-term employee” means any person who is employed
34to perform a service for the begin insertschool end insertdistrict, upon the completion
35ofbegin delete which,end deletebegin insert which end insertthe service required or similar services will not
36be extended or needed on a continuing basis. Before employing a
37short-term employee, the governingbegin delete board,end deletebegin insert board of a school
38district, end insert
at a regularly scheduled board meeting, shall specify the
39service required to be performed by the employee pursuant to the
40definition of “classification” in subdivision (a) of Section 45101,
P4    1and shall certify the ending date of the service. The ending date
2may be shortened or extended by the governingbegin delete board,end deletebegin insert board of
3the school district, end insert
but shall not extend beyond 75 percent of a
4school year.begin insert A short-term employee position shall not continue on
5a year-after-year basis.end insert

begin delete

6(3) “Seventy-five percent of a school year” means 195 working
7days, including holidays, sick leave, vacation and other leaves of
8absence, irrespective of number of hours worked per day.

end delete
begin insert

9(3) “Substitute employee” means any person employed to
10replace any classified employee who is temporarily absent from
11duty. In addition, if the school district is then engaged in a
12procedure to hire a permanent employee to fill a vacancy in any
13classified position, the governing board of the school district may
14fill the vacancy through the employment, for not more than 60
15calendar days, of one or more substitute employees, except to the
16extent that a collective bargaining agreement then in effect
17provides for a different period of time.

end insert

18(e) Employment of either full-time or part-time students in any
19college workstudy program, or in a work experience education
20begin delete programend deletebegin insert program, end insertshall not result in the displacement of classified
21personnel or impair existing contracts for services.

22(f) This section shall apply only to begin insertschool end insertdistricts not
23incorporating the merit system as outlined in Article 6
24(commencing with Section 45240).

25begin insert

begin insertSEC. end insertbegin insert2.end insert  

end insert

begin insertSection 88003 of the end insertbegin insertEducation Codeend insertbegin insert is amended to
26read:end insert

27

88003.  

begin insert(a)end insertbegin insertend insert The governing board of begin deleteany end deletebegin inserta end insertcommunity college
28district shall employ persons for positions that are not academic
29positions. The governing board, except where Article 3
30(commencing with Section 88060) or Section 88137 applies, shall
31classify all those employees and positions. The employees and
32positions shall be known as the classified service. Substitute and
33short-term employees, employed and paid for less than 75 percent
34of a college year, shall not be a part of the classified service.
35Part-time playground positions,begin delete apprenticesend deletebegin insert apprentices,end insert and
36professional experts employed on a temporary basis for a specific
37project,begin delete regardlessend deletebegin insert irrespectiveend insert of length of employment, shall not
38be a part of the classified service. Full-time students employed
39part time, and part-time students employed part time in any college
40work-study program, or in a work experience education program
P5    1conducted by a community college district andbegin delete whichend deletebegin insert that end insertis
2financed by state or federal funds, shall not be a part of the
3classified service. Unless otherwise permitted, a person whose
4position does not require certification qualifications shall not be
5employed by a governing board, except as authorized by this
6section.

begin delete

7“Substitute employee,” as used in this section, means any person
8employed to replace any classified employee who is temporarily
9absent from duty. In addition, if the district is then engaged in a
10procedure to hire a permanent employee to fill a vacancy in any
11classified position, the governing board may fill the vacancy
12through the employment, for not more than 60 calendar days, of
13one or more substitute employees, except to the extent that a
14collective bargaining agreement then in effect provides for a
15different period of time.

end delete
begin insert

16(b) As used in this section:

end insert
begin insert

17(1) “Seventy-five percent of a college year” means 195 working
18days, including holidays, sick leave, vacation, and other leaves of
19absences, irrespective of the number of hours worked per day.

end insert
begin delete

20“Short-term employee,” as used in this section,

end delete

21begin insert(2)end insertbegin insertend insertbegin insert“Short-term employeeend insertbegin insertend insert means any person who is employed
22to perform a service for thebegin insert community collegeend insert district, upon the
23completion ofbegin delete which,end deletebegin insert which end insertthe service required or similar services
24will not be extended or needed on a continuing basis. Before
25employing a short-term employee, the governing board, at a
26regularly scheduled board meeting, shall specify the service
27required to be performed by the employee pursuant to the definition
28of “classification” in subdivision (a) of Section 88001, and shall
29certify the ending date of the service. The ending date may be
30shortened or extended by the governing board, but shall not extend
31beyond 75 percent of abegin delete schoolend deletebegin insert collegeend insert year.begin insert A short-term employee
32position shall not continue on a year-after-year basis.end insert

begin delete

33“Seventy-five percent of a college year” means 195 working
34days, including holidays, sick leave, vacation and other leaves of
35absences, irrespective of number of hours worked per day.

36 Employment

end delete
begin insert

37(3) “Substitute employee” means any person employed to
38replace any classified employee who is temporarily absent from
39duty. In addition, if the community college district is then engaged
40in a procedure to hire a permanent employee to fill a vacancy in
P6    1any classified position, the governing board may fill the vacancy
2through the employment, for not more than 60 calendar days, of
3one or more substitute employees, except to the extent that a
4collective bargaining agreement then in effect provides for a
5different period of time.

end insert

6begin insert(c)end insertbegin insertend insertbegin insertEmploymentend insert of either full-time or part-time students in any
7college work-study program, or in a work experience education
8begin deleteprogram end deletebegin insertprogram, end insertshall not result in the displacement of classified
9personnel or impair existing contracts for services.

begin delete

10 This

end delete

11begin insert(d)end insertbegin insertend insertbegin insertThisend insert section shall apply only to begin insertcommunity college end insertdistricts
12not incorporating the merit system as outlined in Article 3
13(commencing with Section 88060).

14begin insert

begin insertSEC. 3.end insert  

end insert
begin insert

If the Commission on State Mandates determines that
15this act contains costs mandated by the state, reimbursement to
16local agencies and school districts for those costs shall be made
17pursuant to Part 7 (commencing with Section 17500) of Division
184 of Title 2 of the Government Code.

end insert
begin delete
19

SECTION 1.  

Section 45103 of the Education Code is amended
20to read:

21

45103.  

(a) The governing board of any school district shall
22employ persons for positions not requiring certification
23qualifications. The governing board has a mandatory duty to
24classify, and shall, except where Article 6 (commencing with
25Section 45240) or Section 45318 applies, classify all of these
26employees and positions. The employees and positions shall be
27known as the classified service.

28(b) (1) Substitute employees, employed and paid for less than
2975 percent of a single school year, and short-term employees,
30employed and paid for less than 75 percent of a single school year,
31shall not be a part of the classified service.

32(2) Apprentices and professional experts employed on a limited,
33temporary basis for a specific project that is not an ongoing district
34venture, irrespective of length of employment, shall not be a part
35of the classified service.

36(3) Full-time students employed part time, and part-time students
37employed part time in any college work-study program or in a
38work experience education program conducted by a community
39college district pursuant to Article 7 (commencing with Section
P7    151760) of Chapter 5 of Part 28 of Division 4 and that is financed
2by state or federal funds, shall not be a part of the classified service.

3(4) Part-time playground positions shall not be a part of the
4classified service, where the employee is not otherwise employed
5in a classified position. Part-time playground positions shall be
6considered a part of the classified service when the employee in
7the position also works in the same school district in a classified
8position.

9(c) Unless otherwise permitted, a person whose position does
10not require certification qualifications shall not be employed by a
11governing board, except as authorized by this section.

12(d) As used in this section:

13(1) “Seventy-five percent of a single school year” means 195
14working days of a single school year, including holidays, sick
15leave, vacation, and other leaves of absence, irrespective of number
16of hours worked per day.

17(2) “Short-term employee” means any person who is employed
18to perform a discrete service for the district, upon the completion
19of which, the service required or similar services will not be
20extended or needed on a continuing or recurring basis. Before
21employing a short-term employee, the governing board, at a
22regularly scheduled board meeting, shall specify the service
23required to be performed by the employee pursuant to the definition
24of “classification” in subdivision (a) of Section 45101, and shall
25certify the starting and ending dates of the service. The ending
26date may be shortened or extended by the governing board, but
27shall not extend beyond 75 percent of a single school year, and
28the district shall not employ a short-term employee in subsequent
29school years to perform the same or similar services.

30(3) “Substitute employee” means any person employed to
31replace any classified employee who is temporarily absent from
32duty. In addition, if the district is then engaged in a procedure to
33hire a permanent employee to fill a vacancy in any classified
34position, the governing board may fill the vacancy through the
35employment, for not more than 60 calendar days, of one or more
36substitute employees, except to the extent that a collective
37bargaining agreement then in effect provides for a different period
38of time.

39(e) Employment of either full-time or part-time students in any
40college work-study program or in a work experience education
P8    1program shall not result in the displacement of classified personnel
2or impair existing contracts for services.

3(f) This section shall apply only to districts not incorporating
4the merit system as outlined in Article 6 (commencing with Section
545240).

6

SEC. 2.  

Section 45103.1 of the Education Code is amended to
7read:

8

45103.1.  

(a) Notwithstanding any other provision of this
9chapter, personal services contracting with nonemployee
10contractors for all services currently or customarily performed by
11classified school employees to achieve cost savings is permissible,
12unless otherwise prohibited, when all the following conditions are
13met:

14(1) The governing board or contracting agency clearly
15demonstrates that the proposed contract will result in actual overall
16cost savings to the school district, provided that:

17(A) In comparing costs, there shall be included the school
18district’s additional cost of providing the same service as proposed
19by a contractor. These additional costs shall include the salaries
20and benefits of additional staff that would be needed and the cost
21of additional space, equipment, and materials needed to perform
22the function.

23(B) In comparing costs, there shall not be included the school
24district’s indirect overhead costs unless these costs can be attributed
25solely to the function in question and would not exist if that
26function was not performed by the school district. Indirect overhead
27costs shall mean the pro rata share of existing administrative
28salaries and benefits, rent, equipment costs, utilities, and materials.

29(C) In comparing costs, there shall be included in the cost of a
30contractor providing a service any continuing school district costs
31that would be directly associated with the contracted function.
32These continuing school district costs shall include, but not be
33limited to, those for inspection, supervision, and monitoring.

34(2) Proposals to contract out work shall not be approved solely
35on the basis that savings will result from lower contractor pay rates
36or benefits. Proposals to contract out work shall be eligible for
37approval if the contractor’s wages are at the industry’s level and
38do not undercut school district pay rates.

39(3) The contract does not cause the displacement of school
40district employees. The term “displacement” includes layoff,
P9    1demotion, involuntary transfer to a new classification, involuntary
2transfer to a new location requiring a change of residence, and
3time base reductions. Displacement does not include changes in
4shifts or days off, nor does it include reassignment to other
5positions within the same classification and general location or
6employment with the contractor, so long as wages and benefits
7are comparable to those paid by the school district.

8(4) The savings shall be large enough to ensure that they will
9not be eliminated by private sector and district cost fluctuations
10that could normally be expected during the contracting period.

11(5) The amount of savings clearly justify the size and duration
12of the contracting agreement.

13(6) The contract is awarded through a publicized, competitive
14bidding process.

15(7) The contract includes specific provisions pertaining to the
16qualifications of the staff that will perform the work under the
17contract, as well as assurance that the contractor’s hiring practices
18meet applicable nondiscrimination standards.

19(8) The potential for future economic risk to the school district
20from potential contractor rate increases is minimal.

21(9) The contract is with a firm. A “firm” means a corporation,
22limited liability company, partnership, nonprofit organization, or
23sole proprietorship.

24(10) The potential economic advantage of contracting is not
25outweighed by the public’s interest in having a particular function
26performed directly by the school district.

27(b) Notwithstanding any other provision of this chapter, personal
28services contracting for nonemployee contractors shall also be
29permissible when any of the following conditions can be met:

30(1) The contract is for new school district functions and the
31 Legislature has specifically mandated or authorized the
32performance of the work by independent contractors.

33(2) The services contracted are not available within the district,
34cannot be performed satisfactorily by school district employees,
35or are of such a highly specialized or technical nature that the
36necessary expert knowledge, experience, and ability are not
37available through the school district.

38(3) The services are incidental to a contract for the purchase or
39lease of real or personal property. Contracts under this criterion,
40known as “service agreements,” shall include, but not be limited
P10   1to, agreements to service or maintain office equipment or
2computers that are leased or rented.

3(4) The policy, administrative, or legal goals and purposes of
4the district cannot be accomplished through the utilization of
5 persons selected pursuant to the regular or ordinary school district
6hiring process. Contracts are permissible under this criterion to
7protect against a conflict of interest or to ensure independent and
8unbiased findings in cases where there is a clear need for a
9different, outside perspective. These contracts shall include, but
10not be limited to, obtaining expert witnesses in litigation.

11(5) The nature of the work is such that the criteria for emergency
12appointments apply. “Emergency appointment” means an
13appointment made for a period not to exceed 60 working days of
14a single school year either during an actual emergency to prevent
15the stoppage of public business or because of the limited duration
16of the work. The method of selection and the qualification
17standards for an emergency nonemployee contractor shall be
18determined by the district. The frequency of appointment, length
19of contract, and the circumstances appropriate for the appointment
20of firms or individuals under emergency appointments as
21nonemployee contractors shall be restricted so as to prevent the
22use of emergency appointments to circumvent the regular or
23ordinary hiring process for school district employees.

24(6) The contractor will provide equipment, materials, facilities,
25or support services that could not feasibly be provided by the
26school district in the location where the services are to be
27performed.

28(7) The nature of the services, objectively determined, is so
29urgent, temporary, or occasional that the delay incumbent in the
30implementation of those services under the district’s regular or
31ordinary hiring process would frustrate their very purpose, therefore
32requiring the use of nonemployee contractors. The use of any
33nonemployee contractor by a school district under this section is
34limited to 60 working days of a single school year.

35(c) This section shall apply to all school districts, including
36districts that have adopted the merit system.

37(d) This section shall apply to nonemployee personal service
38contracts entered into after January 1, 2003. This section shall not
39apply to the renewal of personal services contracts subsequent to
40January 1, 2003, where the contract was entered into before January
P11   11, 2003, irrespective of whether the contract is renewed or rebid
2with the existing contractor or with a new contractor.

3

SEC. 3.  

Section 45104 of the Education Code is amended to
4read:

5

45104.  

(a) A school district has a mandatory duty to classify,
6and shall classify, every position not defined by this code as a
7position requiring certification qualifications and not specifically
8exempted from the classified service pursuant to Section 45103
9or 45256, as required by those sections. These positions shall be
10a part of the classified service. These positions shall not be
11designated as certificated, the assignment of a title to any such
12position shall not remove the position from the classified service,
13and possession of a certification document shall not be made a
14requirement for employment in the position.

15(b) Nothing in this section shall be construed to prohibit the
16employment of any individual in a position described by this
17section as part of the classified service who is in possession of
18certification qualifications, nor shall the possession of certification
19qualifications be grounds for the elimination of an individual for
20consideration for employment in such a position.

21(c) An employee of a school district, or the exclusive
22representative of such an employee within the meaning of Section
233543.8 of the Government Code, may bring an action to challenge
24the classification of an employee or position by a school district
25under subdivision (a) of Section 45103, subdivision (a) of Section
2645286, or this section, or to compel a school district to classify an
27employee or position as required by those provisions.

28(d) This section shall apply to districts which have adopted the
29merit system in the same manner and with the same effect as
30though it were a part of Article 6 (commencing with Section
3145240).

32

SEC. 4.  

Section 45256 of the Education Code is amended to
33read:

34

45256.  

(a) The commission has a mandatory duty to classify,
35and shall classify, all employees and positions within the
36jurisdiction of the governing board or of the commission, except
37those that are exempt from the classified service, as specified in
38subdivision (b). The employees and positions shall be known as
39the classified service. “To classify” shall include, but not
40necessarily be limited to, allocating positions to appropriate classes,
P12   1arranging classes into occupational hierarchies, determining
2reasonable relationships within occupational hierarchies, and
3preparing written class specifications.

4(b) All of the following are exempt from the classified service:

5(1) Positions which require certification qualifications.

6(2) Full-time students employed part time.

7(3) Part-time students employed part time in any college
8work-study program or in a work experience education program
9conducted by a community college district pursuant to Article 7
10(commencing with Section 51760) of Chapter 5 of Part 28 of
11Division 4 and that is financed by state or federal funds.

12(4) Apprentice positions of a limited, temporary nature.

13(5) Positions established for the employment of professional
14experts on a limited, temporary basis for a specific project that is
15not an ongoing district venture by the governing board or by the
16commission when so designated by the commission.

17(6) Part-time playground positions, where the employee is not
18otherwise employed in a classified position. Part-time playground
19positions shall be considered part of the classified service when
20the employee in the position also works in the same school district
21in a classified position.

22(c) (1) Employment of either full-time or part-time students in
23any college work-study program or in a work experience education
24program shall not result in the displacement of classified personnel
25or impair existing contracts for services.

26(2) Nothing in this section shall prevent an employee, who has
27attained regular status in a full-time position, from taking a
28voluntary reduction in time and retaining his or her regular status
29under the provisions of this law.

30(d) No person whose contribution consists solely in the rendition
31of individual personal services and whose employment does not
32come within the scope of the exceptions listed above shall be
33employed outside the classified service.

34(e) A part-time position is one for which the assigned time,
35when computed on an hourly, daily, weekly, or monthly basis, is
36less than 8712 percent of the normally assigned time of the majority
37of employees in the classified service.

38

SEC. 5.  

Section 45286 of the Education Code is amended to
39read:

P13   1

45286.  

(a) Whenever the appointing power shall require the
2appointment of a limited-term employee to a position, the duration
3of which is not to exceed six consecutive months in a single school
4year, or, in case of an appointment of a substitute employee in lieu
5of a temporarily absent employee, the duration of which is not to
6exceed the authorized absence of that employee, the appointing
7power shall have a ministerial duty to appoint the substitute or
8limited-term employee to the position subject to the requirements
9of this section.

10(b) For substitute employees, the appointing power shall submit
11a request in which the probable duration of the appointment is
12stated. For limited-term employees, the appointing power shall
13submit a request certifying the starting and ending dates of the
14service for the position. The ending date for a limited-term
15employee may be advanced or delayed by the appointing power,
16but the term shall not extend beyond six consecutive months in a
17single school year, and the school district may not employ a
18limited-term employee in subsequent school years to perform the
19same or similar services.

20(c) Eligible persons shall be certified in accordance with their
21position on the appropriate employment list and their willingness
22to accept appointment to that position as limited-term or substitute
23employees. Limited-term and substitute employees shall be subject
24to conditions affecting status and tenure during and after
25employment that the commission may by rule determine.
26Notwithstanding these limitations on the duration of these
27 positions, the commission may, based on a declaration of an
28emergency by the President of the United States or the Governor,
29authorize an extension that may not exceed one year. The duties
30of the extended position shall be related to the emergency.

31(d) As used in this section:

32(1) “Limited-term employee” means any person who is
33employed to perform for the school district a discrete service, the
34duration of which is not to exceed six consecutive months in a
35single school year, if upon the completion of the discrete service,
36no similar service shall be needed on a continuing or recurring
37basis.

38(2) “Substitute employee” means any person employed to
39replace any classified employee who is temporarily absent from
40duty. In addition, if the school district is then engaged in a
P14   1procedure to hire a permanent employee to fill a vacancy in any
2classified position, the school district may fill the vacancy through
3the employment, for not more than 60 calendar days, of one or
4more substitute employees, except to the extent that a collective
5bargaining agreement then in effect provides for a different period
6of time.

7

SEC. 6.  

Section 88003 of the Education Code is amended to
8read:

9

88003.  

(a) The governing board of any community college
10district shall employ persons for positions that are not academic
11positions. The governing board, except where Article 3
12(commencing with Section 88060) or Section 88137 applies, has
13a mandatory duty to classify, and shall classify, all those employees
14and positions. The employees and positions shall be known as the
15classified service. Substitute employees, employed and paid for
16less than 75 percent of a single college year, and short-term
17employees, employed and paid for less than 75 percent of a single
18college year, shall not be a part of the classified service. Part-time
19playground positions, apprentices, and professional experts
20employed on a limited, temporary basis for a specific project that
21is not an ongoing district venture, irrespective of length of
22employment, shall not be a part of the classified service. Full-time
23students employed part time, and part-time students employed part
24time in any college work-study program, or in a work experience
25education program conducted by a community college district and
26which is financed by state or federal funds, shall not be a part of
27the classified service. Unless otherwise permitted, a person whose
28position does not require certification qualifications shall not be
29employed by a governing board, except as authorized by this
30section.

31(b) As used in this section:

32(1) “Seventy-five percent of a single college year” means 195
33working days of a single college year, including holidays, sick
34leave, vacation, and other leaves of absences, irrespective of
35number of hours worked per day.

36(2) “Short-term employee,” as used in this section, means any
37person who is employed to perform a discrete service for the
38district, upon the completion of which, the service required or
39similar services will not be extended or needed on a continuing or
40recurring basis. Before employing a short-term employee, the
P15   1governing board, at a regularly scheduled board meeting, shall
2specify the service required to be performed by the employee
3pursuant to the definition of “classification” in subdivision (a) of
4Section 88001, and shall certify the starting and ending dates of
5the service. The ending date may be shortened or extended by the
6governing board, but shall not extend beyond 75 percent of a single
7 college year, and the district shall not employ a short-term
8employee in subsequent college years to perform the same or
9similar services.

10(3) “Substitute employee,” as used in this section, means any
11 person employed to replace any classified employee who is
12temporarily absent from duty. In addition, if the district is then
13engaged in a procedure to hire a permanent employee to fill a
14vacancy in any classified position, the governing board may fill
15the vacancy through the employment, for not more than 60 calendar
16days, of one or more substitute employees, except to the extent
17that a collective bargaining agreement then in effect provides for
18a different period of time.

19(c) Employment of either full-time or part-time students in any
20college work-study program, or in a work experience education
21program shall not result in the displacement of classified personnel
22or impair existing contracts for services.

23(d) This section shall apply only to districts not incorporating
24 the merit system as outlined in Article 3 (commencing with Section
2588060).

26

SEC. 7.  

Section 88003.1 of the Education Code is amended to
27read:

28

88003.1.  

(a) Notwithstanding any other provision of this
29chapter, personal services contracting with nonemployee
30contractors for all services currently or customarily performed by
31classified school employees to achieve cost savings is permissible,
32unless otherwise prohibited, when all the following conditions are
33met:

34(1) The governing board or contracting agency clearly
35demonstrates that the proposed contract will result in actual overall
36cost savings to the community college district, provided that:

37(A) In comparing costs, there shall be included the community
38college district’s additional cost of providing the same service as
39proposed by a contractor. These additional costs shall include the
40salaries and benefits of additional staff that would be needed and
P16   1the cost of additional space, equipment, and materials needed to
2perform the function.

3(B) In comparing costs, there shall not be included the
4community college district’s indirect overhead costs unless these
5costs can be attributed solely to the function in question and would
6not exist if that function was not performed by the community
7college district. Indirect overhead costs shall mean the pro rata
8share of existing administrative salaries and benefits, rent,
9equipment costs, utilities, and materials.

10(C) In comparing costs, there shall be included in the cost of a
11contractor providing a service any continuing community college
12district costs that would be directly associated with the contracted
13function. These continuing community college district costs shall
14include, but not be limited to, those for inspection, supervision,
15and monitoring.

16(2) Proposals to contract out work shall not be approved solely
17on the basis that savings will result from lower contractor pay rates
18or benefits. Proposals to contract out work shall be eligible for
19approval if the contractor’s wages are at the industry’s level and
20do not undercut community college district pay rates.

21(3) The contract does not cause the displacement of community
22college district employees. The term “displacement” includes
23layoff, demotion, involuntary transfer to a new classification,
24involuntary transfer to a new location requiring a change of
25residence, and time base reductions. Displacement does not include
26changes in shifts or days off, nor does it include reassignment to
27other positions within the same classification and general location
28or employment with the contractor, so long as wages and benefits
29are comparable to those paid by the school district.

30(4) The savings shall be large enough to ensure that they will
31not be eliminated by private sector and community college district
32cost fluctuations that could normally be expected during the
33contracting period.

34(5) The amount of savings clearly justify the size and duration
35of the contracting agreement.

36(6) The contract is awarded through a publicized, competitive
37bidding process.

38(7) The contract includes specific provisions pertaining to the
39qualifications of the staff that will perform the work under the
P17   1contract, as well as assurance that the contractor’s hiring practices
2meet applicable nondiscrimination standards.

3(8) The potential for future economic risk to the community
4college district from potential contractor rate increases is minimal.

5(9) The contract is with a firm. A “firm” means a corporation,
6limited liability company, partnership, nonprofit organization, or
7sole proprietorship.

8(10) The potential economic advantage of contracting is not
9outweighed by the public’s interest in having a particular function
10performed directly by the community college district.

11(b) Notwithstanding any other provision of this chapter, personal
12services contracting for nonemployee contractors shall also be
13permissible when any of the following conditions can be met:

14(1) The contract is for new community college district functions
15and the Legislature has specifically mandated or authorized the
16performance of the work by independent contractors.

17(2) The services contracted are not available within community
18college districts, cannot be performed satisfactorily by community
19college district employees, or are of such a highly specialized or
20technical nature that the necessary expert knowledge, experience,
21and ability are not available through the community college district.

22(3) The services are incidental to a contract for the purchase or
23lease of real or personal property. Contracts under this criterion,
24known as “service agreements,” shall include, but not be limited
25to, agreements to service or maintain office equipment or
26computers that are leased or rented.

27(4) The policy, administrative, or legal goals and purposes of
28the community college district cannot be accomplished through
29the utilization of persons selected pursuant to the regular or
30ordinary hiring process. Contracts are permissible under this
31criterion to protect against a conflict of interest or to ensure
32independent and unbiased findings in cases where there is a clear
33need for a different, outside perspective. These contracts shall
34include, but not be limited to, obtaining expert witnesses in
35litigation.

36(5) The nature of the work is such that the criteria for emergency
37appointments apply. “Emergency appointment” means an
38appointment made for a period not to exceed 60 working days of
39a single college year either during an actual emergency to prevent
40the stoppage of public business or because of the limited duration
P18   1of the work. The method of selection and the qualification
2standards for an emergency nonemployee contractor shall be
3determined by the community college district. The frequency of
4appointment, length of contract, and the circumstances appropriate
5for the appointment of firms or individuals under emergency
6appointments of non-employee contractors shall be restricted so
7as to prevent the use of emergency appointments to circumvent
8the regular or ordinary hiring process for community college
9 district employees.

10(6) The contractor will provide equipment, materials, facilities,
11or support services that could not feasibly be provided by the
12community college district in the location where the services are
13to be performed.

14(7) The nature of the services, objectively determined, is so
15urgent, temporary, or occasional that the delay incumbent in the
16implementation of those services under the community college
17district’s regular or ordinary hiring process would frustrate their
18very purpose, therefore requiring the use of nonemployee
19contractors. The use of any nonemployee contractor by a
20community college district under this section is limited to 60
21working days of a single college year.

22(c) This section shall apply to all community colleges, including
23community college districts that have adopted the merit system.

24(d) This section shall apply to nonemployee personal service
25contracts entered into after January 1, 2003. This section shall not
26apply to the renewal of personal services contracts subsequent to
27January 1, 2003, where the contract was entered into before January
281, 2003, irrespective of whether the contract is renewed or rebid
29with the existing contractor or with a new contractor.

30

SEC. 8.  

Section 88004 of the Education Code is amended to
31read:

32

88004.  

(a) A community college district has a mandatory duty
33to classify, and shall classify, every position not defined by the
34regulations of the board of governors as an academic position and
35not specifically exempted from the classified service pursuant to
36Section 88003 or 88076, as required by those sections. These
37positions shall be a part of the classified service. These positions
38may not be designated as academic by the governing board of a
39district, nor shall the assignment of a title to any such position
40remove the position from the classified service.

P19   1(b) Nothing in this section shall be construed to prohibit anyone
2from being employed in a classification because he or she possesses
3the minimum qualifications required of faculty members or
4academic administrators, nor shall the possession of those
5qualifications be grounds for the elimination of an individual from
6consideration for employment in a classified position.

7(c) An employee of a community college district, or the
8exclusive representative of such an employee within the meaning
9of Section 3543.8 of the Government Code, may bring an action
10to challenge the classification of an employee or position by a
11community college district under subdivision (a) of Section 88003,
12subdivision (a) of Section 88076, or this section, or to compel a
13community college district to classify an employee or position as
14required by those provisions.

15(d) This section shall apply to districts which have adopted the
16merit system in the same manner and with the same effect as
17though it were a part of Article 3 (commencing with Section 88060)
18of this chapter.

19

SEC. 9.  

Section 88076 of the Education Code is amended to
20read:

21

88076.  

(a) The commission has a mandatory duty to classify,
22and shall classify all employees and positions within the
23jurisdiction of the governing board or of the commission, except
24those which are exempt from the classified service, as specified
25in subdivision (b). The employees and positions shall be known
26as the classified service. “To classify” shall include, but not
27necessarily be limited to, allocating positions to appropriate classes,
28arranging classes into occupational hierarchies, determining
29reasonable relationships within occupational hierarchies, and
30preparing written class specifications.

31(b) The following positions and employees are exempt from the
32classified service:

33(1) Academic positions.

34(2) Part-time playground positions.

35(3) Full-time students employed part time.

36(4) Part-time students employed part time in any college
37work-study program or in a work experience education program
38conducted by a community college which is financed by state or
39federal funds.

40(5) Apprentice positions of a limited, temporary nature.

P20   1(6) Positions established for the employment of professional
2experts on a limited, temporary basis for a specific project that is
3not an ongoing district venture by the governing board or by the
4commission when so designated by the commission.

5(c) (1) Employment of either full-time or part-time students in
6any college work-study program, or in a work experience education
7program shall not result in the displacement of classified personnel
8or impair existing contracts for services.

9(2) Nothing in this section shall prevent an employee, who has
10attained regular status in a full-time position, from taking a
11voluntary reduction in time and retaining his or her regular status
12under the provisions of this law.

13(d) No person whose contribution consists solely in the rendition
14of individual personal services and whose employment does not
15come within the scope of the exceptions listed above shall be
16employed outside the classified service.

17(e) A part-time position is one for which the assigned time,
18when computed on an hourly, daily, weekly, or monthly basis, is
19less than 8712 percent of the normally assigned time of the majority
20of employees in the classified service.

21

SEC. 10.  

Section 88105 of the Education Code is amended to
22read:

23

88105.  

(a) Whenever the appointing power requires the
24appointment of a limited-term employee to a position, the duration
25of which is not to exceed six consecutive months in a single college
26year, or, in case of an appointment of a substitute employee in lieu
27of a temporarily absent employee, the duration of which is not to
28exceed the authorized absence of that employee, the appointing
29power shall have a ministerial duty to appoint the substitute or
30limited-term employee to the position subject to the requirements
31of this section.

32(b) For substitute employees, the appointing power shall submit
33a request in which the probable duration of the appointment is
34stated. For limited-term employees, the appointing power shall
35submit a request certifying the starting and ending dates of the
36service for the position. The ending date for a limited-term
37employee may be advanced or delayed by the appointing power,
38but the term shall not extend beyond six consecutive months in a
39single college year, and the community college district may not
P21   1employ a limited-term employee in subsequent college years to
2perform the same or similar services.

3(c) Eligible persons shall be certified in accordance with their
4position on the appropriate employment list and their willingness
5to accept appointment to such a position as limited-term or
6substitute employees. Limited-term and substitute employees shall
7be subject to those conditions affecting status and tenure during
8and after the employment as the commission may by rule
9determine. Notwithstanding these limitations on the duration of
10these positions, the commission may, based on a declaration of an
11emergency by the President of the United States or the Governor,
12authorize an extension that may not exceed one year. The duties
13of the extended position shall be related to the emergency.

14(d) As used in this section:

15(1) “Limited-term employee” means any person who is
16employed to perform for the community college district a discrete
17service, the duration of which is not to exceed six consecutive
18months in a single college year, if upon the completion of the
19discrete service, a similar service shall be needed on a continuing
20or recurring basis.

21(2) “Substitute employee” means any person employed to
22replace any classified employee who is temporarily absent from
23duty. In addition, if the community college district is then engaged
24in a procedure to hire a permanent employee to fill a vacancy in
25any classified position, the community college district may fill the
26vacancy through the employment, for not more than 60 calendar
27days, of one or more substitute employees, except to the extent
28that a collective bargaining agreement then in effect provides for
29a different period of time.

30

SEC. 11.  

If the Commission on State Mandates determines
31that this act contains costs mandated by the state, reimbursement
32to local agencies and school districts for those costs shall be made
33pursuant to Part 7 (commencing with Section 17500) of Division
344 of Title 2 of the Government Code.

end delete


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