BILL NUMBER: SB 715 CHAPTERED 02/22/00 CHAPTER 1 FILED WITH SECRETARY OF STATE FEBRUARY 22, 2000 APPROVED BY GOVERNOR FEBRUARY 22, 2000 PASSED THE SENATE FEBRUARY 3, 2000 PASSED THE ASSEMBLY JANUARY 31, 2000 AMENDED IN ASSEMBLY JANUARY 26, 2000 AMENDED IN ASSEMBLY JULY 8, 1999 INTRODUCED BY Senator Hughes FEBRUARY 24, 1999 An act to amend Sections 45105, 45122, 45243, 45244, 45245, 45246, 45249, 45286, and 45304 of the Education Code, relating to classified school employees, and declaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST SB 715, Hughes. Classified school employees. (1) Existing law requires that positions not requiring certification qualifications created by a governing board of a school district under special funding provisions of state or federal law, and which are not a part of the regular school program, to be a part of the classified service and requires persons employed in these positions to be classified employees. Existing law requires the selection and retention of these employees to be made on the same basis as that of persons selected for positions that are a part of the regular school program. Existing law requires that all specially funded positions not requiring certification qualifications that are restricted to employment of persons of low-income groups, from designated impoverished areas, and other criteria that restricts the privilege of all citizens to compete for employment in those positions to be classified as restricted. This bill would make technical, nonsubstantive amendments to these provisions. (2) Existing law provides that whenever a governing board of a school district requires a physical examination to be taken by a classified employee or employees, either by rule or by its direction or the direction of its authorized district administrator; or when classified employees are required by law to submit to a physical examination for continuance in employment, the board is required either to provide the required examination, cause it to be provided, or provide the employee with reasonable reimbursement for the required examination. This bill would delete an obsolete cross-reference contained in this provision. (3) Existing law requires there to be appointed a personnel commission composed of either 3 or 5 members in a school district that has adopted the merit system. Existing law authorizes the governing board of a school district, by majority vote, and with the agreement of the existing personnel commission of the district, if that commission is in existence, to increase the membership of the personnel commission from 3 to 5 members or to decrease the membership from 5 to 3 members. In a school district that has a 5 member personnel commission, existing law requires 2 members to be appointed by the governing board of the school district and 2 members to be nominated by the classified employees of the district who are required to be appointed by the governing board of the district. This bill would delete the option of having a personnel commission composed of 5 members. (4) Existing law requires a person to be a registered voter and resident within the territorial jurisdiction of the school district and to be a known adherent to the principle of the merit system in order to be eligible for appointment or reappointment to the personnel commission. This bill would define residence for purposes of the above requirement. (5) Existing law requires the appointing power in a school district that has adopted the merit system to submit a request in which the probable duration of the appointment is stated whenever the appointing power requires the appointment of a person to a position, the duration of which is not to exceed 6 months, or, in case of an appointment in lieu of an absent employee, is not to exceed the authorized absence of the absent employee. This bill would, notwithstanding the above limitation, authorize the personnel commission to extend this time period by not more than one year based on a declaration of emergency by the President of the United States or the Governor. (6) Existing law that is applicable to a school district that has adopted the merit system authorizes, for reasonable causes, the suspension of an employee without pay for not more than 30 days, with certain exceptions, or an employee's demotion or dismissal and requires the personnel director, within 10 days of the suspension, demotion, or dismissal, to file written charges with the personnel commission and give or mail to the employee a copy of the charges. This bill would require the school district, instead of the personnel director, to file the charges with the personnel commission and require the personnel director to inform the employee of his or her appeal rights in addition to giving or mailing a copy of the charges to the employee. (7) This bill would declare that it is to take effect immediately as an urgency statute. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 45105 of the Education Code is amended to read: 45105. (a) Positions not requiring certification qualifications created by a governing board of a school district under the Manpower Development and Training Act of 1962, the Economic Opportunity Act of 1964, the Elementary and Secondary Education Act of 1965, or Section 11300 or Section 13650 of the Welfare and Institutions Code, any future federal or state legislative enactment, or any other special funding, and which are not a part of the regular school program shall, nevertheless, be a part of the classified service as established by Section 45103 or 45256. Persons employed in these positions shall be classified employees and shall enjoy all of the rights, burdens and benefits accorded other classified employees. Their selection and retention shall be made on the same basis as that of persons selected for positions that are a part of the regular school program. (b) (1) Notwithstanding subdivision (a), if specially funded positions are restricted to employment of persons in low-income groups, from designated impoverished areas or other criteria which restricts the privilege of all citizens to compete for employment in the positions, all these positions shall, in addition to the regular class title, be classified as "restricted." Their selection and retention shall be made on the same basis as that of persons selected and retained in positions that are a part of the regular school program, except that persons employed in the following categories of restricted positions shall not be subject to Section 45272 or 45273: (A) The position of instructional aide, as defined in Section 45343. (B) Any other position involving personal contacts with pupils or parents that is established to assist school-staff personnel responsible for school-community relations; educational support services for such areas as counseling, library or health; or the correction or prevention of behavioral problems. (2) Persons employed in positions properly classified as "restricted" shall be classified employees for all purposes except: (A) They shall not be accorded employment permanency under Section 45113 or 45301, whichever is applicable. (B) They shall not acquire seniority credits for the purposes of Sections 45298 and 45308 or, in a district not having the merit (civil service) system, for the purposes of layoff for lack of work or lack of funds as may be established by rule of the governing board. (C) Sections 45287 and 45289 shall not apply to "restricted" employees. (D) They shall not be eligible for promotion into the regular classified service or, in districts that have adopted the merit system, shall not be subject to the provisions of Section 45241, until they have complied with the provisions of subdivision (c). (c) At any time, after completion of six months of satisfactory service, a person serving in a "restricted" position shall be given the opportunity to take qualifying examinations that are required for all other persons serving in the same class in the regular classified service. If the person satisfactorily completes the qualifying examination, regardless of final numerical listing on an eligibility list, he or she shall be accorded full rights, benefits and burdens of any other classified employee serving in the regular classified service. His or her service in the regular classified service shall be counted from the original date of employment in the "restricted" position and shall continue even though he or she continues to serve in a "restricted" position. (d) This section shall apply to districts that have adopted the merit system in the same manner and effect as if it were a part of Article 6 (commencing with Section 45240) of this chapter. (e) It is the intent of the Legislature in enacting this section to clearly set forth that positions normally a part of the classified service are included in the classified service regardless of the source of income to sustain the positions and to effectively implement specially funded programs intended to provide job opportunities for untrained and impoverished persons but to do so in a manner that will not be disruptive nor detrimental to the normal employment procedures relating to classified school service. SEC. 2. Section 45122 of the Education Code is amended to read: 45122. Whenever a governing board of a school district requires a physical examination to be taken by a classified employee or employees, either by rule or by its direction or the direction of its authorized district administrator; or when classified employees are required by law to submit to a physical examination for continuance in employment, the board shall either provide the required examination, cause it to be provided, or provide the employee with reasonable reimbursement for the required examination. If the governing board requires a physical examination or an examination is required by law as a condition of preemployment, it may cause the required examination to be given. It may, if an applicant is required to take a preemployment physical examination, provide for reasonable reimbursement if the applicant is subsequently employed by the district. This section shall apply to districts that have adopted the merit system in the same manner and effect as if it were a part of Article 6 (commencing with Section 45240) of this chapter. SEC. 3. Section 45243 of the Education Code is amended to read: 45243. In any district that has adopted this article there shall be appointed a personnel commission composed of three members. If two or more districts are under the jurisdiction of governing boards of identical personnel, only one commission shall be appointed. In those cases this article shall apply alike to all of the districts, and the expenses of the commission shall be paid out of the general funds of all of the districts in proportion to the benefits derived therefrom as determined by the governing board. SEC. 4. Section 45244 of the Education Code is amended to read: 45244. (a) To be eligible for appointment or reappointment to the commission a person shall meet both of the following requirements: (1) Be a registered voter and resident within the territorial jurisdiction of the school district. (2) Be a known adherent to the principle of the merit system. No member of the governing board of any school district or a county board of education shall be eligible for appointment, reappointment, or continuance as a member of the commission. During his or her term of service, a member of the commission shall not be an employee of the school district. (b) As used in this section, residence is that place in which his or her habitation is fixed, wherein the person has the intention of remaining, and to which, whenever he or she is absent, the person has the intention of returning. At a given time, a person may have only one residence. (c) As used in this section, "known adherent to the principle of the merit system," with respect to a new appointee, means a person who by the nature of his or her prior public or private service has given evidence that he or she supports the concept of employment, continuance in employment, in-service promotional opportunities, and other related matters on the basis of merit and fitness. As used in this section, "known adherent to the principle of the merit system," with respect to a candidate for reappointment, means a commissioner who has clearly demonstrated through meeting attendance and actions that he or she does, in fact, support the merit system and its operation. SEC. 5. Section 45245 of the Education Code is amended to read: 45245. One member of the personnel commission shall be appointed by the governing board of the district and one member, nominated by the classified employees of the district, shall be appointed by the governing board of the district. Those two members shall, in turn, appoint the third member. As used in this section, "classified employees" shall mean an exclusive representative which represents the largest number of noncertificated employees in a unit or units within the district. If there is no exclusive representative within the district, the governing board shall, by written rule, prescribe the method by which the recommendation is to be made by its classified employees. SEC. 6. Section 45246 of the Education Code is amended to read: 45246. (a) Within 30 days after adoption of the system, the governing board shall publicly announce its intended appointee or appointees, as appropriate, and the appointee or appointees, as appropriate, nominated by its classified employees. As soon after their appointment as practicable but within 30 days, the appointed members shall announce their intended appointee for the third member. They may consider the recommendations of the governing board, the classified employees, or other concerned citizens. If these members do not announce their intended appointee within the 30-day period, the Superintendent of Public Instruction shall make the appointment. "Adoption of the system" means, in the case of Section 45221, the day on which a successful election is certified to the governing board or, in the case of Section 45224, the day the governing board approves a motion, order, or resolution to adopt the system regardless of the date specified for operational commencement of the system. (b) Where a system is already in existence and a vacancy will exist on December 1, by not later than September 30: (1) The governing board shall publicly announce the name of the person it intends to appoint or reappoint, if the vacancy is its appointee. (2) The appointee of the governing board and the appointee or appointees of the classified employees shall publicly announce the name of the person they intend to appoint, if the vacancy is their appointee. If the governing board and the classified employees of the district are unable to agree upon a nomination by September 30, the Superintendent of Public Instruction shall make the appointment within 30 days. (c) Where a system is already in existence and a vacancy in a position nominated by the classified employees will occur, the classified employees shall submit the name of its nominee to the governing board at least 30 days before the date on which the vacancy will occur and the governing board shall appoint that nominee to be effective on the date on which the vacancy would occur. (d) At a board meeting to be held after 30 and within 45 days of the dates specified in subdivision (a) and paragraph (1) of subdivision (b), as the case may be, the governing board in open hearing shall provide the public and employees and employee organizations the opportunity to express their views on the qualifications of those persons recommended by the governing board for appointment. The board at the time may make its appointment or may make a substitute appointment or recommendation without further notification or public hearing. In the case of the nominees of the classified employees, the board shall appoint the nominee, unless the classified employees voluntarily withdraw the name of the nominee and submit the name of a new nominee. In the latter case, the board then shall appoint the new nominee. (e) If a vacancy exists because of a failure of the classified employees to agree on a nominee, the board may make an emergency appointment as authorized in subdivision (b) of Section 45248. If there is no personnel director, the board nevertheless may make an emergency interim appointment under this subdivision. (f) At the next regularly scheduled personnel commission meeting to be held after 30 days from adoption of the system, as specified in subdivision (a), or at the next regularly scheduled personnel commission meeting to be held after 30 days from the day the intended appointee is announced, as specified in paragraph (2) of subdivision (b), as the case may be, the appointee of the governing board and the appointee nominated by the classified employees shall, in an open hearing, provide the public and employees and employee organizations the opportunity to express their views on the qualifications of each candidate recommended for the vacancy. Each candidate shall be invited to this meeting. The appointee of the governing board and the appointee nominated by the classified employees may make their appointment or may make a substitute appointment or recommendation without further notification or public hearing. (g) A commissioner whose term has expired may continue to discharge the duties of the office until a successor is appointed, but for no more than 90 calendar days. SEC. 7. Section 45249 of the Education Code is amended to read: 45249. In a school district that has already adopted this article on September 17, 1965, members of the personnel commission shall be appointed by the Superintendent of Public Instruction who shall consider the recommendation of the governing board and other interested parties. Subsequent appointments shall be made in accordance with this section. No later than 90 days before making the appointment, the Superintendent of Public Instruction shall notify the classified employees and the governing board, in writing, of the vacancy on the personnel commission and provide them with guidelines and procedures for making a recommendation and challenging a nomination. If a vacancy occurs during the term of a member of the personnel commission, the superintendent may appoint a new member after providing the foregoing notice no later than 30 days before making the appointment. A commissioner whose term has expired may continue to discharge the duties of the office until a successor is appointed but for no more than 90 calendar days. As used in this section, "classified employees" means an organization of classified employees that represents the greatest number of classified employees of the district as determined by the board. If no organization exists within the district, the governing board, by written rule, shall prescribe the method by which the recommendation is to be made by its classified employees. SEC. 8. Section 45286 of the Education Code is amended to read: 45286. Whenever the appointing power shall require the appointment of a person to a position, the duration of which is not to exceed six months, or, in case of an appointment in lieu of an absent employee, is not to exceed the authorized absence of said employee, the appointing power shall submit a request in which the probable duration of the appointment is stated. Eligibles shall be certified in accordance with their position on the appropriate employment list and their willingness to accept appointment to such position as limited-term employees. Limited-term employees shall be subject to conditions affecting status and tenure during and after employment that the commission may by rule determine. Notwithstanding these limitations on the duration of these positions, the commission may, based on a declaration of an emergency by the President of the United States or the Governor, authorize an extension that may not exceed one year. The duties of the extended position must be related to the emergency. SEC. 9. Section 45304 of the Education Code is amended to read: 45304. (a) For reasonable causes, an employee may be suspended without pay for not more than 30 days, except as provided in this section, or may be demoted or dismissed. In this case, the school district shall, within 10 days of the suspension, demotion, or dismissal, file written charges with the commission. The personnel director shall give to the employee or deposit in the United States registered mail with postage prepaid, addressed to the employee at his or her last known place of address, a copy of the charges and inform the employee of his or her appeal rights. (b) Whenever an employee of a school district or county office of education is charged with a mandatory leave of absence offense, as defined in subdivision (a) of Section 44940, the governing board of the school district shall immediately place the employee upon a compulsory leave of absence for a period of time extending for not more than 10 days after the date of entry of the judgment in the proceedings. Once the employee is placed on leave of absence, he or she is subject to the provisions of Section 44940.5. (c) Whenever an employee of a school district or county office of education is charged with an optional leave of absence offense, as defined in subdivision (b) of Section 44940, the governing board of the school district may immediately place the employee upon a compulsory leave of absence in accordance with the provisions of Section 44940.5. SEC. 10. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: In order for the provisions of this act to be applicable as soon as possible and thereby increase the efficiency of provisions of the Education Code pertaining to classified employees of a school district at the earliest possible time, it is necessary for this act to take effect immediately.