88000. This article, Article 2 (commencing with Section 88050),
Article 4 (commencing with Section 88160), Article 5 (commencing with
Section 88180), Article 6 (commencing with Section 88190), Article 8
(commencing with Section 88240), and Chapter 1 (commencing with
Section 87000) shall apply to all classified employees of a community
college district, whether a merit or nonmerit system district as
authorized by this chapter unless the section specifically limits its
application to nonmerit system districts.
These provisions shall not apply to employees of a community
college district lying wholly within a city and county that provides
in its charter for a merit system of employment for employees
employed in positions that are part of the classified service.
88001. As used in this chapter the following terms mean:
(a) "Classification" means that each position in the classified
service shall have a designated title, a regular minimum number of
assigned hours per day, days per week, and months per year, a
specific statement of the duties required to be performed by the
employees in each such position, and the regular monthly salary
ranges for each such position.
(b) "Permanent," as used in the phrase "permanent employee,"
includes tenure in the classification in which the employee passed
the required probationary period and includes all of the incidents of
that classification.
(c) "Regular," as used in the phrase "regular classified employee,"
or any similar phrase, refers to a classified employee who has
probationary or permanent status.
(d) "Demotion" means assignment to an inferior position or status
without the employee's written voluntary consent.
(e) "Disciplinary action" includes any action whereby an employee
is deprived of any classification or any incident of any
classification in which he or she has permanence, including
dismissal, suspension, demotion, or any reassignment, without his or
her voluntary consent, except a layoff for lack of work or lack of
funds.
(f) "Reclassification" means the upgrading of a position to a
higher classification as a result of the gradual increase of the
duties being performed by the incumbent in that position.
(g) "Layoff for lack of funds or layoff for lack of work" includes
any reduction in hours of employment or assignment to a class or
grade lower than that in which the employee has permanence,
voluntarily consented to by the employee, in order to avoid
interruption of employment by layoff.
(h) "Cause," relating to disciplinary actions against classified
employees, means those grounds for discipline or offenses enumerated
in the law or the written rules of a community college employer. No
disciplinary action may be maintained for any "cause" other than as
defined herein.
This section shall not apply to districts to which Article 3
(commencing with Section 88060) is applicable.
This section shall not apply to any district which, during the
1973-74 college year, had an average daily attendance of 100,000 or
more.
88002. (a) For the purposes of this section, every classified
employee shall be deemed to be employed for 12 months during each
college year regardless of the number of months in which he or she is
normally in paid status.
(b) If, during a college year, it is necessary to assign a regular
classified employee to perform an assignment or service in addition
to his or her regular assignment, a community college district shall
pay the classified employee on a pro rata basis for the additional
assignment or service, not less than the compensation and benefits
that are applicable to the classification of the additional
assignment or service during the regular college year, unless the
community college district has negotiated a contract that allows for
a lesser pay scale. A community college district shall inform a
classified employee of the compensation and benefits of the
additional assignment or service before the employee commences the
additional assignment or service.
(c) A community college district that, in any college year,
maintains school sessions at times other than during the regular
academic year shall assign for service, during those times, regular
classified employees of the district.
(d) If it is necessary to assign classified employees not
regularly so assigned to serve between the end of one academic year
and the commencement of another, the assignment shall be made on the
basis of qualifications for employment in each classification of
service that is required.
(1) A community college district may not require a classified
employee whose regular yearly assignment for service excludes all, or
any part of, the period between the end of the academic year to the
beginning of the next academic year to perform services during that
period.
(2) A classified employee, for services performed as provided in
this subdivision, shall receive, on a pro rata basis, not less than
the compensation and benefits that are applicable to the
classification of the additional assignment or service during the
regular academic year.
(e) 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 3 (commencing with Section 88060).
88003. The governing board of any community college district shall
employ persons for positions that are not academic positions. The
governing board, except where Article 3 (commencing with Section
88060) or Section 88137 applies, shall classify all those employees
and positions. The employees and positions shall be known as the
classified service. Substitute and short-term employees, employed and
paid for less than 75 percent of a college year, shall not be a part
of the classified service. Part-time playground positions,
apprentices and professional experts employed on a temporary basis
for a specific project, regardless of length of employment, shall not
be a part of the classified service. Full-time students employed
part time, and part-time students employed part time in any college
work-study program, or in a work experience education program
conducted by a community college district and which is financed by
state or federal funds, shall not be a part of the classified
service. Unless otherwise permitted, a person whose position does not
require certification qualifications shall not be employed by a
governing board, except as authorized by this section.
"Substitute employee," as used in this section, means any person
employed to replace any classified employee who is temporarily absent
from duty. In addition, if the district is then engaged in a
procedure to hire a permanent employee to fill a vacancy in any
classified position, the governing board may fill the vacancy through
the employment, for not more than 60 calendar days, of one or more
substitute employees, except to the extent that a collective
bargaining agreement then in effect provides for a different period
of time.
"Short-term employee," as used in this section, means any person
who is employed to perform a service for the district, upon the
completion of which, the service required or similar services will
not be extended or needed on a continuing basis. Before employing a
short-term employee, the governing board, at a regularly scheduled
board meeting, shall specify the service required to be performed by
the employee pursuant to the definition of "classification" in
subdivision (a) of Section 88001, and shall certify the ending date
of the service. The ending date may be shortened or extended by the
governing board, but shall not extend beyond 75 percent of a school
year.
"Seventy-five percent of a college year" means 195 working days,
including holidays, sick leave, vacation and other leaves of
absences, irrespective of number of hours worked per day.
Employment of either full-time or part-time students in any
college work-study program, or in a work experience education program
shall not result in the displacement of classified personnel or
impair existing contracts for services.
This section shall apply only to districts not incorporating the
merit system as outlined in Article 3 (commencing with Section
88060).
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 contractor's 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 company, 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.
88004. Every position not defined by the regulations of the board
of governors as an academic position and not specifically exempted
from the classified service according to the provisions of Section
88003 or 88076 shall be classified as required by those sections and
shall be a part of the classified service. These positions may not be
designated as academic by the governing board of a district nor
shall the assignment of a title to any such a position remove the
position from the classified service.
Nothing in this section shall be construed to prohibit anyone from
being employed in a classification because he or she possesses the
minimum qualifications required of faculty members or academic
administrators, nor shall the possession of those qualifications be
grounds for the elimination of an individual from consideration for
employment in a classified position.
This section shall apply to districts which have adopted the merit
system in the same manner and with the same effect as though it were
a part of Article 3 (commencing with Section 88060) of this chapter.
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.
88005. (a) Nonacademic positions 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 88003 or
Section 88076 of this code.
Persons employed in such positions shall be classified employees
and shall enjoy all 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) Notwithstanding the provisions of subdivision (a), if
specially funded positions are restricted to employment of persons in
low-income groups, from designated impoverished areas and other
criteria which restricts the privilege of all citizens to compete for
employment in such positions, all such 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 the
provisions of Section 88091 or 88092:
(1) The position of instructional aide, as defined in Section
88243.
(2) Any other position involving personal contacts with students
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.
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
88013 or Section 88120 of the Education Code, whichever is
applicable.
(B) They shall not acquire seniority credits for the purposes of
Sections 88117 and 88127 of the Education Code 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) The provisions of Sections 88106 and 88108 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 88061,
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 such qualifying examinations as 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 3 (commencing with Section 88060) 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 therein 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.
88005.1. The governing board of a community college district may
establish positions and employ persons in public service employment
positions which are funded by the Comprehensive Employment and
Training Act (CETA) and which are restricted by the act to a limited
duration of participation.
The positions shall be a part of the classified service. Persons
so employed shall be classified employees for all purposes except
that they shall not be subject to the provisions of Sections 88091
and 88092, and they shall not acquire permanent status or seniority
credit for the purpose of layoff or reemployment. Retirement benefits
shall be subject to the applicable federal law.
Persons employed in and occupying such positions shall be eligible
to apply for any position or class of positions within the
classified service for which they meet the qualifications, and, upon
employment in the regular classified service, shall have their
classified service counted from the original date of employment in
the CETA position.
88006. Notwithstanding the provisions of Section 88003 or Section
88076, which exempt certain types of positions or categories of
personnel from the classified service of a community college
district, persons serving in exempt positions or who serve in
classified positions but are exempted from the classified service
shall, nevertheless, be subject to the provisions of Sections
87408.6, 88021, 88022, 88023 and 88024. The governing board of every
district shall, by rule or regulation, provide for the implementation
of this section.
The provisions of this section shall not apply to full-time day
students regularly attending in the district of employment.
88007. (a) The "act" as used in this section shall mean the Federal
Emergency Employment Act of 1971 (Public Law 92-54) or any similar
federal law hereafter enacted to provide transitional employment in
public service positions for unemployed or underemployed persons.
(b) Funds derived from the act shall not be expended for work
that: (1) would otherwise have been performed at federal, state, or
local expense; (2) will not result in an increase over the employment
which would otherwise be available; (3) which will result in the
displacement of permanent members of the classified service
(including partial displacement, such as reduction in the hours of
nonovertime work or wages or employment benefits); (4) or which will
impair existing rights of permanent members of the classified
service.
(c) If during the term of a contract or renewal thereof, executed
under the act, a community college district is engaged in layoffs for
lack of work or lack of funds of permanent classified employees
serving in regular positions and is employing personnel or
contemplates employing personnel in like or reasonably similar
positions under the act, a report shall be submitted by the
superintendent of schools to the governing board clearly
demonstrating and substantiating the fact that the duties being
performed by the permanent employees in regular positions who are
being laid off will not be performed by personnel employed under the
act.
Approval of the report by the governing board shall constitute its
acceptance of the facts, as contained therein, and based thereon its
affirmation of compliance with the contract executed under the act
and this section.
This section shall apply to districts which have adopted the merit
system in the same manner and with the same effect as though it were
a part of Article 3 (commencing with Section 88060) of this chapter.
88008. If the governing board of a community college district
establishes positions in the categories described below and restricts
initial appointments of new employees to persons in low-income
groups or residing in specifically designated areas of the community,
then such positions shall, in addition to the regular class title,
be classified as "restricted." The positions shall be part of the
classified service and persons so employed shall be classified
employees for all purposes except that (1) they shall not be subject
to the provisions of Section 88091 or 88092, and (2) they shall not
acquire permanent status or seniority credit and shall not be
eligible for promotion into the regular classified service until they
have complied with the provisions of subdivision (c) of Section
88005.
The categories of positions for which the governing board may
establish restrictions under this section are:
(a) The position of instructional aide, as defined in Section
88243.
(b) Any other position involving personal contacts with students
or parents, that is established to assist college staff personnel
responsible for college-community relations; educational support
services for such areas as counseling, library, or health; or the
correction or prevention of behavioral problems.
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
3 (commencing with Section 88060).
88009. Governing boards shall fix and prescribe the duties to be
performed by all persons in the classified service and other
nonacademic positions of the community college district, except those
persons employed as a part of a personnel commission staff as
provided in Article 3 (commencing with Section 88060) of this
chapter.
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
3 (commencing with Section 88060) of this chapter.
88010. Classified employees shall not be required to perform duties
that are not fixed and prescribed for the position by the governing
board in accordance with Section 88009, unless the duties reasonably
relate to those fixed for the position by the board, for any period
of time that exceeds five working days within a 15-calendar-day
period except as authorized herein.
An employee may be required to perform duties inconsistent with
those assigned to the position by the governing board for a period of
more than five working days if his or her salary is adjusted upward
for the entire period he or she is required to work out of
classification and in amounts that will reasonably reflect the duties
required to be performed outside his or her normal assigned duties.
Notwithstanding this section, a personnel commission and governing
board, or a governing board in a nonmerit system district, by
written rule, may provide for an upward salary adjustment for any
classified employee required to work out of classification for any
period of time less than that required herein.
It is the intent of this section to permit community college
districts to temporarily work employees outside of their normal
duties but in so doing to require that some additional compensation
be provided the employee during such temporary assignments.
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
3 (commencing with Section 88060).
88010.5. A classified employee employed by any community college
district that decides to maintain classes on Saturday or Sunday, or
both, shall not, without his or her written consent, be required to
change his or her workweek to include Saturday or Sunday, or both. No
classified employee shall be assigned to perform services on a
Saturday or Sunday if the classified employee objects in writing that
the assignment would conflict with his or her religious beliefs or
practices. Enactment of this section shall cause no change or
disruption in existing work schedules that may already include
Saturday or Sunday as regular workdays.
This section shall not be construed as limiting the power of any
governing board of a community college district to govern the schools
of the district, including the assignment of classified employees
employed by the district.
This section shall not be construed as modifying or otherwise
affecting Section 88026, 88027, 88030, or 88040 or any other
provisions of this code relating to employment of classified
employees.
88011. No community college district may adopt or maintain any rule
or regulation which requires a candidate for a position in the
classified service to be a resident of the district or to become a
resident of the district, or which requires that an employee maintain
residency within the district; nor may a district grant preferential
points or other preferential treatment to those candidates or
employees who are residents of the district. This section shall not
apply to restricted positions as provided for in Sections 88005 and
88008.
The Legislature in enacting this section recognizes that the
public school system of this state is the property of all its
citizens, and that all qualified candidates for positions in the
classified service, regardless of residence, should be granted the
opportunity to compete for and obtain such positions based solely on
merit and fitness.
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
3 (commencing with Section 88060) of this chapter.
88012. If the governing board of any community college district
employs staff assistants or field representatives to directly assist
the governing board or individual governing board members in carrying
out their policymaking duties, such assistants or representatives
shall be members of the classified service, except that such
assistants or representatives shall be exempt from all provisions of
this code relating to obtaining a permanent status in any position in
the district, and procedures pertaining to the recruitment,
appointment, classification, and salary of members of the classified
service.
Staff assistants shall serve at the pleasure of a majority of the
governing board, and each field representative appointed by the
governing board to assist an individual member shall serve at the
pleasure of such member.
It is the intent of the Legislature that persons employed under
Section 88012 will not be utilized for election campaigns of board
members during hours of their employment.
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
3 (commencing with Section 88060) of this chapter.
88013. (a) The governing board of a community college district
shall prescribe written rules and regulations, governing the
personnel management of the classified service, which shall be
printed and made available to employees in the classified service,
the public, and those concerned with the administration of this
section, whereby these employees are, except as provided in Section
72411, designated as permanent employees of the district after
serving a prescribed period of probation which shall not exceed one
year. A permanent employee who accepts a promotion and fails to
complete the probationary period for that promotional classification,
shall be employed in the position from which he or she was promoted.
(b) Any employee designated as a permanent employee shall be
subject to disciplinary action only for cause as prescribed by rule
or regulation of the governing board, but the governing board's
determination of the sufficiency of the cause for disciplinary action
shall be conclusive.
(c) The governing board shall adopt rules of procedure for
disciplinary proceedings which shall contain a provision for
informing the employee by written notice of the specific charges
against him or her, a statement of the employee's right to a hearing
on those charges, and the time within which the hearing may be
requested which shall be not less than five days after service of the
notice to the employee, and a card or paper, the signing and filing
of which shall constitute a demand for hearing, and a denial of all
charges. The burden of proof shall remain with the governing board,
and any rule or regulation to the contrary shall be void.
(d) No disciplinary action shall be taken for any cause that arose
prior to the employee's becoming permanent, or for any cause that
arose more than two years preceding the date of the filing of the
notice of cause, unless the cause was concealed or not disclosed by
the employee when it could be reasonably assumed that the employee
should have disclosed the facts to the employing district.
(e) Nothing in this section shall be construed to prohibit the
governing board, pursuant to the terms of an agreement with an
employee organization under Chapter 10.7 (commencing with Section
3540) of Division 4 of Title 1 of the Government Code, from
delegating its authority to determine whether sufficient cause exists
for disciplinary action against classified employees, excluding
peace officers as defined in Section 830.32 of the Penal Code, to an
impartial third party hearing officer. However, the governing board
shall retain authority to review the determination under the
standards set forth in Section 1286.2 of the Code of Civil Procedure.
(f) This section shall apply only to districts not incorporating
the merit system as outlined in Article 3 (commencing with Section
88060).
88014. Notwithstanding Section 88013, the governing board may lay
off and reemploy classified employees only in accordance with
procedures provided by Sections 88117 and 88127, except the term
"personnel commission," as used in Section 88117, shall be construed
to mean the governing board.
88015. Notwithstanding any other provision of law, any person who
was subject to being, or was in fact, laid off for lack of work or
lack of funds and who elected service retirement from the Public
Employees' Retirement System shall be placed on an appropriate
reemployment list. The district shall notify the Board of
Administration of the Public Employees' Retirement System of the fact
that retirement was due to layoff for lack of work or of funds. If
the person is subsequently subject to reemployment and accepts, in
writing, the appropriate vacant position, the district shall maintain
the vacancy until the Board of Administration of the Public
Employees' Retirement System has properly processed his or her
request for reinstatement from retirement.
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
3 (commencing with Section 88060).
88016. A notice of disciplinary action shall contain a statement in
ordinary and concise language of the specific acts and omissions
upon which the disciplinary action is based, a statement of the cause
for the action taken and, if it is claimed that an employee has
violated a rule or regulation of the public school employer, such
rule or regulation shall be set forth in said notice.
A notice of disciplinary action stating one or more causes or
grounds for disciplinary action established by any rule, regulation,
or statute in the language of the rule, regulation, or statute, is
insufficient for any purpose.
A proceeding may be brought by, or on behalf of, the employee to
restrain any further proceedings under any notice of disciplinary
action violative of this provision.
This section shall apply to proceedings conducted under the
provisions of Article 3 (commencing with Section 88060) of this
chapter.
88017. (a) When, as a result of the expiration of a specially
funded program, classified positions must be eliminated at the end of
any school year, and classified employees will be subject to layoff
for lack of funds, the employees to be laid off at the end of the
school year shall be given written notice on or before April 29
informing them of their layoff effective at the end of the school
year and of their displacement rights, if any, and reemployment
rights. However, if the termination date of any specially funded
program is other than June 30, the notice shall be given not less
than 45 days prior to the effective date of their layoff.
(b) When, as a result of a bona fide reduction or elimination of
the service being performed by any department, classified employees
shall be subject to layoff for lack of work, affected employees shall
be given notice of layoff not less than 45 days prior to the
effective date of layoff, and informed of their displacement rights,
if any, and reemployment rights.
(c) (1) A classified employee may not be laid off if a short-term
employee is retained to render a service that the classified employee
is qualified to render. This subdivision does not create a 45-day
layoff notice requirement for any individual hired as a short-term
employee, as defined in Section 88003, for a period not exceeding 45
days.
(2) This subdivision does not apply to the retention of a
short-term employee, as defined in Section 88003, who is hired for a
period not exceeding 45 days after which the short-term service may
not be extended or renewed.
(d) This section does not preclude the governing board of a
community college district from implementing either of the following
without providing the notice required by subdivision (a) or (b):
(1) A layoff for a lack of funds in the event of an actual and
existing financial inability to pay the salaries of classified
employees.
(2) A layoff for a lack of work resulting from causes not
foreseeable or preventable by the governing board.
(e) 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 3 (commencing with Section 88060) of this chapter.
88018. Any division, uniting, unionization, annexation, merger, or
change of community college district boundaries shall not affect the
rights of persons employed in nonacademic positions to continue in
employment for not less than two years and to retain the salary,
leaves and other benefits which they would have had had the
reorganization not occurred, and in the manner provided in this
article:
(a) All employees of every community college district which is
included in any other district, or all districts included in a new
district, shall become employees of the new district.
(b) When a portion of the territory of any district becomes part
of another district employees regularly assigned to perform their
duties in the territory affected shall become employees of the
acquiring district. Employees whose assignments pertained to the
affected territory, but whose employment situs was not in such
territory, may elect to remain with the original district or become
employees of the acquiring district.
(c) When the territory of any district is divided between or among
two or more districts and the original district ceases to exist,
employees of the original district regularly assigned to perform
their duties in any specific territory of such district shall become
employees of the district acquiring the territory. Employees not
assigned to specific territory within the original district shall
become employees of any acquiring district at their election.
(d) Employees regularly assigned by the original district to any
school in said district shall be an employee of the district in which
said school is located. Except as herein provided, nothing herein
shall deprive the governing board of the acquiring district from
making reasonable reassignments of duties.
88019. Whenever, by reason of any reorganization, other than the
unification of districts, all or part of the territory of any
community college district which has adopted the merit system is
included within any district, or in any new district, the governing
board of the acquiring or new district shall adopt such merit system.
In the event that any district simultaneously acquires all or part
of the territory of two or more districts which have previously
adopted the merit system the governing board of the acquiring or new
district shall adopt a merit system containing such provisions as are
necessary to afford to all employees the rights guaranteed by this
section. The employees of the reorganized or new district shall
retain all rights and privileges as if they had been employed under
the provisions of Article 3 (commencing with Section 88060) of this
chapter, with seniority commencing as of the date of original
employment in their original district. Where there are more than a
sufficient number of employees for a given classification under the
provisions of Article 3 (commencing with Section 88060) of this
chapter, such personnel shall be retained in employment for a period
of not less than two years as if the reorganization had not occurred
but without prejudice to the powers of the personnel commission and
governing board of the reorganized district to reasonably reassign
such persons. If at the expiration of such period, upon a finding
made by the personnel commission that there are excess personnel in
any given classification, such personnel shall, if the governing
board so directs, be placed upon appropriate reemployment lists for
39 months and, if so placed, shall be offered and may accept
positions of lower rank in their line of promotion in the order of
seniority as established by this section in accordance with rules
drawn in compliance with the provisions of Article 3 (commencing with
Section 88060) of this chapter. The acceptance of a position in
lower rank in accordance herewith shall not be deemed to constitute a
waiver of the right to reemployment at the original level should a
vacancy at such level occur within the period mentioned in this
section.
88020. Any person, not a student or substitute employee, who has
been employed by a community college student body organization
pursuant to Section 76060 for a period of at least six months
immediately preceding becoming a member of the classified service
pursuant to Section 76060 or 81676 shall, without examination, be
deemed to be a permanent classified service employee of the community
college district.
Any person not a student or substitute employee employed by a
student body organization pursuant to Section 76060 for less than six
months immediately preceding becoming a member of the classified
service pursuant to Section 76060 or 81676 shall, without
examination, be deemed to be a probationary classified employee of
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
3 (commencing with Section 88060).
88020.5. The governing board of a community college district shall
employ persons for food service positions as a part of the classified
service.
88021. Whenever a governing board of a community college 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 classifed 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
3 (commencing with Section 88060) of this chapter.
88022. No person shall be employed or retained in employment by a
community college district who has been convicted of any sex offense
as defined in Section 87010 or controlled substance offense as
defined in Section 87011. If, however, any such conviction is
reversed and the person is acquitted of the offense in a new trial or
the charges against him or her are dismissed, this section does not
prohibit his or her employment thereafter.
Further, the governing board of a community college district may
employ a person convicted of a controlled substance offense if the
governing board of the district determines, from the evidence
presented, that the person has been rehabilitated for at least five
years.
The governing board shall determine the type and manner of
presentation of the evidence, and the determination of the governing
board as to whether or not the person has been rehabilitated is
final.
88023. No person shall be employed or retained in employment by a
community college district who has been determined to be a sexual
psychopath, as defined in Section 6300 of the Welfare and
Institutions Code or under similar provisions of law of any other
state. If, however, such a determination is reversed and the person
is determined not to be a sexual psychopath in a new proceeding, or
the proceeding to determine whether he or she is a sexual psychopath
is dismissed, this section does not prohibit his or her employment
thereafter.
88024. The governing board of any community college district,
within 10 working days of date of employment, shall require each
person to be employed, or employed in, a nonacademic position to have
two 8"
88000. This article, Article 2 (commencing with Section 88050),
Article 4 (commencing with Section 88160), Article 5 (commencing with
Section 88180), Article 6 (commencing with Section 88190), Article 8
(commencing with Section 88240), and Chapter 1 (commencing with
Section 87000) shall apply to all classified employees of a community
college district, whether a merit or nonmerit system district as
authorized by this chapter unless the section specifically limits its
application to nonmerit system districts.
These provisions shall not apply to employees of a community
college district lying wholly within a city and county that provides
in its charter for a merit system of employment for employees
employed in positions that are part of the classified service.
88001. As used in this chapter the following terms mean:
(a) "Classification" means that each position in the classified
service shall have a designated title, a regular minimum number of
assigned hours per day, days per week, and months per year, a
specific statement of the duties required to be performed by the
employees in each such position, and the regular monthly salary
ranges for each such position.
(b) "Permanent," as used in the phrase "permanent employee,"
includes tenure in the classification in which the employee passed
the required probationary period and includes all of the incidents of
that classification.
(c) "Regular," as used in the phrase "regular classified employee,"
or any similar phrase, refers to a classified employee who has
probationary or permanent status.
(d) "Demotion" means assignment to an inferior position or status
without the employee's written voluntary consent.
(e) "Disciplinary action" includes any action whereby an employee
is deprived of any classification or any incident of any
classification in which he or she has permanence, including
dismissal, suspension, demotion, or any reassignment, without his or
her voluntary consent, except a layoff for lack of work or lack of
funds.
(f) "Reclassification" means the upgrading of a position to a
higher classification as a result of the gradual increase of the
duties being performed by the incumbent in that position.
(g) "Layoff for lack of funds or layoff for lack of work" includes
any reduction in hours of employment or assignment to a class or
grade lower than that in which the employee has permanence,
voluntarily consented to by the employee, in order to avoid
interruption of employment by layoff.
(h) "Cause," relating to disciplinary actions against classified
employees, means those grounds for discipline or offenses enumerated
in the law or the written rules of a community college employer. No
disciplinary action may be maintained for any "cause" other than as
defined herein.
This section shall not apply to districts to which Article 3
(commencing with Section 88060) is applicable.
This section shall not apply to any district which, during the
1973-74 college year, had an average daily attendance of 100,000 or
more.
88002. (a) For the purposes of this section, every classified
employee shall be deemed to be employed for 12 months during each
college year regardless of the number of months in which he or she is
normally in paid status.
(b) If, during a college year, it is necessary to assign a regular
classified employee to perform an assignment or service in addition
to his or her regular assignment, a community college district shall
pay the classified employee on a pro rata basis for the additional
assignment or service, not less than the compensation and benefits
that are applicable to the classification of the additional
assignment or service during the regular college year, unless the
community college district has negotiated a contract that allows for
a lesser pay scale. A community college district shall inform a
classified employee of the compensation and benefits of the
additional assignment or service before the employee commences the
additional assignment or service.
(c) A community college district that, in any college year,
maintains school sessions at times other than during the regular
academic year shall assign for service, during those times, regular
classified employees of the district.
(d) If it is necessary to assign classified employees not
regularly so assigned to serve between the end of one academic year
and the commencement of another, the assignment shall be made on the
basis of qualifications for employment in each classification of
service that is required.
(1) A community college district may not require a classified
employee whose regular yearly assignment for service excludes all, or
any part of, the period between the end of the academic year to the
beginning of the next academic year to perform services during that
period.
(2) A classified employee, for services performed as provided in
this subdivision, shall receive, on a pro rata basis, not less than
the compensation and benefits that are applicable to the
classification of the additional assignment or service during the
regular academic year.
(e) 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 3 (commencing with Section 88060).
88003. The governing board of any community college district shall
employ persons for positions that are not academic positions. The
governing board, except where Article 3 (commencing with Section
88060) or Section 88137 applies, shall classify all those employees
and positions. The employees and positions shall be known as the
classified service. Substitute and short-term employees, employed and
paid for less than 75 percent of a college year, shall not be a part
of the classified service. Part-time playground positions,
apprentices and professional experts employed on a temporary basis
for a specific project, regardless of length of employment, shall not
be a part of the classified service. Full-time students employed
part time, and part-time students employed part time in any college
work-study program, or in a work experience education program
conducted by a community college district and which is financed by
state or federal funds, shall not be a part of the classified
service. Unless otherwise permitted, a person whose position does not
require certification qualifications shall not be employed by a
governing board, except as authorized by this section.
"Substitute employee," as used in this section, means any person
employed to replace any classified employee who is temporarily absent
from duty. In addition, if the district is then engaged in a
procedure to hire a permanent employee to fill a vacancy in any
classified position, the governing board may fill the vacancy through
the employment, for not more than 60 calendar days, of one or more
substitute employees, except to the extent that a collective
bargaining agreement then in effect provides for a different period
of time.
"Short-term employee," as used in this section, means any person
who is employed to perform a service for the district, upon the
completion of which, the service required or similar services will
not be extended or needed on a continuing basis. Before employing a
short-term employee, the governing board, at a regularly scheduled
board meeting, shall specify the service required to be performed by
the employee pursuant to the definition of "classification" in
subdivision (a) of Section 88001, and shall certify the ending date
of the service. The ending date may be shortened or extended by the
governing board, but shall not extend beyond 75 percent of a school
year.
"Seventy-five percent of a college year" means 195 working days,
including holidays, sick leave, vacation and other leaves of
absences, irrespective of number of hours worked per day.
Employment of either full-time or part-time students in any
college work-study program, or in a work experience education program
shall not result in the displacement of classified personnel or
impair existing contracts for services.
This section shall apply only to districts not incorporating the
merit system as outlined in Article 3 (commencing with Section
88060).
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 contractor's 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 company, 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.
88004. Every position not defined by the regulations of the board
of governors as an academic position and not specifically exempted
from the classified service according to the provisions of Section
88003 or 88076 shall be classified as required by those sections and
shall be a part of the classified service. These positions may not be
designated as academic by the governing board of a district nor
shall the assignment of a title to any such a position remove the
position from the classified service.
Nothing in this section shall be construed to prohibit anyone from
being employed in a classification because he or she possesses the
minimum qualifications required of faculty members or academic
administrators, nor shall the possession of those qualifications be
grounds for the elimination of an individual from consideration for
employment in a classified position.
This section shall apply to districts which have adopted the merit
system in the same manner and with the same effect as though it were
a part of Article 3 (commencing with Section 88060) of this chapter.
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.
88005. (a) Nonacademic positions 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 88003 or
Section 88076 of this code.
Persons employed in such positions shall be classified employees
and shall enjoy all 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) Notwithstanding the provisions of subdivision (a), if
specially funded positions are restricted to employment of persons in
low-income groups, from designated impoverished areas and other
criteria which restricts the privilege of all citizens to compete for
employment in such positions, all such 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 the
provisions of Section 88091 or 88092:
(1) The position of instructional aide, as defined in Section
88243.
(2) Any other position involving personal contacts with students
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.
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
88013 or Section 88120 of the Education Code, whichever is
applicable.
(B) They shall not acquire seniority credits for the purposes of
Sections 88117 and 88127 of the Education Code 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) The provisions of Sections 88106 and 88108 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 88061,
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 such qualifying examinations as 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 3 (commencing with Section 88060) 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 therein 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.
88005.1. The governing board of a community college district may
establish positions and employ persons in public service employment
positions which are funded by the Comprehensive Employment and
Training Act (CETA) and which are restricted by the act to a limited
duration of participation.
The positions shall be a part of the classified service. Persons
so employed shall be classified employees for all purposes except
that they shall not be subject to the provisions of Sections 88091
and 88092, and they shall not acquire permanent status or seniority
credit for the purpose of layoff or reemployment. Retirement benefits
shall be subject to the applicable federal law.
Persons employed in and occupying such positions shall be eligible
to apply for any position or class of positions within the
classified service for which they meet the qualifications, and, upon
employment in the regular classified service, shall have their
classified service counted from the original date of employment in
the CETA position.
88006. Notwithstanding the provisions of Section 88003 or Section
88076, which exempt certain types of positions or categories of
personnel from the classified service of a community college
district, persons serving in exempt positions or who serve in
classified positions but are exempted from the classified service
shall, nevertheless, be subject to the provisions of Sections
87408.6, 88021, 88022, 88023 and 88024. The governing board of every
district shall, by rule or regulation, provide for the implementation
of this section.
The provisions of this section shall not apply to full-time day
students regularly attending in the district of employment.
88007. (a) The "act" as used in this section shall mean the Federal
Emergency Employment Act of 1971 (Public Law 92-54) or any similar
federal law hereafter enacted to provide transitional employment in
public service positions for unemployed or underemployed persons.
(b) Funds derived from the act shall not be expended for work
that: (1) would otherwise have been performed at federal, state, or
local expense; (2) will not result in an increase over the employment
which would otherwise be available; (3) which will result in the
displacement of permanent members of the classified service
(including partial displacement, such as reduction in the hours of
nonovertime work or wages or employment benefits); (4) or which will
impair existing rights of permanent members of the classified
service.
(c) If during the term of a contract or renewal thereof, executed
under the act, a community college district is engaged in layoffs for
lack of work or lack of funds of permanent classified employees
serving in regular positions and is employing personnel or
contemplates employing personnel in like or reasonably similar
positions under the act, a report shall be submitted by the
superintendent of schools to the governing board clearly
demonstrating and substantiating the fact that the duties being
performed by the permanent employees in regular positions who are
being laid off will not be performed by personnel employed under the
act.
Approval of the report by the governing board shall constitute its
acceptance of the facts, as contained therein, and based thereon its
affirmation of compliance with the contract executed under the act
and this section.
This section shall apply to districts which have adopted the merit
system in the same manner and with the same effect as though it were
a part of Article 3 (commencing with Section 88060) of this chapter.
88008. If the governing board of a community college district
establishes positions in the categories described below and restricts
initial appointments of new employees to persons in low-income
groups or residing in specifically designated areas of the community,
then such positions shall, in addition to the regular class title,
be classified as "restricted." The positions shall be part of the
classified service and persons so employed shall be classified
employees for all purposes except that (1) they shall not be subject
to the provisions of Section 88091 or 88092, and (2) they shall not
acquire permanent status or seniority credit and shall not be
eligible for promotion into the regular classified service until they
have complied with the provisions of subdivision (c) of Section
88005.
The categories of positions for which the governing board may
establish restrictions under this section are:
(a) The position of instructional aide, as defined in Section
88243.
(b) Any other position involving personal contacts with students
or parents, that is established to assist college staff personnel
responsible for college-community relations; educational support
services for such areas as counseling, library, or health; or the
correction or prevention of behavioral problems.
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
3 (commencing with Section 88060).
88009. Governing boards shall fix and prescribe the duties to be
performed by all persons in the classified service and other
nonacademic positions of the community college district, except those
persons employed as a part of a personnel commission staff as
provided in Article 3 (commencing with Section 88060) of this
chapter.
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
3 (commencing with Section 88060) of this chapter.
88010. Classified employees shall not be required to perform duties
that are not fixed and prescribed for the position by the governing
board in accordance with Section 88009, unless the duties reasonably
relate to those fixed for the position by the board, for any period
of time that exceeds five working days within a 15-calendar-day
period except as authorized herein.
An employee may be required to perform duties inconsistent with
those assigned to the position by the governing board for a period of
more than five working days if his or her salary is adjusted upward
for the entire period he or she is required to work out of
classification and in amounts that will reasonably reflect the duties
required to be performed outside his or her normal assigned duties.
Notwithstanding this section, a personnel commission and governing
board, or a governing board in a nonmerit system district, by
written rule, may provide for an upward salary adjustment for any
classified employee required to work out of classification for any
period of time less than that required herein.
It is the intent of this section to permit community college
districts to temporarily work employees outside of their normal
duties but in so doing to require that some additional compensation
be provided the employee during such temporary assignments.
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
3 (commencing with Section 88060).
88010.5. A classified employee employed by any community college
district that decides to maintain classes on Saturday or Sunday, or
both, shall not, without his or her written consent, be required to
change his or her workweek to include Saturday or Sunday, or both. No
classified employee shall be assigned to perform services on a
Saturday or Sunday if the classified employee objects in writing that
the assignment would conflict with his or her religious beliefs or
practices. Enactment of this section shall cause no change or
disruption in existing work schedules that may already include
Saturday or Sunday as regular workdays.
This section shall not be construed as limiting the power of any
governing board of a community college district to govern the schools
of the district, including the assignment of classified employees
employed by the district.
This section shall not be construed as modifying or otherwise
affecting Section 88026, 88027, 88030, or 88040 or any other
provisions of this code relating to employment of classified
employees.
88011. No community college district may adopt or maintain any rule
or regulation which requires a candidate for a position in the
classified service to be a resident of the district or to become a
resident of the district, or which requires that an employee maintain
residency within the district; nor may a district grant preferential
points or other preferential treatment to those candidates or
employees who are residents of the district. This section shall not
apply to restricted positions as provided for in Sections 88005 and
88008.
The Legislature in enacting this section recognizes that the
public school system of this state is the property of all its
citizens, and that all qualified candidates for positions in the
classified service, regardless of residence, should be granted the
opportunity to compete for and obtain such positions based solely on
merit and fitness.
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
3 (commencing with Section 88060) of this chapter.
88012. If the governing board of any community college district
employs staff assistants or field representatives to directly assist
the governing board or individual governing board members in carrying
out their policymaking duties, such assistants or representatives
shall be members of the classified service, except that such
assistants or representatives shall be exempt from all provisions of
this code relating to obtaining a permanent status in any position in
the district, and procedures pertaining to the recruitment,
appointment, classification, and salary of members of the classified
service.
Staff assistants shall serve at the pleasure of a majority of the
governing board, and each field representative appointed by the
governing board to assist an individual member shall serve at the
pleasure of such member.
It is the intent of the Legislature that persons employed under
Section 88012 will not be utilized for election campaigns of board
members during hours of their employment.
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
3 (commencing with Section 88060) of this chapter.
88013. (a) The governing board of a community college district
shall prescribe written rules and regulations, governing the
personnel management of the classified service, which shall be
printed and made available to employees in the classified service,
the public, and those concerned with the administration of this
section, whereby these employees are, except as provided in Section
72411, designated as permanent employees of the district after
serving a prescribed period of probation which shall not exceed one
year. A permanent employee who accepts a promotion and fails to
complete the probationary period for that promotional classification,
shall be employed in the position from which he or she was promoted.
(b) Any employee designated as a permanent employee shall be
subject to disciplinary action only for cause as prescribed by rule
or regulation of the governing board, but the governing board's
determination of the sufficiency of the cause for disciplinary action
shall be conclusive.
(c) The governing board shall adopt rules of procedure for
disciplinary proceedings which shall contain a provision for
informing the employee by written notice of the specific charges
against him or her, a statement of the employee's right to a hearing
on those charges, and the time within which the hearing may be
requested which shall be not less than five days after service of the
notice to the employee, and a card or paper, the signing and filing
of which shall constitute a demand for hearing, and a denial of all
charges. The burden of proof shall remain with the governing board,
and any rule or regulation to the contrary shall be void.
(d) No disciplinary action shall be taken for any cause that arose
prior to the employee's becoming permanent, or for any cause that
arose more than two years preceding the date of the filing of the
notice of cause, unless the cause was concealed or not disclosed by
the employee when it could be reasonably assumed that the employee
should have disclosed the facts to the employing district.
(e) Nothing in this section shall be construed to prohibit the
governing board, pursuant to the terms of an agreement with an
employee organization under Chapter 10.7 (commencing with Section
3540) of Division 4 of Title 1 of the Government Code, from
delegating its authority to determine whether sufficient cause exists
for disciplinary action against classified employees, excluding
peace officers as defined in Section 830.32 of the Penal Code, to an
impartial third party hearing officer. However, the governing board
shall retain authority to review the determination under the
standards set forth in Section 1286.2 of the Code of Civil Procedure.
(f) This section shall apply only to districts not incorporating
the merit system as outlined in Article 3 (commencing with Section
88060).
88014. Notwithstanding Section 88013, the governing board may lay
off and reemploy classified employees only in accordance with
procedures provided by Sections 88117 and 88127, except the term
"personnel commission," as used in Section 88117, shall be construed
to mean the governing board.
88015. Notwithstanding any other provision of law, any person who
was subject to being, or was in fact, laid off for lack of work or
lack of funds and who elected service retirement from the Public
Employees' Retirement System shall be placed on an appropriate
reemployment list. The district shall notify the Board of
Administration of the Public Employees' Retirement System of the fact
that retirement was due to layoff for lack of work or of funds. If
the person is subsequently subject to reemployment and accepts, in
writing, the appropriate vacant position, the district shall maintain
the vacancy until the Board of Administration of the Public
Employees' Retirement System has properly processed his or her
request for reinstatement from retirement.
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
3 (commencing with Section 88060).
88016. A notice of disciplinary action shall contain a statement in
ordinary and concise language of the specific acts and omissions
upon which the disciplinary action is based, a statement of the cause
for the action taken and, if it is claimed that an employee has
violated a rule or regulation of the public school employer, such
rule or regulation shall be set forth in said notice.
A notice of disciplinary action stating one or more causes or
grounds for disciplinary action established by any rule, regulation,
or statute in the language of the rule, regulation, or statute, is
insufficient for any purpose.
A proceeding may be brought by, or on behalf of, the employee to
restrain any further proceedings under any notice of disciplinary
action violative of this provision.
This section shall apply to proceedings conducted under the
provisions of Article 3 (commencing with Section 88060) of this
chapter.
88017. (a) When, as a result of the expiration of a specially
funded program, classified positions must be eliminated at the end of
any school year, and classified employees will be subject to layoff
for lack of funds, the employees to be laid off at the end of the
school year shall be given written notice on or before April 29
informing them of their layoff effective at the end of the school
year and of their displacement rights, if any, and reemployment
rights. However, if the termination date of any specially funded
program is other than June 30, the notice shall be given not less
than 45 days prior to the effective date of their layoff.
(b) When, as a result of a bona fide reduction or elimination of
the service being performed by any department, classified employees
shall be subject to layoff for lack of work, affected employees shall
be given notice of layoff not less than 45 days prior to the
effective date of layoff, and informed of their displacement rights,
if any, and reemployment rights.
(c) (1) A classified employee may not be laid off if a short-term
employee is retained to render a service that the classified employee
is qualified to render. This subdivision does not create a 45-day
layoff notice requirement for any individual hired as a short-term
employee, as defined in Section 88003, for a period not exceeding 45
days.
(2) This subdivision does not apply to the retention of a
short-term employee, as defined in Section 88003, who is hired for a
period not exceeding 45 days after which the short-term service may
not be extended or renewed.
(d) This section does not preclude the governing board of a
community college district from implementing either of the following
without providing the notice required by subdivision (a) or (b):
(1) A layoff for a lack of funds in the event of an actual and
existing financial inability to pay the salaries of classified
employees.
(2) A layoff for a lack of work resulting from causes not
foreseeable or preventable by the governing board.
(e) 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 3 (commencing with Section 88060) of this chapter.
88018. Any division, uniting, unionization, annexation, merger, or
change of community college district boundaries shall not affect the
rights of persons employed in nonacademic positions to continue in
employment for not less than two years and to retain the salary,
leaves and other benefits which they would have had had the
reorganization not occurred, and in the manner provided in this
article:
(a) All employees of every community college district which is
included in any other district, or all districts included in a new
district, shall become employees of the new district.
(b) When a portion of the territory of any district becomes part
of another district employees regularly assigned to perform their
duties in the territory affected shall become employees of the
acquiring district. Employees whose assignments pertained to the
affected territory, but whose employment situs was not in such
territory, may elect to remain with the original district or become
employees of the acquiring district.
(c) When the territory of any district is divided between or among
two or more districts and the original district ceases to exist,
employees of the original district regularly assigned to perform
their duties in any specific territory of such district shall become
employees of the district acquiring the territory. Employees not
assigned to specific territory within the original district shall
become employees of any acquiring district at their election.
(d) Employees regularly assigned by the original district to any
school in said district shall be an employee of the district in which
said school is located. Except as herein provided, nothing herein
shall deprive the governing board of the acquiring district from
making reasonable reassignments of duties.
88019. Whenever, by reason of any reorganization, other than the
unification of districts, all or part of the territory of any
community college district which has adopted the merit system is
included within any district, or in any new district, the governing
board of the acquiring or new district shall adopt such merit system.
In the event that any district simultaneously acquires all or part
of the territory of two or more districts which have previously
adopted the merit system the governing board of the acquiring or new
district shall adopt a merit system containing such provisions as are
necessary to afford to all employees the rights guaranteed by this
section. The employees of the reorganized or new district shall
retain all rights and privileges as if they had been employed under
the provisions of Article 3 (commencing with Section 88060) of this
chapter, with seniority commencing as of the date of original
employment in their original district. Where there are more than a
sufficient number of employees for a given classification under the
provisions of Article 3 (commencing with Section 88060) of this
chapter, such personnel shall be retained in employment for a period
of not less than two years as if the reorganization had not occurred
but without prejudice to the powers of the personnel commission and
governing board of the reorganized district to reasonably reassign
such persons. If at the expiration of such period, upon a finding
made by the personnel commission that there are excess personnel in
any given classification, such personnel shall, if the governing
board so directs, be placed upon appropriate reemployment lists for
39 months and, if so placed, shall be offered and may accept
positions of lower rank in their line of promotion in the order of
seniority as established by this section in accordance with rules
drawn in compliance with the provisions of Article 3 (commencing with
Section 88060) of this chapter. The acceptance of a position in
lower rank in accordance herewith shall not be deemed to constitute a
waiver of the right to reemployment at the original level should a
vacancy at such level occur within the period mentioned in this
section.
88020. Any person, not a student or substitute employee, who has
been employed by a community college student body organization
pursuant to Section 76060 for a period of at least six months
immediately preceding becoming a member of the classified service
pursuant to Section 76060 or 81676 shall, without examination, be
deemed to be a permanent classified service employee of the community
college district.
Any person not a student or substitute employee employed by a
student body organization pursuant to Section 76060 for less than six
months immediately preceding becoming a member of the classified
service pursuant to Section 76060 or 81676 shall, without
examination, be deemed to be a probationary classified employee of
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
3 (commencing with Section 88060).
88020.5. The governing board of a community college district shall
employ persons for food service positions as a part of the classified
service.
88021. Whenever a governing board of a community college 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 classifed 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
3 (commencing with Section 88060) of this chapter.
88022. No person shall be employed or retained in employment by a
community college district who has been convicted of any sex offense
as defined in Section 87010 or controlled substance offense as
defined in Section 87011. If, however, any such conviction is
reversed and the person is acquitted of the offense in a new trial or
the charges against him or her are dismissed, this section does not
prohibit his or her employment thereafter.
Further, the governing board of a community college district may
employ a person convicted of a controlled substance offense if the
governing board of the district determines, from the evidence
presented, that the person has been rehabilitated for at least five
years.
The governing board shall determine the type and manner of
presentation of the evidence, and the determination of the governing
board as to whether or not the person has been rehabilitated is
final.
88023. No person shall be employed or retained in employment by a
community college district who has been determined to be a sexual
psychopath, as defined in Section 6300 of the Welfare and
Institutions Code or under similar provisions of law of any other
state. If, however, such a determination is reversed and the person
is determined not to be a sexual psychopath in a new proceeding, or
the proceeding to determine whether he or she is a sexual psychopath
is dismissed, this section does not prohibit his or her employment
thereafter.
88024. The governing board of any community college district,
within 10 working days of date of employment, shall require each
person to be employed, or employed in, a nonacademic position to have
two 8"
88000. This article, Article 2 (commencing with Section 88050),
Article 4 (commencing with Section 88160), Article 5 (commencing with
Section 88180), Article 6 (commencing with Section 88190), Article 8
(commencing with Section 88240), and Chapter 1 (commencing with
Section 87000) shall apply to all classified employees of a community
college district, whether a merit or nonmerit system district as
authorized by this chapter unless the section specifically limits its
application to nonmerit system districts.
These provisions shall not apply to employees of a community
college district lying wholly within a city and county that provides
in its charter for a merit system of employment for employees
employed in positions that are part of the classified service.
88001. As used in this chapter the following terms mean:
(a) "Classification" means that each position in the classified
service shall have a designated title, a regular minimum number of
assigned hours per day, days per week, and months per year, a
specific statement of the duties required to be performed by the
employees in each such position, and the regular monthly salary
ranges for each such position.
(b) "Permanent," as used in the phrase "permanent employee,"
includes tenure in the classification in which the employee passed
the required probationary period and includes all of the incidents of
that classification.
(c) "Regular," as used in the phrase "regular classified employee,"
or any similar phrase, refers to a classified employee who has
probationary or permanent status.
(d) "Demotion" means assignment to an inferior position or status
without the employee's written voluntary consent.
(e) "Disciplinary action" includes any action whereby an employee
is deprived of any classification or any incident of any
classification in which he or she has permanence, including
dismissal, suspension, demotion, or any reassignment, without his or
her voluntary consent, except a layoff for lack of work or lack of
funds.
(f) "Reclassification" means the upgrading of a position to a
higher classification as a result of the gradual increase of the
duties being performed by the incumbent in that position.
(g) "Layoff for lack of funds or layoff for lack of work" includes
any reduction in hours of employment or assignment to a class or
grade lower than that in which the employee has permanence,
voluntarily consented to by the employee, in order to avoid
interruption of employment by layoff.
(h) "Cause," relating to disciplinary actions against classified
employees, means those grounds for discipline or offenses enumerated
in the law or the written rules of a community college employer. No
disciplinary action may be maintained for any "cause" other than as
defined herein.
This section shall not apply to districts to which Article 3
(commencing with Section 88060) is applicable.
This section shall not apply to any district which, during the
1973-74 college year, had an average daily attendance of 100,000 or
more.
88002. (a) For the purposes of this section, every classified
employee shall be deemed to be employed for 12 months during each
college year regardless of the number of months in which he or she is
normally in paid status.
(b) If, during a college year, it is necessary to assign a regular
classified employee to perform an assignment or service in addition
to his or her regular assignment, a community college district shall
pay the classified employee on a pro rata basis for the additional
assignment or service, not less than the compensation and benefits
that are applicable to the classification of the additional
assignment or service during the regular college year, unless the
community college district has negotiated a contract that allows for
a lesser pay scale. A community college district shall inform a
classified employee of the compensation and benefits of the
additional assignment or service before the employee commences the
additional assignment or service.
(c) A community college district that, in any college year,
maintains school sessions at times other than during the regular
academic year shall assign for service, during those times, regular
classified employees of the district.
(d) If it is necessary to assign classified employees not
regularly so assigned to serve between the end of one academic year
and the commencement of another, the assignment shall be made on the
basis of qualifications for employment in each classification of
service that is required.
(1) A community college district may not require a classified
employee whose regular yearly assignment for service excludes all, or
any part of, the period between the end of the academic year to the
beginning of the next academic year to perform services during that
period.
(2) A classified employee, for services performed as provided in
this subdivision, shall receive, on a pro rata basis, not less than
the compensation and benefits that are applicable to the
classification of the additional assignment or service during the
regular academic year.
(e) 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 3 (commencing with Section 88060).
88003. The governing board of any community college district shall
employ persons for positions that are not academic positions. The
governing board, except where Article 3 (commencing with Section
88060) or Section 88137 applies, shall classify all those employees
and positions. The employees and positions shall be known as the
classified service. Substitute and short-term employees, employed and
paid for less than 75 percent of a college year, shall not be a part
of the classified service. Part-time playground positions,
apprentices and professional experts employed on a temporary basis
for a specific project, regardless of length of employment, shall not
be a part of the classified service. Full-time students employed
part time, and part-time students employed part time in any college
work-study program, or in a work experience education program
conducted by a community college district and which is financed by
state or federal funds, shall not be a part of the classified
service. Unless otherwise permitted, a person whose position does not
require certification qualifications shall not be employed by a
governing board, except as authorized by this section.
"Substitute employee," as used in this section, means any person
employed to replace any classified employee who is temporarily absent
from duty. In addition, if the district is then engaged in a
procedure to hire a permanent employee to fill a vacancy in any
classified position, the governing board may fill the vacancy through
the employment, for not more than 60 calendar days, of one or more
substitute employees, except to the extent that a collective
bargaining agreement then in effect provides for a different period
of time.
"Short-term employee," as used in this section, means any person
who is employed to perform a service for the district, upon the
completion of which, the service required or similar services will
not be extended or needed on a continuing basis. Before employing a
short-term employee, the governing board, at a regularly scheduled
board meeting, shall specify the service required to be performed by
the employee pursuant to the definition of "classification" in
subdivision (a) of Section 88001, and shall certify the ending date
of the service. The ending date may be shortened or extended by the
governing board, but shall not extend beyond 75 percent of a school
year.
"Seventy-five percent of a college year" means 195 working days,
including holidays, sick leave, vacation and other leaves of
absences, irrespective of number of hours worked per day.
Employment of either full-time or part-time students in any
college work-study program, or in a work experience education program
shall not result in the displacement of classified personnel or
impair existing contracts for services.
This section shall apply only to districts not incorporating the
merit system as outlined in Article 3 (commencing with Section
88060).
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 contractor's 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 company, 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.
88004. Every position not defined by the regulations of the board
of governors as an academic position and not specifically exempted
from the classified service according to the provisions of Section
88003 or 88076 shall be classified as required by those sections and
shall be a part of the classified service. These positions may not be
designated as academic by the governing board of a district nor
shall the assignment of a title to any such a position remove the
position from the classified service.
Nothing in this section shall be construed to prohibit anyone from
being employed in a classification because he or she possesses the
minimum qualifications required of faculty members or academic
administrators, nor shall the possession of those qualifications be
grounds for the elimination of an individual from consideration for
employment in a classified position.
This section shall apply to districts which have adopted the merit
system in the same manner and with the same effect as though it were
a part of Article 3 (commencing with Section 88060) of this chapter.
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.
88005. (a) Nonacademic positions 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 88003 or
Section 88076 of this code.
Persons employed in such positions shall be classified employees
and shall enjoy all 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) Notwithstanding the provisions of subdivision (a), if
specially funded positions are restricted to employment of persons in
low-income groups, from designated impoverished areas and other
criteria which restricts the privilege of all citizens to compete for
employment in such positions, all such 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 the
provisions of Section 88091 or 88092:
(1) The position of instructional aide, as defined in Section
88243.
(2) Any other position involving personal contacts with students
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.
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
88013 or Section 88120 of the Education Code, whichever is
applicable.
(B) They shall not acquire seniority credits for the purposes of
Sections 88117 and 88127 of the Education Code 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) The provisions of Sections 88106 and 88108 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 88061,
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 such qualifying examinations as 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 3 (commencing with Section 88060) 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 therein 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.
88005.1. The governing board of a community college district may
establish positions and employ persons in public service employment
positions which are funded by the Comprehensive Employment and
Training Act (CETA) and which are restricted by the act to a limited
duration of participation.
The positions shall be a part of the classified service. Persons
so employed shall be classified employees for all purposes except
that they shall not be subject to the provisions of Sections 88091
and 88092, and they shall not acquire permanent status or seniority
credit for the purpose of layoff or reemployment. Retirement benefits
shall be subject to the applicable federal law.
Persons employed in and occupying such positions shall be eligible
to apply for any position or class of positions within the
classified service for which they meet the qualifications, and, upon
employment in the regular classified service, shall have their
classified service counted from the original date of employment in
the CETA position.
88006. Notwithstanding the provisions of Section 88003 or Section
88076, which exempt certain types of positions or categories of
personnel from the classified service of a community college
district, persons serving in exempt positions or who serve in
classified positions but are exempted from the classified service
shall, nevertheless, be subject to the provisions of Sections
87408.6, 88021, 88022, 88023 and 88024. The governing board of every
district shall, by rule or regulation, provide for the implementation
of this section.
The provisions of this section shall not apply to full-time day
students regularly attending in the district of employment.
88007. (a) The "act" as used in this section shall mean the Federal
Emergency Employment Act of 1971 (Public Law 92-54) or any similar
federal law hereafter enacted to provide transitional employment in
public service positions for unemployed or underemployed persons.
(b) Funds derived from the act shall not be expended for work
that: (1) would otherwise have been performed at federal, state, or
local expense; (2) will not result in an increase over the employment
which would otherwise be available; (3) which will result in the
displacement of permanent members of the classified service
(including partial displacement, such as reduction in the hours of
nonovertime work or wages or employment benefits); (4) or which will
impair existing rights of permanent members of the classified
service.
(c) If during the term of a contract or renewal thereof, executed
under the act, a community college district is engaged in layoffs for
lack of work or lack of funds of permanent classified employees
serving in regular positions and is employing personnel or
contemplates employing personnel in like or reasonably similar
positions under the act, a report shall be submitted by the
superintendent of schools to the governing board clearly
demonstrating and substantiating the fact that the duties being
performed by the permanent employees in regular positions who are
being laid off will not be performed by personnel employed under the
act.
Approval of the report by the governing board shall constitute its
acceptance of the facts, as contained therein, and based thereon its
affirmation of compliance with the contract executed under the act
and this section.
This section shall apply to districts which have adopted the merit
system in the same manner and with the same effect as though it were
a part of Article 3 (commencing with Section 88060) of this chapter.
88008. If the governing board of a community college district
establishes positions in the categories described below and restricts
initial appointments of new employees to persons in low-income
groups or residing in specifically designated areas of the community,
then such positions shall, in addition to the regular class title,
be classified as "restricted." The positions shall be part of the
classified service and persons so employed shall be classified
employees for all purposes except that (1) they shall not be subject
to the provisions of Section 88091 or 88092, and (2) they shall not
acquire permanent status or seniority credit and shall not be
eligible for promotion into the regular classified service until they
have complied with the provisions of subdivision (c) of Section
88005.
The categories of positions for which the governing board may
establish restrictions under this section are:
(a) The position of instructional aide, as defined in Section
88243.
(b) Any other position involving personal contacts with students
or parents, that is established to assist college staff personnel
responsible for college-community relations; educational support
services for such areas as counseling, library, or health; or the
correction or prevention of behavioral problems.
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
3 (commencing with Section 88060).
88009. Governing boards shall fix and prescribe the duties to be
performed by all persons in the classified service and other
nonacademic positions of the community college district, except those
persons employed as a part of a personnel commission staff as
provided in Article 3 (commencing with Section 88060) of this
chapter.
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
3 (commencing with Section 88060) of this chapter.
88010. Classified employees shall not be required to perform duties
that are not fixed and prescribed for the position by the governing
board in accordance with Section 88009, unless the duties reasonably
relate to those fixed for the position by the board, for any period
of time that exceeds five working days within a 15-calendar-day
period except as authorized herein.
An employee may be required to perform duties inconsistent with
those assigned to the position by the governing board for a period of
more than five working days if his or her salary is adjusted upward
for the entire period he or she is required to work out of
classification and in amounts that will reasonably reflect the duties
required to be performed outside his or her normal assigned duties.
Notwithstanding this section, a personnel commission and governing
board, or a governing board in a nonmerit system district, by
written rule, may provide for an upward salary adjustment for any
classified employee required to work out of classification for any
period of time less than that required herein.
It is the intent of this section to permit community college
districts to temporarily work employees outside of their normal
duties but in so doing to require that some additional compensation
be provided the employee during such temporary assignments.
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
3 (commencing with Section 88060).
88010.5. A classified employee employed by any community college
district that decides to maintain classes on Saturday or Sunday, or
both, shall not, without his or her written consent, be required to
change his or her workweek to include Saturday or Sunday, or both. No
classified employee shall be assigned to perform services on a
Saturday or Sunday if the classified employee objects in writing that
the assignment would conflict with his or her religious beliefs or
practices. Enactment of this section shall cause no change or
disruption in existing work schedules that may already include
Saturday or Sunday as regular workdays.
This section shall not be construed as limiting the power of any
governing board of a community college district to govern the schools
of the district, including the assignment of classified employees
employed by the district.
This section shall not be construed as modifying or otherwise
affecting Section 88026, 88027, 88030, or 88040 or any other
provisions of this code relating to employment of classified
employees.
88011. No community college district may adopt or maintain any rule
or regulation which requires a candidate for a position in the
classified service to be a resident of the district or to become a
resident of the district, or which requires that an employee maintain
residency within the district; nor may a district grant preferential
points or other preferential treatment to those candidates or
employees who are residents of the district. This section shall not
apply to restricted positions as provided for in Sections 88005 and
88008.
The Legislature in enacting this section recognizes that the
public school system of this state is the property of all its
citizens, and that all qualified candidates for positions in the
classified service, regardless of residence, should be granted the
opportunity to compete for and obtain such positions based solely on
merit and fitness.
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
3 (commencing with Section 88060) of this chapter.
88012. If the governing board of any community college district
employs staff assistants or field representatives to directly assist
the governing board or individual governing board members in carrying
out their policymaking duties, such assistants or representatives
shall be members of the classified service, except that such
assistants or representatives shall be exempt from all provisions of
this code relating to obtaining a permanent status in any position in
the district, and procedures pertaining to the recruitment,
appointment, classification, and salary of members of the classified
service.
Staff assistants shall serve at the pleasure of a majority of the
governing board, and each field representative appointed by the
governing board to assist an individual member shall serve at the
pleasure of such member.
It is the intent of the Legislature that persons employed under
Section 88012 will not be utilized for election campaigns of board
members during hours of their employment.
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
3 (commencing with Section 88060) of this chapter.
88013. (a) The governing board of a community college district
shall prescribe written rules and regulations, governing the
personnel management of the classified service, which shall be
printed and made available to employees in the classified service,
the public, and those concerned with the administration of this
section, whereby these employees are, except as provided in Section
72411, designated as permanent employees of the district after
serving a prescribed period of probation which shall not exceed one
year. A permanent employee who accepts a promotion and fails to
complete the probationary period for that promotional classification,
shall be employed in the position from which he or she was promoted.
(b) Any employee designated as a permanent employee shall be
subject to disciplinary action only for cause as prescribed by rule
or regulation of the governing board, but the governing board's
determination of the sufficiency of the cause for disciplinary action
shall be conclusive.
(c) The governing board shall adopt rules of procedure for
disciplinary proceedings which shall contain a provision for
informing the employee by written notice of the specific charges
against him or her, a statement of the employee's right to a hearing
on those charges, and the time within which the hearing may be
requested which shall be not less than five days after service of the
notice to the employee, and a card or paper, the signing and filing
of which shall constitute a demand for hearing, and a denial of all
charges. The burden of proof shall remain with the governing board,
and any rule or regulation to the contrary shall be void.
(d) No disciplinary action shall be taken for any cause that arose
prior to the employee's becoming permanent, or for any cause that
arose more than two years preceding the date of the filing of the
notice of cause, unless the cause was concealed or not disclosed by
the employee when it could be reasonably assumed that the employee
should have disclosed the facts to the employing district.
(e) Nothing in this section shall be construed to prohibit the
governing board, pursuant to the terms of an agreement with an
employee organization under Chapter 10.7 (commencing with Section
3540) of Division 4 of Title 1 of the Government Code, from
delegating its authority to determine whether sufficient cause exists
for disciplinary action against classified employees, excluding
peace officers as defined in Section 830.32 of the Penal Code, to an
impartial third party hearing officer. However, the governing board
shall retain authority to review the determination under the
standards set forth in Section 1286.2 of the Code of Civil Procedure.
(f) This section shall apply only to districts not incorporating
the merit system as outlined in Article 3 (commencing with Section
88060).
88014. Notwithstanding Section 88013, the governing board may lay
off and reemploy classified employees only in accordance with
procedures provided by Sections 88117 and 88127, except the term
"personnel commission," as used in Section 88117, shall be construed
to mean the governing board.
88015. Notwithstanding any other provision of law, any person who
was subject to being, or was in fact, laid off for lack of work or
lack of funds and who elected service retirement from the Public
Employees' Retirement System shall be placed on an appropriate
reemployment list. The district shall notify the Board of
Administration of the Public Employees' Retirement System of the fact
that retirement was due to layoff for lack of work or of funds. If
the person is subsequently subject to reemployment and accepts, in
writing, the appropriate vacant position, the district shall maintain
the vacancy until the Board of Administration of the Public
Employees' Retirement System has properly processed his or her
request for reinstatement from retirement.
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
3 (commencing with Section 88060).
88016. A notice of disciplinary action shall contain a statement in
ordinary and concise language of the specific acts and omissions
upon which the disciplinary action is based, a statement of the cause
for the action taken and, if it is claimed that an employee has
violated a rule or regulation of the public school employer, such
rule or regulation shall be set forth in said notice.
A notice of disciplinary action stating one or more causes or
grounds for disciplinary action established by any rule, regulation,
or statute in the language of the rule, regulation, or statute, is
insufficient for any purpose.
A proceeding may be brought by, or on behalf of, the employee to
restrain any further proceedings under any notice of disciplinary
action violative of this provision.
This section shall apply to proceedings conducted under the
provisions of Article 3 (commencing with Section 88060) of this
chapter.
88017. (a) When, as a result of the expiration of a specially
funded program, classified positions must be eliminated at the end of
any school year, and classified employees will be subject to layoff
for lack of funds, the employees to be laid off at the end of the
school year shall be given written notice on or before April 29
informing them of their layoff effective at the end of the school
year and of their displacement rights, if any, and reemployment
rights. However, if the termination date of any specially funded
program is other than June 30, the notice shall be given not less
than 45 days prior to the effective date of their layoff.
(b) When, as a result of a bona fide reduction or elimination of
the service being performed by any department, classified employees
shall be subject to layoff for lack of work, affected employees shall
be given notice of layoff not less than 45 days prior to the
effective date of layoff, and informed of their displacement rights,
if any, and reemployment rights.
(c) (1) A classified employee may not be laid off if a short-term
employee is retained to render a service that the classified employee
is qualified to render. This subdivision does not create a 45-day
layoff notice requirement for any individual hired as a short-term
employee, as defined in Section 88003, for a period not exceeding 45
days.
(2) This subdivision does not apply to the retention of a
short-term employee, as defined in Section 88003, who is hired for a
period not exceeding 45 days after which the short-term service may
not be extended or renewed.
(d) This section does not preclude the governing board of a
community college district from implementing either of the following
without providing the notice required by subdivision (a) or (b):
(1) A layoff for a lack of funds in the event of an actual and
existing financial inability to pay the salaries of classified
employees.
(2) A layoff for a lack of work resulting from causes not
foreseeable or preventable by the governing board.
(e) 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 3 (commencing with Section 88060) of this chapter.
88018. Any division, uniting, unionization, annexation, merger, or
change of community college district boundaries shall not affect the
rights of persons employed in nonacademic positions to continue in
employment for not less than two years and to retain the salary,
leaves and other benefits which they would have had had the
reorganization not occurred, and in the manner provided in this
article:
(a) All employees of every community college district which is
included in any other district, or all districts included in a new
district, shall become employees of the new district.
(b) When a portion of the territory of any district becomes part
of another district employees regularly assigned to perform their
duties in the territory affected shall become employees of the
acquiring district. Employees whose assignments pertained to the
affected territory, but whose employment situs was not in such
territory, may elect to remain with the original district or become
employees of the acquiring district.
(c) When the territory of any district is divided between or among
two or more districts and the original district ceases to exist,
employees of the original district regularly assigned to perform
their duties in any specific territory of such district shall become
employees of the district acquiring the territory. Employees not
assigned to specific territory within the original district shall
become employees of any acquiring district at their election.
(d) Employees regularly assigned by the original district to any
school in said district shall be an employee of the district in which
said school is located. Except as herein provided, nothing herein
shall deprive the governing board of the acquiring district from
making reasonable reassignments of duties.
88019. Whenever, by reason of any reorganization, other than the
unification of districts, all or part of the territory of any
community college district which has adopted the merit system is
included within any district, or in any new district, the governing
board of the acquiring or new district shall adopt such merit system.
In the event that any district simultaneously acquires all or part
of the territory of two or more districts which have previously
adopted the merit system the governing board of the acquiring or new
district shall adopt a merit system containing such provisions as are
necessary to afford to all employees the rights guaranteed by this
section. The employees of the reorganized or new district shall
retain all rights and privileges as if they had been employed under
the provisions of Article 3 (commencing with Section 88060) of this
chapter, with seniority commencing as of the date of original
employment in their original district. Where there are more than a
sufficient number of employees for a given classification under the
provisions of Article 3 (commencing with Section 88060) of this
chapter, such personnel shall be retained in employment for a period
of not less than two years as if the reorganization had not occurred
but without prejudice to the powers of the personnel commission and
governing board of the reorganized district to reasonably reassign
such persons. If at the expiration of such period, upon a finding
made by the personnel commission that there are excess personnel in
any given classification, such personnel shall, if the governing
board so directs, be placed upon appropriate reemployment lists for
39 months and, if so placed, shall be offered and may accept
positions of lower rank in their line of promotion in the order of
seniority as established by this section in accordance with rules
drawn in compliance with the provisions of Article 3 (commencing with
Section 88060) of this chapter. The acceptance of a position in
lower rank in accordance herewith shall not be deemed to constitute a
waiver of the right to reemployment at the original level should a
vacancy at such level occur within the period mentioned in this
section.
88020. Any person, not a student or substitute employee, who has
been employed by a community college student body organization
pursuant to Section 76060 for a period of at least six months
immediately preceding becoming a member of the classified service
pursuant to Section 76060 or 81676 shall, without examination, be
deemed to be a permanent classified service employee of the community
college district.
Any person not a student or substitute employee employed by a
student body organization pursuant to Section 76060 for less than six
months immediately preceding becoming a member of the classified
service pursuant to Section 76060 or 81676 shall, without
examination, be deemed to be a probationary classified employee of
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
3 (commencing with Section 88060).
88020.5. The governing board of a community college district shall
employ persons for food service positions as a part of the classified
service.
88021. Whenever a governing board of a community college 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 classifed 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
3 (commencing with Section 88060) of this chapter.
88022. No person shall be employed or retained in employment by a
community college district who has been convicted of any sex offense
as defined in Section 87010 or controlled substance offense as
defined in Section 87011. If, however, any such conviction is
reversed and the person is acquitted of the offense in a new trial or
the charges against him or her are dismissed, this section does not
prohibit his or her employment thereafter.
Further, the governing board of a community college district may
employ a person convicted of a controlled substance offense if the
governing board of the district determines, from the evidence
presented, that the person has been rehabilitated for at least five
years.
The governing board shall determine the type and manner of
presentation of the evidence, and the determination of the governing
board as to whether or not the person has been rehabilitated is
final.
88023. No person shall be employed or retained in employment by a
community college district who has been determined to be a sexual
psychopath, as defined in Section 6300 of the Welfare and
Institutions Code or under similar provisions of law of any other
state. If, however, such a determination is reversed and the person
is determined not to be a sexual psychopath in a new proceeding, or
the proceeding to determine whether he or she is a sexual psychopath
is dismissed, this section does not prohibit his or her employment
thereafter.
88024. The governing board of any community college district,
within 10 working days of date of employment, shall require each
person to be employed, or employed in, a nonacademic position to have
two 8"
