45100. Article 2 (commencing with Section 10340) of Chapter 4 of
Part 7, Articles 1 to 5, inclusive (commencing with Section 45100),
Article 7 (commencing with Section 45340), and the applicable
provisions of Sections 44047, 44048, Article 1 (commencing with
Section 7000) of Chapter 1, Article 1 (commencing with Section 7100)
of Chapter 2 of Part 5, Chapter 1 (commencing with Section 44000)
shall apply to all classified employees of a school district,
including those authorized in Sections 35025, 35041, and 35045,
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 also apply to all
persons who are part of the classified service who are employed by
the county superintendent of schools, or any division thereof, and
whose salaries are paid out of the county school service fund
regardless of the origin of the fund moneys, and to all persons
employed by any entity, including a regional occupational center or
program, created or established by any two or more school districts
pursuant to statute, including Chapter 14 (commencing with Section
7450) of Division 6, exercising any joint power pursuant to Article 1
(commencing with Section 6500) of Chapter 5 of Division 7 of Title 1
of the Government Code, or as otherwise conferred by law upon such
districts.
These provisions shall not apply to employees of a school district
lying wholly within a city and county which provides in its charter
for a merit system of employment for employees employed in positions
not requiring certification qualifications except that, commencing
July 1, 1992, the governing board of that district may adopt a
resolution to make these provisions applicable to persons employed as
paraprofessionals as defined in Section 44671.5, who have not
attained permanent status under the merit system as of that date.
The positions authorized in Sections 35025, 35041, and 35045 may,
by resolution of a governing board, be exempted from the provisions
of Article 6 (commencing with Section 45240) of this chapter.
45100.5. (a) The governing board of a school district may adopt a
resolution designating certain positions as senior management of the
classified service. Notwithstanding the provisions of Chapter 10.7
(commencing with Section 3540) of Division 4 of Title 1 of the
Government Code, the decision of the governing board shall not be
deemed a matter subject to negotiation, but shall be subject to
review by the Public Employment Relations Board.
(b) Employees whose positions are designated as senior management
of the classified service shall be a part of the classified service
and shall be afforded all rights, benefits, and burdens of other
classified employees, except that they shall be exempt from all
provisions relating to obtaining permanent status in a senior
management position.
(c) Notice of reassignment or dismissal from a position in the
senior management of the classified service shall be provided in
accordance with the provisions of Section 35031.
45101. Definitions as used in this chapter:
(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 has permanence, including dismissal,
suspension, demotion, or any reassignment, without his 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 such 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 public school employer. No
disciplinary action may be maintained for any "cause" other than as
defined herein.
The provisions of this section shall not apply to school districts
to which the provisions of Article 6 (commencing with Section 45240)
of this chapter are applicable.
The provisions of this section shall not apply to any school
district which, during the 1973-74 school year, had an average daily
attendance of 100,000 or more.
45102. (a) For the purposes of this section every classified
employee shall be deemed to be employed for 12 months during each
school year regardless of the number of months in which he or she is
normally in paid status.
(b) If, during a school 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 school 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 school year, unless the school district has
negotiated a contract that allows for a lesser pay scale. A school
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 school district that, in any school year, maintains school
sessions at times other than during the regular September-June
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, that assignment shall be made on the
basis of qualifications for employment in each classification of
service that is required.
(1) A school 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 in June to the
beginning of the next academic year in September to perform services
during that period.
(2) A classified employee shall, for services performed as
provided in this subdivision, 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 6 (commencing with Section 45240).
45103. (a) The governing board of any school district shall employ
persons for positions not requiring certification qualifications. The
governing board shall, except where Article 6 (commencing with
Section 45240) or Section 45318 applies, classify all of these
employees and positions. The employees and positions shall be known
as the classified service.
(b) (1) Substitute and short-term employees, employed and paid for
less than 75 percent of a school year, shall not be a part of the
classified service.
(2) 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.
(3) Full-time students employed part time, and part-time students
employed part time in any college workstudy program, or in a work
experience education program conducted by a community college
district pursuant to Article 7 (commencing with Section 51760) of
Chapter 5 of Part 28 and that is financed by state or federal funds,
shall not be a part of the classified service.
(4) Part-time playground positions shall not be a part of the
classified service, where the employee is not otherwise employed in a
classified position. Part-time playground positions shall be
considered a part of the classified service when the employee in the
position also works in the same school district in a classified
position.
(c) 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.
(d) As used in this section:
(1) "Substitute employee" 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.
(2) "Short-term employee" 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
45101, 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.
(3) "Seventy-five percent of a school year" means 195 working
days, including holidays, sick leave, vacation and other leaves of
absence, irrespective of number of hours worked per day.
(e) Employment of either full-time or part-time students in any
college workstudy program, or in a work experience education program
shall not result in the displacement of classified personnel or
impair existing contracts for services.
(f) This section shall apply only to districts not incorporating
the merit system as outlined in Article 6 (commencing with Section
45240).
45103.1. (a) Notwithstanding any other provision of this chapter,
personal services contracting for all services currently or
customarily performed by classified school employees to achieve cost
savings is permissible, unless otherwise prohibited, when all the
following conditions are met:
(1) The governing board or contracting agency clearly demonstrates
that the proposed contract will result in actual overall cost
savings to the school district, provided that:
(A) In comparing costs, there shall be included the school
district's additional cost of providing the same service as proposed
by a contractor. These additional costs shall include the salaries
and benefits of additional staff that would be needed and the cost of
additional space, equipment, and materials needed to perform the
function.
(B) In comparing costs, there shall not be included the school
district's indirect overhead costs unless these costs can be
attributed solely to the function in question and would not exist if
that function was not performed by the school district. Indirect
overhead costs shall mean the pro rata share of existing
administrative salaries and benefits, rent, equipment costs,
utilities, and materials.
(C) In comparing costs, there shall be included in the cost of a
contractor providing a service any continuing school district costs
that would be directly associated with the contracted function. These
continuing school district costs shall include, but not be limited
to, those for inspection, supervision, and monitoring.
(2) Proposals to contract out work shall not be approved solely on
the basis that savings will result from lower contractor pay rates
or benefits. Proposals to contract out work shall be eligible for
approval if the contractor's wages are at the industry's level and do
not undercut school district pay rates.
(3) The contract does not cause the displacement of school
district employees. The term "displacement" includes layoff,
demotion, involuntary transfer to a new classification, involuntary
transfer to a new location requiring a change of residence, and time
base reductions. Displacement does not include changes in shifts or
days off, nor does it include reassignment to other positions within
the same classification and general location or employment with the
contractor, so long as wages and benefits are comparable to those
paid by the school district.
(4) The savings shall be large enough to ensure that they will not
be eliminated by private sector and district cost fluctuations that
could normally be expected during the contracting period.
(5) The amount of savings clearly justify the size and duration of
the contracting agreement.
(6) The contract is awarded through a publicized, competitive
bidding process.
(7) The contract includes specific provisions pertaining to the
qualifications of the staff that will perform the work under the
contract, as well as assurance that the contractor's hiring practices
meet applicable nondiscrimination standards.
(8) The potential for future economic risk to the school district
from potential contractor rate increases is minimal.
(9) The contract is with a firm. A "firm" means a corporation,
limited liability 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 school district.
(b) Notwithstanding any other provision of this chapter, personal
services contracting shall also be permissible when any of the
following conditions can be met:
(1) The contract is for new school district functions and the
Legislature has specifically mandated or authorized the performance
of the work by independent contractors.
(2) The services contracted are not available within the district,
cannot be performed satisfactorily by school district employees, or
are of such a highly specialized or technical nature that the
necessary expert knowledge, experience, and ability are not available
through the school district.
(3) The services are incidental to a contract for the purchase or
lease of real or personal property. Contracts under this criterion,
known as "service agreements," shall include, but not be limited to,
agreements to service or maintain office equipment or computers that
are leased or rented.
(4) The policy, administrative, or legal goals and purposes of the
district cannot be accomplished through the utilization of persons
selected pursuant to the regular or ordinary school district hiring
process. Contracts are permissible under this criterion to protect
against a conflict of interest or to ensure independent and unbiased
findings in cases where there is a clear need for a different,
outside perspective. These contracts shall include, but not be
limited to, obtaining expert witnesses in litigation.
(5) The nature of the work is such that the criteria for emergency
appointments apply. "Emergency appointment" means an appointment
made for a period not to exceed 60 working days either during an
actual emergency to prevent the stoppage of public business or
because of the limited duration of the work. The method of selection
and the qualification standards for an emergency employee shall be
determined by the district. The frequency of appointment, length of
employment, and the circumstances appropriate for the appointment of
firms or individuals under emergency appointments shall be restricted
so as to prevent the use of emergency appointments to circumvent the
regular or ordinary hiring process.
(6) The contractor will provide equipment, materials, facilities,
or support services that could not feasibly be provided by the school
district in the location where the services are to be performed.
(7) The services are of such an urgent, temporary, or occasional
nature that the delay incumbent in their implementation under the
district's regular or ordinary hiring process would frustrate their
very purpose.
(c) This section shall apply to all school districts, including
districts that have adopted the merit system.
(d) This section shall apply to personal service contracts entered
into after January 1, 2003. This section shall not apply to the
renewal of personal services contracts subsequent to January 1, 2003,
where the contract was entered into before January 1, 2003,
irrespective of whether the contract is renewed or rebid with the
existing contractor or with a new contractor.
45103.5. All contracts for management consulting services relating
to food service shall be governed by this section.
(a) Notwithstanding Sections 39902, 45103, 45104, and 45256, any
school district may enter into a contract for management consulting
services relating to food service for a term not to exceed one year.
Any renewal of that contract, or further requests for proposals to
provide food service management consulting services, shall be
considered on a year-to-year basis. A contract for food service
management consulting services shall not cause or result in the
elimination of any food service classified personnel or position. A
contract for food service management consulting services shall not
cause or result in any adverse effect upon any food service
classified personnel or position with respect to wages, benefits, or
other terms and conditions of employment.
(b) A contract made pursuant to subdivision (a) shall not provide
for or result in the supervision of food service classified personnel
by the food service management consultant. This section shall not be
construed to prevent an entity providing food service management
consulting services from interacting or consulting with the food
service manager or director, supervisors, or food service classified
employees of a school district on matters relating to food services
except those prohibited by subdivision (a).
(c) Sections 45122, 45123, 45124, 45125, 45125.5, and 45126, and
any other health criteria established by the school district, are
applicable to all persons providing food service management
consulting services under this section.
(d) This section shall apply to all school districts, including
districts that have adopted the merit system.
45104. Every position not defined by this code as a position
requiring certification qualifications and not specifically exempted
from the classified service according to the provisions of Section
45103 or 45256 shall be classified as required by those sections and
shall be a part of the classified service. Such positions may not be
designated as certificated nor shall the assignment of a title to any
such a position remove the position from the classified service, nor
shall possession of a certification document be made a requirement
for employment in any such position.
Nothing in this section shall be construed to prohibit the
employment of any individual in a position described by this section
as part of the classified service who is in possession of
certification qualifications, nor shall the possession of
certification qualifications be grounds for the elimination of an
individual for consideration for employment in such a 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 6 (commencing with Section 45240) of this chapter.
45104.5. The governing board of a school district may adopt a
resolution abolishing any or all positions of the senior management
of the classified service. An employee occupying a senior management
position abolished by the action shall become a member of the
classified or certificated service in a position to which he or she
would otherwise be entitled if the employee had not been a member of
the senior management of the classified service.
If the employee in the senior management of the classified service
had been a member of the regular classified or certificated service,
he or she shall be entitled to a position which is the same as, or
similar to, the position to which he or she holds rights outside of
the senior management of the classified service.
45105. (a) Positions not requiring certification qualifications
created by a governing board of a school district under the Manpower
Development and Training Act of 1962, the Economic Opportunity Act of
1964, the Elementary and Secondary Education Act of 1965, or Section
11300 or Section 13650 of the Welfare and Institutions Code, any
future federal or state legislative enactment, or any other special
funding, and which are not a part of the regular school program
shall, nevertheless, be a part of the classified service as
established by Section 45103 or 45256.
Persons employed in these positions shall be classified employees
and shall enjoy all of the rights, burdens and benefits accorded
other classified employees. Their selection and retention shall be
made on the same basis as that of persons selected for positions that
are a part of the regular school program.
(b) (1) Notwithstanding subdivision (a), if specially funded
positions are restricted to employment of persons in low-income
groups, from designated impoverished areas or other criteria which
restricts the privilege of all citizens to compete for employment in
the positions, all these positions shall, in addition to the regular
class title, be classified as "restricted." Their selection and
retention shall be made on the same basis as that of persons selected
and retained in positions that are a part of the regular school
program, except that persons employed in the following categories of
restricted positions shall not be subject to Section 45272 or 45273:
(A) The position of instructional aide, as defined in Section
45343.
(B) Any other position involving personal contacts with pupils or
parents that is established to assist school-staff personnel
responsible for school-community relations; educational support
services for such areas as counseling, library or health; or the
correction or prevention of behavioral problems.
(2) Persons employed in positions properly classified as
"restricted" shall be classified employees for all purposes except:
(A) They shall not be accorded employment permanency under Section
45113 or 45301, whichever is applicable.
(B) They shall not acquire seniority credits for the purposes of
Sections 45298 and 45308 or, in a district not having the merit
(civil service) system, for the purposes of layoff for lack of work
or lack of funds as may be established by rule of the governing
board.
(C) Sections 45287 and 45289 shall not apply to "restricted"
employees.
(D) They shall not be eligible for promotion into the regular
classified service or, in districts that have adopted the merit
system, shall not be subject to the provisions of Section 45241,
until they have complied with the provisions of subdivision (c).
(c) At any time, after completion of six months of satisfactory
service, a person serving in a "restricted" position shall be given
the opportunity to take qualifying examinations that are required for
all other persons serving in the same class in the regular
classified service. If the person satisfactorily completes the
qualifying examination, regardless of final numerical listing on an
eligibility list, he or she shall be accorded full rights, benefits
and burdens of any other classified employee serving in the regular
classified service. His or her service in the regular classified
service shall be counted from the original date of employment in the
"restricted" position and shall continue even though he or she
continues to serve in a "restricted" position.
(d) This section shall apply to districts that have adopted the
merit system in the same manner and effect as if it were a part of
Article 6 (commencing with Section 45240) of this chapter.
(e) It is the intent of the Legislature in enacting this section
to clearly set forth that positions normally a part of the classified
service are included in the classified service regardless of the
source of income to sustain the positions and to effectively
implement specially funded programs intended to provide job
opportunities for untrained and impoverished persons but to do so in
a manner that will not be disruptive nor detrimental to the normal
employment procedures relating to classified school service.
45106. Notwithstanding the provisions of Section 45103 or Section
45256, which exempt certain types of positions or categories of
personnel from the classified service of a school 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 45122 to 45125, inclusive, and
Section 49406. The governing board of every school 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.
45107. (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 school 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 6 (commencing with Section 45240) of this chapter.
45108. If the governing board of any school 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 45272 or 45273, 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
45105.
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
45343.
(b) Any other position involving personal contacts with pupils or
parents, that is established to assist school staff personnel
responsible for school-community relations; educational support
services for such areas as counseling, library, or health; or the
correction or prevention of behavioral problems.
This section shall apply to districts that have adopted the merit
system in the same manner and effect as if it were a part of Article
6 (commencing with Section 45240) of this chapter.
45108.5. (a) Senior management employee means either of the
following:
(1) An employee in the highest position in a principal district
program area, as determined by the governing board, which does not
require certification qualifications, and which has districtwide
responsibility for formulating policies or administering the program
area.
(2) An employee who acts as the fiscal advisor to the district
superintendent.
(b) The maximum number of positions which may be designated as
senior management positions shall be as follows:
(1) For districts with less than 10,000 units of average daily
attendance, two positions.
(2) For districts with 10,000 to 25,000 units of average daily
attendance, inclusive, three positions.
(3) For districts with 25,001 to 50,000 units of average daily
attendance, inclusive, 4 positions.
(4) For districts with more than 50,000 units of average daily
attendance, 5 positions.
(c) This section shall apply to districts that have adopted the
merit system in the same manner and effect as if it were a part of
Article 6 (commencing with Section 45240), as well as to districts
which have not adopted the merit system.
45108.7. The governing board of a school district may apply to the
State Board of Education to waive the provisions of Section 45108.5
for purposes of expanding the number and type of senior management
positions.
45109. Governing boards shall fix and prescribe the duties to be
performed by all persons in the classified service and other
positions not requiring certification qualifications of the school
district, except those persons employed as a part of a personnel
commission staff as provided in Article 6 (commencing with Section
45240) 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
6 (commencing with Section 45240) of this chapter.
45110. Classified employees shall not be required to perform duties
which are not fixed and prescribed for the position by the governing
board in accordance with Section 45109, unless the duties reasonably
relate to those fixed for the position by the board, for any period
of time which 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 provided that his salary is adjusted
upward for the entire period he is required to work out of
classification and in such amounts as will reasonably reflect the
duties required to be performed outside his normal assigned duties.
Notwithstanding the provisions of this section, a personnel
commission and governing board, or a governing board in a nonmerit
system district, may, by written rule, 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 school 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
6 (commencing with Section 45240) of this chapter.
45111. No school 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 45105 and
45103.
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
6 (commencing with Section 45240) of this chapter.
45112. If the governing board of any school 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 45112 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
6 (commencing with Section 45240) of this chapter.
45113. (a) The governing board of a school 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
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 position, shall be employed
in the classification 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 which
arose prior to the employee's becoming permanent, nor for any cause
which 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 6 (commencing with Section
45240) of this chapter.
45114. Notwithstanding the provisions of Section 45113, the
governing board may lay off and reemploy classified employees only in
accordance with procedures provided by Sections 45298 and 45308,
except the term "personnel commission" therein shall be construed to
mean the governing board. "Governing board" as used in this section
shall include districts governed by a common board or by different
boards but with a common administration. Employees in common board or
common administration districts shall, for the purpose of layoff for
lack of work or funds, be considered as having been employed in a
single district.
45115. 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
he 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 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
6 (commencing with Section 45240) of this chapter.
45116. 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 6 (commencing with Section 45240) of this
chapter.
45117. (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 45103, 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 45103, 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 school
district from implementing either of the following actions 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 6 (commencing with Section 45240).
45119. Whenever, by reason of any reorganization, other than the
unification of districts, all or part of the territory of any school
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 if a simple
majority of the classified employees of the reorganized district
voting on the adoption of a merit system approve its adoption
pursuant to Section 45221. If no such election is requested by the
classified employees of the reorganized district pursuant to Section
45221, adoption of a merit system shall be effective only if the
number of classified employees from the merit system district who are
to become employees of the acquiring district equals or exceeds the
number of classified employees of the acquiring nonmerit system
district. 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 if a simple majority of the classified
employees of the reorganized district voting on the adoption of a
merit system approve its adoption pursuant to Section 45221. If no
such election is requested by the classified employees of the
reorganized district pursuant to Section 45221, adoption of a merit
system shall be effective only if the number of classified employees
from the merit system district who are to become employees of the
acquiring district equals or exceeds the number of classified
employees of the acquiring nonmerit system district. 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 6 (commencing with Section 45240) 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
6 (commencing with Section 45240) 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 6 (commencing with Section
45240) of the 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.
45120. If all or any part of any district or districts which is
unified with all or any part of a district, has, or have, the merit
system prior to the date of the reorganization election, all
employees not legally requiring certification qualifications of the
reorganized district shall be employed in accordance with Article 6
(commencing with Section 45240) of this chapter if a simple majority
of the classified employees of the reorganized district voting on the
adoption of a merit system approve its adoption pursuant to Section
45221. If no such election is requested by the classified employees
of the reorganized district pursuant to Section 45221, adoption of a
merit system shall be effective only if the number of classified
employees from the merit system district who are to become employees
of the acquiring district equals or exceeds the number of classified
employees of the acquiring nonmerit system district. If on the date
of such reorganization election, two or more of the said defined
districts of such reorganized district have merit systems, the
reorganized district shall adopt a single merit system which shall
contain all provisions necessary to secure to all employees the
rights guaranteed by Section 45121 of this code.
Seniority of the personnel of the reorganized district shall be
established as of the date of original employment in the district or
districts as defined above. Where there are more than a sufficient
number of employees for a given classification under the provisions
of Article 6 (commencing with Section 45240) 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 the governing
board of the new unified district to reasonably reassign such
person. 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 shall, if so placed, 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 6 (commencing with Section
45240) 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.
45120.1. Notwithstanding the provisions of Sections 45119 and
45120, when any school district involved in any reorganization,
annexation, unionization, merger, or unification is not required to
adopt the merit system, the classified employees of such district who
formerly were employed by a district having the merit system shall
retain for a period of two years the salary, benefits, seniority, and
other rights which they would have had had the reorganization not
occurred.
45120.2. (a) If the development or revision of a local plan for the
education of individuals with exceptional needs pursuant to Chapter
2.5 (commencing with Section 56195) of Part 30, results in a
classified employee who is performing service for one employer being
terminated, reassigned, or transferred, or becoming the employee of
another employer because of the reorganization of special education
programs, the employee shall retain the seniority acquired at his or
her employment with the school district or county office of education
from which he or she was terminated, reassigned, or transferred. If
terminated, the employee retains the rights specified in Sections
45115, 45117, and 45119.
(b) The reassignment of an employee, transfer of an employee, or
new employment of an employee caused by the reorganization of special
education programs does not affect the seniority or classification
that a classified employee already attained in any school district
that undergoes the reorganization. The employee has the same status
with respect to his or her seniority or classification, with the new
employer, including time served as a probationary employee. The total
number of years served as a classified employee with the former
school district or county office shall be credited, year for year,
for placement on the salary schedule of the new school district or
county office.
(c) If a local plan for the education of individuals with
exceptional needs is developed or revised pursuant to Chapter 2.5
(commencing with Section 56195) of Part 30, all classified employees
shall be employed by a county office of education or an individual
school district.
(d) A classified employee who is reassigned or transferred as a
result of the reorganization of special education programs has
priority, except as provided in subdivision (e), in being informed of
and in filling classified positions in the classifications in which
the employee was employed before the reassignment or transfer. This
priority expires 24 months after the date of reassignment or transfer
and may be waived by the employee during that time period.
(e) A classified employee who served in a special education
program in a school district or county office and is terminated from
his or her employment by that school district or county office
pursuant to Section 45114 as a result of the reorganization of a
special education program has first priority in being informed of and
in filling vacant classified positions for which the employee is
qualified or was employed, in the county office or school district
that operates the reorganized special education program. Permanent
employees have the first priority right to reappointment as provided
in this section for 39 months from the date of termination.
Probationary employees have the first priority right to reappointment
as provided in this section for 24 months from the date of
termination.
45121. Persons employed in positions not requiring certification
qualifications in districts, all or part of whose territory is
included in a unification of districts, shall continue as employees
of the unified school district for not less than two years, and shall
not, by reason of any unification, be deprived of any benefit which
they would have had had the unification not taken place. In
determining the rights of such employees, their salaries, accumulated
leaves, and other rights shall be determined as of the date the
unification election was conducted. No increase in benefits not
previously conferred, granted by the governing board of any district,
all or part of whose territory is included in a unification of
districts, after such unification election, shall be binding on the
governing board of the unified district, except that benefits granted
in the districts comprising the new unified district which does not
become effective until the second succeeding first day of July shall
be binding on the governing board of the unified district. Nothing
herein contained shall preclude the governing board of the unified
school district from making any reasonable reassignment of the duties
of such employees. The governing board of the unified district shall
establish a system of uniform salaries, employee benefits and
working conditions for employees performing like services in
conformity with the provisions of this section.
45122. Whenever a governing board of a school district requires a
physical examination to be taken by a classified employee or
employees, either by rule or by its direction or the direction of its
authorized district administrator; or when classified employees are
required by law to submit to a physical examination for continuance
in employment, the board shall either provide the required
examination, cause it to be provided, or provide the employee with
reasonable reimbursement for the required examination.
If the governing board requires a physical examination or an
examination is required by law as a condition of preemployment, it
may cause the required examination to be given. It may, if an
applicant is required to take a preemployment physical examination,
provide for reasonable reimbursement if the applicant is subsequently
employed by the district.
This section shall apply to districts that have adopted the merit
system in the same manner and effect as if it were a part of Article
6 (commencing with Section 45240) of this chapter.
45122.1. (a) In addition to any other prohibition or provision, no
person who has been convicted of a violent or serious felony shall be
employed by a school district pursuant to this chapter. A school
district shall not retain in employment a current classified employee
who has been convicted of a violent or serious felony, and who is a
temporary, substitute, or a probationary employee who has not
attained permanent status.
(b) This section applies to any violent or serious offense which,
if committed in this state, would have been punishable as a violent
or serious felony.
(c) (1) For purposes of this section, a violent felony is any
felony listed in subdivision (c) of Section 667.5 of the Penal Code
and a serious felony is any felony listed in subdivision (c) of
Section 1192.7 of the Penal Code.
(2) For purposes of this section, the term "school district" has
the same meaning as defined in Section 41302.5.
(d) When the Department of Justice ascertains that an individual
who is an applicant for employment by a school district has been
convicted of a violent or serious felony, the department shall notify
the school district of the criminal information pertaining to the
applicant. The notification shall be delivered by telephone and shall
be confirmed in writing and delivered to the school district by
first-class mail.
(e) Notwithstanding subdivision (a), a person shall not be denied
employment or terminated from employment solely on the basis that the
person has been convicted of a violent of serious felony if the
person has obtained a certificate of rehabilitation and pardon
pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6
of Part 3 of the Penal Code.
(f) Notwithstanding subdivision (e), a person shall not be denied
employment or terminated from employment solely on the basis that the
person has been convicted of a serious felony that is not also a
violent felony if that person can prove to the sentencing court of
the offense in question, by clear and convincing evidence, that he or
she has been rehabilitated for the purposes of school employment for
at least one year. If the offense in question occurred outside this
state, then the person may seek a finding of rehabilitation from the
court in the school district in which he or she is a resident.
(g) Notwithstanding any other provision of law, when the
Department of Justice notifies a school district by telephone that a
current temporary, substitute, or probationary employee who has not
attained permanent status, has been convicted of a violent or serious
felony, that employee shall immediately be placed on leave without
pay. When the school district receives written notification of the
fact of conviction from the Department of Justice, the employee shall
be terminated automatically and without regard to any other
procedure for termination specified in this code or school district
procedures unless the employee challenges the record of the
Department of Justice and the Department of Justice withdraws in
writing its notification to the school district. Upon receipt of
written withdrawal of notification from the Department of Justice,
the employee shall immediately be reinstated with full restoration of
salary and benefits for the period of time from the suspension
without pay to the reinstatement.
(h) Notwithstanding Section 47610, this section applies to a
charter school.
45123. (a) No person shall be employed or retained in employment by
a school district who has been convicted of any sex offense as
defined in Section 44010. A plea or verdict of guilty, a finding of
guilt by a court in a trial without jury, or a conviction following a
plea of nolo contendere shall be deemed to be a conviction within
the meaning of this subdivision.
(b) No person shall be employed or retained in employment by a
school district, who has been convicted of a controlled substance
offense as defined in Section 44011.
(c) If, however, a 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.
(d) The governing board of a school district may employ a person
convicted of a controlled substance offense if the governing board of
the school 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.
45124. No person shall be employed or retained in employment by a
school district who has been determined to be a sexual psychopath
under the provisions of Article 1 (commencing with Section 6300),
Chapter 2, Part 2, Division 6 of the Welfare and Institutions Code or
under similar provisions of law of any other state. If, however,
such 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 is a sexual psychopath is dismissed, this
section does not prohibit his employment thereafter.
45125. (a) (1) Except as provided in Section 45125.01, the
governing board of any school district shall require each person to
be employed in a position not requiring certification qualifications,
except a secondary school pupil employed in a temporary or part-time
position by the governing board of the school district having
jurisdiction over the school attended by the pupil, to have two
fingerprint cards bearing the legible rolled and flat impressions of
the person's fingerprints together with a personal description of the
applicant prepared by a local public law enforcement agency having
jurisdiction in the area of the school district, which agency shall
transmit the cards, together with the fee required by subdivision
(f), to the Department of Justice; except that any district, or
districts with a common board, may process the fingerprint cards if
the district so elects.
(2) As used in this section, "local public law enforcement agency"
includes any school district and as used in Section 45126 requires
the Department of Justice to provide to any school district, upon
application, information pertaining only to applicants for employment
by the district, including applicants who are employees of another
district.
(b) (1) Upon receiving the fingerprint cards, the Department of
Justice shall ascertain whether the applicant has been arrested or
convicted of any crime insofar as that fact can be ascertained from
information available to the department and forward the information
to the employing agency submitting the applicant's fingerprints no
more than 15 working days after receiving the fingerprint cards. The
Department of Justice shall not forward records of criminal
proceedings that did not result in a conviction but shall forward
information on arrests pending adjudication.
(2) Upon implementation of an electronic fingerprinting system
with terminals located statewide and managed by the Department of
Justice, the Department of Justice shall ascertain the information
required pursuant to this subdivision within three working days. If
the Department of Justice cannot ascertain the information required
pursuant to this subdivision within three working days, the
department shall notify the school district that it cannot so
ascertain the required information. This notification shall be
delivered by telephone or electronic mail to the school district. If
a school district is notified by the Department of Justice that it
cannot ascertain the required information about a person, the school
district may not employ that person until the Department of Justice
ascertains that information.
(3) In the case of a person to be employed in a position not
requiring certification qualifications who is described in
subparagraph (A) or (B), the school district shall request the
Department of Justice to forward one copy of the fingerprint cards to
the Federal Bureau of Investigation for the purpose of obtaining any
record of previous convictions of the applicant.
(A) The person has not resided in the State of California for at
least one year immediately preceding the person's application for
employment.
(B) The person has resided for more than one year, but less than
seven years, in the State of California and the Department of Justice
has ascertained that the person was convicted of a sex offense where
the victim was a minor or a drug offense where an element of the
offense is either the distribution to, or the use of a controlled
substance by, a minor.
(c) The governing board of a school district shall not employ a
person until the Department of Justice completes its check of the
state criminal history file as set forth in this section and Sections
45125.5 and 45126, except that this subdivision does not apply to
secondary school pupils who are to be employed in a temporary or
part-time position by the governing board of the school district
having jurisdiction over the school they attend.
(d) The governing board of each district shall maintain a list
indicating the number of current employees, except secondary school
pupils employed in a temporary or part-time position by the governing
board of the school district having jurisdiction over the school
they attend, who have not completed the requirements of this section.
The Department of Justice shall process these cards within 30
working days of their receipt and any cards in its possession on the
date of the amendment of this section by Assembly Bill 1610 of the
1997-98 Regular Session within 30 working days of that date. School
districts that have previously submitted identification cards for
current employees to either the Department of Justice or the Federal
Bureau of Investigation shall not be required to further implement
the provisions of this section as it applies to those employees.
(e) A plea or verdict of guilty or a finding of guilt by a court
in a trial without a jury or forfeiture of bail is deemed to be a
conviction within the meaning of this section, irrespective of a
subsequent order under the provisions of Section 1203.4 of the Penal
Code allowing the withdrawal of the plea of guilty and entering of a
plea of not guilty, or setting aside the verdict of guilty, or
dismissing the accusations or information.
(f) (1) The school district shall provide the means whereby the
fingerprint cards may be
45100. Article 2 (commencing with Section 10340) of Chapter 4 of
Part 7, Articles 1 to 5, inclusive (commencing with Section 45100),
Article 7 (commencing with Section 45340), and the applicable
provisions of Sections 44047, 44048, Article 1 (commencing with
Section 7000) of Chapter 1, Article 1 (commencing with Section 7100)
of Chapter 2 of Part 5, Chapter 1 (commencing with Section 44000)
shall apply to all classified employees of a school district,
including those authorized in Sections 35025, 35041, and 35045,
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 also apply to all
persons who are part of the classified service who are employed by
the county superintendent of schools, or any division thereof, and
whose salaries are paid out of the county school service fund
regardless of the origin of the fund moneys, and to all persons
employed by any entity, including a regional occupational center or
program, created or established by any two or more school districts
pursuant to statute, including Chapter 14 (commencing with Section
7450) of Division 6, exercising any joint power pursuant to Article 1
(commencing with Section 6500) of Chapter 5 of Division 7 of Title 1
of the Government Code, or as otherwise conferred by law upon such
districts.
These provisions shall not apply to employees of a school district
lying wholly within a city and county which provides in its charter
for a merit system of employment for employees employed in positions
not requiring certification qualifications except that, commencing
July 1, 1992, the governing board of that district may adopt a
resolution to make these provisions applicable to persons employed as
paraprofessionals as defined in Section 44671.5, who have not
attained permanent status under the merit system as of that date.
The positions authorized in Sections 35025, 35041, and 35045 may,
by resolution of a governing board, be exempted from the provisions
of Article 6 (commencing with Section 45240) of this chapter.
45100.5. (a) The governing board of a school district may adopt a
resolution designating certain positions as senior management of the
classified service. Notwithstanding the provisions of Chapter 10.7
(commencing with Section 3540) of Division 4 of Title 1 of the
Government Code, the decision of the governing board shall not be
deemed a matter subject to negotiation, but shall be subject to
review by the Public Employment Relations Board.
(b) Employees whose positions are designated as senior management
of the classified service shall be a part of the classified service
and shall be afforded all rights, benefits, and burdens of other
classified employees, except that they shall be exempt from all
provisions relating to obtaining permanent status in a senior
management position.
(c) Notice of reassignment or dismissal from a position in the
senior management of the classified service shall be provided in
accordance with the provisions of Section 35031.
45101. Definitions as used in this chapter:
(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 has permanence, including dismissal,
suspension, demotion, or any reassignment, without his 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 such 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 public school employer. No
disciplinary action may be maintained for any "cause" other than as
defined herein.
The provisions of this section shall not apply to school districts
to which the provisions of Article 6 (commencing with Section 45240)
of this chapter are applicable.
The provisions of this section shall not apply to any school
district which, during the 1973-74 school year, had an average daily
attendance of 100,000 or more.
45102. (a) For the purposes of this section every classified
employee shall be deemed to be employed for 12 months during each
school year regardless of the number of months in which he or she is
normally in paid status.
(b) If, during a school 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 school 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 school year, unless the school district has
negotiated a contract that allows for a lesser pay scale. A school
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 school district that, in any school year, maintains school
sessions at times other than during the regular September-June
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, that assignment shall be made on the
basis of qualifications for employment in each classification of
service that is required.
(1) A school 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 in June to the
beginning of the next academic year in September to perform services
during that period.
(2) A classified employee shall, for services performed as
provided in this subdivision, 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 6 (commencing with Section 45240).
45103. (a) The governing board of any school district shall employ
persons for positions not requiring certification qualifications. The
governing board shall, except where Article 6 (commencing with
Section 45240) or Section 45318 applies, classify all of these
employees and positions. The employees and positions shall be known
as the classified service.
(b) (1) Substitute and short-term employees, employed and paid for
less than 75 percent of a school year, shall not be a part of the
classified service.
(2) 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.
(3) Full-time students employed part time, and part-time students
employed part time in any college workstudy program, or in a work
experience education program conducted by a community college
district pursuant to Article 7 (commencing with Section 51760) of
Chapter 5 of Part 28 and that is financed by state or federal funds,
shall not be a part of the classified service.
(4) Part-time playground positions shall not be a part of the
classified service, where the employee is not otherwise employed in a
classified position. Part-time playground positions shall be
considered a part of the classified service when the employee in the
position also works in the same school district in a classified
position.
(c) 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.
(d) As used in this section:
(1) "Substitute employee" 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.
(2) "Short-term employee" 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
45101, 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.
(3) "Seventy-five percent of a school year" means 195 working
days, including holidays, sick leave, vacation and other leaves of
absence, irrespective of number of hours worked per day.
(e) Employment of either full-time or part-time students in any
college workstudy program, or in a work experience education program
shall not result in the displacement of classified personnel or
impair existing contracts for services.
(f) This section shall apply only to districts not incorporating
the merit system as outlined in Article 6 (commencing with Section
45240).
45103.1. (a) Notwithstanding any other provision of this chapter,
personal services contracting for all services currently or
customarily performed by classified school employees to achieve cost
savings is permissible, unless otherwise prohibited, when all the
following conditions are met:
(1) The governing board or contracting agency clearly demonstrates
that the proposed contract will result in actual overall cost
savings to the school district, provided that:
(A) In comparing costs, there shall be included the school
district's additional cost of providing the same service as proposed
by a contractor. These additional costs shall include the salaries
and benefits of additional staff that would be needed and the cost of
additional space, equipment, and materials needed to perform the
function.
(B) In comparing costs, there shall not be included the school
district's indirect overhead costs unless these costs can be
attributed solely to the function in question and would not exist if
that function was not performed by the school district. Indirect
overhead costs shall mean the pro rata share of existing
administrative salaries and benefits, rent, equipment costs,
utilities, and materials.
(C) In comparing costs, there shall be included in the cost of a
contractor providing a service any continuing school district costs
that would be directly associated with the contracted function. These
continuing school district costs shall include, but not be limited
to, those for inspection, supervision, and monitoring.
(2) Proposals to contract out work shall not be approved solely on
the basis that savings will result from lower contractor pay rates
or benefits. Proposals to contract out work shall be eligible for
approval if the contractor's wages are at the industry's level and do
not undercut school district pay rates.
(3) The contract does not cause the displacement of school
district employees. The term "displacement" includes layoff,
demotion, involuntary transfer to a new classification, involuntary
transfer to a new location requiring a change of residence, and time
base reductions. Displacement does not include changes in shifts or
days off, nor does it include reassignment to other positions within
the same classification and general location or employment with the
contractor, so long as wages and benefits are comparable to those
paid by the school district.
(4) The savings shall be large enough to ensure that they will not
be eliminated by private sector and district cost fluctuations that
could normally be expected during the contracting period.
(5) The amount of savings clearly justify the size and duration of
the contracting agreement.
(6) The contract is awarded through a publicized, competitive
bidding process.
(7) The contract includes specific provisions pertaining to the
qualifications of the staff that will perform the work under the
contract, as well as assurance that the contractor's hiring practices
meet applicable nondiscrimination standards.
(8) The potential for future economic risk to the school district
from potential contractor rate increases is minimal.
(9) The contract is with a firm. A "firm" means a corporation,
limited liability 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 school district.
(b) Notwithstanding any other provision of this chapter, personal
services contracting shall also be permissible when any of the
following conditions can be met:
(1) The contract is for new school district functions and the
Legislature has specifically mandated or authorized the performance
of the work by independent contractors.
(2) The services contracted are not available within the district,
cannot be performed satisfactorily by school district employees, or
are of such a highly specialized or technical nature that the
necessary expert knowledge, experience, and ability are not available
through the school district.
(3) The services are incidental to a contract for the purchase or
lease of real or personal property. Contracts under this criterion,
known as "service agreements," shall include, but not be limited to,
agreements to service or maintain office equipment or computers that
are leased or rented.
(4) The policy, administrative, or legal goals and purposes of the
district cannot be accomplished through the utilization of persons
selected pursuant to the regular or ordinary school district hiring
process. Contracts are permissible under this criterion to protect
against a conflict of interest or to ensure independent and unbiased
findings in cases where there is a clear need for a different,
outside perspective. These contracts shall include, but not be
limited to, obtaining expert witnesses in litigation.
(5) The nature of the work is such that the criteria for emergency
appointments apply. "Emergency appointment" means an appointment
made for a period not to exceed 60 working days either during an
actual emergency to prevent the stoppage of public business or
because of the limited duration of the work. The method of selection
and the qualification standards for an emergency employee shall be
determined by the district. The frequency of appointment, length of
employment, and the circumstances appropriate for the appointment of
firms or individuals under emergency appointments shall be restricted
so as to prevent the use of emergency appointments to circumvent the
regular or ordinary hiring process.
(6) The contractor will provide equipment, materials, facilities,
or support services that could not feasibly be provided by the school
district in the location where the services are to be performed.
(7) The services are of such an urgent, temporary, or occasional
nature that the delay incumbent in their implementation under the
district's regular or ordinary hiring process would frustrate their
very purpose.
(c) This section shall apply to all school districts, including
districts that have adopted the merit system.
(d) This section shall apply to personal service contracts entered
into after January 1, 2003. This section shall not apply to the
renewal of personal services contracts subsequent to January 1, 2003,
where the contract was entered into before January 1, 2003,
irrespective of whether the contract is renewed or rebid with the
existing contractor or with a new contractor.
45103.5. All contracts for management consulting services relating
to food service shall be governed by this section.
(a) Notwithstanding Sections 39902, 45103, 45104, and 45256, any
school district may enter into a contract for management consulting
services relating to food service for a term not to exceed one year.
Any renewal of that contract, or further requests for proposals to
provide food service management consulting services, shall be
considered on a year-to-year basis. A contract for food service
management consulting services shall not cause or result in the
elimination of any food service classified personnel or position. A
contract for food service management consulting services shall not
cause or result in any adverse effect upon any food service
classified personnel or position with respect to wages, benefits, or
other terms and conditions of employment.
(b) A contract made pursuant to subdivision (a) shall not provide
for or result in the supervision of food service classified personnel
by the food service management consultant. This section shall not be
construed to prevent an entity providing food service management
consulting services from interacting or consulting with the food
service manager or director, supervisors, or food service classified
employees of a school district on matters relating to food services
except those prohibited by subdivision (a).
(c) Sections 45122, 45123, 45124, 45125, 45125.5, and 45126, and
any other health criteria established by the school district, are
applicable to all persons providing food service management
consulting services under this section.
(d) This section shall apply to all school districts, including
districts that have adopted the merit system.
45104. Every position not defined by this code as a position
requiring certification qualifications and not specifically exempted
from the classified service according to the provisions of Section
45103 or 45256 shall be classified as required by those sections and
shall be a part of the classified service. Such positions may not be
designated as certificated nor shall the assignment of a title to any
such a position remove the position from the classified service, nor
shall possession of a certification document be made a requirement
for employment in any such position.
Nothing in this section shall be construed to prohibit the
employment of any individual in a position described by this section
as part of the classified service who is in possession of
certification qualifications, nor shall the possession of
certification qualifications be grounds for the elimination of an
individual for consideration for employment in such a 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 6 (commencing with Section 45240) of this chapter.
45104.5. The governing board of a school district may adopt a
resolution abolishing any or all positions of the senior management
of the classified service. An employee occupying a senior management
position abolished by the action shall become a member of the
classified or certificated service in a position to which he or she
would otherwise be entitled if the employee had not been a member of
the senior management of the classified service.
If the employee in the senior management of the classified service
had been a member of the regular classified or certificated service,
he or she shall be entitled to a position which is the same as, or
similar to, the position to which he or she holds rights outside of
the senior management of the classified service.
45105. (a) Positions not requiring certification qualifications
created by a governing board of a school district under the Manpower
Development and Training Act of 1962, the Economic Opportunity Act of
1964, the Elementary and Secondary Education Act of 1965, or Section
11300 or Section 13650 of the Welfare and Institutions Code, any
future federal or state legislative enactment, or any other special
funding, and which are not a part of the regular school program
shall, nevertheless, be a part of the classified service as
established by Section 45103 or 45256.
Persons employed in these positions shall be classified employees
and shall enjoy all of the rights, burdens and benefits accorded
other classified employees. Their selection and retention shall be
made on the same basis as that of persons selected for positions that
are a part of the regular school program.
(b) (1) Notwithstanding subdivision (a), if specially funded
positions are restricted to employment of persons in low-income
groups, from designated impoverished areas or other criteria which
restricts the privilege of all citizens to compete for employment in
the positions, all these positions shall, in addition to the regular
class title, be classified as "restricted." Their selection and
retention shall be made on the same basis as that of persons selected
and retained in positions that are a part of the regular school
program, except that persons employed in the following categories of
restricted positions shall not be subject to Section 45272 or 45273:
(A) The position of instructional aide, as defined in Section
45343.
(B) Any other position involving personal contacts with pupils or
parents that is established to assist school-staff personnel
responsible for school-community relations; educational support
services for such areas as counseling, library or health; or the
correction or prevention of behavioral problems.
(2) Persons employed in positions properly classified as
"restricted" shall be classified employees for all purposes except:
(A) They shall not be accorded employment permanency under Section
45113 or 45301, whichever is applicable.
(B) They shall not acquire seniority credits for the purposes of
Sections 45298 and 45308 or, in a district not having the merit
(civil service) system, for the purposes of layoff for lack of work
or lack of funds as may be established by rule of the governing
board.
(C) Sections 45287 and 45289 shall not apply to "restricted"
employees.
(D) They shall not be eligible for promotion into the regular
classified service or, in districts that have adopted the merit
system, shall not be subject to the provisions of Section 45241,
until they have complied with the provisions of subdivision (c).
(c) At any time, after completion of six months of satisfactory
service, a person serving in a "restricted" position shall be given
the opportunity to take qualifying examinations that are required for
all other persons serving in the same class in the regular
classified service. If the person satisfactorily completes the
qualifying examination, regardless of final numerical listing on an
eligibility list, he or she shall be accorded full rights, benefits
and burdens of any other classified employee serving in the regular
classified service. His or her service in the regular classified
service shall be counted from the original date of employment in the
"restricted" position and shall continue even though he or she
continues to serve in a "restricted" position.
(d) This section shall apply to districts that have adopted the
merit system in the same manner and effect as if it were a part of
Article 6 (commencing with Section 45240) of this chapter.
(e) It is the intent of the Legislature in enacting this section
to clearly set forth that positions normally a part of the classified
service are included in the classified service regardless of the
source of income to sustain the positions and to effectively
implement specially funded programs intended to provide job
opportunities for untrained and impoverished persons but to do so in
a manner that will not be disruptive nor detrimental to the normal
employment procedures relating to classified school service.
45106. Notwithstanding the provisions of Section 45103 or Section
45256, which exempt certain types of positions or categories of
personnel from the classified service of a school 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 45122 to 45125, inclusive, and
Section 49406. The governing board of every school 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.
45107. (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 school 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 6 (commencing with Section 45240) of this chapter.
45108. If the governing board of any school 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 45272 or 45273, 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
45105.
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
45343.
(b) Any other position involving personal contacts with pupils or
parents, that is established to assist school staff personnel
responsible for school-community relations; educational support
services for such areas as counseling, library, or health; or the
correction or prevention of behavioral problems.
This section shall apply to districts that have adopted the merit
system in the same manner and effect as if it were a part of Article
6 (commencing with Section 45240) of this chapter.
45108.5. (a) Senior management employee means either of the
following:
(1) An employee in the highest position in a principal district
program area, as determined by the governing board, which does not
require certification qualifications, and which has districtwide
responsibility for formulating policies or administering the program
area.
(2) An employee who acts as the fiscal advisor to the district
superintendent.
(b) The maximum number of positions which may be designated as
senior management positions shall be as follows:
(1) For districts with less than 10,000 units of average daily
attendance, two positions.
(2) For districts with 10,000 to 25,000 units of average daily
attendance, inclusive, three positions.
(3) For districts with 25,001 to 50,000 units of average daily
attendance, inclusive, 4 positions.
(4) For districts with more than 50,000 units of average daily
attendance, 5 positions.
(c) This section shall apply to districts that have adopted the
merit system in the same manner and effect as if it were a part of
Article 6 (commencing with Section 45240), as well as to districts
which have not adopted the merit system.
45108.7. The governing board of a school district may apply to the
State Board of Education to waive the provisions of Section 45108.5
for purposes of expanding the number and type of senior management
positions.
45109. Governing boards shall fix and prescribe the duties to be
performed by all persons in the classified service and other
positions not requiring certification qualifications of the school
district, except those persons employed as a part of a personnel
commission staff as provided in Article 6 (commencing with Section
45240) 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
6 (commencing with Section 45240) of this chapter.
45110. Classified employees shall not be required to perform duties
which are not fixed and prescribed for the position by the governing
board in accordance with Section 45109, unless the duties reasonably
relate to those fixed for the position by the board, for any period
of time which 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 provided that his salary is adjusted
upward for the entire period he is required to work out of
classification and in such amounts as will reasonably reflect the
duties required to be performed outside his normal assigned duties.
Notwithstanding the provisions of this section, a personnel
commission and governing board, or a governing board in a nonmerit
system district, may, by written rule, 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 school 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
6 (commencing with Section 45240) of this chapter.
45111. No school 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 45105 and
45103.
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
6 (commencing with Section 45240) of this chapter.
45112. If the governing board of any school 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 45112 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
6 (commencing with Section 45240) of this chapter.
45113. (a) The governing board of a school 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
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 position, shall be employed
in the classification 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 which
arose prior to the employee's becoming permanent, nor for any cause
which 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 6 (commencing with Section
45240) of this chapter.
45114. Notwithstanding the provisions of Section 45113, the
governing board may lay off and reemploy classified employees only in
accordance with procedures provided by Sections 45298 and 45308,
except the term "personnel commission" therein shall be construed to
mean the governing board. "Governing board" as used in this section
shall include districts governed by a common board or by different
boards but with a common administration. Employees in common board or
common administration districts shall, for the purpose of layoff for
lack of work or funds, be considered as having been employed in a
single district.
45115. 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
he 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 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
6 (commencing with Section 45240) of this chapter.
45116. 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 6 (commencing with Section 45240) of this
chapter.
45117. (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 45103, 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 45103, 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 school
district from implementing either of the following actions 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 6 (commencing with Section 45240).
45119. Whenever, by reason of any reorganization, other than the
unification of districts, all or part of the territory of any school
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 if a simple
majority of the classified employees of the reorganized district
voting on the adoption of a merit system approve its adoption
pursuant to Section 45221. If no such election is requested by the
classified employees of the reorganized district pursuant to Section
45221, adoption of a merit system shall be effective only if the
number of classified employees from the merit system district who are
to become employees of the acquiring district equals or exceeds the
number of classified employees of the acquiring nonmerit system
district. 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 if a simple majority of the classified
employees of the reorganized district voting on the adoption of a
merit system approve its adoption pursuant to Section 45221. If no
such election is requested by the classified employees of the
reorganized district pursuant to Section 45221, adoption of a merit
system shall be effective only if the number of classified employees
from the merit system district who are to become employees of the
acquiring district equals or exceeds the number of classified
employees of the acquiring nonmerit system district. 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 6 (commencing with Section 45240) 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
6 (commencing with Section 45240) 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 6 (commencing with Section
45240) of the 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.
45120. If all or any part of any district or districts which is
unified with all or any part of a district, has, or have, the merit
system prior to the date of the reorganization election, all
employees not legally requiring certification qualifications of the
reorganized district shall be employed in accordance with Article 6
(commencing with Section 45240) of this chapter if a simple majority
of the classified employees of the reorganized district voting on the
adoption of a merit system approve its adoption pursuant to Section
45221. If no such election is requested by the classified employees
of the reorganized district pursuant to Section 45221, adoption of a
merit system shall be effective only if the number of classified
employees from the merit system district who are to become employees
of the acquiring district equals or exceeds the number of classified
employees of the acquiring nonmerit system district. If on the date
of such reorganization election, two or more of the said defined
districts of such reorganized district have merit systems, the
reorganized district shall adopt a single merit system which shall
contain all provisions necessary to secure to all employees the
rights guaranteed by Section 45121 of this code.
Seniority of the personnel of the reorganized district shall be
established as of the date of original employment in the district or
districts as defined above. Where there are more than a sufficient
number of employees for a given classification under the provisions
of Article 6 (commencing with Section 45240) 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 the governing
board of the new unified district to reasonably reassign such
person. 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 shall, if so placed, 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 6 (commencing with Section
45240) 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.
45120.1. Notwithstanding the provisions of Sections 45119 and
45120, when any school district involved in any reorganization,
annexation, unionization, merger, or unification is not required to
adopt the merit system, the classified employees of such district who
formerly were employed by a district having the merit system shall
retain for a period of two years the salary, benefits, seniority, and
other rights which they would have had had the reorganization not
occurred.
45120.2. (a) If the development or revision of a local plan for the
education of individuals with exceptional needs pursuant to Chapter
2.5 (commencing with Section 56195) of Part 30, results in a
classified employee who is performing service for one employer being
terminated, reassigned, or transferred, or becoming the employee of
another employer because of the reorganization of special education
programs, the employee shall retain the seniority acquired at his or
her employment with the school district or county office of education
from which he or she was terminated, reassigned, or transferred. If
terminated, the employee retains the rights specified in Sections
45115, 45117, and 45119.
(b) The reassignment of an employee, transfer of an employee, or
new employment of an employee caused by the reorganization of special
education programs does not affect the seniority or classification
that a classified employee already attained in any school district
that undergoes the reorganization. The employee has the same status
with respect to his or her seniority or classification, with the new
employer, including time served as a probationary employee. The total
number of years served as a classified employee with the former
school district or county office shall be credited, year for year,
for placement on the salary schedule of the new school district or
county office.
(c) If a local plan for the education of individuals with
exceptional needs is developed or revised pursuant to Chapter 2.5
(commencing with Section 56195) of Part 30, all classified employees
shall be employed by a county office of education or an individual
school district.
(d) A classified employee who is reassigned or transferred as a
result of the reorganization of special education programs has
priority, except as provided in subdivision (e), in being informed of
and in filling classified positions in the classifications in which
the employee was employed before the reassignment or transfer. This
priority expires 24 months after the date of reassignment or transfer
and may be waived by the employee during that time period.
(e) A classified employee who served in a special education
program in a school district or county office and is terminated from
his or her employment by that school district or county office
pursuant to Section 45114 as a result of the reorganization of a
special education program has first priority in being informed of and
in filling vacant classified positions for which the employee is
qualified or was employed, in the county office or school district
that operates the reorganized special education program. Permanent
employees have the first priority right to reappointment as provided
in this section for 39 months from the date of termination.
Probationary employees have the first priority right to reappointment
as provided in this section for 24 months from the date of
termination.
45121. Persons employed in positions not requiring certification
qualifications in districts, all or part of whose territory is
included in a unification of districts, shall continue as employees
of the unified school district for not less than two years, and shall
not, by reason of any unification, be deprived of any benefit which
they would have had had the unification not taken place. In
determining the rights of such employees, their salaries, accumulated
leaves, and other rights shall be determined as of the date the
unification election was conducted. No increase in benefits not
previously conferred, granted by the governing board of any district,
all or part of whose territory is included in a unification of
districts, after such unification election, shall be binding on the
governing board of the unified district, except that benefits granted
in the districts comprising the new unified district which does not
become effective until the second succeeding first day of July shall
be binding on the governing board of the unified district. Nothing
herein contained shall preclude the governing board of the unified
school district from making any reasonable reassignment of the duties
of such employees. The governing board of the unified district shall
establish a system of uniform salaries, employee benefits and
working conditions for employees performing like services in
conformity with the provisions of this section.
45122. Whenever a governing board of a school district requires a
physical examination to be taken by a classified employee or
employees, either by rule or by its direction or the direction of its
authorized district administrator; or when classified employees are
required by law to submit to a physical examination for continuance
in employment, the board shall either provide the required
examination, cause it to be provided, or provide the employee with
reasonable reimbursement for the required examination.
If the governing board requires a physical examination or an
examination is required by law as a condition of preemployment, it
may cause the required examination to be given. It may, if an
applicant is required to take a preemployment physical examination,
provide for reasonable reimbursement if the applicant is subsequently
employed by the district.
This section shall apply to districts that have adopted the merit
system in the same manner and effect as if it were a part of Article
6 (commencing with Section 45240) of this chapter.
45122.1. (a) In addition to any other prohibition or provision, no
person who has been convicted of a violent or serious felony shall be
employed by a school district pursuant to this chapter. A school
district shall not retain in employment a current classified employee
who has been convicted of a violent or serious felony, and who is a
temporary, substitute, or a probationary employee who has not
attained permanent status.
(b) This section applies to any violent or serious offense which,
if committed in this state, would have been punishable as a violent
or serious felony.
(c) (1) For purposes of this section, a violent felony is any
felony listed in subdivision (c) of Section 667.5 of the Penal Code
and a serious felony is any felony listed in subdivision (c) of
Section 1192.7 of the Penal Code.
(2) For purposes of this section, the term "school district" has
the same meaning as defined in Section 41302.5.
(d) When the Department of Justice ascertains that an individual
who is an applicant for employment by a school district has been
convicted of a violent or serious felony, the department shall notify
the school district of the criminal information pertaining to the
applicant. The notification shall be delivered by telephone and shall
be confirmed in writing and delivered to the school district by
first-class mail.
(e) Notwithstanding subdivision (a), a person shall not be denied
employment or terminated from employment solely on the basis that the
person has been convicted of a violent of serious felony if the
person has obtained a certificate of rehabilitation and pardon
pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6
of Part 3 of the Penal Code.
(f) Notwithstanding subdivision (e), a person shall not be denied
employment or terminated from employment solely on the basis that the
person has been convicted of a serious felony that is not also a
violent felony if that person can prove to the sentencing court of
the offense in question, by clear and convincing evidence, that he or
she has been rehabilitated for the purposes of school employment for
at least one year. If the offense in question occurred outside this
state, then the person may seek a finding of rehabilitation from the
court in the school district in which he or she is a resident.
(g) Notwithstanding any other provision of law, when the
Department of Justice notifies a school district by telephone that a
current temporary, substitute, or probationary employee who has not
attained permanent status, has been convicted of a violent or serious
felony, that employee shall immediately be placed on leave without
pay. When the school district receives written notification of the
fact of conviction from the Department of Justice, the employee shall
be terminated automatically and without regard to any other
procedure for termination specified in this code or school district
procedures unless the employee challenges the record of the
Department of Justice and the Department of Justice withdraws in
writing its notification to the school district. Upon receipt of
written withdrawal of notification from the Department of Justice,
the employee shall immediately be reinstated with full restoration of
salary and benefits for the period of time from the suspension
without pay to the reinstatement.
(h) Notwithstanding Section 47610, this section applies to a
charter school.
45123. (a) No person shall be employed or retained in employment by
a school district who has been convicted of any sex offense as
defined in Section 44010. A plea or verdict of guilty, a finding of
guilt by a court in a trial without jury, or a conviction following a
plea of nolo contendere shall be deemed to be a conviction within
the meaning of this subdivision.
(b) No person shall be employed or retained in employment by a
school district, who has been convicted of a controlled substance
offense as defined in Section 44011.
(c) If, however, a 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.
(d) The governing board of a school district may employ a person
convicted of a controlled substance offense if the governing board of
the school 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.
45124. No person shall be employed or retained in employment by a
school district who has been determined to be a sexual psychopath
under the provisions of Article 1 (commencing with Section 6300),
Chapter 2, Part 2, Division 6 of the Welfare and Institutions Code or
under similar provisions of law of any other state. If, however,
such 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 is a sexual psychopath is dismissed, this
section does not prohibit his employment thereafter.
45125. (a) (1) Except as provided in Section 45125.01, the
governing board of any school district shall require each person to
be employed in a position not requiring certification qualifications,
except a secondary school pupil employed in a temporary or part-time
position by the governing board of the school district having
jurisdiction over the school attended by the pupil, to have two
fingerprint cards bearing the legible rolled and flat impressions of
the person's fingerprints together with a personal description of the
applicant prepared by a local public law enforcement agency having
jurisdiction in the area of the school district, which agency shall
transmit the cards, together with the fee required by subdivision
(f), to the Department of Justice; except that any district, or
districts with a common board, may process the fingerprint cards if
the district so elects.
(2) As used in this section, "local public law enforcement agency"
includes any school district and as used in Section 45126 requires
the Department of Justice to provide to any school district, upon
application, information pertaining only to applicants for employment
by the district, including applicants who are employees of another
district.
(b) (1) Upon receiving the fingerprint cards, the Department of
Justice shall ascertain whether the applicant has been arrested or
convicted of any crime insofar as that fact can be ascertained from
information available to the department and forward the information
to the employing agency submitting the applicant's fingerprints no
more than 15 working days after receiving the fingerprint cards. The
Department of Justice shall not forward records of criminal
proceedings that did not result in a conviction but shall forward
information on arrests pending adjudication.
(2) Upon implementation of an electronic fingerprinting system
with terminals located statewide and managed by the Department of
Justice, the Department of Justice shall ascertain the information
required pursuant to this subdivision within three working days. If
the Department of Justice cannot ascertain the information required
pursuant to this subdivision within three working days, the
department shall notify the school district that it cannot so
ascertain the required information. This notification shall be
delivered by telephone or electronic mail to the school district. If
a school district is notified by the Department of Justice that it
cannot ascertain the required information about a person, the school
district may not employ that person until the Department of Justice
ascertains that information.
(3) In the case of a person to be employed in a position not
requiring certification qualifications who is described in
subparagraph (A) or (B), the school district shall request the
Department of Justice to forward one copy of the fingerprint cards to
the Federal Bureau of Investigation for the purpose of obtaining any
record of previous convictions of the applicant.
(A) The person has not resided in the State of California for at
least one year immediately preceding the person's application for
employment.
(B) The person has resided for more than one year, but less than
seven years, in the State of California and the Department of Justice
has ascertained that the person was convicted of a sex offense where
the victim was a minor or a drug offense where an element of the
offense is either the distribution to, or the use of a controlled
substance by, a minor.
(c) The governing board of a school district shall not employ a
person until the Department of Justice completes its check of the
state criminal history file as set forth in this section and Sections
45125.5 and 45126, except that this subdivision does not apply to
secondary school pupils who are to be employed in a temporary or
part-time position by the governing board of the school district
having jurisdiction over the school they attend.
(d) The governing board of each district shall maintain a list
indicating the number of current employees, except secondary school
pupils employed in a temporary or part-time position by the governing
board of the school district having jurisdiction over the school
they attend, who have not completed the requirements of this section.
The Department of Justice shall process these cards within 30
working days of their receipt and any cards in its possession on the
date of the amendment of this section by Assembly Bill 1610 of the
1997-98 Regular Session within 30 working days of that date. School
districts that have previously submitted identification cards for
current employees to either the Department of Justice or the Federal
Bureau of Investigation shall not be required to further implement
the provisions of this section as it applies to those employees.
(e) A plea or verdict of guilty or a finding of guilt by a court
in a trial without a jury or forfeiture of bail is deemed to be a
conviction within the meaning of this section, irrespective of a
subsequent order under the provisions of Section 1203.4 of the Penal
Code allowing the withdrawal of the plea of guilty and entering of a
plea of not guilty, or setting aside the verdict of guilty, or
dismissing the accusations or information.
(f) (1) The school district shall provide the means whereby the
fingerprint cards may be
45100. Article 2 (commencing with Section 10340) of Chapter 4 of
Part 7, Articles 1 to 5, inclusive (commencing with Section 45100),
Article 7 (commencing with Section 45340), and the applicable
provisions of Sections 44047, 44048, Article 1 (commencing with
Section 7000) of Chapter 1, Article 1 (commencing with Section 7100)
of Chapter 2 of Part 5, Chapter 1 (commencing with Section 44000)
shall apply to all classified employees of a school district,
including those authorized in Sections 35025, 35041, and 35045,
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 also apply to all
persons who are part of the classified service who are employed by
the county superintendent of schools, or any division thereof, and
whose salaries are paid out of the county school service fund
regardless of the origin of the fund moneys, and to all persons
employed by any entity, including a regional occupational center or
program, created or established by any two or more school districts
pursuant to statute, including Chapter 14 (commencing with Section
7450) of Division 6, exercising any joint power pursuant to Article 1
(commencing with Section 6500) of Chapter 5 of Division 7 of Title 1
of the Government Code, or as otherwise conferred by law upon such
districts.
These provisions shall not apply to employees of a school district
lying wholly within a city and county which provides in its charter
for a merit system of employment for employees employed in positions
not requiring certification qualifications except that, commencing
July 1, 1992, the governing board of that district may adopt a
resolution to make these provisions applicable to persons employed as
paraprofessionals as defined in Section 44671.5, who have not
attained permanent status under the merit system as of that date.
The positions authorized in Sections 35025, 35041, and 35045 may,
by resolution of a governing board, be exempted from the provisions
of Article 6 (commencing with Section 45240) of this chapter.
45100.5. (a) The governing board of a school district may adopt a
resolution designating certain positions as senior management of the
classified service. Notwithstanding the provisions of Chapter 10.7
(commencing with Section 3540) of Division 4 of Title 1 of the
Government Code, the decision of the governing board shall not be
deemed a matter subject to negotiation, but shall be subject to
review by the Public Employment Relations Board.
(b) Employees whose positions are designated as senior management
of the classified service shall be a part of the classified service
and shall be afforded all rights, benefits, and burdens of other
classified employees, except that they shall be exempt from all
provisions relating to obtaining permanent status in a senior
management position.
(c) Notice of reassignment or dismissal from a position in the
senior management of the classified service shall be provided in
accordance with the provisions of Section 35031.
45101. Definitions as used in this chapter:
(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 has permanence, including dismissal,
suspension, demotion, or any reassignment, without his 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 such 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 public school employer. No
disciplinary action may be maintained for any "cause" other than as
defined herein.
The provisions of this section shall not apply to school districts
to which the provisions of Article 6 (commencing with Section 45240)
of this chapter are applicable.
The provisions of this section shall not apply to any school
district which, during the 1973-74 school year, had an average daily
attendance of 100,000 or more.
45102. (a) For the purposes of this section every classified
employee shall be deemed to be employed for 12 months during each
school year regardless of the number of months in which he or she is
normally in paid status.
(b) If, during a school 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 school 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 school year, unless the school district has
negotiated a contract that allows for a lesser pay scale. A school
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 school district that, in any school year, maintains school
sessions at times other than during the regular September-June
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, that assignment shall be made on the
basis of qualifications for employment in each classification of
service that is required.
(1) A school 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 in June to the
beginning of the next academic year in September to perform services
during that period.
(2) A classified employee shall, for services performed as
provided in this subdivision, 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 6 (commencing with Section 45240).
45103. (a) The governing board of any school district shall employ
persons for positions not requiring certification qualifications. The
governing board shall, except where Article 6 (commencing with
Section 45240) or Section 45318 applies, classify all of these
employees and positions. The employees and positions shall be known
as the classified service.
(b) (1) Substitute and short-term employees, employed and paid for
less than 75 percent of a school year, shall not be a part of the
classified service.
(2) 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.
(3) Full-time students employed part time, and part-time students
employed part time in any college workstudy program, or in a work
experience education program conducted by a community college
district pursuant to Article 7 (commencing with Section 51760) of
Chapter 5 of Part 28 and that is financed by state or federal funds,
shall not be a part of the classified service.
(4) Part-time playground positions shall not be a part of the
classified service, where the employee is not otherwise employed in a
classified position. Part-time playground positions shall be
considered a part of the classified service when the employee in the
position also works in the same school district in a classified
position.
(c) 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.
(d) As used in this section:
(1) "Substitute employee" 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.
(2) "Short-term employee" 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
45101, 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.
(3) "Seventy-five percent of a school year" means 195 working
days, including holidays, sick leave, vacation and other leaves of
absence, irrespective of number of hours worked per day.
(e) Employment of either full-time or part-time students in any
college workstudy program, or in a work experience education program
shall not result in the displacement of classified personnel or
impair existing contracts for services.
(f) This section shall apply only to districts not incorporating
the merit system as outlined in Article 6 (commencing with Section
45240).
45103.1. (a) Notwithstanding any other provision of this chapter,
personal services contracting for all services currently or
customarily performed by classified school employees to achieve cost
savings is permissible, unless otherwise prohibited, when all the
following conditions are met:
(1) The governing board or contracting agency clearly demonstrates
that the proposed contract will result in actual overall cost
savings to the school district, provided that:
(A) In comparing costs, there shall be included the school
district's additional cost of providing the same service as proposed
by a contractor. These additional costs shall include the salaries
and benefits of additional staff that would be needed and the cost of
additional space, equipment, and materials needed to perform the
function.
(B) In comparing costs, there shall not be included the school
district's indirect overhead costs unless these costs can be
attributed solely to the function in question and would not exist if
that function was not performed by the school district. Indirect
overhead costs shall mean the pro rata share of existing
administrative salaries and benefits, rent, equipment costs,
utilities, and materials.
(C) In comparing costs, there shall be included in the cost of a
contractor providing a service any continuing school district costs
that would be directly associated with the contracted function. These
continuing school district costs shall include, but not be limited
to, those for inspection, supervision, and monitoring.
(2) Proposals to contract out work shall not be approved solely on
the basis that savings will result from lower contractor pay rates
or benefits. Proposals to contract out work shall be eligible for
approval if the contractor's wages are at the industry's level and do
not undercut school district pay rates.
(3) The contract does not cause the displacement of school
district employees. The term "displacement" includes layoff,
demotion, involuntary transfer to a new classification, involuntary
transfer to a new location requiring a change of residence, and time
base reductions. Displacement does not include changes in shifts or
days off, nor does it include reassignment to other positions within
the same classification and general location or employment with the
contractor, so long as wages and benefits are comparable to those
paid by the school district.
(4) The savings shall be large enough to ensure that they will not
be eliminated by private sector and district cost fluctuations that
could normally be expected during the contracting period.
(5) The amount of savings clearly justify the size and duration of
the contracting agreement.
(6) The contract is awarded through a publicized, competitive
bidding process.
(7) The contract includes specific provisions pertaining to the
qualifications of the staff that will perform the work under the
contract, as well as assurance that the contractor's hiring practices
meet applicable nondiscrimination standards.
(8) The potential for future economic risk to the school district
from potential contractor rate increases is minimal.
(9) The contract is with a firm. A "firm" means a corporation,
limited liability 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 school district.
(b) Notwithstanding any other provision of this chapter, personal
services contracting shall also be permissible when any of the
following conditions can be met:
(1) The contract is for new school district functions and the
Legislature has specifically mandated or authorized the performance
of the work by independent contractors.
(2) The services contracted are not available within the district,
cannot be performed satisfactorily by school district employees, or
are of such a highly specialized or technical nature that the
necessary expert knowledge, experience, and ability are not available
through the school district.
(3) The services are incidental to a contract for the purchase or
lease of real or personal property. Contracts under this criterion,
known as "service agreements," shall include, but not be limited to,
agreements to service or maintain office equipment or computers that
are leased or rented.
(4) The policy, administrative, or legal goals and purposes of the
district cannot be accomplished through the utilization of persons
selected pursuant to the regular or ordinary school district hiring
process. Contracts are permissible under this criterion to protect
against a conflict of interest or to ensure independent and unbiased
findings in cases where there is a clear need for a different,
outside perspective. These contracts shall include, but not be
limited to, obtaining expert witnesses in litigation.
(5) The nature of the work is such that the criteria for emergency
appointments apply. "Emergency appointment" means an appointment
made for a period not to exceed 60 working days either during an
actual emergency to prevent the stoppage of public business or
because of the limited duration of the work. The method of selection
and the qualification standards for an emergency employee shall be
determined by the district. The frequency of appointment, length of
employment, and the circumstances appropriate for the appointment of
firms or individuals under emergency appointments shall be restricted
so as to prevent the use of emergency appointments to circumvent the
regular or ordinary hiring process.
(6) The contractor will provide equipment, materials, facilities,
or support services that could not feasibly be provided by the school
district in the location where the services are to be performed.
(7) The services are of such an urgent, temporary, or occasional
nature that the delay incumbent in their implementation under the
district's regular or ordinary hiring process would frustrate their
very purpose.
(c) This section shall apply to all school districts, including
districts that have adopted the merit system.
(d) This section shall apply to personal service contracts entered
into after January 1, 2003. This section shall not apply to the
renewal of personal services contracts subsequent to January 1, 2003,
where the contract was entered into before January 1, 2003,
irrespective of whether the contract is renewed or rebid with the
existing contractor or with a new contractor.
45103.5. All contracts for management consulting services relating
to food service shall be governed by this section.
(a) Notwithstanding Sections 39902, 45103, 45104, and 45256, any
school district may enter into a contract for management consulting
services relating to food service for a term not to exceed one year.
Any renewal of that contract, or further requests for proposals to
provide food service management consulting services, shall be
considered on a year-to-year basis. A contract for food service
management consulting services shall not cause or result in the
elimination of any food service classified personnel or position. A
contract for food service management consulting services shall not
cause or result in any adverse effect upon any food service
classified personnel or position with respect to wages, benefits, or
other terms and conditions of employment.
(b) A contract made pursuant to subdivision (a) shall not provide
for or result in the supervision of food service classified personnel
by the food service management consultant. This section shall not be
construed to prevent an entity providing food service management
consulting services from interacting or consulting with the food
service manager or director, supervisors, or food service classified
employees of a school district on matters relating to food services
except those prohibited by subdivision (a).
(c) Sections 45122, 45123, 45124, 45125, 45125.5, and 45126, and
any other health criteria established by the school district, are
applicable to all persons providing food service management
consulting services under this section.
(d) This section shall apply to all school districts, including
districts that have adopted the merit system.
45104. Every position not defined by this code as a position
requiring certification qualifications and not specifically exempted
from the classified service according to the provisions of Section
45103 or 45256 shall be classified as required by those sections and
shall be a part of the classified service. Such positions may not be
designated as certificated nor shall the assignment of a title to any
such a position remove the position from the classified service, nor
shall possession of a certification document be made a requirement
for employment in any such position.
Nothing in this section shall be construed to prohibit the
employment of any individual in a position described by this section
as part of the classified service who is in possession of
certification qualifications, nor shall the possession of
certification qualifications be grounds for the elimination of an
individual for consideration for employment in such a 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 6 (commencing with Section 45240) of this chapter.
45104.5. The governing board of a school district may adopt a
resolution abolishing any or all positions of the senior management
of the classified service. An employee occupying a senior management
position abolished by the action shall become a member of the
classified or certificated service in a position to which he or she
would otherwise be entitled if the employee had not been a member of
the senior management of the classified service.
If the employee in the senior management of the classified service
had been a member of the regular classified or certificated service,
he or she shall be entitled to a position which is the same as, or
similar to, the position to which he or she holds rights outside of
the senior management of the classified service.
45105. (a) Positions not requiring certification qualifications
created by a governing board of a school district under the Manpower
Development and Training Act of 1962, the Economic Opportunity Act of
1964, the Elementary and Secondary Education Act of 1965, or Section
11300 or Section 13650 of the Welfare and Institutions Code, any
future federal or state legislative enactment, or any other special
funding, and which are not a part of the regular school program
shall, nevertheless, be a part of the classified service as
established by Section 45103 or 45256.
Persons employed in these positions shall be classified employees
and shall enjoy all of the rights, burdens and benefits accorded
other classified employees. Their selection and retention shall be
made on the same basis as that of persons selected for positions that
are a part of the regular school program.
(b) (1) Notwithstanding subdivision (a), if specially funded
positions are restricted to employment of persons in low-income
groups, from designated impoverished areas or other criteria which
restricts the privilege of all citizens to compete for employment in
the positions, all these positions shall, in addition to the regular
class title, be classified as "restricted." Their selection and
retention shall be made on the same basis as that of persons selected
and retained in positions that are a part of the regular school
program, except that persons employed in the following categories of
restricted positions shall not be subject to Section 45272 or 45273:
(A) The position of instructional aide, as defined in Section
45343.
(B) Any other position involving personal contacts with pupils or
parents that is established to assist school-staff personnel
responsible for school-community relations; educational support
services for such areas as counseling, library or health; or the
correction or prevention of behavioral problems.
(2) Persons employed in positions properly classified as
"restricted" shall be classified employees for all purposes except:
(A) They shall not be accorded employment permanency under Section
45113 or 45301, whichever is applicable.
(B) They shall not acquire seniority credits for the purposes of
Sections 45298 and 45308 or, in a district not having the merit
(civil service) system, for the purposes of layoff for lack of work
or lack of funds as may be established by rule of the governing
board.
(C) Sections 45287 and 45289 shall not apply to "restricted"
employees.
(D) They shall not be eligible for promotion into the regular
classified service or, in districts that have adopted the merit
system, shall not be subject to the provisions of Section 45241,
until they have complied with the provisions of subdivision (c).
(c) At any time, after completion of six months of satisfactory
service, a person serving in a "restricted" position shall be given
the opportunity to take qualifying examinations that are required for
all other persons serving in the same class in the regular
classified service. If the person satisfactorily completes the
qualifying examination, regardless of final numerical listing on an
eligibility list, he or she shall be accorded full rights, benefits
and burdens of any other classified employee serving in the regular
classified service. His or her service in the regular classified
service shall be counted from the original date of employment in the
"restricted" position and shall continue even though he or she
continues to serve in a "restricted" position.
(d) This section shall apply to districts that have adopted the
merit system in the same manner and effect as if it were a part of
Article 6 (commencing with Section 45240) of this chapter.
(e) It is the intent of the Legislature in enacting this section
to clearly set forth that positions normally a part of the classified
service are included in the classified service regardless of the
source of income to sustain the positions and to effectively
implement specially funded programs intended to provide job
opportunities for untrained and impoverished persons but to do so in
a manner that will not be disruptive nor detrimental to the normal
employment procedures relating to classified school service.
45106. Notwithstanding the provisions of Section 45103 or Section
45256, which exempt certain types of positions or categories of
personnel from the classified service of a school 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 45122 to 45125, inclusive, and
Section 49406. The governing board of every school 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.
45107. (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 school 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 6 (commencing with Section 45240) of this chapter.
45108. If the governing board of any school 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 45272 or 45273, 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
45105.
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
45343.
(b) Any other position involving personal contacts with pupils or
parents, that is established to assist school staff personnel
responsible for school-community relations; educational support
services for such areas as counseling, library, or health; or the
correction or prevention of behavioral problems.
This section shall apply to districts that have adopted the merit
system in the same manner and effect as if it were a part of Article
6 (commencing with Section 45240) of this chapter.
45108.5. (a) Senior management employee means either of the
following:
(1) An employee in the highest position in a principal district
program area, as determined by the governing board, which does not
require certification qualifications, and which has districtwide
responsibility for formulating policies or administering the program
area.
(2) An employee who acts as the fiscal advisor to the district
superintendent.
(b) The maximum number of positions which may be designated as
senior management positions shall be as follows:
(1) For districts with less than 10,000 units of average daily
attendance, two positions.
(2) For districts with 10,000 to 25,000 units of average daily
attendance, inclusive, three positions.
(3) For districts with 25,001 to 50,000 units of average daily
attendance, inclusive, 4 positions.
(4) For districts with more than 50,000 units of average daily
attendance, 5 positions.
(c) This section shall apply to districts that have adopted the
merit system in the same manner and effect as if it were a part of
Article 6 (commencing with Section 45240), as well as to districts
which have not adopted the merit system.
45108.7. The governing board of a school district may apply to the
State Board of Education to waive the provisions of Section 45108.5
for purposes of expanding the number and type of senior management
positions.
45109. Governing boards shall fix and prescribe the duties to be
performed by all persons in the classified service and other
positions not requiring certification qualifications of the school
district, except those persons employed as a part of a personnel
commission staff as provided in Article 6 (commencing with Section
45240) 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
6 (commencing with Section 45240) of this chapter.
45110. Classified employees shall not be required to perform duties
which are not fixed and prescribed for the position by the governing
board in accordance with Section 45109, unless the duties reasonably
relate to those fixed for the position by the board, for any period
of time which 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 provided that his salary is adjusted
upward for the entire period he is required to work out of
classification and in such amounts as will reasonably reflect the
duties required to be performed outside his normal assigned duties.
Notwithstanding the provisions of this section, a personnel
commission and governing board, or a governing board in a nonmerit
system district, may, by written rule, 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 school 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
6 (commencing with Section 45240) of this chapter.
45111. No school 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 45105 and
45103.
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
6 (commencing with Section 45240) of this chapter.
45112. If the governing board of any school 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 45112 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
6 (commencing with Section 45240) of this chapter.
45113. (a) The governing board of a school 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
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 position, shall be employed
in the classification 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 which
arose prior to the employee's becoming permanent, nor for any cause
which 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 6 (commencing with Section
45240) of this chapter.
45114. Notwithstanding the provisions of Section 45113, the
governing board may lay off and reemploy classified employees only in
accordance with procedures provided by Sections 45298 and 45308,
except the term "personnel commission" therein shall be construed to
mean the governing board. "Governing board" as used in this section
shall include districts governed by a common board or by different
boards but with a common administration. Employees in common board or
common administration districts shall, for the purpose of layoff for
lack of work or funds, be considered as having been employed in a
single district.
45115. 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
he 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 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
6 (commencing with Section 45240) of this chapter.
45116. 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 6 (commencing with Section 45240) of this
chapter.
45117. (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 45103, 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 45103, 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 school
district from implementing either of the following actions 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 6 (commencing with Section 45240).
45119. Whenever, by reason of any reorganization, other than the
unification of districts, all or part of the territory of any school
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 if a simple
majority of the classified employees of the reorganized district
voting on the adoption of a merit system approve its adoption
pursuant to Section 45221. If no such election is requested by the
classified employees of the reorganized district pursuant to Section
45221, adoption of a merit system shall be effective only if the
number of classified employees from the merit system district who are
to become employees of the acquiring district equals or exceeds the
number of classified employees of the acquiring nonmerit system
district. 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 if a simple majority of the classified
employees of the reorganized district voting on the adoption of a
merit system approve its adoption pursuant to Section 45221. If no
such election is requested by the classified employees of the
reorganized district pursuant to Section 45221, adoption of a merit
system shall be effective only if the number of classified employees
from the merit system district who are to become employees of the
acquiring district equals or exceeds the number of classified
employees of the acquiring nonmerit system district. 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 6 (commencing with Section 45240) 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
6 (commencing with Section 45240) 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 6 (commencing with Section
45240) of the 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.
45120. If all or any part of any district or districts which is
unified with all or any part of a district, has, or have, the merit
system prior to the date of the reorganization election, all
employees not legally requiring certification qualifications of the
reorganized district shall be employed in accordance with Article 6
(commencing with Section 45240) of this chapter if a simple majority
of the classified employees of the reorganized district voting on the
adoption of a merit system approve its adoption pursuant to Section
45221. If no such election is requested by the classified employees
of the reorganized district pursuant to Section 45221, adoption of a
merit system shall be effective only if the number of classified
employees from the merit system district who are to become employees
of the acquiring district equals or exceeds the number of classified
employees of the acquiring nonmerit system district. If on the date
of such reorganization election, two or more of the said defined
districts of such reorganized district have merit systems, the
reorganized district shall adopt a single merit system which shall
contain all provisions necessary to secure to all employees the
rights guaranteed by Section 45121 of this code.
Seniority of the personnel of the reorganized district shall be
established as of the date of original employment in the district or
districts as defined above. Where there are more than a sufficient
number of employees for a given classification under the provisions
of Article 6 (commencing with Section 45240) 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 the governing
board of the new unified district to reasonably reassign such
person. 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 shall, if so placed, 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 6 (commencing with Section
45240) 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.
45120.1. Notwithstanding the provisions of Sections 45119 and
45120, when any school district involved in any reorganization,
annexation, unionization, merger, or unification is not required to
adopt the merit system, the classified employees of such district who
formerly were employed by a district having the merit system shall
retain for a period of two years the salary, benefits, seniority, and
other rights which they would have had had the reorganization not
occurred.
45120.2. (a) If the development or revision of a local plan for the
education of individuals with exceptional needs pursuant to Chapter
2.5 (commencing with Section 56195) of Part 30, results in a
classified employee who is performing service for one employer being
terminated, reassigned, or transferred, or becoming the employee of
another employer because of the reorganization of special education
programs, the employee shall retain the seniority acquired at his or
her employment with the school district or county office of education
from which he or she was terminated, reassigned, or transferred. If
terminated, the employee retains the rights specified in Sections
45115, 45117, and 45119.
(b) The reassignment of an employee, transfer of an employee, or
new employment of an employee caused by the reorganization of special
education programs does not affect the seniority or classification
that a classified employee already attained in any school district
that undergoes the reorganization. The employee has the same status
with respect to his or her seniority or classification, with the new
employer, including time served as a probationary employee. The total
number of years served as a classified employee with the former
school district or county office shall be credited, year for year,
for placement on the salary schedule of the new school district or
county office.
(c) If a local plan for the education of individuals with
exceptional needs is developed or revised pursuant to Chapter 2.5
(commencing with Section 56195) of Part 30, all classified employees
shall be employed by a county office of education or an individual
school district.
(d) A classified employee who is reassigned or transferred as a
result of the reorganization of special education programs has
priority, except as provided in subdivision (e), in being informed of
and in filling classified positions in the classifications in which
the employee was employed before the reassignment or transfer. This
priority expires 24 months after the date of reassignment or transfer
and may be waived by the employee during that time period.
(e) A classified employee who served in a special education
program in a school district or county office and is terminated from
his or her employment by that school district or county office
pursuant to Section 45114 as a result of the reorganization of a
special education program has first priority in being informed of and
in filling vacant classified positions for which the employee is
qualified or was employed, in the county office or school district
that operates the reorganized special education program. Permanent
employees have the first priority right to reappointment as provided
in this section for 39 months from the date of termination.
Probationary employees have the first priority right to reappointment
as provided in this section for 24 months from the date of
termination.
45121. Persons employed in positions not requiring certification
qualifications in districts, all or part of whose territory is
included in a unification of districts, shall continue as employees
of the unified school district for not less than two years, and shall
not, by reason of any unification, be deprived of any benefit which
they would have had had the unification not taken place. In
determining the rights of such employees, their salaries, accumulated
leaves, and other rights shall be determined as of the date the
unification election was conducted. No increase in benefits not
previously conferred, granted by the governing board of any district,
all or part of whose territory is included in a unification of
districts, after such unification election, shall be binding on the
governing board of the unified district, except that benefits granted
in the districts comprising the new unified district which does not
become effective until the second succeeding first day of July shall
be binding on the governing board of the unified district. Nothing
herein contained shall preclude the governing board of the unified
school district from making any reasonable reassignment of the duties
of such employees. The governing board of the unified district shall
establish a system of uniform salaries, employee benefits and
working conditions for employees performing like services in
conformity with the provisions of this section.
45122. Whenever a governing board of a school district requires a
physical examination to be taken by a classified employee or
employees, either by rule or by its direction or the direction of its
authorized district administrator; or when classified employees are
required by law to submit to a physical examination for continuance
in employment, the board shall either provide the required
examination, cause it to be provided, or provide the employee with
reasonable reimbursement for the required examination.
If the governing board requires a physical examination or an
examination is required by law as a condition of preemployment, it
may cause the required examination to be given. It may, if an
applicant is required to take a preemployment physical examination,
provide for reasonable reimbursement if the applicant is subsequently
employed by the district.
This section shall apply to districts that have adopted the merit
system in the same manner and effect as if it were a part of Article
6 (commencing with Section 45240) of this chapter.
45122.1. (a) In addition to any other prohibition or provision, no
person who has been convicted of a violent or serious felony shall be
employed by a school district pursuant to this chapter. A school
district shall not retain in employment a current classified employee
who has been convicted of a violent or serious felony, and who is a
temporary, substitute, or a probationary employee who has not
attained permanent status.
(b) This section applies to any violent or serious offense which,
if committed in this state, would have been punishable as a violent
or serious felony.
(c) (1) For purposes of this section, a violent felony is any
felony listed in subdivision (c) of Section 667.5 of the Penal Code
and a serious felony is any felony listed in subdivision (c) of
Section 1192.7 of the Penal Code.
(2) For purposes of this section, the term "school district" has
the same meaning as defined in Section 41302.5.
(d) When the Department of Justice ascertains that an individual
who is an applicant for employment by a school district has been
convicted of a violent or serious felony, the department shall notify
the school district of the criminal information pertaining to the
applicant. The notification shall be delivered by telephone and shall
be confirmed in writing and delivered to the school district by
first-class mail.
(e) Notwithstanding subdivision (a), a person shall not be denied
employment or terminated from employment solely on the basis that the
person has been convicted of a violent of serious felony if the
person has obtained a certificate of rehabilitation and pardon
pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6
of Part 3 of the Penal Code.
(f) Notwithstanding subdivision (e), a person shall not be denied
employment or terminated from employment solely on the basis that the
person has been convicted of a serious felony that is not also a
violent felony if that person can prove to the sentencing court of
the offense in question, by clear and convincing evidence, that he or
she has been rehabilitated for the purposes of school employment for
at least one year. If the offense in question occurred outside this
state, then the person may seek a finding of rehabilitation from the
court in the school district in which he or she is a resident.
(g) Notwithstanding any other provision of law, when the
Department of Justice notifies a school district by telephone that a
current temporary, substitute, or probationary employee who has not
attained permanent status, has been convicted of a violent or serious
felony, that employee shall immediately be placed on leave without
pay. When the school district receives written notification of the
fact of conviction from the Department of Justice, the employee shall
be terminated automatically and without regard to any other
procedure for termination specified in this code or school district
procedures unless the employee challenges the record of the
Department of Justice and the Department of Justice withdraws in
writing its notification to the school district. Upon receipt of
written withdrawal of notification from the Department of Justice,
the employee shall immediately be reinstated with full restoration of
salary and benefits for the period of time from the suspension
without pay to the reinstatement.
(h) Notwithstanding Section 47610, this section applies to a
charter school.
45123. (a) No person shall be employed or retained in employment by
a school district who has been convicted of any sex offense as
defined in Section 44010. A plea or verdict of guilty, a finding of
guilt by a court in a trial without jury, or a conviction following a
plea of nolo contendere shall be deemed to be a conviction within
the meaning of this subdivision.
(b) No person shall be employed or retained in employment by a
school district, who has been convicted of a controlled substance
offense as defined in Section 44011.
(c) If, however, a 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.
(d) The governing board of a school district may employ a person
convicted of a controlled substance offense if the governing board of
the school 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.
45124. No person shall be employed or retained in employment by a
school district who has been determined to be a sexual psychopath
under the provisions of Article 1 (commencing with Section 6300),
Chapter 2, Part 2, Division 6 of the Welfare and Institutions Code or
under similar provisions of law of any other state. If, however,
such 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 is a sexual psychopath is dismissed, this
section does not prohibit his employment thereafter.
45125. (a) (1) Except as provided in Section 45125.01, the
governing board of any school district shall require each person to
be employed in a position not requiring certification qualifications,
except a secondary school pupil employed in a temporary or part-time
position by the governing board of the school district having
jurisdiction over the school attended by the pupil, to have two
fingerprint cards bearing the legible rolled and flat impressions of
the person's fingerprints together with a personal description of the
applicant prepared by a local public law enforcement agency having
jurisdiction in the area of the school district, which agency shall
transmit the cards, together with the fee required by subdivision
(f), to the Department of Justice; except that any district, or
districts with a common board, may process the fingerprint cards if
the district so elects.
(2) As used in this section, "local public law enforcement agency"
includes any school district and as used in Section 45126 requires
the Department of Justice to provide to any school district, upon
application, information pertaining only to applicants for employment
by the district, including applicants who are employees of another
district.
(b) (1) Upon receiving the fingerprint cards, the Department of
Justice shall ascertain whether the applicant has been arrested or
convicted of any crime insofar as that fact can be ascertained from
information available to the department and forward the information
to the employing agency submitting the applicant's fingerprints no
more than 15 working days after receiving the fingerprint cards. The
Department of Justice shall not forward records of criminal
proceedings that did not result in a conviction but shall forward
information on arrests pending adjudication.
(2) Upon implementation of an electronic fingerprinting system
with terminals located statewide and managed by the Department of
Justice, the Department of Justice shall ascertain the information
required pursuant to this subdivision within three working days. If
the Department of Justice cannot ascertain the information required
pursuant to this subdivision within three working days, the
department shall notify the school district that it cannot so
ascertain the required information. This notification shall be
delivered by telephone or electronic mail to the school district. If
a school district is notified by the Department of Justice that it
cannot ascertain the required information about a person, the school
district may not employ that person until the Department of Justice
ascertains that information.
(3) In the case of a person to be employed in a position not
requiring certification qualifications who is described in
subparagraph (A) or (B), the school district shall request the
Department of Justice to forward one copy of the fingerprint cards to
the Federal Bureau of Investigation for the purpose of obtaining any
record of previous convictions of the applicant.
(A) The person has not resided in the State of California for at
least one year immediately preceding the person's application for
employment.
(B) The person has resided for more than one year, but less than
seven years, in the State of California and the Department of Justice
has ascertained that the person was convicted of a sex offense where
the victim was a minor or a drug offense where an element of the
offense is either the distribution to, or the use of a controlled
substance by, a minor.
(c) The governing board of a school district shall not employ a
person until the Department of Justice completes its check of the
state criminal history file as set forth in this section and Sections
45125.5 and 45126, except that this subdivision does not apply to
secondary school pupils who are to be employed in a temporary or
part-time position by the governing board of the school district
having jurisdiction over the school they attend.
(d) The governing board of each district shall maintain a list
indicating the number of current employees, except secondary school
pupils employed in a temporary or part-time position by the governing
board of the school district having jurisdiction over the school
they attend, who have not completed the requirements of this section.
The Department of Justice shall process these cards within 30
working days of their receipt and any cards in its possession on the
date of the amendment of this section by Assembly Bill 1610 of the
1997-98 Regular Session within 30 working days of that date. School
districts that have previously submitted identification cards for
current employees to either the Department of Justice or the Federal
Bureau of Investigation shall not be required to further implement
the provisions of this section as it applies to those employees.
(e) A plea or verdict of guilty or a finding of guilt by a court
in a trial without a jury or forfeiture of bail is deemed to be a
conviction within the meaning of this section, irrespective of a
subsequent order under the provisions of Section 1203.4 of the Penal
Code allowing the withdrawal of the plea of guilty and entering of a
plea of not guilty, or setting aside the verdict of guilty, or
dismissing the accusations or information.
(f) (1) The school district shall provide the means whereby the
fingerprint cards may be
