Negotiability of Certificated Employee ''Permanent'' Status in K-12 Districts of Less Than 250 ADA

This memorandum outlines our position regarding the negotiability of “permanent” status (i.e., “tenure”), characterized by the union in this case as “discharge only for just cause,” for probationary certificated employees in a school district of less than 250 ADA. We conclude that the subject is not negotiable.

Relevant Statutes

Unless a district of less than 250 ADA takes one of two actions, all certificated employees who are employed in the district are “probationary” employees (Education Code § 44929.23). A district of less than 250 ADA may “classify” an individual employee as “permanent.”(Ibid.) In addition, if a district makes the election to dismiss probationary employees using the procedure in Education Code § 44948.3 (i.e., during the school year – as opposed to non-reelection at the end of the school year), then the provisions of Education Code § 44929.21, establishing “permanent” status for certificated employees in districts of 250 ADA or more, become applicable.
The operational difference between permanent and probationary status is the process required in order to terminate an employee. There is no need for a bargaining agreement to recite the statutory procedures required for termination of a permanent employee. Further, a collective bargaining agreement may not create a process for termination that is different from the statutory procedures.
If a district does not elect to dismiss probationary employees pursuant to Education Code § 44948.3, then the only time when they may be released from employment is effective at the end of the school year.
The specific procedures that must be followed by a district of less than 250 ADA to terminate a certificated employee are set forth in Education Code § 44948.5. The process includes the following major points:

a. The employee must be given notice that his or her services “will not be required for the ensuing year” no later than March 15. The employee has the right to request a hearing. Section (d) states:

“In the event a hearing is requested by the employee, the proceeding shall be conducted and a decision made in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code and the governing board shall have all of the power granted to an agency therein, except that all of the following shall apply:

. . . .

“(3) The hearing shall be conducted by an administrative law judge . . . ” (emphasis added)

b. Section (d)(3) details the administrative law judge’s obligation and duty to:

” . . . prepare a proposed decision, containing findings of fact and a determination as to whether the charges sustained by the evidence are related to the welfare of the schools or the pupils thereof. The proposed decision shall be prepared for the governing board and shall contain a determination as to the sufficiency of the cause and a recommendation as to disposition.” (emphasis added)

c. Section (d)(3) also details the context of and limitations on the administrative law judge’s “proposed decision:”

“However, the governing board shall make the final determination as to the sufficiency of the cause and disposition. None of the findings, recommendations, or determinations contained in the proposed decision prepared by the administrative law judge shall be binding on the governing board.” . . . (emphasis added)

d. Section (e) concludes the appeal hearing process with the board of trustees making the final decision:

“The governing board’s determination not to reemploy a probationary employee for the ensuing school year shall be for cause only. The determination of the governing board as to the sufficiency of the cause pursuant to this section shall be conclusive, but the cause shall relate solely to the welfare of the school and the pupils thereof.” (emphasis added)

The non-reelection process is spelled out in mandatory, direct and unambiguous terms. The plain language of the statute does not seem to leave room for argument or for modification.

Judicial Considerations

It is our opinion that a proposal to replace the statutorily-designated administrative law judge who makes a recommendation with an arbitration process would not pass judicial scrutiny. In Local 8599, United Steelworkers of America, ALF-CIO v. Board of Education of the Fontana Unified School District (1984) 162 Cal.App.3d 823, (“Fontana”), the California Supreme Court determined that the discharge of a permanent classified employee could not be submitted to arbitration.

a. The Court said: ” . . . a collective bargaining agreement relinquishing control of disciplinary action would be in conflict with the express terms of Education Code § 45113.” (Ibid, at 831)

b. Education Code § 45113 states:

“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.“ (emphasis added)

c. In addition, the Fontana decision, citing San Mateo City School District v. Public Employment Relations Board (1983) 33 Cal.3d 850, (“San Mateo”), quotes the language of the classified statute that is nearly verbatim with Education Code § 44948.5(e) quoted above and concludes:

“[S]ome parts of the Education Code exhibit a legislative intent to fully occupy the field to which they pertain thereby denoting that the Legislature also clearly intended to preclude collective negotiations and agreements in the same field. Where such statutory schemes are involved, a contract proposal may be in conflict without ‘annulling’ the statute, and negotiations should be prohibited.” (Ibid, at 832) (emphasis added)

Even though the union’s proposal involves probationary certificated employees, not permanent classified employees, the language in the two statutes is nearly identical with regard to the substantive issue. Therefore, we conclude that the courts would rule in the same or similar fashion if there was a challenge to our position.
Another case seems to cement the argument that a district may not negotiate a procedure related to permanency that differs from the statute and which would attempt to insert binding arbitration into the process.

a. In Board of Education of the Round Valley Unified School District v. Round Valley Teachers Association (1996) 52 Cal.Rptr.2d 115, (“Round Valley”) the Court addressed this issue in a district of 250 or more ADA. The Court held:

” . . . Government Code section 3543.2, subdivision (a), evidences a general intent to exclude the procedures governing the reelection of probationary teachers as a proper subject of collective bargaining.”

Government Code § 3543.2 provides in part:

” . . . the public school employer and the exclusive representative shall, upon request of either party, meet and negotiate regarding causes and procedures for disciplinary action, other than dismissal, including a suspension of pay for up to 15 days, affecting certificated employees.” (emphasis added)

b. The Court proceeds to point out:

“Undoubtedly, if the district entered into a collective bargaining agreement which stated, in effect, “Probationary employees will be entitled to the same due process rights as permanent employees,” that agreement would be in direct conflict with the two-tiered system of the Education Code and would violate the nonsupercession clause of Government Code section 3540. If the district instead agreed to give probationary teachers only some of the due process rights given permanent teachers, as in this case, one effect would be to create a “quasi-permanent” employee status, in between permanent and probationary, that would conflict with the Education Code’s statutory scheme.”

c. Finally, the Court concludes that “the subject matter may not be the subject of either mandatory or permissive collective bargaining.” Thus, there may be no arbitration or other contractual process that impinges on a governing board’s determination to non-reelect a probationary employee.

Without going into an analysis of PERB cases that discuss the legal differences between mandatory, permissive, and prohibited subjects of bargaining, in light of the cases cited above, it is our opinion that a process for granting permanent status to probationary employees may not be addressed in negotiations.

If you have any questions regarding this memorandum, please contact our office.