BILL NUMBER: AB 1066 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 14, 2015
AMENDED IN ASSEMBLY APRIL 6, 2015
INTRODUCED BY Assembly Member Gonzalez
FEBRUARY 26, 2015
An act to amend Sections 45103, 45103.1, 45104, 45256,
45286, 88003, 88003.1, 88004, 88076, and 88105 45103
and 88003 of the Education Code, relating to classified
employees.
LEGISLATIVE COUNSEL'S DIGEST
AB 1066, as amended, Gonzalez. Classified employees:
nonemployee contractors: limited-term, short-term, and substitute
short-term employees.
(1) Existing law requires school districts and community college
districts to employ persons for positions not requiring certification
qualifications and to classify, as defined, these persons. These
employees are generally known as classified employees.
Existing law also authorizes school districts and community college
districts to contract for personal services currently or customarily
performed by classified employees to achieve cost savings, unless
otherwise prohibited, when certain conditions are met.
Existing law provides that substitute and short-term employees, as
defined, employed and paid for less than 75% of a school year or
college year, shall not be part of the classified service.
This bill would recast and revise the statutes relating to the use
of nonemployee contractors and limited-term, short-term, and
substitute employees in the classified service of school districts
and community college districts. Among numerous other changes, the
bill would declare that school districts and community college
districts have a mandatory duty to classify all of their employees
and positions not requiring certification qualifications.
The
This bill would revise the definition of "short-term
employee" to require that the working days counted to
determine whether an employee had short-term status take place in a
single school year or college year. The bill would also include a
definition of "limited-term employee" that requires that the service
provided by the employee to the school district or community college
district be calculated within a single school year or college year.
a short-term employee position not continue on a
year-after-year basis.
To the extent that this bill would impose new duties on school
districts and community college districts, it would constitute a
state-mandated local program.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 45103 of the
Education Code is amended to read:
45103. (a) The governing board of any a
school district shall employ persons for positions not
requiring certification qualifications. The governing board of a
school district 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 the governing
board, board of a school district, 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.
(1) "Seventy-five percent of a school year" means 195 working
days, including holidays, sick leave, vacation, and other leaves of
absence, irrespective of the number of hours worked per day.
(2) "Short-term employee" means any person who is employed to
perform a service for the school district, upon the
completion of which, 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, board of a school district,
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,
board of the school district, but shall not extend beyond
75 percent of a school year. A short-term employee position
shall not continue on a year-after-year basis.
(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.
(3) "Substitute employee" means any person employed to replace any
classified employee who is temporarily absent from duty. In
addition, if the school district is then engaged in a procedure to
hire a permanent employee to fill a vacancy in any classified
position, the governing board of the school district 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.
(e) Employment of either full-time or part-time students in any
college workstudy program, or in a work experience education
program program, shall not result in the
displacement of classified personnel or impair existing contracts for
services.
(f) This section shall apply only to school districts
not incorporating the merit system as outlined in Article 6
(commencing with Section 45240).
SEC. 2. Section 88003 of the
Education Code is amended to read:
88003. (a) The governing board of
any a community college district shall employ
persons for positions that are not academic positions. The governing
board, except where Article 3 (commencing with Section 88060) or
Section 88137 applies, shall classify all those employees and
positions. The employees and positions shall be known as the
classified service. Substitute and short-term employees, employed and
paid for less than 75 percent of a college year, shall not be a part
of the classified service. Part-time playground positions,
apprentices apprentices, and professional
experts employed on a temporary basis for a specific project,
regardless irrespective of length of
employment, shall not be a part of the classified service. Full-time
students employed part time, and part-time students employed part
time in any college work-study program, or in a work experience
education program conducted by a community college district and
which that is financed by state or
federal funds, shall not be a part of the classified service. Unless
otherwise permitted, a person whose position does not require
certification qualifications shall not be employed by a governing
board, except as authorized by this section.
"Substitute employee," as used in this section, means any person
employed to replace any classified employee who is temporarily absent
from duty. In addition, if the district is then engaged in a
procedure to hire a permanent employee to fill a vacancy in any
classified position, the governing board may fill the vacancy through
the employment, for not more than 60 calendar days, of one or more
substitute employees, except to the extent that a collective
bargaining agreement then in effect provides for a different period
of time.
(b) As used in this section:
(1) "Seventy-five percent of a college year" means 195 working
days, including holidays, sick leave, vacation, and other leaves of
absences, irrespective of the number of hours worked per day.
"Short-term employee," as used in this section,
(2) "Short-term employee "
means any person who is employed to perform a service for the
community college district, upon the completion of
which, which the service required or
similar services will not be extended or needed on a continuing
basis. Before employing a short-term employee, the governing board,
at a regularly scheduled board meeting, shall specify the service
required to be performed by the employee pursuant to the definition
of "classification" in subdivision (a) of Section 88001, and shall
certify the ending date of the service. The ending date may be
shortened or extended by the governing board, but shall not extend
beyond 75 percent of a school college
year. A short-term employee position shall not continue on a
year-after-year basis.
"Seventy-five percent of a college year" means 195 working days,
including holidays, sick leave, vacation and other leaves of
absences, irrespective of number of hours worked per day.
Employment
(3) "Substitute employee" means any person employed to replace any
classified employee who is temporarily absent from duty. In
addition, if the community college 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.
(c) Employment of either
full-time or part-time students in any college work-study program, or
in a work experience education program
program, shall not result in the displacement of classified
personnel or impair existing contracts for services.
This
(d) This section shall apply only
to community college districts not incorporating the
merit system as outlined in Article 3 (commencing with Section
88060).
SEC. 3. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.
SECTION 1. Section 45103 of the Education Code
is amended to read:
45103. (a) The governing board of any school district shall
employ persons for positions not requiring certification
qualifications. The governing board has a mandatory duty to classify,
and 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 employees, employed and paid for less than 75
percent of a single school year, and short-term employees, employed
and paid for less than 75 percent of a single school year, shall not
be a part of the classified service.
(2) Apprentices and professional experts employed on a limited,
temporary basis for a specific project that is not an ongoing
district venture, irrespective 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 work-study 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 of Division 4 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) "Seventy-five percent of a single school year" means 195
working days of a single school year, including holidays, sick leave,
vacation, and other leaves of absence, irrespective of number of
hours worked per day.
(2) "Short-term employee" means any person who is employed to
perform a discrete service for the district, upon the completion of
which, the service required or similar services will not be extended
or needed on a continuing or recurring 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 starting and
ending dates of the service. The ending date may be shortened or
extended by the governing board, but shall not extend beyond 75
percent of a single school year, and the district shall not employ a
short-term employee in subsequent school years to perform the same or
similar services.
(3) "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.
(e) Employment of either full-time or part-time students in any
college work-study program or in a work experience education program
shall not result in the displacement of classified personnel or
impair existing contracts for services.
(f) This section shall apply only to districts not incorporating
the merit system as outlined in Article 6 (commencing with Section
45240).
SEC. 2. Section 45103.1 of the Education Code
is amended to read:
45103.1. (a) Notwithstanding any other provision of this chapter,
personal services contracting with nonemployee contractors 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 for nonemployee contractors 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 of a single school
year 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
nonemployee contractor shall be determined by the district. The
frequency of appointment, length of contract, and the circumstances
appropriate for the appointment of firms or individuals under
emergency appointments as nonemployee contractors shall be restricted
so as to prevent the use of emergency appointments to circumvent the
regular or ordinary hiring process for school district employees.
(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 nature of the services, objectively determined, is so
urgent, temporary, or occasional that the delay incumbent in the
implementation of those services under the district's regular or
ordinary hiring process would frustrate their very purpose, therefore
requiring the use of nonemployee contractors. The use of any
nonemployee contractor by a school district under this section is
limited to 60 working days of a single school year.
(c) This section shall apply to all school districts, including
districts that have adopted the merit system.
(d) This section shall apply to nonemployee 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.
SEC. 3. Section 45104 of the Education Code is
amended to read:
45104. (a) A school district has a mandatory duty to classify,
and shall classify, every position not defined by this code as a
position requiring certification qualifications and not specifically
exempted from the classified service pursuant to Section 45103 or
45256, as required by those sections. These positions shall be a part
of the classified service. These positions shall not be designated
as certificated, the assignment of a title to any such position shall
not remove the position from the classified service, and possession
of a certification document shall not be made a requirement for
employment in the position.
(b) 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.
(c) An employee of a school district, or the exclusive
representative of such an employee within the meaning of Section
3543.8 of the Government Code, may bring an action to challenge the
classification of an employee or position by a school district under
subdivision (a) of Section 45103, subdivision (a) of Section 45286,
or this section, or to compel a school district to classify an
employee or position as required by those provisions.
(d) 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).
SEC. 4. Section 45256 of the Education Code is
amended to read:
45256. (a) The commission has a mandatory duty to classify, and
shall classify, all employees and positions within the jurisdiction
of the governing board or of the commission, except those that are
exempt from the classified service, as specified in subdivision (b).
The employees and positions shall be known as the classified service.
"To classify" shall include, but not necessarily be limited to,
allocating positions to appropriate classes, arranging classes into
occupational hierarchies, determining reasonable relationships within
occupational hierarchies, and preparing written class
specifications.
(b) All of the following are exempt from the classified service:
(1) Positions which require certification qualifications.
(2) Full-time students employed part time.
(3) Part-time students employed part time in any college
work-study program or in a work experience education program
conducted by a community college district pursuant to Article 7
(commencing with Section 51760) of Chapter 5 of Part 28 of Division 4
and that is financed by state or federal funds.
(4) Apprentice positions of a limited, temporary nature.
(5) Positions established for the employment of professional
experts on a limited, temporary basis for a specific project that is
not an ongoing district venture by the governing board or by the
commission when so designated by the commission.
(6) Part-time playground positions, where the employee is not
otherwise employed in a classified position. Part-time playground
positions shall be considered part of the classified service when the
employee in the position also works in the same school district in a
classified position.
(c) (1) Employment of either full-time or part-time students in
any college work-study program or in a work experience education
program shall not result in the displacement of classified personnel
or impair existing contracts for services.
(2) Nothing in this section shall prevent an employee, who has
attained regular status in a full-time position, from taking a
voluntary reduction in time and retaining his or her regular status
under the provisions of this law.
(d) No person whose contribution consists solely in the rendition
of individual personal services and whose employment does not come
within the scope of the exceptions listed above shall be employed
outside the classified service.
(e) A part-time position is one for which the
assigned time, when computed on an hourly, daily, weekly, or monthly
basis, is less than 871/2 percent of the normally assigned time of
the majority of employees in the classified service.
SEC. 5. Section 45286 of the Education Code is
amended to read:
45286. (a) Whenever the appointing power shall require the
appointment of a limited-term employee to a position, the duration of
which is not to exceed six consecutive months in a single school
year, or, in case of an appointment of a substitute employee in lieu
of a temporarily absent employee, the duration of which is not to
exceed the authorized absence of that employee, the appointing power
shall have a ministerial duty to appoint the substitute or
limited-term employee to the position subject to the requirements of
this section.
(b) For substitute employees, the appointing power shall submit a
request in which the probable duration of the appointment is stated.
For limited-term employees, the appointing power shall submit a
request certifying the starting and ending dates of the service for
the position. The ending date for a limited-term employee may be
advanced or delayed by the appointing power, but the term shall not
extend beyond six consecutive months in a single school year, and the
school district may not employ a limited-term employee in subsequent
school years to perform the same or similar services.
(c) Eligible persons shall be certified in accordance with their
position on the appropriate employment list and their willingness to
accept appointment to that position as limited-term or substitute
employees. Limited-term and substitute employees shall be subject to
conditions affecting status and tenure during and after employment
that the commission may by rule determine. Notwithstanding these
limitations on the duration of these positions, the commission may,
based on a declaration of an emergency by the President of the United
States or the Governor, authorize an extension that may not exceed
one year. The duties of the extended position shall be related to the
emergency.
(d) As used in this section:
(1) "Limited-term employee" means any person who is employed to
perform for the school district a discrete service, the duration of
which is not to exceed six consecutive months in a single school
year, if upon the completion of the discrete service, no similar
service shall be needed on a continuing or recurring basis.
(2) "Substitute employee" means any person employed to replace any
classified employee who is temporarily absent from duty. In
addition, if the school district is then engaged in a procedure to
hire a permanent employee to fill a vacancy in any classified
position, the school district 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.
SEC. 6. Section 88003 of the Education Code is
amended to read:
88003. (a) The governing board of any community college district
shall employ persons for positions that are not academic positions.
The governing board, except where Article 3 (commencing with Section
88060) or Section 88137 applies, has a mandatory duty to classify,
and shall classify, all those employees and positions. The employees
and positions shall be known as the classified service. Substitute
employees, employed and paid for less than 75 percent of a single
college year, and short-term employees, employed and paid for less
than 75 percent of a single college year, shall not be a part of the
classified service. Part-time playground positions, apprentices, and
professional experts employed on a limited, temporary basis for a
specific project that is not an ongoing district venture,
irrespective of length of employment, shall not be a part of the
classified service. Full-time students employed part time, and
part-time students employed part time in any college work-study
program, or in a work experience education program conducted by a
community college district and which is financed by state or federal
funds, shall not be a part of the classified service. Unless
otherwise permitted, a person whose position does not require
certification qualifications shall not be employed by a governing
board, except as authorized by this section.
(b) As used in this section:
(1) "Seventy-five percent of a single college year" means 195
working days of a single college year, including holidays, sick
leave, vacation, and other leaves of absences, irrespective of number
of hours worked per day.
(2) "Short-term employee," as used in this section, means any
person who is employed to perform a discrete service for the
district, upon the completion of which, the service required or
similar services will not be extended or needed on a continuing or
recurring basis. Before employing a short-term employee, the
governing board, at a regularly scheduled board meeting, shall
specify the service required to be performed by the employee pursuant
to the definition of "classification" in subdivision (a) of Section
88001, and shall certify the starting and ending dates of the
service. The ending date may be shortened or extended by the
governing board, but shall not extend beyond 75 percent of a single
college year, and the district shall not employ a short-term employee
in subsequent college years to perform the same or similar services.
(3) "Substitute employee," as used in this section, means any
person employed to replace any classified employee who is temporarily
absent from duty. In addition, if the district is then engaged in a
procedure to hire a permanent employee to fill a vacancy in any
classified position, the governing board may fill the vacancy through
the employment, for not more than 60 calendar days, of one or more
substitute employees, except to the extent that a collective
bargaining agreement then in effect provides for a different period
of time.
(c) Employment of either full-time or part-time students in any
college work-study program, or in a work experience education program
shall not result in the displacement of classified personnel or
impair existing contracts for services.
(d) This section shall apply only to districts not incorporating
the merit system as outlined in Article 3 (commencing with Section
88060).
SEC. 7. Section 88003.1 of the Education Code
is amended to read:
88003.1. (a) Notwithstanding any other provision of this chapter,
personal services contracting with nonemployee contractors for all
services currently or customarily performed by classified school
employees to achieve cost savings is permissible, unless otherwise
prohibited, when all the following conditions are met:
(1) The governing board or contracting agency clearly demonstrates
that the proposed contract will result in actual overall cost
savings to the community college district, provided that:
(A) In comparing costs, there shall be included the community
college district's additional cost of providing the same service as
proposed by a contractor. These additional costs shall include the
salaries and benefits of additional staff that would be needed and
the cost of additional space, equipment, and materials needed to
perform the function.
(B) In comparing costs, there shall not be included the community
college district's indirect overhead costs unless these costs can be
attributed solely to the function in question and would not exist if
that function was not performed by the community college district.
Indirect overhead costs shall mean the pro rata share of existing
administrative salaries and benefits, rent, equipment costs,
utilities, and materials.
(C) In comparing costs, there shall be included in the cost of a
contractor providing a service any continuing community college
district costs that would be directly associated with the contracted
function. These continuing community college district costs shall
include, but not be limited to, those for inspection, supervision,
and monitoring.
(2) Proposals to contract out work shall not be approved solely on
the basis that savings will result from lower contractor pay rates
or benefits. Proposals to contract out work shall be eligible for
approval if the contractor's wages are at the industry's level and do
not undercut community college district pay rates.
(3) The contract does not cause the displacement of community
college district employees. The term "displacement" includes layoff,
demotion, involuntary transfer to a new classification, involuntary
transfer to a new location requiring a change of residence, and time
base reductions. Displacement does not include changes in shifts or
days off, nor does it include reassignment to other positions within
the same classification and general location or employment with the
contractor, so long as wages and benefits are comparable to those
paid by the school district.
(4) The savings shall be large enough to ensure that they will not
be eliminated by private sector and community college district cost
fluctuations that could normally be expected during the contracting
period.
(5) The amount of savings clearly justify the size and duration of
the contracting agreement.
(6) The contract is awarded through a publicized, competitive
bidding process.
(7) The contract includes specific provisions pertaining to the
qualifications of the staff that will perform the work under the
contract, as well as assurance that the contractor's hiring practices
meet applicable nondiscrimination standards.
(8) The potential for future economic risk to the community
college district from potential contractor rate increases is minimal.
(9) The contract is with a firm. A "firm" means a corporation,
limited liability company, partnership, nonprofit organization, or
sole proprietorship.
(10) The potential economic advantage of contracting is not
outweighed by the public's interest in having a particular function
performed directly by the community college district.
(b) Notwithstanding any other provision of this chapter, personal
services contracting for nonemployee contractors shall also be
permissible when any of the following conditions can be met:
(1) The contract is for new community college district functions
and the Legislature has specifically mandated or authorized the
performance of the work by independent contractors.
(2) The services contracted are not available within community
college districts, cannot be performed satisfactorily by community
college district employees, or are of such a highly specialized or
technical nature that the necessary expert knowledge, experience, and
ability are not available through the community college district.
(3) The services are incidental to a contract for the purchase or
lease of real or personal property. Contracts under this criterion,
known as "service agreements," shall include, but not be limited to,
agreements to service or maintain office equipment or computers that
are leased or rented.
(4) The policy, administrative, or legal goals and purposes of the
community college district cannot be accomplished through the
utilization of persons selected pursuant to the regular or ordinary
hiring process. Contracts are permissible under this criterion to
protect against a conflict of interest or to ensure independent and
unbiased findings in cases where there is a clear need for a
different, outside perspective. These contracts shall include, but
not be limited to, obtaining expert witnesses in litigation.
(5) The nature of the work is such that the criteria for emergency
appointments apply. "Emergency appointment" means an appointment
made for a period not to exceed 60 working days of a single college
year 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
nonemployee contractor shall be determined by the community college
district. The frequency of appointment, length of contract, and the
circumstances appropriate for the appointment of firms or individuals
under emergency appointments of non-employee contractors shall be
restricted so as to prevent the use of emergency appointments to
circumvent the regular or ordinary hiring process for community
college district employees.
(6) The contractor will provide equipment, materials, facilities,
or support services that could not feasibly be provided by the
community college district in the location where the services are to
be performed.
(7) The nature of the services, objectively determined, is so
urgent, temporary, or occasional that the delay incumbent in the
implementation of those services under the community college district'
s regular or ordinary hiring process would frustrate their very
purpose, therefore requiring the use of nonemployee contractors. The
use of any nonemployee contractor by a community college district
under this section is limited to 60 working days of a single college
year.
(c) This section shall apply to all community colleges, including
community college districts that have adopted the merit system.
(d) This section shall apply to nonemployee 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.
SEC. 8. Section 88004 of the Education Code is
amended to read:
88004. (a) A community college district has a mandatory duty to
classify, and shall classify, every position not defined by the
regulations of the board of governors as an academic position and not
specifically exempted from the classified service pursuant to
Section 88003 or 88076, as required by those sections. These
positions shall be a part of the classified service. These positions
may not be designated as academic by the governing board of a
district, nor shall the assignment of a title to any such position
remove the position from the classified service.
(b) Nothing in this section shall be construed to prohibit anyone
from being employed in a classification because he or she possesses
the minimum qualifications required of faculty members or academic
administrators, nor shall the possession of those qualifications be
grounds for the elimination of an individual from consideration for
employment in a classified position.
(c) An employee of a community college district, or the exclusive
representative of such an employee within the meaning of Section
3543.8 of the Government Code, may bring an action to challenge the
classification of an employee or position by a community college
district under subdivision (a) of Section 88003, subdivision (a) of
Section 88076, or this section, or to compel a community college
district to classify an employee or position as required by those
provisions.
(d) This section shall apply to districts which have adopted the
merit system in the same manner and with the same effect as though it
were a part of Article 3 (commencing with Section 88060) of this
chapter.
SEC. 9. Section 88076 of the Education Code is
amended to read:
88076. (a) The commission has a mandatory duty to classify, and
shall classify all employees and positions within the jurisdiction of
the governing board or of the commission, except those which are
exempt from the classified service, as specified in subdivision (b).
The employees and positions shall be known as the classified service.
"To classify" shall include, but not necessarily be limited to,
allocating positions to appropriate classes, arranging classes into
occupational hierarchies, determining reasonable relationships within
occupational hierarchies, and preparing written class
specifications.
(b) The following positions and employees are exempt from the
classified service:
(1) Academic positions.
(2) Part-time playground positions.
(3) Full-time students employed part time.
(4) Part-time students employed part time in any college
work-study program or in a work experience education program
conducted by a community college which is financed by state or
federal funds.
(5) Apprentice positions of a limited, temporary nature.
(6) Positions established for the employment of professional
experts on a limited, temporary basis for a specific project that is
not an ongoing district venture by the governing board or by the
commission when so designated by the commission.
(c) (1) Employment of either full-time or part-time students in
any college work-study program, or in a work experience education
program shall not result in the displacement of classified personnel
or impair existing contracts for services.
(2) Nothing in this section shall prevent an employee, who has
attained regular status in a full-time position, from taking a
voluntary reduction in time and retaining his or her regular status
under the provisions of this law.
(d) No person whose contribution consists solely in the rendition
of individual personal services and whose employment does not come
within the scope of the exceptions listed above shall be employed
outside the classified service.
(e) A part-time position is one for which the assigned time, when
computed on an hourly, daily, weekly, or monthly basis, is less than
871/2 percent of the normally assigned time of the majority of
employees in the classified service.
SEC. 10. Section 88105 of the Education Code is
amended to read:
88105. (a) Whenever the appointing power requires the appointment
of a limited-term employee to a position, the duration of which is
not to exceed six consecutive months in a single college year, or, in
case of an appointment of a substitute employee in lieu of a
temporarily absent employee, the duration of which is not to exceed
the authorized absence of that employee, the appointing power shall
have a ministerial duty to appoint the substitute or limited-term
employee to the position subject to the requirements of this section.
(b) For substitute employees, the appointing power shall submit a
request in which the probable duration of the appointment is stated.
For limited-term employees, the appointing power shall submit a
request certifying the starting and ending dates of the service for
the position. The ending date for a limited-term employee may be
advanced or delayed by the appointing power, but the term shall not
extend beyond six consecutive months in a single college year, and
the community college district may not employ a limited-term employee
in subsequent college years to perform the same or similar services.
(c) Eligible persons shall be certified in accordance with their
position on the appropriate employment list and their willingness to
accept appointment to such a position as limited-term or substitute
employees. Limited-term and substitute employees shall be subject to
those conditions affecting status and tenure during and after the
employment as the commission may by rule determine. Notwithstanding
these limitations on the duration of these positions, the commission
may, based on a declaration of an emergency by the President of the
United States or the Governor, authorize an extension that may not
exceed one year. The duties of the extended position shall be related
to the emergency.
(d) As used in this section:
(1) "Limited-term employee" means any person who is employed to
perform for the community college district a discrete service, the
duration of which is not to exceed six consecutive months in a single
college year, if upon the completion of the discrete service, a
similar service shall be needed on a continuing or recurring basis.
(2) "Substitute employee" means any person employed to replace any
classified employee who is temporarily absent from duty. In
addition, if the community college district is then engaged in a
procedure to hire a permanent employee to fill a vacancy in any
classified position, the community college district 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.
SEC. 11. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.