Legal Update Memo No. 05-2019 – Brown Act Requirement Regarding the Approval of Salary Changes for High Level Administrators (CCD)

Download pdf: 05-2019(CC) – Brown Act Requirement Re the Approval of Salary Changes for High Level Admin (JH)

The Brown Act requires governing boards that intend to approve a change of salary or benefits for administrative staff to orally report, in open session, the District’s recommendation regarding the changes to salary or fringe benefits for “local agency executives” prior to the Board taking final action to approve the salary or fringe benefits change.

Senate Bill 1436, which went into effect January 1, 2017, amended Government Code section 54953. SB 1436 was a “City of Bell” amendment to the Brown Act to make more transparent salary and benefit increases for administrative staff.

A local agency executive (“LAE”) is defined in Government Code section 3511.1 to include:

(d) “Local agency executive” means any person employed by a local agency who is not subject to the Meyers-Milias-Brown Act (Chapter 10 (commencing with Section 3500)), Chapter 5 (commencing with Section 45100) of Part 25 of Division 3 of Title 2 of the Education Code, or Chapter 4 (commencing with Section 88000) of Part 51 of Division 7 of Title 3 of the Education Code, and who meets any of the following requirements:

(1) The person is the chief executive officer, a deputy chief executive officer, or an assistant chief executive officer of the local agency.

(2) The person is the head of a department of a local agency.

(3) The person’s position within the local agency is held by an employment contract between the local agency and that person.

Because of this 2017 amendment to the Brown Act, changes to salary or fringe benefits for a LAE should be processed as follows:

1. Discussion or action regarding salary or benefits shall only occur at a regular meeting.

2. Any closed session consideration of the change should be agendized as follows:

Closed Session:

With regard to every item of business to be discussed in closed session pursuant to section 54957.6:

Conference with Labor Negotiator:

Board Representative:  (Insert name of person whom the Board has designated to negotiate with the LAE, usually the Board President.)

Unrepresented Employee:  (Insert the title of the LAE.)

3. The agenda should also have an open session item, after the closed session, as follows:

Oral recommendation regarding proposed changes to salary and/or fringe benefits of (specified local agency executive).

Discussion and possible approval of changes to salary and/or fringe benefits of (specified local agency executive).

4. Action by the Board shall be memorialized in the minutes clearly stating how each board member voted on the item.

5. We advise that (for PERS and STRS retirement salary verification purposes) any salary changes should be reflected on the publicly available salary schedule.

Please note that we advise that while the Board is meeting in closed session with its designated representative to discuss the salary of an unrepresented employee, the unrepresented employee should be excluded from the closed session.

For the protocol of board approval of changes to the superintendent/president’s salary and/or contract, please see our Legal Update Memo No. 04-2019(CC) dated April 16, 2019.

Please contact our office with questions regarding this Legal Update or any other legal matter.

Legal Update written by Jennifer Henry, Assistant General Counsel.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2019 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

Legal Update Memo No. 04-2019 – Required Procedure When the Governing Board Approves or Extends the Superintendent’s/President’s Contract or Sets the Salary of the Superintendent/President (CCD)

Download pdf: 04-2019(CC) – Required Procedure When Governing Board Approves or Extends Supt-Pres Contract (JH-CDC) 05-2019(CC) – Brown Act Requirement Re the Approval of Salary Changes for High Level Admin (JH)

This Legal Update provides a review of the recommended protocol when the governing board wishes to approve or extend the superintendent/president’s contract or set the salary of the superintendent/president.

A. BOARD APPROVAL OF OR AMENDMENT TO EMPLOYMENT CONTRACTS

The Government Code sets forth the procedures for a governing board’s approval of a district superintendent/president’s employment agreement.

Prior to taking action in open session to approve a superintendent’s/president’s contract, Government Code § 54953 requires an oral summary of the recommendation for approval of the salary and fringe benefits provided to the superintendent/president.

  1. Open Session Ratification of the Superintendent’s/President’s Contract.

Government Code sections 53260-53264 apply to various local agency employment agreements, including school district contracts involving the superintendent/president.

Section 53262 provides that the contract of employment of a district superintendent/president “shall be ratified in an open session of the governing body which shall be reflected in the governing body’s minutes.”  This provision assumes that the governing board took action in closed session to appoint or re-employ the superintendent/president pursuant to Government Code section 54957.

The requirement to approve or ratify the contract in public session exists for new contracts and for extensions or other amendments of existing contracts.

Contract approval of superintendent/president contracts must be taken at a regular meeting only.  Government Code section 54956(b) provides:

(b) Notwithstanding any other law, a legislative body shall not call a special meeting regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits, of a local agency executive, as defined in subdivision (d) of Section 3511.1. However, this subdivision does not apply to a local agency calling a special meeting to discuss the local agency’s budget.

If the governing board takes action in closed session to approve the contract at a regular meeting, the open session agenda must have an action items as follows:

  • Oral Recommendation Regarding Salary and/or Fringe Benefits
  • Ratification of Superintendent’s Employment Agreement

The term “ratification” makes it clear that the Board already took action in closed session on the same subject (which would have been “reported out” by the Board, as described below).  However, prior to taking action in open session to ratify the superintendent’s/president’s contract Government Code § 54953 requires an oral summary of the salary and fringe benefits provided to the superintendent/president.

If the Board will not take action in closed session, the open session agenda would have an action item as follows:

  • Oral Recommendation Regarding Salary and/or Fringe Benefits
  • Consideration and Possible Approval of Superintendent’s/President’s Employment Agreement

As with any other final action by the Board, action taken to approve or ratify the agreement must be duly noted in the minutes.  Also, prior to taking action in open session to approve the superintendent’s/president’s contract Government Code § 54953 requires an oral summary of the salary and fringe benefits provided to the superintendent/president.

2. Closed Session Consideration of the Contract (Excluding Compensation).

As noted above, Section 54957 of the Brown Act authorizes, but does not require, a governing board to meet in closed session to consider the appointment or employment of any employee of the public agency.  Section 54957 also allows, but does not require, a board to take action in closed session with respect to the appointment or employment of employees.

Any closed session consideration of the superintendent’s/president’s employment or continued employment should be described on the agenda as follows:

1.0  Public Employee Appointment/Employment

(Government Code section 54957) 

Title: Superintendent/President

3. Reporting Action Taken in Closed Session.

Section 54957.1 of the Brown Act requires certain public disclosures after closed session if “reportable action” was taken in closed session.  As applicable here, Section 54957.1(a)(5) provides that following the closed session the Board “shall publicly report any action taken in closed session, and the vote or abstention of every member present … to appoint [or] employ … a public employee …”

Thus, following any closed session during a regular meeting where the Board votes to approve or extend the superintendent’s/president’s contract, the Board president must publicly announce the action taken in closed session and the vote of each board member present.  This announcement must be made in public session at the same regular meeting as the closed session and the action and vote must be noted in the minutes.

Even though the Board has publicly disclosed the closed session action, the Board should still ratify the employment agreement in public session as described above.

B. THE BOARD’S CONSIDERATION OF THE SUPERINTENDENT’S/PRESIDENT’S SALARY

  1. Closed Session Discussion of the Superintendent’s/President’s Salary.

Section 54957 provides that a closed session held pursuant to that section shall not include discussion or action on proposed compensation.

Thus, when the Board meets in closed session pursuant to Section 54957 to consider the employment or further employment of the superintendent/president, no discussion of salary can take place.

Section 54957.6 of the Brown Act authorizes the Board to meet in closed session with its “designated representatives regarding the salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees …”

Under this section, the Board may discuss the superintendent’s/president’s salary in closed session.  The superintendent/president should not be present in the closed session during this discussion.  The protocol for any closed session discussion of the superintendent’s/president’s salary should be exactly the same as for a closed session discussion of salaries for represented employees:  in closed session, the Board will give instructions to its negotiator (typically the Board president) who will then meet with the superintendent/president outside of the closed session and report back to the Board on the results of the discussion.  When an “agreement” has been reached (it being recognized that the Board may unilaterally set the salary of all unrepresented employees) that “agreement” must be “sunshined” by way of the open session ratification of the contract described above.

If the closed session is to include a discussion of the superintendent’s/president’s salary or compensation package the regular meeting agenda should contain the following closed session description:

1.0  Conference with Labor Negotiator (Government Code section 54957.6)

Agency Negotiator:  (specify name)

Unrepresented Employee: Superintendent/President

  1. OTHER CONSIDERATIONS
  • Any superintendent/president contract shall not include “an automatic renewal of [the] contract that provides for an automatic increase in the level of compensation that exceeds a cost of living adjustment.”  (Government Code section 3511.2(a).)
  • In light of the “City of Bell” legislation involving abuse of office, we recommend including the following provision in the contract: “To the extent applicable to school districts, this Agreement is subject to the provisions of Government Code sections 53243-53243.4 which requires reimbursement under the circumstances stated therein.”
  • The superintendent/president and all other employment contracts are public records.  (Government Code section 53262(b).)  (Some redactions may be permissible.)

For the protocol of board approval of salary changes for high level administrators other than the superintendent/president, please see our Legal Update Memo No. 05-2019(CC) dated April 16, 2019.

Legal Update written by Jennifer Henry, Assistant General Counsel and Carl D. Corbin, General Counsel.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2019 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

Legal Update Memo No. 06-2019 REVISED – Required Procedure When the Governing Board Approves or Extends the Superintendent’s Contract or Sets the Salary of the Superintendent (K-12)

Download pdf: 06-2019 REVISED – Required Procedure When Governing Board Approves or Extends Supt Contract (JH-CDC)

The purpose of this Revised Legal Update is to clarify the requirement for an oral report, in open session, regarding any changes to salary or fringe benefits for a “local agency executive,” which includes a district superintendent.  The duty to make an oral report in open session regarding other high level positions in a district prior to taking action is referenced in our Legal Update Memo No. 05-2019.  Please discard the previous version of Legal Update Memo No. 06-2019 and please reference this revised version.

This Revised Legal Update provides a review of the recommended protocol when the governing board wishes to approve or extend the superintendent’s contract or set the salary of the superintendent.

A. BOARD APPROVAL OF OR AMENDMENT TO EMPLOYMENT CONTRACTS

The Government Code sets forth the procedures for a governing board’s approval of a district superintendent’s employment agreement. Prior to taking action in open session to approve a superintendent’s contract, Government Code section 54953 requires an oral summary of the recommendation for approval of the salary and fringe benefits provided to the superintendent.

1. Open Session Ratification of the Superintendent’s Contract.

Government Code sections 53260-53264 apply to various local agency employment agreements, including school district contracts involving the superintendent.

Section 53262 provides that the contract of employment of a district superintendent “shall be ratified in an open session of the governing body which shall be reflected in the governing body’s minutes.”  This provision assumes that the governing board took action in closed session to appoint or re-employ the superintendent pursuant to Government Code section 54957.

The requirement to approve or ratify the contract in public session exists for new contracts and for extensions or other amendments of existing contracts.

Contract approval of superintendent contracts must be taken at a regular meeting only.  Government Code section 54956(b) provides:

(b) Notwithstanding any other law, a legislative body shall not call a special meeting regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits, of a local agency executive, as defined in subdivision (d) of Section 3511.1. However, this subdivision does not apply to a local agency calling a special meeting to discuss the local agency’s budget.

If the governing board takes action in closed session to approve the contract at a regular meeting, the open session agenda must have an action items as follows:

  • Oral Recommendation Regarding Salary and/or Fringe Benefits
  • Ratification of Superintendent’s Employment Agreement

The term “ratification” makes it clear that the Board already took action in closed session on the same subject (which would have been “reported out” by the Board, as described below).  However, prior to taking action in open session to ratify the superintendent’s contract Government Code section 54953 requires an oral summary of the salary and fringe benefits provided to the superintendent.

If the Board will not take action in closed session, the open session agenda would have an action item as follows:

  • Oral Recommendation Regarding Salary and/or Fringe Benefits
  • Consideration and Possible Approval of Superintendent’s Employment Agreement

As with any other final action by the Board, action taken to approve or ratify the agreement must be duly noted in the minutes.  Also, prior to taking action in open session to approve the superintendent’s contract Government Code § 54953 requires an oral summary of the salary and fringe benefits provided to the superintendent.

2. Closed Session Consideration of the Contract (Excluding Compensation).

As noted above, Section 54957 of the Brown Act authorizes, but does not require, a governing board to meet in closed session to consider the appointment or employment of any employee of the public agency.  Section 54957 also allows, but does not require, a board to take action in closed session with respect to the appointment or employment of employees.

Any closed session consideration of the superintendent’s employment or continued employment should be described on the agenda as follows:

         1.0 Public Employee Appointment/Employment

        (Government Code section 54957)

       Title: Superintendent

3. Reporting Action Taken in Closed Session.

Section 54957.1 of the Brown Act requires certain public disclosures after closed session if “reportable action” was taken in closed session.  As applicable here, Section 54957.1(a)(5) provides that following the closed session the Board “shall publicly report any action taken in closed session, and the vote or abstention of every member present … to appoint [or] employ … a public employee …”

Thus, following any closed session during a regular meeting where the Board votes to approve or extend the superintendent’s contract, the Board president must publicly announce the action taken in closed session and the vote of each board member present.  This announcement must be made in public session at the same regular meeting as the closed session and the action and vote must be noted in the minutes.

Even though the Board has publicly disclosed the closed session action, the Board should still ratify the employment agreement in public session as described above.

B. THE BOARD’S CONSIDERATION OF THE SUPERINTENDENT’S SALARY

1. Closed Session Discussion of the Superintendent’s Salary.

Section 54957 provides that a closed session held pursuant to that section shall not include discussion or action on proposed compensation.

Thus, when the Board meets in closed session pursuant to Section 54957 to consider the employment or further employment of the superintendent, no discussion of salary can take place.

Section 54957.6 of the Brown Act authorizes the Board to meet in closed session with its “designated representatives regarding the salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees …”

Under this section, the Board may discuss the superintendent’s salary in closed session.  The superintendent should not be present in the closed session during this discussion.  The protocol for any closed session discussion of the superintendent’s salary should be exactly the same as for a closed session discussion of salaries for represented employees:  in closed session, the Board will give instructions to its negotiator (typically the Board president) who will then meet with the superintendent outside of the closed session and report back to the Board on the results of the discussion.  When an “agreement” has been reached (it being recognized that the Board may unilaterally set the salary of all unrepresented employees) that “agreement” must be “sunshined” by way of the open session ratification of the contract described above.

If the closed session is to include a discussion of the superintendent’s salary or compensation package the regular meeting agenda should contain the following closed session description:

1.0     Conference with Labor Negotiator (Government Code section 54957.6)

            Agency Negotiator:          (specify name)

           Unrepresented Employee: Superintendent

C. OTHER CONSIDERATIONS

  • Effective January 1, 2016, a superintendent contract executed after that date cannot include a cash settlement upon termination that is greater than 12 months salary, or the number of months left on the contract, whichever is less.  (Government Code section 53260(a).)  Other administrators can still be granted up to 18 months salary upon non-renewal of the contract, or the number of months left on the contract, whichever is less.
  • Any superintendent contract shall not include “an automatic renewal of [the] contract that provides for an automatic increase in the level of compensation that exceeds a cost of living adjustment.”  (Government Code section 3511.2(a).)
  • In light of the “City of Bell” legislation involving abuse of office, we recommend including the following provision in the contract: “To the extent applicable to school districts, this Agreement is subject to the provisions of Government Code sections 53243-53243.4 which requires reimbursement under the circumstances stated therein.”
  • The superintendent and all other employment contracts are public records.  (Government Code section 53262(b).)  (Some redactions may be permissible.)

For the protocol of board approval of salary changes for high level administrators other than the superintendent, please see our Legal Update Memo No. 05-2019 dated February 26, 2019.

Please contact our office with questions regarding this Legal Update or any other legal matter.

Legal Update written by Jennifer Henry, Assistant General Counsel and Carl D. Corbin, General Counsel.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2019 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

Legal Update Memo No. 03-2019 – Classified Employees – Notification of Reasonable Assurance of Employment for 2019-2020 (CCD)

Download pdf: 03-2019(CC) – Classified Employees-Notification of Reasonable Assurance of Employment for 2019-20 w attach (SPR)

Classified Employees

In order for classified employees who do not work during the summer to be held ineligible for unemployment benefits, Unemployment Insurance Code Section 1253.3 requires that districts give or send these employees a “letter of reasonable assurance” no later than 30 days prior to the last day of the academic year or term.[1]  The Code requires very specific language.  The attached sample letters comply with Code requirements.

Letter No. 1 is a sample letter for classified employees who work less         than 12 months.

Letter No. 2 is a sample letter for categorical, special, or federally-  funded classified employees who work less than 12 months.

Letter No. 3 is a sample letter for classified substitutes to be used if the     college district has a classified substitute list.

General

If an employee receives a letter of reasonable assurance and later files a claim for unemployment insurance with the Employment Development Department (“EDD”), the district will have to produce a copy of the letter of reasonable assurance that was given to that employee.  We recommend scanning or saving a copy of every letter of reasonable assurance given to each employee so it can later be produced to EDD if necessary.

Community College Districts should also be aware that if the economic terms and conditions of an employee’s work change significantly (more than 20% reduction in income) after the recess between academic terms, the notice of reasonable assurance does not bar the employee from collecting unemployment insurance. For instance, if the likely number of days a regular substitute is likely to work decreases by more than 20%, that substitute may be eligible for unemployment benefits for the summer.

Please contact our office with questions regarding this Legal Update or any other legal matter.

Attachments

Legal Update written by Steven P. Reiner, Assistant General Counsel.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2019 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Unemployment Insurance Code Sec. 1253.3, subd. (h) refers to the “end of the academic year or term” not the last day of service for the employee.

Legal Update Memo No. 09-2019 – Classified and Certificated Employees – Notification of Reasonable Assurance of Employment for 2019-2020 (K-12)

Download pdf: 09-2019 – Classified & Certificated Employees–Notification of Reasonable Assurance of Employment for 2019-20 w attach (SPR)

Classified Employees

In order for classified employees who do not work during the summer to be held ineligible for unemployment benefits, Unemployment Insurance Code Section 1253.3 requires that districts give or send these employees a “letter of reasonable assurance” no later than 30 days prior to the last day of the academic year or term.[1]  The Code requires very specific language.  The attached sample letters comply with Code requirements.

Letter No. 1 is a sample letter for classified employees who work less         than 12 months.

Letter No. 2 is a sample letter for categorical, special, or federally-  funded classified employees who work less than 12 months.

Letter No. 3 is a sample letter for classified substitutes to be used if the     district has a classified substitute list.

Certificated Employees

It is generally not necessary to send letters of reasonable assurance to regular certificated or administrative employees because they are defined as “professional” employees with either explicit or implied contracts that serve as a reasonable assurance of re-employment.

Substitute Teachers

Substitute teachers, particularly if they are on a list maintained by the district, do not have contracts and we recommend that they also be sent a letter of reasonable assurance no later than 30 days prior to the last day of school.  Each district should send letters to the substitutes on their substitute list and not rely on the county office of education to produce letters of reasonable assurance on its behalf.  If a county office of education also employs certificated substitutes for its own programs, those county offices of education should also send a notice of reasonable assurance to those substitutes.

Letter No. 4 is a sample letter to be used for substitute teachers who are on a substitute list.

General

If an employee receives a letter of reasonable assurance and later files a claim for unemployment insurance with the Employment Development Department (“EDD”), the district will have to produce a copy of the letter of reasonable assurance that was given to that employee.  We recommend scanning or saving a copy of every letter of reasonable assurance given to each employee so it can later be produced to EDD if necessary.

Districts should also be aware that if the economic terms and conditions of an employee’s work change significantly (more than 20% reduction in income) after the recess between school terms, the notice of reasonable assurance does not bar the employee from collecting unemployment insurance.  For instance, if a summer layoff results in a reduction to a part-time position, the individual may be eligible for unemployment benefits.

Please contact our office with questions regarding this Legal Update or any other legal matter.

Attachments

Legal Update written by Steven P. Reiner, Assistant General Counsel.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2019 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Unemployment Insurance Code Sec. 1253.3, subd. (h) refers to the “end of the academic year or term” not the last day of service for the employee.

Legal Update Memo No. 08-2019 REVISED – Charter Schools – Major New Governance Requirements Regarding Open Meeting Laws; California Public Records Act; Political Reform Act; and Conflict of Interest Laws (SB 126) (K-12)

Download pdf: 08-2019 REVISED – Charter Schools – Major New Governance Req Re Open Meeting Laws; CPRA; PRA; & COI Laws (SB 126) w attachment (RJH)

In our Legal Update Memo No. 02-2019 (January 16, 2019), we summarized an advisory opinion from the California Attorney General regarding charter schools being subject to those “public integrity” statutes noted above. Any doubts about the Attorney General’s advisory opinion have now been resolved by recently-enacted legislation referred to as SB 126. (See copy attached.)

Effective January 1, 2020, newly-enacted SB 126 adds Education Code section 47604.1 to the Charter Schools Act of 1992. Charter schools that are operated under Education Code section 47604 by or as a “nonprofit public benefit corporation” shall be subject to the following provisions of existing law: The Ralph M. Brown Act; The California Public Records Act; Government Code section 1090 et seq; and The Political Reform Act of 1974.

These four “public integrity” statutes are well known to school districts in California, but many of the so called “independent” charter schools that are managed by “nonprofit public benefit corporations” will need to get ready to comply with these formidable new governance requirements.

There are several unique aspects of new Education Code section 47604.1 that deserve further comment:

  1. Charter schools that are operated as a “dependent” charter of a school district or county office of education are not subject to newly-enacted Education Code section 47604.1 because “dependent” charter schools are managed by a chartering agency already subject to the governance rules noted above.
  1. Although independent charter schools that are not managed by a nonprofit public benefit corporation are not subject to section 47604.1, they may be subject to the four statutory schemes noted above either because the charter was granted on the condition of complying with these rules or as noted by the California Attorney General, in an opinion referenced above. (See Legal Update Memo 02-2019.)
  1. The “governing body” of an entity that manages two or more charter schools that are not located in the same county “shall audio record, video record, or both all the board meetings and post the recordings on each charter school’s internet website.”

Recommendations:

  1. If your school district or county office of education is the chartering agency of an independent charter school that is managed by a “nonprofit public benefit corporation” you should provide appropriate charter school representatives with a copy of SB 126 as soon as possible.
  1. Thereafter, your school district will need to exercise sufficient oversight to make sure that the charter school is being managed in conformance with this new law.

Please contact our office with questions regarding this Legal Update or any other legal matter.

Legal Update written by Robert J. Henry, Of Counsel. 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2019 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

Legal Update Memo No. 02-2019 – Board Member Role in Labor Negotiations (CCD)

Several of our clients have reported employees reaching out to individual board members in an effort to influence collective bargaining negotiations. This Legal Update provides guidance for board members regarding their role in the collective bargaining process, and advises board members on best practices to follow when employees or union representatives petition them about issues related to negotiations.

Legal Update Memo No. 07-2019 – Board Member Role in Labor Negotiations (K-12)

Download pdf: 07-2019 – Board Member Role in Labor Negotiations (SHS-ERA)

Several of our clients have reported employees reaching out to individual board members in an effort to influence collective bargaining negotiations. This Legal Update provides guidance for board members regarding their role in the collective bargaining process, and advises board members on best practices to follow when employees or union representatives petition them about issues related to negotiations.

Our primary recommendations for board members when they are approached by employees or union representatives about negotiations are as follows:

  1. Avoid any individual conversations about issues in negotiations because these could be misrepresented, and could even rise to the level of violating the laws governing public school employer-employee relations;
  1. Refer the individual to the board as a whole by encouraging them to make their comments at the public comment portion of an upcoming board meeting;
  1. Remember that the board and its bargaining representatives are a team. The board and individual board members should not be mediating between employees and the district team.

Aside from best practices, board members should understand that a typical tactic by unions in negotiations is to attempt to divide the board from its team by these individualized conversations.

Board’s Role in Negotiations

The school board as a whole is the governing body of the district and the ultimate decision-maker for any actions taken by the district. The school board designates a team to represent the district’s interests during negotiations with the bargaining unit. Typically, this team consists of members of district management knowledgeable about finance, human resources and site organization, and might also include an attorney or non-attorney advocate for the school district.

To communicate its position regarding matters within the scope of representation and instruct their negotiations team accordingly, the school board is permitted by the Brown Act to meet with their negotiations representatives in closed session. (Gov. Code § 3549.1, subd. (d).) During these closed session meetings, the school board authorizes certain parameters for negotiations, including the amount of money available for negotiations, and instructs their negotiations team on the board’s goals. With the board’s authority and direction, the district’s negotiations team meets with the bargaining unit’s negotiations team and enters into tentative agreements about matters within the scope of negotiations. These tentative agreements do not become binding until they are ratified by both the school board and the bargaining unit.

Individually, no board member has any authority in negotiations. Rather, the board as a whole makes decisions, instructs the negotiations team, and ratifies any tentative agreements reached in negotiations.

Bypassing Negotiations Teams

The Educational Employment Relations Act (“EERA”) governs employer-employee relations within the public schools, and is enforced by the Public Employment Relations Board (“PERB”).[1] Under the EERA, both the school district and the employee organization are obligated to deal with the other’s chosen representative to negotiate matters within the scope of representation. This means that, for matters subject to the negotiation duty, the bargaining unit is obligated to meet and bargain with the employer’s chosen representatives, and the employer is obligated to meet and bargain with the unit’s chosen representatives. Neither party may circumvent the negotiations process or the designated representatives.

If the school district wants to propose a change to a term or condition of employment, the district must propose the change to the team representing the unit for the employees affected, and may not directly deal with one or more affected employees.[2] For example, if a unified district with an elementary, middle and high school wants to change the class size for middle school classrooms, it cannot approach the middle school teachers with a proposal and ask them for their support, input, or to sign a document indicating their agreement; the district must instead propose the change to the teacher’s bargaining team representatives. Approaching the middle school teachers individually without including the union could constitute impermissible bypassing of an exclusive representative or “direct dealing” in violation of the EERA.

Likewise, the employee’s exclusive representative (i.e., the union) is obligated to meet and negotiate with the employer’s chosen representative(s) on matters within the scope of representation, and must avoid direct negotiations with the school board. However, employee organizations and public employees have the same statutory right to participate at public agency meetings as the general public, and have a right to represent themselves and their members at public meetings of the school board. Although bypassing an employer’s authorized negotiators by attempting to bargain directly with the public employer violates the duty to bargain, a union still has the right to advocate at a public meeting of the school board regarding working conditions, even if it relates to subjects under negotiations. In fact, even comments urging that the school board become more involved in the negotiations are permitted, as long as there is no evidence that the union is attempting to undermine the employer’s designated negotiator, and the union remains willing to negotiate with the representative.[3]

However, there are narrow circumstances in which the employee organization may violate the EERA by failing to deal directly with the employer’s chosen representative, which include:

  • making a proposal or counterproposal to the board instead of transmitting it to the negotiations team,
  • purposefully undermining the district’s negotiating team to the board,[4]
  • refusing to meet with the negotiations team and demanding to negotiate with the board instead, or
  • demanding that a board member attend negotiations.

However, because of the employee’s right to participate in public agency meetings, it is very rare that PERB will find an employee or employee representative in violation of this rule when addressing the board as a whole.

First Amendment Right to Petition Board Members

Members of the public, including school district employees, have a First Amendment right to “petition” elected officials, including board members.[5] Accordingly, an employee or a member of the community has a right to speak at a public board meeting or to privately petition an individual board member through personal conversation, emails, or telephone calls. As such, a school district cannot prevent a district employee from reaching out to an individual school board member in private, even if the employee is discussing a subject within the scope of negotiations, such as wages, class size, or health benefits. This circumstance, however, poses a serious risk for the Board member, as discussed below.

Board Member Best Practices When Approached About Negotiations

When a board member is approached by an employee or a member of the public about topics currently being negotiated by the district, it is best practice for the board member to not engage with the employee. The board member should immediately refer the person to the negotiating teams. The board member should also indicate to the individual their right to speak to the board as a whole at a board meeting. Individual interactions could easily be characterized as bargaining with unit members, “bypassing representatives,” or undermining the union (or the district’s negotiating team) in violation of the EERA. As such, we recommend that board members not engage with the individual, and instead refer them to the appropriate bargaining team or encourage them to attend a meeting of the Board so that all members can hear their comments.

If the individual appears to be undermining the negotiations process by either making a proposal or counterproposal to the board member instead of transmitting it to the negotiations team, or purposefully undermining the district’s negotiating team to the board member (for example by accusing the district’s team of lying), we recommend you contact legal counsel to discuss the possibility of filing an unfair labor practice charge with PERB.

Serial Meeting Concern

If several board members are approached by the same employee or member of the public, the board member should take precautions to prevent a serial meeting, in violation of the Brown Act, from occurring.

A majority of a school board is prohibited from using “a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action” on business within its subject matter jurisdiction outside of a meeting.[6] A series of private meetings (known as serial meetings) by which a majority of the members of a legislative body commit to a decision or engage in collective deliberation concerning public business violates the Brown Act’s open meeting requirement.

Individual contacts or conversations between a board member and an individual does not violate the serial meeting law unless the individual communicates to a majority of board members the comments or position of any other member or members of the body.[7]

However, keep in mind that communications of this nature are still extremely problematic. The casual or informal expressions of an opinion by a board member can easily be misunderstood and misapplied by the receiving individual which can lead to damage in negotiations. Many times individuals do not understand that the opinion of one board member does not represent the board as a whole.

Please contact our office with questions regarding this Legal Update or any other legal matter.

Legal Update written by Sarah Hirschfeld-Sussman, Schools Legal Counsel and Ellie R. Austin, Associate General Counsel.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2019 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Gov. Code §§ 3540-3549.3.

[2] See, e.g., Walnut Valley Unified School District (1981) PERB Dec. No. 160.

[3] Westminster School District (1982) PERB Dec. No. 277.

[4]Undermining includes disparaging members of the negotiations team: purposefully saying things to the board in an effort to corrode the board’s confidence in the negotiations team. Westminster School District (1982) PERB Dec. No. 277 at 11. To rise to the level of undermining, the statements must demonstrate an intent to obstruct the negotiation process.

[5] U.S. Const., 1st Amend. [prohibiting any law “abridging…the right of the people…to petition the Government for a redress of grievances”].

[6] Gov. Code § 54952.2, subd. (b)(1).

[7] Gov. Code § 54952.2, subd. (b)(2).

Legal Update Memo No. 05-2019 – Brown Act Requirement Regarding the Approval of Salary Changes for High Level Administrators (K-12)

Download pdf: 04-2019 – Public Agency Statement of Facts w attachments (SPR)

The Brown Act requires governing boards that intend to approve a change of salary or benefits for administrative staff to orally report, in open session, the District’s recommendation regarding the changes to salary or fringe benefits for “local agency executives” prior to the Board taking final action to approve the salary or fringe benefits change.

Senate Bill 1436, which went into effect January 1, 2017, amended Government Code section 54953. SB 1436 was a “City of Bell” amendment to the Brown Act to make more transparent salary and benefit increases for administrative staff.

A local agency executive (“LAE”) is defined in Government Code section 3511.1 to include:

(d) “Local agency executive” means any person employed by a local agency who is not subject to the Meyers-Milias-Brown Act (Chapter 10 (commencing with Section 3500)), Chapter 5 (commencing with Section 45100) of Part 25 of Division 3 of Title 2 of the Education Code, or Chapter 4 (commencing with Section 88000) of Part 51 of Division 7 of Title 3 of the Education Code, and who meets any of the following requirements:

(1) The person is the chief executive officer, a deputy chief executive officer, or an assistant chief executive officer of the local agency.

(2) The person is the head of a department of a local agency.

(3) The person’s position within the local agency is held by an employment contract between the local agency and that person.

Because of this 2017 amendment to the Brown Act, changes to salary or fringe benefits for a LAE should be processed as follows:

  1. Discussion or action regarding salary or benefits shall only occur at a regular meeting.
  2. Any closed session consideration of the change should be agendized as follows:

Closed Session:

With regard to every item of business to be discussed in closed session pursuant to section 54957.6:

Conference with Labor Negotiator:

Board Representative:  (Insert name of person whom the Board has designated to negotiate with the LAE, usually the Board President.)

Unrepresented Employee:  (Insert the title of the LAE.)

  1. The agenda should also have an open session item, after the closed session, as follows:

Oral recommendation regarding proposed changes to salary and/or fringe benefits of (specified local agency executive).

Discussion and possible approval of changes to salary and/or fringe benefits of (specified local agency executive).

  1. Action by the Board shall be memorialized in the minutes clearly stating how each Board member voted on the item.
  1. We advise that (for PERS and STRS retirement salary verification purposes) any salary changes should be reflected on the publicly available salary schedule.

Please note that we advise that while the Board is meeting in closed session with its designated representative to discuss the salary of an unrepresented employee, the unrepresented employee should be excluded from the closed session.

For the protocol of board approval of changes to the superintendent’s salary and/or contract, please see our Legal Update Memo No. 06-2019 dated February 26, 2019.

Please contact our office with questions regarding this Legal Update or any other legal matter.

Legal Update written by Jennifer Henry, Assistant General Counsel.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2019 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

Addendum to Legal Update Memo No. 16-2018 REVISED – SB 1343 – Sexual Harassment and Abusive Conduct Prevention Training (CCD)

Download pdf: 16-2018(CC) REVISED Addendum – SB 1343 – Sexual Harassment and Abusive Conduction Prevention Training (CDC)

This Addendum to Legal Update No. 16-2018 – Revised is provided as a gentle reminder that SB 1343 requires private employers (with five or more employees) and public employers such as, but not limited to, school districts, county offices of education, charter schools, and community college districts to provide training to all staff between January 1, 2019, and January 1, 2020, on sexual harassment and abusive conduct prevention.  At least two hours of effective interactive training must be provided to supervisors and at least one hour of effective interactive training must be provided to non-supervisors during 2019.  Employees who were trained prior to January 1, 2019 will need to be retrained.

After January 1, 2020, supervisors must receive at least two hours of effective interactive training every two years within six months of their assumption of a supervisory position.

After January 1, 2020, non-supervisors must receive at least one hour of effective interactive training every two years within six months of their assumption of a non-supervisory position.

For more information on the training requirements, please see the following link to the Department of Fair Employment and Housing (“DFEH”): https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2018/12/SB_1343_FAQs.pdf.

Please contact our office with questions regarding this Legal Update Addendum or any other legal matter.

Legal Update written by Carl D. Corbin.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2019 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.