Name That Section - Frequently Used Education Code and Title 5 Sections for Community College Districts

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A LL A BOUT THE A UTHORS With offices in Los Angeles, San Francisco, Fresno, San Diego and Sacramento, the law firm of Liebert Cassidy Whitmore represents Community College District management in all aspects of labor and employment law, labor relations, and education law as well as providing advice and representation in business and facility matters, both transactional and litigation. The Firm's representation of Community College Districts throughout California, encompasses all phases of counseling and representational services in negotiations, arbitrations, fact findings, and administrative proceedings before local, state and federal boards and commissions, including the Public Employment Relations Board, Fair Employment and Housing Commission, Equal Employment Opportunity Commission, Department of Labor and the Office for Civil Rights of the U.S. Department of Education (OCR). In addition, the Firm handles bidding questions, contract review and revision as well as other contracting issues. The Firm regularly handles a wide variety of labor and employment litigation and litigation regarding business and facilities issues, from the inception of complaints through trial and appeal, in state and federal courts. Liebert Cassidy Whitmore places a unique emphasis on preventive measures to ensure compliance with the law and to avoid costly litigation. For more than thirty years, the Firm has successfully developed and presented training workshops and speeches on all aspects of employment relations for numerous public agencies and state and federal public sector coalitions, including the Community College League of California (CCLC), Association of California Community College Administrators (ACCCA), Association of Chief Human Resources Officers for Community College Districts (ACHRO), California Community College and University Police Chiefs Association (CA CUPCA), Association of Chief Business Officials (ACBO), California Community College Chief Information Service Officers (CCCCISO), Community College Facility Coalition (CCFC), National Employment Law Institute (NELI), and the Public Agency Risk Management Authority (PARMA).

This workbook contains generalized legal information as it existed at the time the workbook was prepared. Changes in the law occur on an on going basis. For these reasons, the legal information cited in this workbook should not be acted upon in any particular situation without professional advice.

Copyright © 201 9 Liebert Cassidy Whitmore. All rights reserved. No part of this publication may be reproduced, stored, transmitted, or disseminated in any form or by any means without prior written permission from Liebert Cassidy Whitmore.

T ABLE OF C ONTENTS

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Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2019 (c) Liebert Cassidy Whitmore iv S ECTION 3 Administrator Contracts ..............................................................................................................................................22 A. Employment by Appointment or Contract ....................................................................................................22 B. Non-renewal of Administrator Contracts ......................................................................................................22 C. Substitute or “Acting” Administrators ..........................................................................................................23 D. Discipline and Dismissal of Administrators ..................................................................................................23 S ECTION 1 Probationary Academic Employees...............................................................................................................................8 A. Definitions—Education Code Section 87601..................................................................................................8 1. Employment of Contract Faculty Members ...........................................................................................8 2. First Contract .........................................................................................................................................8 3. Second Contract.....................................................................................................................................9 4. Third Contract........................................................................................................................................9 B. Tenure Review ................................................................................................................................................9 1. Education Code Section 87610: Proper Issuance of March 15 Notices .................................................9 2. Grievances Regarding March 15 Notices – Education Code Section 87610.1 ....................................10 C. Granting Tenure ............................................................................................................................................11 D. Seniority vs. Tenure ......................................................................................................................................12 S ECTION 2 Temporary Academic Employees................................................................................................................................12 A. Classification of Temporary Academic Employees ......................................................................................13 1. Faculty Employed to Fill Positions of Regularly Employed Persons Absent from Service— 87478 .............................................................................................................13 2. Faculty Employed to Fill a Position for Which No Regularly Employed Person is Available — 87478 .............................................................................................13 3. Faculty Employed to Serve Day to Day During First Three Months of School Term — 87480 ....................................................................................................................14 4. Faculty Employed in Case of Emergency — 87480............................................................................14 5. Faculty Employed Due to Need for Additional Faculty During a Particular Semester, Quarter or Year – 87481......................................................................................................14 6. Faculty Employed Based upon Need for Additional Faculty During a Particular Semester or Quarter Due to Higher Enrollment — 87482..................................................................15 B. Employment of Academic Employees in Categorically Funded Projects .....................................................15 1. Introduction..........................................................................................................................................15 2. Length of Employment ........................................................................................................................16 3. Advancement Toward Tenure..............................................................................................................16 4. Contract Employees Reassigned to Categorical Programs ..................................................................16 5. Educational Administrators .................................................................................................................16 C. Employment of Temporary Faculty ..............................................................................................................17 1. Overview .............................................................................................................................................17 2. Limitations on the Number of Part-Time Temporary Faculty Members .............................................17 3. Calculating the “67 Percent Threshold” for Part-Time Employment ..................................................17 4. When Part-Time Hours May Advance an Employee Toward Tenure .................................................19 5. Other Relevant Education Code Statutes .............................................................................................20 6. Impact of Collective Bargaining Agreements......................................................................................21 D. “Conversion” to Probationary Employees.....................................................................................................21 1. Exceeding the Number of Regular Employees on Leave ....................................................................21 2. Temporary Employees Rehired as Probationary Employees ...............................................................21 3. Temporary Employees Converted Mid-year........................................................................................21 4. The Kavanaugh Problem ....................................................................................................................22

E. Layoff of Educational Administrators ...........................................................................................................24 1. Administrators Hired Before July 1, 1990 ...........................................................................................25 2. Administrators Hired on or After July 1, 1990 ....................................................................................25 3. Procedures and checklist for Releasing Administrators.......................................................................25 S ECTION 4 Non-Academic Employees ..........................................................................................................................................27 A. Classified Employees ....................................................................................................................................27 B. Non-Classified Non-Academic Employees...................................................................................................28 1. Merit vs. Non-Merit Distinction ..........................................................................................................29 2. Categories of Positions Specifically Excluded from Classified Service ..............................................29 3. Proper use of Short Term, Substitute and Limited Term Employees ..................................................29 4. Substitutes (Non-Merit Systems) .........................................................................................................31 5. Limited-Term Employees (Merit Systems) .........................................................................................32 C. Part-Time Employees ....................................................................................................................................32 1. Part-Time Classified Employees..........................................................................................................32 2. Full-Time Students Employed Part-Time (Merit and Non-Merit Systems).........................................33 3. Part-Time Students Employed Part-Time on Work Study (Merit and Non-Merit Systems) ...............33 4. Part-Time Playground Positions (Merit and Non-Merit Systems) .......................................................33 S ECTION 5 Personal Services Contracts.........................................................................................................................................33 A. Problems with Personal Services Contracts ..................................................................................................33 1. Tension with Classified Service...........................................................................................................34 2. Unions and Collective Bargaining Agreements ...................................................................................35 B. Statutory Provisions Allowing Personal Services Contracts .........................................................................35 1. To Achieve Cost Savings When All of the Following Conditions Are Met: .......................................36 2. Contract Mandated by the Legislature .................................................................................................37 3. Services Not Available Within the District..........................................................................................38 4. Services Incidental to a Contract for Purchase or Lease of Real Property...........................................38 5. Contracts Necessary to Accomplish Community College District Goals and Purposes ......................38 6. Emergency Appointments....................................................................................................................38 7. Equipment or Materials Not Available from District...........................................................................39 8. Services are of Urgent, Temporary, or Occasional Nature .................................................................39 S ECTION 6 Leaves..........................................................................................................................................................................39 A. Leaves for Classified Employees ..................................................................................................................39 1. Sick Leave for Classified Employees ..................................................................................................40 2. Family Sick Leave (“Kin Care”)..........................................................................................................41 3. Differential Pay....................................................................................................................................42 4. Industrial Accident Leave ....................................................................................................................43 5. Personal Necessity Leave ....................................................................................................................44 6. The 39-Month Reemployment List......................................................................................................44 B. Leaves for Academic Employees ..................................................................................................................45 1. Industrial Injury Leave.........................................................................................................................45 2. Family Sick Leave and Personal Necessity Leave...............................................................................46 3. Sick Leave Granted by Statute.............................................................................................................48 4. Differential Pay....................................................................................................................................48 5. Sabbatical Leave ..................................................................................................................................49 C. Catastrophic Leave ........................................................................................................................................51 1. Education Code Section 87045 ............................................................................................................51 2. Collective Bargaining Agreement Provisions......................................................................................52

S ECTION 7 Participatory Governance ............................................................................................................................................52

S ECTION 8 Recruitment, Increasing Diversity, and Title 5 ............................................................................................................54 A. Overview of Laws and Regulations Governing Recruitment and Diversity .................................................55 B. The Prohibition Against Discrimination........................................................................................................56 1. The “Pre-Proposition 209” Landscape.................................................................................................56 2. The Passage of Proposition 209 ...........................................................................................................57 C. The Diversity Commitment Post-Proposition 209 ........................................................................................57 1. The Statutory Response to Proposition 209 .........................................................................................57 2. The Regulatory Response to Proposition 209......................................................................................57 D. Diversity Hiring Pursuant to Federal Grants .................................................................................................61 Opportunity Plan..........................................................................................................................................................61 A. Drafting the EEO Plan Components..............................................................................................................63 B. Timelines and Adoption Procedures .............................................................................................................79 C. Applying the New EEO Fund Allocation Model ..........................................................................................79 D. Title 5 and Hiring Procedures .......................................................................................................................79 S ECTION 10 Responding to a Discrimination Complaint.................................................................................................................81 A. Investigating Allegations of Harassment, Discrimination, or Retaliation .....................................................81 B. Determine an Appropriate Remedy...............................................................................................................83 S ECTION 11 Records Use and Records Retention............................................................................................................................85 A. Personnel Files ..............................................................................................................................................85 1. How Long Must Records Be Retained?...............................................................................................86 2. What Information May Be Placed into a Personnel File......................................................................86 3. What May NOT Be Placed into a Personnel File ................................................................................86 B. The Right to Inspect ......................................................................................................................................87 1. Inspection.............................................................................................................................................87 2. The Right to Review Derogatory Information: Education Code Section 87031..................................88 3. Reasonable Rules Regarding Inspecting Personnel Files ....................................................................89 C. Proper Use of Criminal Records....................................................................................................................90 1. Introduction..........................................................................................................................................90 2. Academic Employees ..........................................................................................................................91 3. Classified Employees...........................................................................................................................94 4. Student Employees ..............................................................................................................................96 5. Other Offenses .....................................................................................................................................96 6. Labor Code § 432.7 Restricts the Use of Criminal Records ................................................................99 7. Use of Marijuana Convictions that are More than Two Years Old....................................................100 D. Student records............................................................................................................................................102 1. What Must Be Retained .....................................................................................................................102 2. How Long Must Records Be Retained?.............................................................................................102 3. Access to Student Records.................................................................................................................103 4. Challenging the Contents...................................................................................................................104 E. Use of Social Media ....................................................................................................................................104 S ECTION 9 Diversity Plans in the Community College Context: Creating your Equal Employment

S ECTION 12 Conclusion.................................................................................................................................................................105

A PPENDIX A Temporary Release Letter ..................................................................................................................................106

A PPENDIX B Precautionary Notice Given to Temporary/Provisional/Categorical Employees in the Event They Are Probationary by Operation of Law .....................................................................................................................107

A PPENDIX C Notice to Administrator that Board Will Consider Release and Reassignment..................................................108

A PPENDIX D Resolution of Release and Reassignment for Educational Administrator ..........................................................109

A PPENDIX E Letter to Educational Administrator After Board Action ...................................................................................111

A PPENDIX F Letter to Educational Administrator Confirming Board Action .........................................................................112

A PPENDIX G Sample Personnel File Inspection Policy ...........................................................................................................113

A PPENDIX H Sample Law Enforcement Personnel File Inspection Policy ..............................................................................115

A PPENDIX I EEOC Examples for Employer Best Practices ...................................................................................................117

A PPENDIX J Sample Notice of Rejection of Applicant due to CORI......................................................................................118

E NDNOTES .................................................................................................................................................................119

As the Court of Appeals in Haase v. San Diego Community College District 1

aptly observed:

“Entry into the Education Code is painful.”

Indeed, trying to decipher the reticulated and complex web of laws that is the Education Code can be an excruciating process. This workbook will help guide you through some of the more common Education Code and Title 5 regulations facing community college districts.

P ROBATIONARY A CADEMIC E MPLOYEES

Section 1

A. D EFINITIONS —E DUCATION C ODE S ECTION 87601

1. E MPLOYMENT OF C ONTRACT F ACULTY M EMBERS A “contract employee” refers to a probationary academic employee. 2 Contract employees are employed based on a contract in accordance with specific Education Code sections. 3

Decisions regarding the continued employment of probationary academic employees require:

 The employee be evaluated according to the evaluation standards and procedures established by the district;

 The governing board has received statements of the most recent evaluations;

 The governing board has received recommendations of the superintendent of the district and the president of the community college; and  The governing board has considered the statement of evaluation and recommendations in a lawful meeting of the board. 4

2. F IRST C ONTRACT A community college district’s governing board shall employ faculty for the first academic year of employment by contract. A faculty member completes the first contract year if the faculty member provides service for 75% of the first academic year. 5 The contract must contain the terms and conditions that the governing board and employee agree to and are consistent with the law. 6 If a contract employee is working under his or her first contract, the governing board, in its discretion and not subject to judicial review except as expressly provided in Education Code sections 87610.1 and 87611, 7 may:

 Not enter into a contract for the following academic year;

 Enter into a contract for the following academic year ; or

 Employ the contract employee as a regular (i.e. tenured) employee for all subsequent academic years. 8

3. S ECOND C ONTRACT If a contract employee is working under his or her second contract, the governing board, in its discretion and not subject to judicial review except as expressly provided in Education Code sections 87610.1 and 87611, 9 may:

 Not enter into a contract for the following academic year;

 Enter into a contract for the following two academic years ; or

 Employ the contract employee as a regular employee for all subsequent academic years. 10

4. T HIRD C ONTRACT The third contract is for two academic years. If a contract employee is working under his or her third consecutive contract entered into under Section 87608.5, the governing board is mandated to choose one of the two following alternatives:

 Employ the probationary employee as a tenured employee for all subsequent academic years; or

 Not employ the probationary employee as a tenured employee. 11

B. T ENURE R EVIEW

1. E DUCATION C ODE S ECTION 87610: P ROPER I SSUANCE OF M ARCH 15 N OTICES The governing board must give written notice of its decision under Education Code sections 87608 or 87608.5 (i.e., Contracts 1 and 2)—and the reasons for the decision—to the employee on or before March 15 of the academic year covered by the existing contract. 12 The notice must be sent by registered or certified mail to the most recent address on file with the district personnel office. Failure to give the notice as required to a contract employee under his or her first or second contract shall be deemed an extension of the existing contract without change for the following academic year. 13 An employee, however, may not intentionally avoid service of the notice and then claim that the District failed to give notice. 14 The governing board shall give written notice of its decision under Education Code section 87609 (i.e., after the third contract) —and the reasons for the decision—to the employee on or before March 15 of the last academic year covered by the existing contract. The notice shall be by registered or certified mail to the most recent address on file with the district personnel office. Failure to give the notice as required to a contract employee under his or her third consecutive contract shall be deemed a decision to employ him or her as a regular employee for all subsequent academic years. 15 Given the sensitive timing requirements, Districts should consider taking non-renewal recommendations to the governing board in February, at the latest.

2. G RIEVANCES R EGARDING M ARCH 15 N OTICES – E DUCATION C ODE S ECTION 87610.1 Employees may grieve the issuance of a March 15 notice of non-reelection on specified and limited grounds. If there is no grievance procedure in the collective bargaining agreement resulting in arbitration (either advisory or final and binding), these allegations shall proceed to hearing. 16 Any grievance brought under Section 87610.1, subdivision (b) may be filed by an employee on his or her behalf, or by the exclusive bargaining representative on behalf of an employee or a group of employees in accordance with the Educational Employment Relations Act (“EERA”). 17 The exclusive representative shall have no duty of fair representation with respect to taking any of these grievances to arbitration, and the employee shall be entitled to pursue a matter to arbitration with or without the representation by the exclusive representative. However, if a case proceeds to arbitration without representation by the exclusive representative, the resulting decision shall not be considered a precedent for purposes of interpreting tenure procedures and policies, or the collective bargaining agreement. The decision will affect only the result in that particular case. When arbitrations are not initiated by the exclusive representative, the district shall require the employee submitting the grievance to file adequate security to pay the employee’s share of the cost of arbitration with either the arbitrator or another appropriate party designated in the collective bargaining agreement. 18 a. Non-reelection of a Probationary Employee First- and second-year probationary employees may challenge their non-reelection solely on the narrow grounds that the community college district allegedly violated, misinterpreted, or misapplied its policies and procedures concerning the evaluation of the employee. The employee may not challenge the decision to non-reelect on its merits. b. Denial of Tenure Where a district provides notice by March 15 that tenure has been denied, the employee may file a grievance on somewhat broader grounds than the non-reelection of a probationary employee. The grievant may allege that the decision “to a reasonable person was unreasonable” as well as allege that the district violated, misinterpreted, or misapplied its policies and procedures concerning the evaluation process. 19 While employees may grieve tenure denial, the remedial authority of the arbitrator to grant tenure is very limited. The Education Code imbues arbitrators with the power to grant tenure if and only if the district failed to give proper notice on or before March 15. 20 It also empowers arbitrators to issue other “make-whole” remedies, such as back pay and benefits, reemployment in a probationary position, and reconsideration. 21 Procedures for reconsideration of decisions not to grant tenure may be negotiated by the governing board and the exclusive representative of faculty under Government Code section 3540 et seq . (“EERA”). 22

Be careful about the use of student complaints when deciding whether to grant tenure. Many collective bargaining agreements include student complaints in the evaluation procedure and have rules about their use. If the district wishes to include student complaints, it must follow the CBA rules. If the district fails to follow the CBA procedure and uses the student complaints to deny tenure, the employee may win a grievance.

LCW Practice Advisor

C. G RANTING T ENURE Education Code section 87660 et seq . controls the tenure process. As provided above, a contract faculty member normally serves under three probationary contracts, with the final contract lasting for two academic years (years 3 and 4). A faculty member must serve a full academic year for the year to count towards acquisition of tenure. Generally, the Education Code provides that a First Contract employee, who serves at least 75 percent of the number of days the district is maintained, or the number of hours considered a full-time assignment for regular employees performing similar duties, shall be deemed to have served a complete college year. 23 A faculty member, however, may be deemed to have completed the second, third, or fourth contract year if the faculty member provides service for a percentage of the academic year under an agreement between the governing board and the exclusive bargaining representative of the faculty member. 24 The Education Code states that for probationary faculty members working in their second, third, or fourth year, time spent on paid or unpaid leave of absence may be included in computing service if the faculty member serves sufficient time during the year to allow for the evaluation of the faculty member as required by any negotiated evaluation procedure. 25 Given the recent trend in the California courts, districts must seriously consider extending this consideration to first year probationary faculty members as well.

Districts may properly non-reelect probationary employees for any nondiscriminatory reason by March 15 of each year. But it is best to make the decision sooner rather than later. The sooner the district makes this decision, the sooner each party can move on. The challenge to the decision is a more limited after the first or second year.

LCW Practice Advisor

Education Code section 87664 provides:

The governing board of each district, in consultation with the faculty, shall adopt rules and regulations establishing the specific procedures for the evaluation of its contract and regular employees on an individual basis and setting forth reasonable but specific standards which it expects its faculty to meet in the

performance of their duties. Such procedures and standards shall be uniform for all contract employees of the district with similar general duties and responsibilities and shall be uniform for all regular employees of the district with similar general duties and responsibilities.

Contract employees must be evaluated at least once each academic year. Regular (permanent) employees must be evaluated at least once in every three academic years.

Required evaluations of community college district faculty members must be conducted in accordance with the standards and procedures established by the governing board’s rules and regulations. 26 Moreover, evaluations must include, but are not be limited to, a peer review process, which reflects the diversity of California and is sensitive to equal opportunity concerns. 27 The Education Code also states the intent of the Legislature that faculty evaluations include a student-evaluation component, to the extent practicable. 28 Minimally, district evaluation procedures must afford faculty members the right to be evaluated under clear, fair, and equitable procedures that are locally defined through the collective bargaining process where the faculty has chosen to elect an exclusive representative. Those procedures shall ensure good-faith treatment of the probationary faculty member, but may not afford de facto tenure rights. 29 D. S ENIORITY VS . T ENURE It is important to understand the distinction between tenure and seniority; the two are separate concepts. Tenure describes an employee’s right to employment in the district. Seniority, in contrast, describes the right of an employee to employment compared to his or her colleagues. Community colleges are generally expected to staff their academic positions with contract and regular employees. In other words, tenure is the rule and temporary employment the exception. Nevertheless, various scenarios create a need for temporary employment such as district acquisition of categorical program funds, temporary vacancies caused by an employee leave, and fluctuations in student enrollment. In these instances, districts are permitted to hire part-time, temporary faculty (known variously as “adjunct,” “hourly,” “temporary,” or “part-time”). While such employment is permitted, the Education Code squarely places the burden on districts to demonstrate legally and factually that an employee is temporary. Further, to ensure that districts do not overstaff their campuses with temporary faculty, the Education Code establishes several restrictions on temporary employment. First, the Code places a limit on the number of part-time faculty members that a district may hire. Second, the Code defines the types of service that may properly be provided by a temporary faculty member. Section 2 T EMPORARY A CADEMIC E MPLOYEES

Finally, in some circumstances, the Code places limits on how long an employee can serve and remain a temporary (rather than a contract or regular) employee.

Additionally, the Education Code includes several protections and programs designed to encourage greater participation of, and protections for, part-time faculty.

A. C LASSIFICATION OF T EMPORARY A CADEMIC E MPLOYEES The Education Code, specifically Sections 87475 et seq. , authorizes community college districts to hire temporary faculty members under certain conditions. Positions should not be classified as temporary unless the employment meets one of these enumerated conditions. 30 Moreover, districts must provide temporary faculty with written notice, at the time of employment, indicating both the temporary nature of the employment and the length of employment. If a district fails to provide this notice, the employee may be deemed a contract employee by operation of law. To avoid the automatic conversion of temporary faculty to contract or regular status, districts must provide clear written notice of the employee’s temporary status on or before the first date of paid service. 31 1. F ACULTY E MPLOYED TO F ILL P OSITIONS OF R EGULARLY E MPLOYED P ERSONS A BSENT FROM S ERVICE — 87478 Education Code section 87478 states that faculty employed to fill positions of regularly employed persons absent from service shall be classified as temporary employees. Regular employees on leave are entitled to return to their positions. Therefore, districts must be careful not to fill such temporary vacancies with contract employees. Section 87478 also mandates that any person employed for one complete school year under this section must, if reemployed for the following school year in a “faculty position,” be classified as a contract employee—and have the previous year’s employment as a temporary employee deemed a year of contract employment. In other words, under this scenario, the faculty member’s status upon being rehired is a second-year probationary employee. 2. F ACULTY E MPLOYED TO F ILL A P OSITION FOR W HICH N O R EGULARLY E MPLOYED P ERSON IS A VAILABLE — 87478 Section 87478 also provides that, where no regular employee is available, any otherwise qualified person who consents to be employed in a temporary status may be hired after September 1 of any school year. The district must demonstrate, to the satisfaction of the Board of Governors, that it was unable to acquire the services of a qualified regular employee. Again, if the employee serves for a complete school year and is rehired into a faculty position, the governing board must classify the employee as a contract employee and count the prior year as a year of contract employment.

3. F ACULTY E MPLOYED TO S ERVE D AY TO D AY D URING F IRST T HREE M ONTHS OF S CHOOL T ERM — 87480 Section 87480 provides that districts must classify as temporary employees faculty members, who serve from day to day during the first three school months of any school term to instruct temporary classes or to perform other duties that do not last longer than the first three school months of any school term, or to instruct in special day and evening classes for adults or in schools of migratory population for not more than four school months of any school term. However, if the classes or duties continue beyond three or four months, respectively, the employee must be classified as a contract employee. 4. F ACULTY E MPLOYED IN C ASE OF E MERGENCY — 87480 Education Code section 87480 further authorizes district governing boards to make temporary emergency appointments for no more than 20 working days to prevent the stoppage of district business where no persons are immediately available for contract classification. Persons so appointed are deemed temporary employees, who are employed to serve from day to day. Service by a person in such a temporary appointment does not count toward achieving status as a regular district employee. 5. F ACULTY E MPLOYED D UE TO N EED FOR A DDITIONAL F ACULTY D URING A P ARTICULAR S EMESTER , Q UARTER OR Y EAR – 87481 Under section 87481, where a district has a specific need for additional faculty during a particular semester, quarter, or year because a faculty member has been granted leave for a semester, quarter, or year, or is experiencing long-term illness, a district may fill that need by employing qualified individuals as temporary faculty members for a complete school year. The number of persons so employed must be limited to the specific need identified, as determined by the governing board. Districts must be careful not to allow the number of temporary faculty hired on this basis to exceed the actual need. Failure to do so could result in having to “convert” temporary hires to contract employees. Section 87481 further provides that, if the employee served a complete school year and is rehired into a vacant faculty position (i.e. a position that is not filled by a regular or contract employee on leave), then the employee must be classified as a contract employee, and his or her prior year count as a year of contract employment. In other words, as under Section 87478, faculty rehired under this scenario enjoy the status of second-year probationary employees.

6. F ACULTY E MPLOYED B ASED UPON N EED FOR A DDITIONAL F ACULTY D URING A P ARTICULAR S EMESTER OR Q UARTER D UE TO H IGHER E NROLLMENT — 87482 Education Code section 87482 also permits a community college to employ qualified individuals as temporary faculty members for a complete school year (at least a complete school term) where there is a need for additional faculty during a particular semester or quarter because of the higher enrollment of students during that semester or quarter, or because a faculty member has been granted leave for a semester, quarter, or year, or has been experiencing long-term illness. The salary for such employment shall be contractually fixed for the entire semester or quarter. Employment under this section cannot exceed more than two semesters or three quarters within any period of three consecutive years. This restriction works to enforce the requirement that the district is responding to unusual or unexpected higher enrollment. Where the higher enrollment becomes consistent, districts are expected to fill those positions with contract employees. If a temporary employee is hired under this section for more than two semesters or three quarters within a three-year period, the employee will be deemed a contract employee. Community college districts are expected to staff their academic positions with contract (probationary) and regular (tenured) employees. However, where an academic position is funded through a limited, finite funding source, the Education Code allows for greater flexibility in the terms of hiring and procedures for termination. Specifically, the Education Code authorizes community college governing boards to employ academic employees as temporary employees, if they serve in programs and projects under contract with public or private agencies, or other categorically funded projects of indeterminate duration. 32 These academic employees, including academic administrators, may be employed under terms and conditions mutually agreed upon in writing by the employee and the governing board. 33 To ensure that the district retains the flexibility to release a “categorical” employee if the funding expires, the contract should state the temporary status of the employee, the fact that employment is at will as well as that employment is contingent upon the continuation of funding. Further, it is essential that all contracts or other written notices of temporary employment be provided to academic employees on or before the first date of paid service. Lack of clarity or notice of status after the first date of paid service may result in the employee acquiring probationary/contract status and for-cause termination rights. 34 Moreover, if a categorical employee is released while the categorical funding continues or the contract with the district is in force, categorical employees are entitled to the same layoff rights as probationary employees. 35 B. E MPLOYMENT OF A CADEMIC E MPLOYEES IN C ATEGORICALLY F UNDED P ROJECTS 1. I NTRODUCTION

2. L ENGTH OF E MPLOYMENT Under Section 87470, subdivision (a)(3), persons may be employed for periods that are less than a full college year, and may be terminated at the expiration of the contract or specially funded project without regard to other statutory requirements regarding the termination of contract or regular employees. 36 3. A DVANCEMENT T OWARD T ENURE Since categorically funded faculty members are temporary employees, their service may not be included in computing the service required to acquire tenure unless both of the following occur:

 The employee has served as a faculty member under this section for at least 75% of the number of days in the district’s regular schools; and  The employee is subsequently employed as a contract employee in a faculty position. 37

Where these criteria are met, the year before employment as a contract employee is counted, and the employee is considered to be in the second probationary year, rather than the first.

4. C ONTRACT E MPLOYEES R EASSIGNED TO C ATEGORICAL P ROGRAMS Section 87470 does not apply to a faculty member who is initially employed in the regular educational programs of the district as a contract employee, and then assigned to a categorically funded project or program. In other words, when a contract employee moves into a categorical program, he or she does not give up the rights and protections of probationary employment. The employee’s time in service will count toward tenure, and his or her service with the District (as opposed to service in the categorical position) may not be terminated without the due process rights afforded to contract employees. 5. E DUCATIONAL A DMINISTRATORS A person employed in an administrative position who is not part of the classified service, who has not previously acquired tenure as a faculty member in the same district and who is not under contract in a program or project to perform services conducted under contract with public or private agencies, or in other categorically funded projects of indeterminate duration, shall have the right to become a first-year probationary faculty member once his or her administrative assignment expires or is terminated if the person meets all the requirements of Education Code section 87458.

C. E MPLOYMENT OF T EMPORARY F ACULTY

1. O VERVIEW Education Code section 87482.5 provides that “notwithstanding any other law,” faculty may be employed on a temporary basis if they are employed for “not more than 67 percent of the hours per week considered a full-time assignment for regular employees having comparable duties.” In other words, so long as a temporary employee does not exceed this 67 percent threshold , he or she may be rehired indefinitely as a temporary employee. Note that this is in contrast to temporary hiring under Section 87482 (see above) — which provides that temporary employment may not exceed more than two semesters, or three quarters, within any three consecutive years. Thus, if a temporary employee stays within the 67 percent cap on weekly hours, he or she may be rehired indefinitely. But if the hours exceed the 67 percent cap, the employee will be treated as a temporary employee under Section 87482, which will require conversion to contract status if the employee exceeds the 67 percent cap for more than two semesters or three quarters in three consecutive years. 38 2. L IMITATIONS ON THE N UMBER OF P ART -T IME T EMPORARY F ACULTY M EMBERS The Education Code requires community college districts to consider carefully staffing decisions to accomplish the legislative goal of providing at least 75% of credit-hour instruction in community colleges by full-time instructors, while still maintaining program flexibility. 39 To calculate the “67 percent of the hours per week considered a full-time assignment,” a district may generally look to the number of hours per week that corresponds to 67 percent of the hours of classroom instruction considered a full-time assignment. The Education Code specifically excludes service in “professional ancillary activities, including, but not necessarily limited to, governance, staff development, grant writing, and advising student organizations” from counting towards attainment of contract or regular status unless otherwise provided for in a collective bargaining agreement applicable to a person employed under this section. 40 Additionally, service as a substitute on a day-to-day basis may not be used for purposes of calculating eligibility for contract or regular status. 41 For example, if a temporary employee teaches in a discipline where 15 hours of classroom instruction a week is considered a full-time assignment, and the hourly rate employee renders ten hours of classroom instruction a week, the Education Code is deemed satisfied. If that same hourly rate employee renders 11 hours of classroom instruction per week for more than two semesters within any three consecutive years, that hourly rate employee would be entitled to classification as a probationary or regular employee. 3. C ALCULATING THE “67 P ERCENT T HRESHOLD ” FOR P ART -T IME E MPLOYMENT

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