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

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts

In a non-merit system, work may be contracted out

the district complies with the requirements

of the Education Code.

In merit systems, Education Code section 88076 imposes an obligation on merit-system school

districts to employ classified employees that “cannot be avoided by the use of contracts.”

Section 88076 contains additional limiting language applicable only to merit-system districts:

“No person whose contribution consists solely in the rendition of individual personal services

and whose employment does not come within the scope of the exceptions listed above shall be

employed outside the classified service.”

California School Employees Assn. v. Del Norte County Unified School District

the district

contracted out to ServiceMaster to provide regular supervision of employees along with

consultation, research, and development work and services regarding maintenance and custodial

operations at the schools within the district. Since the work could have been performed by

persons obtained through the ordinary district hiring channels, the contract was held to be

invalid. The court also noted that the Education Code governing classification of school district

employees and classification of employees in school districts that have adopted merit systems

mandate that all persons, including supervisors, who are regularly employed by school districts

and who are not specifically exempt by statute, be part of the classified service.

2. U

NIONS AND

OLLECTIVE

ARGAINING

GREEMENTS

Not only must the district pay careful attention to the Education Code provisions regarding

personal services contracts, but it must also follow its own collective bargaining agreement.

Always remember to also look at the collective bargaining agreement rules regarding hiring.

The collective bargaining agreement may contain rules that are more restrictive than the

Education Code.

Further, the decision to subcontract work by a district raises collective bargaining issues. If the

purpose of the decision is to reduce labor costs (including any contract under Education Code

section 88003.1, subdivision (a)), it

must

be negotiated.

In contrast, if the subcontracting is for purposes other than cost saving (i.e. those purposes set

forth in Section 88003.1, subdivision (b)), the district may not need to bargain the decision to

subcontract. The duty to bargain in this context depends largely on whether the subcontracting

will result in the removal of existing work for unit employees. Where the subcontract will result

in removal of existing work, the decision to subcontract must be negotiated.

Note, however, that the purposes set forth in Section 88003.1, subdivision (b) describe situations

that are largely premised on a district’s lack of internal resources to perform the work. Thus,

subcontracting in this context should have less impact on existing unit work than a subcontract

for cost-saving purposes. This explains why the decision to subcontract for cost-savings

purposes under 88003.1, subdivision (a) is always subject to negotiations. Additionally, whether

or not the decision to subcontract is negotiable, the

effects

of subcontracting on unit employees

must still be negotiated.