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

2. T

IGHT TO

EVIEW

EROGATORY

NFORMATION

: E

DUCATION

ODE

ECTION

87031

Education Code section 87031 guarantees community college employees the right to inspect

information in their personnel files that may serve as a basis for affecting the status of their

employment.

a. Notice of Intent to Enter Derogatory Information

Community college employees have a right to be notified before any “information of a

derogatory nature” is entered into an employee’s personnel records.

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Written materials or

notations applicable to an employee’s performance or conduct may be gathered into a

“supervisor’s folder” until a decision is made to place derogatory information in the employee’s

personnel file. The employee should be notified in writing of the decision to enter derogatory

material into the personnel file (e.g. issue a written reprimand that references and attaches the

derogatory information).

b. Opportunity to Review and Comment on Derogatory Information

The Education Code guarantees community college employees an opportunity not only to review

but also to attach their own comments to any derogatory statement in their personnel file.

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The

notification to the employee that derogatory information will be entered into his or her file

should thus inform the employee of his or her right under Education Code section 87031 to

respond in writing to this derogatory information within a specified period of time. Upon receipt

of the employee’s response or the expiration of the deadline, the material may be placed into the

personnel file. If the employee files a timely response, it should be attached to the derogatory

information that is being placed in the employee’s personnel file.

c. Timing of Employee Review

The Education Code requires that an employee’s review of his or her personnel file “shall take

place during normal business hours” and that employees be released from duty to conduct such

reviews, without any reduction in salary. An employer need not make personnel records

available at a time when the employee is actually required to render services to the district.

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d. Importance of Including Derogatory Documents in Personnel File

Districts may not circumvent an employee’s right to review derogatory information by

maintaining it outside the personnel file. In

Miller v. Chico Unified School District

261

the

Supreme Court held that a school district could not terminate an employee based on derogatory

documents

not included

in the employee’s personnel file. In this case, the associate

superintendent of a K-12 district kept notes of his frequent meetings with Miller, a school

principal, which he eventually transcribed and included in his formal recommendation to

reassign Miller. The school board received these confidential memoranda but did not provide

Miller with an opportunity to review or rebut any inaccurate derogatory information. According

to the Court, this violated Miller’s right to inspect and comment on any derogatory information

in his personnel file.