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AB-289 Classified school employees: merit system: adoption and termination.(2021-2022)

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Date Published: 03/04/2021 09:00 PM
AB289:v98#DOCUMENT

Amended  IN  Assembly  March 04, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 289


Introduced by Assembly Member Calderon

January 21, 2021


An act to amend Sections 45221, 45319, 88051, and 88138 of the Education Code, relating to school employees.


LEGISLATIVE COUNSEL'S DIGEST


AB 289, as amended, Calderon. Classified school employees: merit system: adoption and termination.
Existing law authorizes both the adoption and termination of a merit system in a school district or community college district by a majority vote of its classified employees or by a majority of the voting electors of the school district or community college district, as provided. Upon the filing of a petition for the adoption or for the termination of the merit system for classified employees of a school district or community college district, existing law requires the governing board of the district to perform specified activities in response, including, among others, devising an identification system to ensure against fraud in the balloting process, and forming a tabulation committee.
This bill would require the devised identification system to also ensure ballot secrecy and would prohibit a representative of the district from making any marks upon the ballot envelope or ballot of any employee. employee, except the bill would allow the tabulation committee to adopt a system of uniformly stamping in a consistent manner and in the same location on all ballots received or all ballots counted, or both of those, to help ensure an accurate count. The bill would require at least one member of the tabulation committee to be a classified employee designated by the largest exclusive representative of classified employees within the district. If a district communicates with classified employees in opposition to adopting the merit system or in favor of terminating that system, the bill would require the district to provide at least equal time and equal access to any exclusive representative of classified employees within the district to communicate its position on adopting or terminating that system, as applicable. The bill would require all election procedures not specified for an election to adopt or terminate a merit system for a district pursuant to those provisions to be within the scope of representation for purposes of the Educational Employment Relations Act, including the rules for campaigning, the election date, time, and place, translation of the ballot, electioneering near the polls, and balloting methods. To the extent the bill would impose additional duties on local educational entities, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 45221 of the Education Code is amended to read:

45221.
 (a) (1) The classified employees of a school district whose average daily attendance is 3,000 or greater, may, in accordance with this article, petition the governing board of the school district to make the provisions of Article 6 (commencing with Section 45240) applicable to the school district. That petition shall read substantially as follows:
“We, the undersigned classified employees of the _______________ (name of school district), constituting 15 percent or more of the classified personnel entitled to vote, request the governing board to submit to election the question of whether or not the merit (civil service) system shall become applicable to this district.
NAME
POSITION CLASSIFICATION”
(2) “Classified employee,” as used in this section, shall be construed to include all personnel who are a part of the classified service, as defined in Section 45103.
(b) Within 120 days after receipt of the petition the governing board of the school district shall do all of the following:
(1) Obtain the services of competent and qualified persons to present the pros and cons of the issue. Notwithstanding this paragraph, the classified employees who submitted the petition may select the person or persons to present the proponent position on the issue.
(2) Provide adequate and ample opportunity for all of its classified personnel to attend one or more meetings at which the issue is presented.
(3) (A) Having complied with paragraphs (1) and (2), conduct an election by secret ballot of its classified personnel to determine whether or not they desire to make the merit system applicable to the school district. The ballot shall read:
“Shall the merit (civil service) system for classified employees be applicable in the ____________ (name of school district)?
☐ Yes
☐ No”
(B) Although the ballot shall not require the employees’ signatures or other personal identifying requirements, the governing board of the school district shall devise an identification system to ensure against fraud in the balloting process while also ensuring ballot secrecy.
(c) (1) The governing board of the school district shall appoint a three- or five-person tabulating tabulation committee, at least one member of which shall be a member of the governing board of the school district and at least one member of which shall be a classified employee designated by the largest exclusive representative of classified employees within the school district, to canvass the ballots and present the results to the governing board of the school district. No representative of the school district shall make any marks upon the ballot envelope or ballot of any employee. employee, except that the tabulation committee may adopt a system of uniformly stamping in a consistent manner and in the same location on all ballots received or all ballots counted, or both of those, to help ensure an accurate count. If a simple majority votes in favor of the merit system, that system shall become applicable in the school district.
(2) The tabulating tabulation committee shall certify the results of the election to the governing board of the school district at the next regular or special meeting of the governing board of the school district following the date the committee completes tabulation of the votes. If the tabulating tabulation committee completes the tabulation on the same day that the governing board of the school district meets in regular or special session, the committee shall certify the results of the election to the governing board of the school district at that meeting.
(d) If the school district communicates with classified employees in opposition to adopting the merit (civil service) system, it shall provide at least equal time and equal access to any exclusive representative of classified employees within the school district to communicate in favor of that system. Nothing in this chapter shall be construed as limiting the rights of an exclusive representative under the Educational Employment Relations Act (Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code) for access to communicate its position on adopting the system.
(e) All election procedures not specified above for an election pursuant to this section shall be within the scope of representation of an exclusive representative under Section 3543.2 of the Government Code, including the rules for campaigning, the election date, time, and place, translation of the ballot, electioneering near the polls, and balloting methods.

SEC. 2.

 Section 45319 of the Education Code is amended to read:

45319.
 (a) A merit (civil service) system within a school district may be terminated by one of the following methods:
(1) (A) If the governing board of a school district, or a county board of education, receives a written petition of qualified electors not less in number than 10 percent of the number voting in the last election for a member of the board calling for the termination of the merit (civil service) system and the system has been in operation for not less than five years or has been imposed pursuant to the terms of Section 45119 or 45120, the board shall order the county superintendent of schools to place the question of termination of the system on the ballot at the next regular governing board member election, or county board of education member election, or the next primary or general election in a general election year, whichever is the earlier after receipt by the county superintendent of schools.
(B) The statement of purpose of the election shall read:
“Shall the merit (civil service) system for school employees not requiring certification qualifications, as provided for in Article 6 (commencing with Section 45240) of Chapter 5 of Part 25 of Division 3 of Title 2 of the Education Code of the State of California, and which has been in operation for at least five years, be terminated by the ____ School District of ____ County (or counties, where appropriate), or by the County Office of Education of ____ County on ____ (date to be specified by board)?”
(C) The petition calling for the election, to be valid, shall contain the statement of purpose for the election as contained in this section.
(2) (A) If the governing board of a school district, or the county board of education, receives a written petition from 40 percent of the classified employees entitled to vote calling for the termination of the merit (civil service) system and the system has been in operation for not less than five years or has been imposed pursuant to the terms of Section 45119 or 45120, the governing board of the school district shall conduct an election by secret ballot of its classified personnel to determine whether or not they desire to have the merit system terminated within the school district. The ballot shall read: “Shall the merit (civil service) system for classified employees be terminated in the ____ (name of school district, or county office of education) as of ____ (termination date)?”
(B) As used in this subdivision, “classified employees” means all personnel who are a part of the classified service who are appointed in accordance with Section 45272.
(C) In order to be valid, the petition calling for the termination of the merit (civil service) system shall be submitted to the governing board of the school district within 90 days after the date that the notice for the circulation of the petition was filed with the governing board of the school district district. The election shall be held during the regular school year and shall be held no earlier than 45 days and no later than 180 days after the date that the petition was submitted to the governing board of the school district.
(D) If the merit system was adopted pursuant to Section 45224.5, classified employees entitled to vote in an election pursuant to this paragraph shall be limited to those classified employees who reside in the school district.
(E) The governing board of the school district shall devise an identification system designed to protect against fraud in the balloting process while also ensuring ballot secrecy. In addition, the governing board of the school district shall appoint a three-member tabulation committee consisting of one member of the governing board of the school district, one member of the personnel commission of the school district, and one member who shall be a classified employee of the school district designated by the largest exclusive representative of classified employees within the school district. It shall be the responsibility of the tabulation committee to canvass the election ballots and to certify the results of the election to the governing board of the school district at the next regular meeting of the governing board of the school district following the completion of the tabulation of the election ballots by the committee. No representative of the school district shall make any marks upon the ballot envelope or ballot of any employee. employee, except that the tabulation committee may adopt a system of uniformly stamping in a consistent manner and in the same location on all ballots received or all ballots counted, or both of those, to help ensure an accurate count.
(F) Notwithstanding any other law, the governing board of the school district shall not be required to provide release time for classified personnel to vote in an election conducted pursuant to this paragraph. The governing board of the school district shall not conduct an election under this paragraph more than once in any two-year period.
(G) Members of the classified service shall be provided an adequate and ample opportunity to be informed of the arguments in favor of and in opposition to the termination of the merit (civil service) system before the conducting of an election called pursuant to this paragraph. That opportunity shall include an open forum during which proponents of, and opponents to, the termination of the merit (civil service) system shall be permitted to debate the issue.
(b) If the school district communicates with classified employees in favor of terminating the merit (civil service) system, it shall provide at least equal time and equal access to any exclusive representative of classified employees within the school district to communicate against terminating that system. Nothing in this chapter shall be construed as limiting the rights of an exclusive representative under the Educational Employment Relations Act (Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code) for access to communicate its position on terminating the system.
(c) (1) It shall be unlawful for a public school employer and the exclusive representative of the classified employees of a school district to include the subject of the termination of the merit (classified service) system within the scope of representation.
(2) Notwithstanding paragraph (1) or any other law, all election procedures not specified above for an election pursuant to this section shall be within the scope of representation of an exclusive representative under Section 3543.2 of the Government Code, including the rules for campaigning, the election date, time, and place, translation of the ballot, electioneering near the polls, and balloting methods.

SEC. 3.

 Section 88051 of the Education Code is amended to read:

88051.
 (a) (1) On or after November 8, 1967, the classified employees of a community college district whose full-time equivalent student is 3,000 or greater, in accordance with this article, may petition the governing board of the community college district to make Article 3 (commencing with Section 88060) applicable to the community college district. That petition shall read substantially as follows:
“We, the undersigned classified employees of the _____ (name of community college district), constituting 15 percent or more of the classified personnel entitled to vote, request the governing board to submit to election the question of whether or not the merit (civil service) system shall become applicable to this district.
NAME  
POSITION CLASSIFICATION ”
(2) “Classified employee,” as used in this section, shall be construed to include all personnel who are a part of the classified service, as defined in Section 88003.
(b) Within 120 days after receipt of the petition the governing board of the community college district shall do all of the following:
(1) Obtain the services of competent and qualified persons to present the pros and cons of the issue. Notwithstanding this paragraph, the classified employees who submitted the petition may select the person or persons to present the proponent position on the issue.
(2) Provide adequate and ample opportunity for all of its classified personnel to attend one or more meetings at which the issue is presented.
(3) (A) Having complied with paragraphs (1) and (2), conduct an election by secret ballot of its classified personnel to determine whether or not they desire to make the merit system applicable to the community college district. The ballot shall read:
“Shall the merit (civil service) system for classified employees be applicable in the ____________ (name of community college district)?
☐ Yes
☐ No”
(B) Although the ballot shall not require the employees’ signatures or other personal identifying requirements, the governing board of the community college district shall devise an identification system to ensure against fraud in the balloting process while also ensuring ballot secrecy.
(c) (1) The governing board of the community college district shall appoint a three- or five-person tabulating tabulation committee, at least one member of which shall be a member of the governing board of the community college district and at least one member of which shall be a classified employee designated by the largest exclusive representative of classified employees within the community college district, to canvass the ballots and present the results to the governing board of the community college district. No representative of the community college district shall make any marks upon the ballot envelope or ballot of any employee. employee, except that the tabulation committee may adopt a system of uniformly stamping in a consistent manner and in the same location on all ballots received or all ballots counted, or both of those, to help ensure an accurate count. If a simple majority votes in favor of the merit system, that system shall become applicable in the community college district.
(2) The tabulating tabulation committee shall certify the results of the election to the governing board of the community college district at the next regular or special meeting of the governing board of the community college district following the date the committee completes tabulation of the votes. If the tabulating tabulation committee completes the tabulation on the same day that the governing board of the community college district meets in regular or special session, the committee shall certify the results of the election to the governing board of the community college district at that meeting.
(d) If the community college district communicates with classified employees in opposition to adopting the merit (civil service) system, it shall provide at least equal time and equal access to any exclusive representative of classified employees within the community college district to communicate in favor of that system. Nothing in this chapter shall be construed as limiting the rights of an exclusive representative under the Educational Employment Relations Act (Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code) for access to communicate its position on adopting the system.
(e) All election procedures not specified above for an election pursuant to this section shall be within the scope of representation of an exclusive representative under Section 3543.2 of the Government Code, including the rules for campaigning, the election date, time, and place, translation of the ballot, electioneering near the polls, and balloting methods.

SEC. 4.

 Section 88138 of the Education Code is amended to read:

88138.
 (a) A merit (civil service) system within a community college district may be terminated by one of the following methods:
(1) (A) If the governing board of a community college district, district receives a written petition of qualified electors not less in number than 10 percent of the number voting in the last election for a member of the governing board of the community college district calling for the termination of the merit (civil service) system and the system has been in operation for not less than five years, the governing board of the community college district shall order the county superintendent of schools to place the question of termination of the system on the ballot at the next regular governing board member election, or the next primary or general election in a general election year, whichever is the earlier after receipt by the county superintendent of schools.
(B) The statement of purpose of the election shall read:
“Shall the merit (civil service) system for school employees not employed as faculty or educational administrators, as provided for in Article 3 (commencing with Section 88060) of Chapter 4 of Part 51 of Division 7 of Title 3 of the Education Code of the State of California, and which has been in operation for at least five years, be terminated by the _____ Community College District of ____ County (or counties, where appropriate) on _____ (date to be specified by board)?”
(C) The petition calling for the election, to be valid, shall contain the statement of purpose for the election as contained in this section.
(2) (A) If the governing board of a community college district receives a written petition from 40 percent of the classified employees entitled to vote calling for the termination of the merit (civil service) system and the system has been in operation for not less than five years or has been imposed pursuant to the terms of Section 45119 or 45120, the governing board of the community college district shall conduct an election by secret ballot of its classified personnel to determine whether or not they desire to have the merit system terminated within the community college district. The ballot shall read: “Shall the merit (civil service) system for classified employees be terminated in the ____ (name of community college district) as of ____ (termination date)?”
(B) As used in this subdivision, “classified employees” means all personnel who are a part of the classified service who are appointed in accordance with Section 88091.
(C) In order to be valid, the petition calling for the termination of the merit (civil service) system shall be submitted to the governing board of a community college district within 90 days after the date that the notice for the circulation of the petition was filed with the governing board of the community college district. The election shall be held during the regular academic year and shall be held no earlier than 45 days and no later than 180 days after the date that the petition was submitted to the governing board of the community college district.
(D) If the merit system was adopted pursuant to Section 88057, classified employees entitled to vote in an election pursuant to this paragraph shall be limited to those classified employees who reside in the district.
(E) The governing board of a community college district shall devise an identification system designed to protect against fraud in the balloting process while also ensuring the secrecy of the ballot. In addition, the governing board of the community college district shall appoint a three-member tabulation committee consisting of one member of the governing board, one member of the personnel commission of the community college district, and one member who shall be a classified employee of the community college district designated by the largest exclusive representative of classified employees within the community college district. It shall be the responsibility of the tabulation committee to canvass the election ballots and to certify the results of the election to the governing board of the community college district at the next regular meeting of the governing board of the community college district following the completion of the tabulation of the election results by the committee. No representative of the community college district shall make any marks upon the ballot envelope or ballot of any employee. employee, except that the tabulation committee may adopt a system of uniformly stamping in a consistent manner and in the same location on all ballots received or all ballots counted, or both of those, to help ensure an accurate count.
(F) Notwithstanding any other law, the governing board of a community college district shall not be required to provide release time for classified personnel to vote in an election conducted pursuant to this paragraph. The governing board of the community college district shall not conduct an election under this paragraph more than once in any two-year period.
(G) Members of the classified service shall be provided an adequate and ample opportunity to be informed of the arguments in favor of and in opposition to the termination of the merit (classified service) system before the conducting of an election called pursuant to this paragraph. That opportunity shall include an open forum during which proponents of, and opponents to, the termination of the merit (civil service) system shall be permitted to debate the issue.
(b) If the community college district communicates with classified employees in favor of terminating the merit (civil service) system, it shall provide at least equal time and equal access to any exclusive representative of classified employees within the community college district to communicate against terminating that system. Nothing in this chapter shall be construed as limiting the rights of an exclusive representative under the Educational Employment Relations Act (Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code) for access to communicate its position on terminating the system.
(c) (1) It shall be unlawful for a public school employer and the exclusive representative of the classified employees of a community college district to include the subject of the termination of the merit (classified service) system within the scope of representation.
(2) Notwithstanding paragraph (1) or any other law, all election procedures not specified above for an election pursuant to this section shall be within the scope of representation of an exclusive representative under Section 3543.2 of the Government Code, including the rules for campaigning, the election date, time, and place, translation of the ballot, electioneering near the polls, and balloting methods.

SEC. 5.

 The provisions of this act shall be deemed to establish minimum working conditions for the purposes of Section 3543.8 of the Government Code. This section does not constitute a change in, but is declaratory of, existing law.

SEC. 6.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.