                     TO BE PUBLISHED IN THE OFFICIAL REPORTS


                          OFFICE OF THE ATTORNEY GENERAL

                                    State of California


                                    DANIEL E. LUNGREN

                                      Attorney General


                        ______________________________________

                 OPINION            :

                                    :          No. 94-1111

                  of                :

                                    :          May 10, 1995

        DANIEL E. LUNGREN           :

           Attorney General         :

                                    :

        GREGORY L. GONOT            :

        Deputy Attorney General     :

                                    :
___________________________________________________________________________


          THE HONORABLE SAL CANNELLA, MEMBER OF THE CALIFORNIA
STATE ASSEMBLY, has requested an opinion on the following question:

               May the governing board of a school district discipline a school principal for
taking time off to perform emergency duty as a volunteer firefighter?

                                        CONCLUSION

                The governing board of a school district may not discipline a school principal for
taking time off to perform emergency duty as a volunteer firefighter, but may require the
principal to follow reasonable procedures to ensure that the needs of the school are adequately
met during any absence.

                                          ANALYSIS

              Section 35020 of the Education Code provides that "[t]he governing board of
each school district shall fix and prescribe the duties to be performed by all persons in public
school service in the school district." Such duties, as required of a school principal, may be
expected to include the principal's presence at the school during regular school hours.

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However, if also serving as a volunteer firefighter,1 the school principal may be called upon to
perform emergency duties which could result in occasional, and sometimes lengthy, absences
from the school.

               We are asked to determine whether a school principal may attend to emergency
firefighting duties as a volunteer firefighter during regular school hours without being subjected
to disciplinary action by the school district. We conclude that while disciplinary action may
not be undertaken, the school district board of trustees may require the principal to follow
reasonable procedures to ensure that the needs of the school are adequately met during any
absence.

                  Labor Code section 230.32 provides:

                  "(a) No employer shall discharge or in any manner discriminate against
          an employee for taking time off to perform emergency duty as a volunteer
          firefighter.

                  "(b) Any employee who is discharged, threatened with discharge,
          demoted, suspended, or in any other manner discriminated against in the terms
          and conditions of employment by his or her employer because the employee has
          taken time off to perform emergency duty as a volunteer firefighter shall be
          entitled to reinstatement and reimbursement for lost wages and work benefits
          caused by the acts of the employer. Any employer who willfully refuses to
          rehire, promote, or otherwise restore an employee or former employee who has
          been determined to be eligible for rehiring or promotion by a grievance
          procedure, arbitration, or hearing authorized by law, is guilty of a misdemeanor.

                  "(c) Subdivisions (a) and (b) of this section shall not apply to any public
          safety agency or provider of emergency medical services when, as determined by
          the employer, the employee's absence would hinder the availability of public
          safety or emergency medical services.




     1
         "Volunteer firefighter" means any person registered as a volunteer member of a
regularly organized fire department of a city, county, city and county, or district, having official
recognition of the government of the city, county, city and county, or district in which such
department is located. (Gov. Code, ' 50952, subds. (h), (m).)
     2
         Unless otherwise specified all section references hereinafter are to the Labor Code.


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             "(d) For purposes of this section, "volunteer firefighter" shall have the
       same meaning as the term "volunteer" in subdivision (m) of Section 50952 of the
       Government Code."

              In analyzing the language of section 230.3 so as to resolve the question
presented, we bear in mind several well established principles of statutory construction. As
explained by the Supreme Court in Dyna-Med, Inc. v. Fair Employment and Housing Com.
(1987) 43 Cal.3d 1379, 1386-1387:

               "Pursuant to established principles, our first task in construing a statute is
       to ascertain the intent of the Legislature so as to effectuate the purpose of the
       law. In determining such intent, a court must look first to the words of the
       statute themselves, giving to the language its usual, ordinary import and
       according significance, if possible, to every word, phrase and sentence in
       pursuance of the legislative purpose. A construction making some words
       surplusage is to be avoided. The words of the statute must be construed in
       context, keeping in mind the statutory purpose, and statutes or statutory sections
       relating to the same subject must be harmonized, both internally and with each
       other, to the extent possible.         [Citations.]      Where uncertainty exists
       consideration should be given to the consequences that will flow from a
       particular interpretation. [Citation.] Both the legislative history of the statute
       and the wider historical circumstances of its enactment may be considered in
       ascertaining the legislative intent. [Citation.]"

                The role of the volunteer firefighter and the need for protective legislation was
expressed in the legislative history of section 230.3 at the time of its enactment. (Stats. 1989,
ch. 167, ' 1.) The report of the Assembly Committee on Labor and Employment stated with
respect to the proposed legislation:

               "Volunteer firefighters play an important and often vital role, not only in
       combating fires in their community, but also in assisting the state and other
       governmental bodies in fighting regional fires. Membership in volunteer
       firefighter units should be encouraged. Volunteers should not be subjected to
       the possibility of job loss or other negative employment consequences as a result
       of their services to the community."

               While the legislative history expresses the general legislative intent in enacting
section 230.3, we recognize that special rules of statutory construction apply when determining
whether the general terms of a statute are applicable to a public agency and public officials.
These rules were summarized by the Supreme Court in City of Los Angeles v. City of San
Fernando (1975) 14 Cal.3d 199, 276-277, as follows:


                                                3.                                         94-1111

                "[I]n the absence of express words to the contrary, neither the state nor its
        subdivisions are included within the general words of a statute. [Citations.]
        But this rule excludes governmental agencies from the operation of general
        statutory provisions only if their inclusion would result in an infringement upon
        sovereign governmental powers. `Where . . . no impairment of sovereign
        powers would result, the reason underlying this rule of construction ceases to
        exist and the Legislature may properly be held to have intended that the statute
        apply to governmental bodies even though it used general statutory language
        only.' [Citations.]"

               We find it significant that although section 230.3 refers generally to an
"employer," it specifically refers to a "public safety agency." (' 230.3, subd. (c).) Under
subdivision (c), section 230.3 is inapplicable to public safety agencies when the employee's
absence would hinder the availability of public safety services. The term "public safety
agency" is not defined in the Labor Code, but it is used in the Government Code, where it is
defined as "a functional division of a public agency which provides firefighting, police,
medical, or other emergency services." (Gov. Code, ' 53102.) We may adopt such definition
of "public safety agency" for purposes of section 230.3 under the principle of construction that
"[t]he interpretation of an ambiguous statutory phrase may be aided by reference to other
statutes which apply to similar or analogous subjects." (People v. Woodhead (1987) 43 Cal.3d
1002, 1008-1009.)

               Accordingly, we find that the Legislature intended for section 230.3 to be
applicable to public employers as well as private employers. If it had intended to exclude all
public employers, there would have been no need to create the express exception for public
safety agencies which appears in subdivision (c).3 The exception would be mere surplusage.
We construe the exception as indicating that only matters of public safety will justify an
employer's rejection of a call for the emergency services of a volunteer firefighter. Such
construction is consistent with the legislative history of section 230.3 which expresses a strong
public policy favoring the immediate availability of all volunteer firefighters when emergencies
arise.4

    3
      A school district would not be considered an agency which provides police, medical, or
other emergency services.
    4
         We note that the Education Code contains specific provisions which govern the
granting of leaves of absence to school employees for the purpose of appearing as a witness in
court, responding to an official order from another governmental jurisdiction, or serving as a
juror. (Ed. Code, '' 44036-44037.) We do not find the call for volunteer firefighters to be in
the nature of an "official order" and therefore regard Education Code section 44036 as
inapplicable to the matter under consideration here.


                                                 4.                                        94-1111

              Our construction of section 230.3 is also consistent with the provisions of section
220, which provide:

                 "Nothing in sections 200 to 211 and 215 to 219, inclusive, shall apply to
         the payment of wages of employees directly employed by the State or any
         county, incorporated city or town or other municipal corporation. All other
         employments are for the purposes of these sections private employments and
         subject to the provisions thereof."

Section 220 is part of the same legislative scheme ('' 200-243) as section 230.3 and indicates
that the Legislature could easily have excluded public employees from the requirements of the
latter statute if it had so intended. (Cf., 73 Ops.Cal.Atty.Gen. 13, 23 (1990).)

                We therefore conclude that the term "employer," as used in section 230.3,
applies to public as well as private employers. Nevertheless, we do not believe that
section 230.3 and Education Code section 35020 must be treated as irreconcilable.5 We are
directed to harmonize statutes relating to the same subject wherever possible. (Dyna-Med, Inc.
v. Fair Employment and Housing Com., supra, 43 Cal.3d at 1387.) Although advance notice
of an emergency firefighting situation may not reasonably be expected, it would be incumbent
upon the principal as the holder of a position of public trust 6 to inform the district of his
firefighter status and to arrange with the district for a contingency plan to be utilized whenever
he is called away for emergency firefighting duty. Such a plan could ensure that the public
functions for which the principal is responsible do not unduly suffer as the result of any
absence. The school district's ability to "fix and prescribe" the duties of its employees thus
need not be fundamentally compromised in accommodating the public's emergency firefighting
needs.

              It is concluded that the governing board of a school district may not discipline a
school principal for taking time off to perform emergency duty as a volunteer firefighter, but

     5
      "[W]hen a special and a general statute are in conflict, the former controls."
(Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 391, 420.) Here, section
230.3 would necessarily be considered the more specific if the two statutes could not be
reconciled.
     6
      A school principal, as the highest level administrator within a particular school, is in a
position which directly affects the school district's capacity to perform governmental functions.
If a principal is able to leave his post on an unscheduled basis for non-school related purposes,
the district's ability to ensure proper management of the school could be diminished. (See
Nutter v. City of Santa Monica (1946) 74 Cal.App.2d 292, 302.)


                                                5.                                       94-1111

may require the principal to follow reasonable procedures to ensure that the needs of the school
are adequately met during any absence.

                                           *****




                                               6.                                      94-1111

