                        OFFICE OF THE ATTORNEY GENERAL

                              State of California

                             JOHN K. VAN DE KAMP

                               Attorney General

                          ----------------------------
                                      :

                OPINION               :

                                      :     No. 88-901

                   of                 :

                                      :     MARCH 9, 1989

         JOHN K. VAN DE KAMP          :

           Attorney General           :

                                      :

          ANTHONY S. DaVIGO           :

       Deputy Attorney General        :

                                      :

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            THE HONORABLE JOHN R. LEWIS, MEMBER OF THE ASSEMBLY, has requested

an opinion on the following question:


            Is an elected county superintendent of schools or an "independent"

county board of education authorized to appoint, discipline, and establish the

salaries of certificated and classified county school employees? 

                                  CONCLUSION


            The county superintendent of schools, rather than an "independent"

county board of education, is authorized to appoint, discipline, and establish

the salaries of certificated and classified county school employees. 


                                   ANALYSIS


            California   Constitution,   article   IX,  provides   for   county

superintendents of schools (§ 3; and see Ed. Code, § 1200 et seq.), and for

county boards of education (§ 3.3; and see Ed. Code, § 1000 et seq.). 1/ This

opinion concerns the allocation of duties and powers respecting the employment

of county school personnel, between such superintendent and such board which is

"independent" by virtue of the transfer to it of certain powers under section

1080, infra. 





     1. Statutory references throughout this analysis are to the

Education Code. 

                                      1.                                88-901

                      THE COUNTY SUPERINTENDENT OF SCHOOLS

            The general duties and powers of the superintendent are set forth in

section 1240: 

            "The superintendent of schools of each county shall: 

            "(a)   Superintend the schools of his or her county.

            "(b)   Visit and examine each school in his or her county
      . . . .

            "(c) Distribute all laws, reports, . . . for the use of the

      school officers. 

            "(d) Keep in his or her office the             reports   of   the

      Superintendent of Public Instruction . . . . 


            "(e) Keep a record of his or her official acts, and of all

      the proceedings of the county board of education . . . .

            "(f)   Enforce the course of study. 


            "(g) Enforce the use of state textbooks and of high school

      textbooks regularly adopted by the proper authority. 


            "(h) Preserve carefully all reports of school officers and

      teachers. 


            "(i) Deliver to his or her successor . . . all . . . papers

      belonging to the office . . . .


            "(j) Submit two reports during the fiscal year to the county

      board of education. The first report shall cover the financial and

      budgetary status of the county office of education for the period

      ending no earlier than October 31 nor later than December 31. The

      second report shall cover the period ending March 31. . . .


            ". . . . . . . . . . . . . . . . . . . . . . .

            "(k) When so requested, act as agent for the purchase of

      supplies for the city and high school districts . . . ." 

Neither the foregoing nor other duties specified in sections 1240 through 1278

pertain directly to the employment of permanent classified or certificated

personnel. 

                         THE COUNTY BOARD OF EDUCATION

            The mandatory duties of the board are set forth in section 1040: 


            "County boards of education shall: 

            "(a)   Adopt rules and regulations . . . .

            "(b)   Keep a record of their proceedings. 


            "(c) Approve the annual budget of the county superintendent

      of schools . . . .


            "(d) Approve the annual county school service fund budget of

      the county superintendent of schools . . . .



                                       2.                                    88-901

            "(e) Review . . . the report of the annual audit provided for

      by the county superintendent of schools under Section 41020." 

Discretionary duties are set forth in section 1042: 

            "County boards of education may: 


            "(a) Adopt rules and regulations governing the administration

      of the office of the county superintendent of schools. 

            "(b) Review the county superintendent of schools annual

      itemized estimate of anticipated revenue and expenditures . . . and

      make any revisions, reductions, or additions therein it deems

      advisable and proper. . . . 

            "(c) In the name by which the board of education is

      designated, acquire, lease, lease-purchase, hold and convey real

      property for the purpose of housing the offices and services of the

      county superintendent of schools . . . .

            "(d) Contract with and employ any persons for the furnishing

      to the board of special services and advice in financial, economic,

      accounting, engineering, legal, or administrative matters, if these

      persons are specially trained and experienced and competent to

      perform the special services required. The board may pay from any

      available funds such compensation to these persons as it deems

      proper for the services rendered. 


            "(e) . . . fill by appointment any vacancy that occurs during

      the term of office of the county superintendent of schools. . . .


            ". . . . . . . . . . . . . . . . . . . . . . . ." 


            The question assumes an "independent" board by virtue of the transfer

to it of certain powers under section 1080: 


            "The county board of supervisors, by resolution, may transfer

      all of the following duties and functions of the county board of

      supervisors to the county board of education: 


            "(a) Approval of the county superintendent's estimate of

      anticipated revenue and expenditures pursuant to Section 1042

      . . . .


            "(b) Allowance of the actual and necessary travel expenses,

      the expenses of the office of the county superintendent of schools

      . . . .


            "(c) By agreement with the county board of education, any

      other duties and functions of an educational . . . nature which by

      law are required or permitted to be performed by the county board of

      supervisors. 


            "(d) By agreement with the county board of education, the

      community recreation functions authorized by Chapter 10 (commencing

      with Section 10900) of Part 7 of this division. 

            ". . . . . . . . . . . . . . . . . . . . ."


            With the exception of subdivision (d) of section 1042,        supra,

expressly authorizing the board to contract with and employ any persons for the

furnishing to the board of "special services and advice" in financial, economic,

accounting, engineering, legal, or administrative matters (see generally Gov.



                                       3.                                 88-901

Code, § 53060; Darley v.      Ward (1982) 136 Cal.App.3d 614, 627-628; 71

Ops.Cal.Atty.Gen. 266, 272 (1988)), we find no provisions among the foregoing

mandatory, discretionary, or transferred duties of the board pertaining directly

to the general employment of permanent classified or certificated personnel. 

                             CERTIFICATED EMPLOYEES


            We now examine the provisions relating specifically to certificated

county school employees. Section 1293 provides: 

            "A county superintendent of schools may enter into contracts

      of employment with persons employed by him in positions requiring

      certification qualifications for periods of not to exceed the end of

      the school year in which the term for which the county

      superintendent of schools was elected or appointed expires and in no

      event, for more than four years and six months." (Emphasis added.)


Section 1294, pertaining to leaves of absence, sick leave, and bereavement leave,

begins with the words: 


            "Each person employed by a county superintendent of schools in

      a position requiring certification qualifications, except employees

      included in the civil service system or in any merit system. . . ."

      (Emphasis added.) 


Section 1294.5, concerning employment for contract services and categorically

funded projects, provides in part: 


            "Any county superintendent of schools may employ persons

      possessing an appropriate credential as certificated employees in

      programs and projects to perform services conducted under contract

      with public or private agencies, or other categorically funded

      projects of indeterminate duration. The terms and conditions under

      which such persons are employed shall be mutually agreed upon by the

      employee and the county superintendent and such agreement shall be

      reduced to writing." (Emphasis added.) 

In view of the foregoing, the superintendent           is   authorized   to   appoint

certificated county school employees. 

            The issues of discipline and compensation are more complex. Section

1296, subdivision (a), provides: 

            "If the average daily attendance of the schools and classes

      maintained by a county superintendent of schools is 250 or more,

      each person who, after being employed for three complete consecutive

      school years by the superintendent in a teaching position in those

      schools or classes requiring certification qualifications and whose

      salary is paid from the county school service funds, is reelected

      for the next succeeding school year to such a position in those

      schools or classes, shall be classified as and become a permanent

      employee of the county superintendent of schools. . . ."2/ (Emphases

      added.) 





      2. For those who commenced employment during or after the

1983-1984 fiscal year, the probationary period is two years.

(§ 1296, subd. (b).) 

                                       4.                                      88-901

The latter section further provides that such a permanent employee "shall have

the same rights and duties as employees of school districts to which section

44882 [repealed, Stats. 1987, ch. 1452, § 367; see now, § 44929.21] applies." 


            Consequently, the rights and duties of a certificated county school

employee with permanent status, assuming an average daily attendance of 250 or

more, are the same as those of a school district with a similar attendance. Such

employees are employed by the governing board. (§§ 44830, 44831.) Disciplinary

charges may be filed with, and are heard by, the governing board provided that

a collective bargaining agreement has not been adopted. (§§ 44934, 44944.) The

governing board of a school district is required to fix and order paid the

compensation of certificated employees unless otherwise prescribed by law.

(§ 45022; 57 Ops.Cal.Atty.Gen. 199-200 (1974).) 


            However, we do not deem the reference in section 1296 to "the same

rights and duties" as an incorporation of the specific provisions applicable to

school district employees, including the designation of the governing board as

the agency authorized to appoint, discipline, and establish compensation. While

the extent of entitlements and obligations must be essentially equivalent,

including, for example, the right to notice and hearing upon a disciplinary

action, their specific mode and implementation would nevertheless be determined

according to the terms and conditions of the contract between the county school

employee and the superintendent as provided in section 1293. In addition, it

must be noted that section 1296 itself twice refers to the superintendent as

employer, once in the context of the employee's attainment of permanent status.

Consequently, the superintendent is authorized to appoint,3/ discipline, and

establish the salaries 4/ of certificated county school employees.





     3. The superintendent is also authorized, through the county

school service fund, to provide for the coordination of educational

programs among school districts and community college districts.

(§ 1700.) In this regard, the superintendent may,         with the

approval of the board employ qualified personnel for the

coordination of courses of study, guidance services, health

services, school library services, special education, and

attendance activities among the school districts under his

jurisdiction (§ 1703); employ supervisors to supervise instruction

in certain elementary schools (§ 1730); employ personnel to

supervise attendance (§ 1740), to provide health services (§ 1750),

and necessary guidance services (§ 1760), to pupils in certain

elementary, high school, and unified school districts. 


       4.   In the context of collective bargaining, the Public

Employment Relations Board has determined that the superintendent

is the sole employer of certificated employees. (See Gov. Code,

§ 3540.1(k); Southern Alameda County Teachers Assn. v. Alameda

County Board of Education, etc., PERB dec. no. 323 (June 30,

1983).)   PERB's construction of a statutory provision falling

squarely within its legislatively designated field of expertise is

to be regarded with deference by a court, and will generally be

followed unless clearly erroneous. (Highland Ranch v. ALRB (1981)

29 Cal.3d 848, 859; 69 Ops.Cal.Atty.Gen. 268, 269, n. 1 (1986).)

                                      5.                                 88-901

                             CLASSIFIED EMPLOYEES

            It is clear that upon the transfer of powers to the board, the

employees assigned to those functions cease to be employees of the county.5/ In

this regard, section 1312, pertaining to classified county school employees,

provides: 


            "County employees assigned to the office of the county

      superintendent of schools shall cease to be employees of the county

      upon the establishment of a separate budget for the office of the

      county superintendent of schools, and shall thereafter be paid from

      the county school service fund. Other county employees assigned to

      functions transferred to the county board of education pursuant to

      Article 3 (commencing with Section 1080) of Chapter 1 of this part

      shall cease to be employees of the county upon the effective date of

      such transfer, and shall thereafter be paid from the county school

      service fund." 

            Section 1311 provides: 


            "Each person employed by a county superintendent of schools in

      a position not requiring certification qualifications and whose

      salary is paid from the county school service fund shall be employed

      in accordance with the provisions of Chapter 1 (commencing with

      Section 44000) and Chapter 5 (commencing with Section 45100) of Part

      25 of Division 3 of Title 2, and Chapter 1 (commencing with Section

      87000) and Chapter 4 (commencing with Section 88000) of Part 51 of

      Division 7 of Title 3." (Emphasis added.) 6/

The italicized words suggest that the employer is the superintendent. 7/     The

section further provides, however, that classified employees "shall be employed

in accordance with the provisions [following §§ 44000 & 45100 respectively]."

Under those provisions, the governing board of a school district shall employ

persons for positions not requiring certification qualifications. (§ 45103.)

Unless otherwise prescribed by law, compensation is established by the governing

board. (§§ 45160, 45162.) Where a merit system is in effect (§ 1317; cf. 56

Ops.Cal.Atty.Gen. 421 (1973)), the governing board is required to employ and

compensate classified personnel. (§ 45241; 54 Ops.Cal.Atty.Gen. 77 (1971); and




      5. It is assumed for purposes of this discussion that the

county, having transferred functions under section 1080 to the

county board of education, has adopted a resolution making the

provisions following section 1310 operative. 


     6. The county school service fund is established by section

1600. The fund shall be employed by the superintendent to pay such

charges against the fund as are provided in the Education Code.

(§ 1602.) 


      7.   See also section 1319: 


          "The county superintendent of schools may employ, in

      accordance with the provisions of Chapter 5 (commencing

      with Section 45100) of Part 25 of Division 3 of Title 2,

      such personnel as may be necessary to act as guards at

      pedestrian   crossings   to   ensure   the   safety   of

      schoolchildren who use such intersections." 

                                       6.                                88-901

cf. Sonoma County Bd. of Educ. v. Pub. Emp. Rel. Bd. (1980) 102 Cal.App.3d 689:

the board is under a duty to bargain in good faith with representative of

classified service.)    Disciplinary charges are filed with and heard by a

personnel commission. (§§ 45304, 45305.) 

            However, we did not deem the reference in section 1311 to employment

"in accordance with" the provisions of section 45100 and following as an

incorporation of the specific provisions applicable to school district employees,

including the designation of the governing board as the agency authorized to

appoint, discipline, and establish compensation. While essential rights, duties,

and procedural prerequisites including, for example, the right to notice and

hearing upon a disciplinary action, must be recognized, nothing in sections 1311

and 1312 pertaining to county school employees indicates that the board, as

distinguished from the superintendent, is authorized to appoint, discipline, and

establish the compensation of those employees. 

            On the contrary, section 1311 refers expressly to persons "employed

by the county superintendent of schools." If section 45103, for example, to

which section 1311 refers, providing that the governing board of a school

district shall employ classified personnel, were construed to require the

employment of such personnel at the county level by the county board, we would

be faced with an unwarranted contradiction.      Finally, section 45100 itself

provides that that and succeeding sections apply "to all persons who are part of

the classified service who are employed by the county superintendent of schools

. . . ." 


            In our view of the statutory scheme as a whole, the superintendent

is authorized to appoint, discipline, and establish the salaries of the

classified county school employees. The focus of the conclusions reached herein

are narrow and specific. While we identify the agency responsible for specified

functions, it is not suggested that the performance of those functions is not

constrained or regulated by other provisions of law. 

                                   * * * * *





                                       7.                                 88-901

