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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34453
Experience:  Retired (mostly)
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Does CA Govt Code 53260-1 (settlement cap) apply to teachers

Customer Question

Does CA Gov't Code 53260-1 (settlement cap) apply to teachers under collective bargaining agreement or only supervisors who negotiate their own contracts with school districts?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.
Hello,

First, for clarification purposes, there is no Govt. Code Section 53260-1. I assume that you mean GC 53260(b)(1), which provides:

  • Notwithstanding subdivision (a), if a local agency employer, including an administrator appointed by the Superintendent, terminates its contract of employment with its district superintendent of schools that local agency employer may not provide a cash or noncash settlement to its superintendent in an amount greater than the superintendent's monthly salary multiplied by zero to six if the local agency employer believes, and subsequently confirms, pursuant to an independent audit, that the superintendent has engaged in fraud, misappropriation of funds, or other illegal fiscal practices. The amount of the cash settlement described in this paragraph shall be determined by an administrative law judge after a hearing.

 

This section is entirely applicable to any employment contract between a local agency and district superintended, regardless of any collective bargaining agreement.

 

Govt. Code 3516.6-.61 provides a laundry list of those statutes which are preempted by collective bargaining agreements. However, Section 53260 is not among those preempted, therefore the section controls over the union contract.

 

Hope this helps.

Customer: replied 1 year ago.

By "CA Gov't Code 53260-1" I was referring to CA Gov't Code 53260 and 53261, and those do indeed exist.


 


The code you cite, however, does not appear in the CA Govt Code I am looking at. It goes from 3516.5 to 3517. Are you referring to the long list of codes in 3517.6 and 3517.61?


 


Also, my question is about teachers. I am not a superintendent. It's true that all of the specific language (other than "employee") in 53260 appears to refer only to superintendents/ supervisors (people who negotiate their own contracts directly with district), my school is attempting to apply it to teachers/ collective bargaining unit members as well.


 


Also, although 53260 states that "All contracts of employment between an employee and a local agency employer shall include a provision" about the settlement cap, my contract contains no such provision. Would the cap still apply, even if it was meant for teachers, if the contract contains no such provision?


 


Thank you

Expert:  socrateaser replied 1 year ago.

By "CA Gov't Code 53260-1" I was referring to CA Gov't Code 53260 and 53261, and those do indeed exist.

 

A: Yes, they do. I was merely trying to clarify the appropriate code section, so that we are on the same page.


The code you cite, however, does not appear in the CA Govt Code I am looking at. It goes from 3516.5 to 3517. Are you referring to the long list of codes in 3517.6 and 3517.61?


A: You're quite correct. Seems that I'm not immune to a typographical error, either. My apologies -- it should be Govt. Codd Sections 3517.6 and 3517.61.


Also, my question is about teachers. I am not a superintendent. It's true that all of the specific language (other than "employee") in 53260 appears to refer only to superintendents/ supervisors (people who negotiate their own contracts directly with district), my school is attempting to apply it to teachers/ collective bargaining unit members as well.


A: Although a school district board is an autonomous agency, outside of the regulation by a city or county, Govt. Code 53260 does not restrict itself only to local agencies controlled by cities and counties. The entire Division of the Govt. Code, commencing with Section 53000, is not restricted so as to prohibit application to a contract with a certificated teaching employee. Ed. Code 44800 et seq. provides comprehensive rules for application to certificated employees, but says nothing about settlement contracts. On balance, were there a section in the Ed. Code which conflicted with Govt. Code 53260, I would say that a court would almost certainly rule that the Ed. Code is preemptive -- but as there is not, I see no obstacle to the application of Section 53260 to any local agency employee -- including a certificated teacher. And, as previously mentioned, the Govt. Code does not expressly subordinate Section 53260 to a collective bargaining agreement. Therefore, once again, Section 53260 controls.


Also, although 53260 states that "All contracts of employment between an employee and a local agency employer shall include a provision" about the settlement cap, my contract contains no such provision. Would the cap still apply, even if it was meant for teachers, if the contract contains no such provision?

 

A: Section 53260(a) applies to all employees without limitation. Subd. (b) applies to supervisors/superintendents. The failure to include the cap, in my view, would mean that it does not apply to your circumstances, because by not including the cap, the district waives its provision -- being that the district is supposed to know and apply this law -- so, it must also know that by violating the law, it ought not be entitled to enforce its provisions against a counter-party in a contract negotiation.

 

Note: I have carefully researched California case law concerning Section 53260, and there is no case interpreting the section of law. Consequently, it's ripe for a court interpretation -- so, while I'm effectively "judging" your questions as if I were sitting on the bench of the Superior Court, I cannot promise that my interpretation will be confirmed by a currently sitting Superior Court judge.

 

This situation is wide open for litigation.

 

Hope this helps.

Customer: replied 1 year ago.

Thanks very much for your reply-- very helpful. I can see one possible additional bit of wiggle room I wonder if you would not mind commenting on:


 


The code refers to "an employee" with a contract with a district, and later refers to supervisors/ superintendents. Can a collective bargaining agreement be referred to as a contract with "an employee"? It seems by its nature, it is really a contract with a group or many employees at once.


 


Might that premise help the argument that it does not apply to me as a single employee?


 


Thank you.

Expert:  socrateaser replied 1 year ago.
The purpose of a collective bargaining agreement is to bind all union members and the employer to a single contract. However, where the union contract is silent as to a particular issue, there is nothing to prevent an individual employee from bargaining separately. In the case of a settlement negotiation between an employee and an employer, the union certainly has a role to play, if the employee seeks assistance. But, if not, then there's no reason why an employee cannot bargain individually.

Moreover, how many times have you observed a union backing away from assisting an individual member as a means of avoiding a battle with the employer: Answer -- um, practicaly EVERY time that such an issue arises. So, why should you be any exception. If you don't want the union involved, then tell the rep to either show you a provision in the contract that prohibits you from independently bargaining for a settlement agreement -- and if he/she can't show you, then you can respectfully XXXXX XXXXX union rep to "go jump in a lake."

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 34453
Experience: Retired (mostly)
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