Name that Section - Frequently Used Education Code and Title 5 Sections for Community College Districts

ii. Faculty agreement is only required for faculty hiring procedures

We recognize that the line between EEO Plan components and actual hiring procedures can get a bit gray. To the extent EEO Plans do discuss or directly impact actual hiring procedures, districts may limit the requirement of faculty agreement over the EEO Plans in two ways: First, it is important to note these requirements only apply to faculty hiring procedures. 204 “Faculty” is defined in the Title 5 regulations as “those employees of a community college district who are employed in positions that are not designated as supervisory or management . . . and for which minimum qualifications for hire are specified by the Board of Governors.” 205 Therefore, faculty cannot exercise veto power over an entire EEO Plan because one component addresses faculty hiring procedures. Better that, one component might be subject to a “mutual agreement” standard pursuant to Irvine , but the rest of the EEO Plan would be subject to the collegial consultation process established for constituent groups. iii. Districts cannot be compelled to maintain unlawful procedures or violate legal mandates Finally, we note that despite the Court of Appeals’ emphatic holding that the plain language of Section 87360 requires mutual agreement, it also stated that:

 Respondents argue that this interpretation grants the Senates a “veto” allowing them to obstruct and frustrate the process of revising hiring policies. They suggest various scenarios under which the Senates’ refusal to agree to new procedures would require the district to, for example, ignore state law regarding hiring practices.  These arguments are overblown. No reasonable reading of the statute suggests that the district would be required to follow an existing policy that clearly contradicted state law, even if the Senates would not agree to revise the policy accordingly. 206

This quote appears to leave open the possibility that agreement would not be required if the academic senate refused to negotiate in good faith, or if the modification or adoption of a hiring procedure was required to prevent a violation of state law. However, the Court went on to find that in this instance, there was no evidence that the senate had been acting in bad faith or that the existing policy in any way violated state law. Therefore, the Court did not address what should occur in the event that there is bad faith or a violation of law. We recommend that if districts find themselves unable to comply with the mandated deadlines for adopting EEO Plans because the EEO Plan implicates faculty hiring and agreement cannot be reached, that they consider the following steps:

1. Eliminate the disputed sections from the EEO Plan and revisit them as part of a process to modify district hiring procedures; and 2. Consult with legal counsel as to the district’s ability to implement the EEO Plan without faculty agreement.

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2018 (c) Liebert Cassidy Whitmore 69