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

2. T HE R IGHT TO R EVIEW D EROGATORY I NFORMATION : E DUCATION C ODE S ECTION 87031 Education Code section 87031 guarantees community college employees the right to inspect information in their personnel files that may serve as a basis for affecting the status of their employment. a. Notice of Intent to Enter Derogatory Information Community college employees have a right to be notified before any “information of a derogatory nature” is entered into an employee’s personnel records. 258 Written materials or notations applicable to an employee’s performance or conduct may be gathered into a “supervisor’s folder” until a decision is made to place derogatory information in the employee’s personnel file. The employee should be notified in writing of the decision to enter derogatory material into the personnel file (e.g. issue a written reprimand that references and attaches the derogatory information). b. Opportunity to Review and Comment on Derogatory Information The Education Code guarantees community college employees an opportunity not only to review but also to attach their own comments to any derogatory statement in their personnel file. 259 The notification to the employee that derogatory information will be entered into his or her file should thus inform the employee of his or her right under Education Code section 87031 to respond in writing to this derogatory information within a specified period of time. Upon receipt of the employee’s response or the expiration of the deadline, the material may be placed into the personnel file. If the employee files a timely response, it should be attached to the derogatory information that is being placed in the employee’s personnel file. c. Timing of Employee Review The Education Code requires that an employee’s review of his or her personnel file “shall take place during normal business hours” and that employees be released from duty to conduct such reviews, without any reduction in salary. An employer need not make personnel records available at a time when the employee is actually required to render services to the district. 260 d. Importance of Including Derogatory Documents in Personnel File Districts may not circumvent an employee’s right to review derogatory information by maintaining it outside the personnel file. In Miller v. Chico Unified School District , 261 the Supreme Court held that a school district could not terminate an employee based on derogatory documents not included in the employee’s personnel file. In this case, the associate superintendent of a K-12 district kept notes of his frequent meetings with Miller, a school principal, which he eventually transcribed and included in his formal recommendation to reassign Miller. The school board received these confidential memoranda but did not provide Miller with an opportunity to review or rebut any inaccurate derogatory information. According to the Court, this violated Miller’s right to inspect and comment on any derogatory information in his personnel file.

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2018 (c) Liebert Cassidy Whitmore 87