PARTIES; DEFINITIONS; WHO IS AN EMPLOYEE? (SEE 502 AND 1309) – Managerial and Confidential

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200.02000 – Managerial and Confidential

[Continued] The Student Services VPs are managerial positions because: (1) they are part of the college President’s cabinet whose members have significant responsibilities in formulating policy recommendations which the college Presidents take to the Chancellor; (2) they have significant responsibilities for implementing the student services program, a district program which entails working with six student services managers to insure all the different student services programs are well designed, planned, implemented and coordinated; and (3) they manage the division’s budget. The Administrative Deans are managerial positions because: (1) they report directly to the college Presidents and are members of the Presidents’ cabinets; (2) they are responsible for working with the college President in developing recommendations for District policies; (3) one Administrative Dean oversees all aspects of her college’s $23 million budget and has responsibility for all college facilities including maintenance and new construction; and (4) another college’s Administrative Dean is responsible for the operations of the business office, printing services, mailroom, maintenance facilities and custodial on-grounds and reviews all expenditures for the college. We find that the Legislature intended the term “district policies” in EERA section 3540.1(g) to mean policies which are adopted by the District or which are made at the District level regardless of whether they have “district-wide” application. The words of EERA section 3540.1(g) do not indicate that the word “district” is intended to mean “district-wide.” We decline to reevaluate the conjunctive versus disjunctive issue regarding EERA section 3540.1(g) because the Legislature has indicated that it agrees with Lompoc Unified School District (1977) EERB Decision No. 13’s (Lompoc) interpretation. In doing so we are guided by the fundamental rule in construing a statute that the court (or PERB) should ascertain the intent of the Legislature so as to effectuate the purpose of the law. (North Orange County Regional Occupational Program (1990) PERB Decision No. 857 citing Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230.) In Sonoma County Bd. of Education v. Public Employment Relations Bd. (1980) 102 Cal.App.3d 689, 700 (Sonoma) the reviewing court was tasked with interpreting the scope of a statute where the meaning and effect had earlier been analyzed in an opinion of the attorney general. Relevant to this case, the Sonoma court held that “the failure of the Legislature to amend the statute following publication of the Attorney General’s opinion supports an inference that the legislative intent therein was correctly construed [citations omitted] . . .” The Sonoma court noted with regard to opinions of the Attorney General that such an official interpretation is not controlling but it is nevertheless entitled to great weight. (Sonoma, supra, at p. 699.) We opine that the same is true, if not more so, of PERB opinions given courts have uniformly held that PERB’s construction is to be regarded with deference by a court performing the judicial function of statutory construction, and will generally be followed unless it is clearly erroneous. (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 856.) We therefore find that the same inference can be drawn from the Legislature’s failure to amend a statute after PERB has interpreted the Legislature’s intent as to such statutory language. For the same reason we find that there is an inference that the Legislature’s intent is properly expressed in Lompoc as to EERA section 3540.1(g). The language of Section 3540.1(g) is the same today as it was when enacted in 1975. (Stats. 1975, ch. 961, sec. 2, p. 2248.) The Legislature has not amended it to have a meaning different than that articulated in Lompoc in 1977. This inference becomes even stronger with the Legislature’s use of the same disjunctive word, “or”, in its definition of management employee in HEERA. Notably, HEERA’s statutory provision defining “management employee” was enacted after PERB interpreted EERA section 3540.1(g) in Lompoc.