STATE OF CALIFORNIA
CALIFORNIA COMMUNITY COLLEGES
CHANCELLOR’S OFFICE
1102 Q STREET
SACRAMENTO, CA 95814-6511
(916) 445-8752
HTTP://WWW .CCCCO.EDU
June 12, 2000
To:
Thomas Nussbaum
Chancellor
From:
Ralph Black
General Counsel
Paul Sickert
Assistant General Counsel
Subject:
Legal Opinion O 00-14
Synopsis:
Attached is the opinion you requested regarding the definition of “Salaries of
Classroom Instructors” contained in Education Code Section 84362, the “Fifty
Percent Law.”
Action/Date Requested: Review and distribute as necessary.
Contact: Paul Sickert (916) 445-6272
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LEGAL OPINION O 00-14
ISSUE:
You have asked whether the entire salaries of full-time contract or regular instructors should be
counted as “salaries of classroom instructors” within the meaning of Education Code Section
84362, notwithstanding that these instructors are released or reassigned to perform activities
outside of the classroom such as chairing a department, coordinating academic programs,
developing curriculum, or providing leadership to the college’s academic senate or faculty
association.
ANALYSIS:
Education Code1 Section 84362 requires community college districts to expend during each
fiscal year for the payment of the salaries of classroom instructors fifty percent of the districts’
current expense of education. (Ed. Code § 84362(d).) The Code defines, in relevant part,
“salaries of classroom instructors” to mean:
“(1) The salary paid to each instructor employed by the district whose duties require that the
full time for which the instructor is employed be devoted to the instruction of students of the
district.
(2) The portion of the salary of each instructor whose duties require that a part, but not all, of
the full time for which the instructor is employed be devoted to the instruction of students of
the district, which is equal to the portion of the full time actually devoted by the instructor to
teaching students of the district.
(3) The salary paid to each instructional aide employed by the district, any portion of whose
duties are required to be performed under the supervision of an instructor. However, the cost
of all health and welfare benefits provided to the instructor shall be included within the
meaning of ‘salaries of classroom instructors.’”2
Regulations implementing Section 84362 further define “salaries of classroom instructors” to
mean, “that portion of salaries paid for purposes of instruction of students by full-time and parttime instructors employed by the district.” (Cal. Code Regs., tit 5, § 59204(a)(1).)
We have previously addressed the issue of the meaning of “salaries of classroom instructors.” In
1985, the full time faculty at Lake Tahoe Community College District challenged the district’s
fifty percent law calculations on the grounds that only the time actually spent in teaching should
1
All references are to the Education Code unless otherwise indicated.
In addition, Section 84362 defines “instructor,” “administrator,” and the “current expense of education”; specifies
the consequences of not meeting the section’s requirements, and provides a process for a district to apply for an
exemption to the statute from the Board of Governors.
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count as “salaries of classroom instructors.” In response, we issued Legal Opinion O 85-13,
holding that the “fifty percent law” must be interpreted in light of the increased governance role
of community college faculty and that, consistent with our longstanding practice, the entire
salaries of full time instructors should count as “salaries of classroom instructors,” except in
cases where (1) the faculty member was given release time from the duties performed by other
instructors of the district to perform administrative duties, or (b) the instructor is paid an
additional stipend for performing administrative functions.
The California Community College Budget and Accounting Manual (BAM) and the instructions
for completing the Annual Financial and Budget Report (Form CCFS-311) which districts use to
report their compliance with the fifty percent law are consistent with this view. They distinguish
between instructional and non-instructional activities. Instructional activities such as office
hours, class preparation, field trips, etc. are counted as instruction and count toward the “salaries
of classroom instructors” even though they occur outside of the classroom. Sabbatical leave is
also counted as instruction. (Object of expenditure 1100 or 1300, p. 4.45-4.47.) However,
faculty who are released or reassigned to serve on curriculum committees (Activity Code 6020,
p. 4.11), other institution wide committees, or to serve on the academic senate are no longer
engaged in instructional activities and are not included in the calculation of “salaries of
classroom instructors.” (Activity Code 6010, p. 4.11.)
We think this interpretation is supported by the legislative history of Section 84362. In 1990, the
current version of Section 84362 was created by merging provisions from former Section 84031
with Section 84362. The provisions of Section 84031 were first enacted in former Section 17200
of the Education Code of 1959. Section 17503 in the 1959 Code was the predecessor to Section
84362.
The phrase “salaries of classroom teachers” (later changed to instructors) and its definition first
appeared in 1959 when the legislature enacted former Education Code Section 17200, Chapter
1607, Statutes of 1959 (SB 1164), requiring school and junior college districts to establish
accounting systems to distinguish between expenditures for salaries of classroom teachers and
expenditures for other purposes. In an early version of SB 1164, Section 17200 provided that
“salaries of classroom teachers” meant “the salary paid to each teacher employed by the district
whose duties require that the full time for which the teacher is employed be devoted to the
teaching of pupils of the district in a classroom.” As finally adopted by the Legislature, the
words “in the classroom” were removed. We conclude from this that the Legislature understood
that teachers engage in some teaching or instructional activities that don’t occur in the classroom.
“’The rejection by the Legislature of a specific provision contained in an act as originally
introduced is most persuasive to the conclusion that the act should not be construed to include
the omitted provision.’” (California Coastal Commission v. Quanta Investment Corporation.
(1980) 113 Cal.App.3d 579, 602, citing Madrid v. Justice Court (1975) 52 Cal.App.3d 819, 825;
see also, Stroh v. Midway Restaurant Systems, Inc. (1986) 180 Cal.App.3d 1040, 1055;
Dominguez v. Superior Court (1990) 226 Cal.App.3d 524, 532.)
Thus, the term “salaries of classroom instructors” was intended to include instructional activities
that occurred outside of the classroom. At the same time, it is equally apparent that there is a
difference between instructional activities on the one hand, and administrative or non-
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instructional activities on the other. We think that activities which instructors undertake when
they are reassigned from their regular instructional duties, such as chairing a department or
coordinating academic programs, are non-instructional activities that are not intended to be
included in the “salaries of classroom instructors.” This is because the fundamental purpose of
84362 remains to distinguish between instructional and non-instructional or administrative
activities and to ensure that fifty percent of the cost of education goes toward instructional
activities.
This interpretation, which emphasizes the distinction between instructional and non-instructional
or administrative activities, is supported by the plain words of the statute. “Our first step [in
determining legislative intent] is to scrutinize the actual words of the statute, giving them a plain
and commonsense meaning. [Citations.]” (People v. Vallidoli (1996) 13 Cal.4th 590, 597.) “In
analyzing statutory language, we seek to give meaning to every word and phrase in the statute to
accomplish a result consistent with the legislative purpose . . . .” (Harris v. Capitol Growth
Investors XIV (1991) 52 Cal.3d 1142, 1159.)
The “salaries of classroom instructors” refers to salaries of instructors who are engaged in the
“instruction of students” (§ 84362(a)(1)). Section 84362(a)(2) says again that “salaries of
classroom instructors” means the “portion of . . . time actually devoted by the instructor to
teaching students . . .” This understanding is further expressed in the Board of Governors'
regulations that define “salaries of classroom instructors” as “that portion of salaries paid for
purposes of instruction of students.” (Cal. Code Regs., tit. 5, § 59204(a)(1).) The statute and
regulations refer to the instruction of students again and again. We think it follows that the
“salaries of classroom instructors” refers to activities involving the instruction of students, and
not to administrative tasks which instructors are reassigned to perform.
In addition, this simple and straightforward construction is consistent with the legislative history
of the statute. Former Section 17200, clearly said that the “salaries of classroom teachers”
includes the salary of those devoted full-time to teaching and a prorated portion of the salary of
those devoted partly to teaching. In our view, the Legislature meant that if an employee was
devoted to teaching full-time, then their entire salary should be counted, but if they performed
administrative tasks part of the time, then only the time devoted to teaching would count. The
Legislature evidently assumed some employees were devoted exclusively to teaching, but we see
nothing in the legislative history to suggest that they envisioned this to include some
administrative tasks which should nevertheless be ignored in determining “salaries of classroom
teachers.”
There is also ample evidence that the Legislature enacted Section 175033 (the predecessor to
Section 84362) in 1961 with the intention of reducing class size by having instructors time being
devoted to instructional activities. The report, “An Analysis of School District Expenditures for
Former Education Code Section 17503 provided that the “salaries of classroom teachers” and “teacher” shall mean
the same as prescribed by Section 17200. It defined the “current expense of education”, and required that there be
expended each fiscal year “for the payment of the salaries of classroom teachers: (a) By an elementary school
district, sixty percent (60%) of the district’s current expense of education; (b) By a high school district, fifty percent
(50%) of the district’s current expense of education; (c) By a junior college district, fifty percent (50%) of the
district’s current expense of education. . . .” (Stats. 1961, ch. 2194, (AB 1786).)
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Certificated Personnel Salaries” by the Senate Fact Finding Committee on Governmental
Administration (which gave rise to the introduction of Assembly Bill 1789 which amended
former Section 17503) explained that,
“The proposed revision of Section 17503 is designed specifically to encourage the
reduction of class size. The alarming trend toward larger class size in California
must be reversed if we expect our children to be able to compete with equal
advantage with children from other states and nations. Likewise the trend,
especially in urban areas, toward removing classified personnel from the
classroom and placing them in non-classroom positions should be discouraged.
Education takes place in a classroom that is manned by a skilled teacher. Skilled
teachers are too scarce today, and far too vital to the future to be wasting their
talents in non-classroom pursuits. The value of the art of teaching should be reemphasized and the classroom again should be recognized as the most important
part of a good school system.” (Id. at p. 54.)
“’Statements in legislative committee reports concerning the statutory objects and purposes
which are in accord with a reasonable interpretation of the statute are legitimate aids in
determining legislative intent. [Citation.]’” (See Tafoya v. Hastings College of Law (1987) 191
Cal.App.3d 437, 444, citing Southern Cal. Gas Co. v. Public Utilities Com. (1979) 24 Cal.3d
653, 659.)
As a result, while the Legislature in enacting Section 17503 did not mandate the amount going to
teacher salaries, it is abundantly clear that they sought to compel districts to spend more on
teacher salaries precisely because they believed there was a direct relationship between money
spent to pay teachers and class size.
In view of this clear legislative intent, it would make no sense to permit districts to count toward
the salaries of classroom instructors the full salary of a person hired as an instructor regardless of
the nature of the work the individual actually performs. The statute makes clear that a district
would be required to prorate the salary of an employee hired to work half-time as an instructor
and half-time as an administrator. However, it would be pointless to require such proration in
this case while allowing a district to hire a person as an instructor, reassign him or her to work
halftime performing administrative duties, and still count the full cost of that person's salary
toward the salaries of classroom instructors. Such a policy would give districts a strong
incentive to choose the reassignment option and thereby frustrate the legislative goal of reducing
class size.
We recognize that since the enactment of the predecessor to 84362, there have been significant
changes in the rights of faculty with respect to collective bargaining and that when the
Legislature enacted the Educational Employment Relations Act or EERA (Gov. Code §§ 3540 et
seq.) in 1977, it specifically included within the scope of collective bargaining instructor wages
and class size. However, it would be erroneous to conclude that the EERA supersedes Section
84362 or that districts and their faculty may enter into agreements that allocate resources in a
manner inconsistent with its dictates.
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Section 84362 does not specify the class size a college needs to maintain or the wages that are to
be paid instructors. Thus, it is not inconsistent with the notion that districts and their employees
could bargain on those subjects. Section 84362 may impose constraints and influence the
bargaining positions of the parties, but it does not preclude negotiation or dictate the outcome of
those negotiations. For example, a district that receives increased revenue might meet its
obligation under Section 84362 to spend fifty percent on salaries of classroom instructors by
either paying higher salaries to its existing instructors or by holding salaries constant and hiring
additional instructors.
In addition, in the event there were a conflict between the EERA and 84362, statutory and case
law specifically provides that provisions of the EERA do not supersede provisions of the
Education Code. (Gov. Code, § 3540; Local 8599, United Steelworkers of America, AFL-CIO v.
Board of Education of the Fontana Unified School District (1985) 162 Cal.App.3d 823; San
Mateo City School District v. Public Employment Relations Board (1984) 33 Cal.3d 850, 866.)
As a result, whatever bargaining over wages and class size occurs must take place within the
framework of the fifty percent law.
We also recognize that AB 1725 increased the time faculty spend away from instructional
activities to be involved in district governance. In enacting Assembly Bill 1725 (Stats. 1988, ch.
973), the Legislature acknowledged the fact that community college faculty have increased
responsibilities in institutional governance. “It is a general purpose of this act to improve
academic quality, and to that end the Legislature specifically intends to authorize more
responsibility for faculty members in duties that are incidental to their primary professional
duties.” (Stats. 1988, ch. 973, § 4(n), p. 17.) “It is the intent of the Legislature that, in exercising
these increased responsibilities, faculty members are not deprived of their status as employees
under Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government
Code [the EERA]. It is also the intent of the Legislature that the exercise of this increased
responsibility shall not make these faculty members managerial or supervisory employees, as
those terms are defined in that chapter.” (Id., at 17-18.)
There is no doubt that, in enacting AB 1725, the Legislature said that faculty, including
instructors, should be involved in certain governance responsibilities “incidental” to their
primary function of instructing students. It is also clear that the Legislature wanted to be sure
that faculty undertaking these responsibilities would not be classified as “administrators” and
thereby be denied the right to participate in collective bargaining. However, the Legislature did
not say that these governance functions weren’t administrative, it simply said that faculty
participation in such activities did not cause them to become administrators. In other words,
there is a difference between saying that a faculty member performs certain incidental
administrative functions and saying that he or she thereby becomes an “administrator.” The
distinction turns on the significance or magnitude of those duties. If the administrative duties are
“incidental” to instructing students, then we call the person an instructor, but if the employee is
in “a position having significant responsibilities for formulating district policies or administering
district programs,” then he or she is an administrator as defined in Section 84362.
In our view, Section 84362 does not preclude faculty participation in institutional governance, it
merely affects the extent to which they may be separately compensated for such activities. If, as
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June 12, 2000
contemplated by the Legislature in AB 1725, an instructor performs “incidental” administrative
functions that do not interfere with his or her ability to carry out the instructional duties for
which he or she was primarily hired, then that person's entire salary counts toward satisfying the
requirement of Section 84362. However, the situation is substantially altered if release or
reassigned time is involved. The very use of the terms “release” and “reassign” suggests that the
workload associated with the administrative functions is significant enough that it cannot easily
be absorbed as part of an instructor's regular job and must be separately compensated. When
these duties become so significant that they have to be separately compensated, then, under our
1985 opinion, if the duties are non-instructional or administrative, they have to be excluded.
It must be emphasized, however, that the decision to grant release or reassigned time is not
dictated by statute. If a faculty member seeks and a district provides release or reassign time to
faculty members who are actively involved in college governance, then the district will not be
able to count the release or reassigned time toward satisfying the requirements of Section 84362.
However, the participatory governance regulations adopted by the Board of Governors (Cal.
Code Regs., tit. 5, §§ 51023 and 53200 et seq.) do not require districts to provide release or
reassign time to faculty for participation in governance activities. Thus, the question of whether
or not to provide release or reassigned time for governance activities is left to the parties to
resolve through collective bargaining as the Legislature clearly deemed appropriate.
CONCLUSION:
In summary, we reaffirm our earlier holding that “salaries of classroom instructors” as used in
Section 84362 means the entire salary of an instructor unless (1) the instructor is released from
the duties performed by other instructors in the district in order to perform administrative duties,
or (2) the instructor is paid an additional stipend for administrative duties. In this context,
Administrative duties means those duties that are noninstructional as defined in the Budget and
Accounting Manual and the instructions for Form CCFS-311, such as chairing a department,
serving on curriculum committees or other institution wide committees, or being involved in
activities of a union or the academic senate.
It bears repeating, however, that the portion of an instructor's salary attributable to such activities
is only to be excluded from the calculation of the “salaries of classroom instructors” pursuant to
Section 84362 to the extent that the instructor is given release or reassigned time or paid a
stipend to perform those duties. Where such duties are not separately compensated they are
regarded as incidental to instruction and the full salary of the instructor would continue to be
counted.
PS:sj
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