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OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General
 

:
 

OPINION :
 

: No. 88-901
 

of :
 

: MARCH 9, 1989
 

JOHN K. VAN DE KAMP :
 Attorney General :
 

:
 ANTHONY S. DaVIGO :
 

Deputy Attorney General :
 

:


THE HONORABLE JOHN R. LEWIS, MEMBER OF THE ASSEMBLY, has requested
 

an opinion on the following question:
 

Is an elected county superintendent of schools or an "independent"
 

county board of education authorized to appoint, discipline, and establish the
 

salaries of certificated and classified county school employees? 


CONCLUSION
 

The county superintendent of schools, rather than an "independent"
 

county board of education, is authorized to appoint, discipline, and establish
 

the salaries of certificated and classified county school employees. 


ANALYSIS
 

California Constitution, article IX, provides for county
 

superintendents of schools (§ 3; and see Ed. Code, § 1200 et seq.), and for
 

county boards of education (§ 3.3; and see Ed. Code, § 1000 et seq.).1/

 This
 

opinion concerns the allocation of duties and powers respecting the employment
 

of county school personnel, between such superintendent and such board which is
 

"independent" by virtue of the transfer to it of certain powers under section
 

1080, infra. 


1. Statutory references throughout this analysis are to the
 

Education Code. 


1. 88-901
 
 

 

THE COUNTY SUPERINTENDENT OF SCHOOLS
 

The general duties and powers of the superintendent are set forth in
 

section 1240: 


"The superintendent of schools of each county shall: 


"(a) Superintend the schools of his or her county. 

"(b) Visit and examine each school in his or her county 

. . . . 

"(c) Distribute all laws, reports, . . . for the use of the
 

school officers. 


"(d) Keep in his or her office the reports of the
 

Superintendent of Public Instruction . . . . 


"(e) Keep a record of his or her official acts, and of all
 

the proceedings of the county board of education . . . .
 

"(f) Enforce the course of study. 


"(g) Enforce the use of state textbooks and of high school
 

textbooks regularly adopted by the proper authority. 


"(h) Preserve carefully all reports of school officers and
 

teachers. 


"(i) Deliver to his or her successor . . . all . . . papers
 

belonging to the office . . . .
 

"(j) Submit two reports during the fiscal year to the county
 

board of education. The first report shall cover the financial and
 

budgetary status of the county office of education for the period
 

ending no earlier than October 31 nor later than December 31. The
 

second report shall cover the period ending March 31. . . .
 

". . . . . . . . . . . . . . . . . . . . . . .
 

"(k) When so requested, act as agent for the purchase of
 

supplies for the city and high school districts . . . ." 


Neither the foregoing nor other duties specified in sections 1240 through 1278
 

pertain directly to the employment of permanent classified or certificated
 

personnel. 


THE COUNTY BOARD OF EDUCATION
 

The mandatory duties of the board are set forth in section 1040: 


"County boards of education shall: 


"(a) Adopt rules and regulations . . . .
 

"(b) Keep a record of their proceedings. 


"(c) Approve the annual budget of the county superintendent
 

of schools . . . .
 

"(d) Approve the annual county school service fund budget of
 

the county superintendent of schools . . . .
 

2. 88-901
 
 

 

 

 

"(e) Review . . . the report of the annual audit provided for
 

by the county superintendent of schools under Section 41020." 


Discretionary duties are set forth in section 1042: 


"County boards of education may: 


"(a) Adopt rules and regulations governing the administration
 

of the office of the county superintendent of schools. 


"(b) Review the county superintendent of schools annual
 

itemized estimate of anticipated revenue and expenditures . . . and
 

make any revisions, reductions, or additions therein it deems
 

advisable and proper. . . . 


"(c) In the name by which the board of education is
 

designated, acquire, lease, lease-purchase, hold and convey real
 

property for the purpose of housing the offices and services of the
 

county superintendent of schools . . . .
 

"(d) Contract with and employ any persons for the furnishing
 

to the board of special services and advice in financial, economic,
 

accounting, engineering, legal, or administrative matters, if these
 

persons are specially trained and experienced and competent to
 

perform the special services required. The board may pay from any
 

available funds such compensation to these persons as it deems
 

proper for the services rendered. 


"(e) . . . fill by appointment any vacancy that occurs during
 

the term of office of the county superintendent of schools. . . .
 

". . . . . . . . . . . . . . . . . . . . . . . ." 


The question assumes an "independent" board by virtue of the transfer
 

to it of certain powers under section 1080: 


"The county board of supervisors, by resolution, may transfer
 

all of the following duties and functions of the county board of
 

supervisors to the county board of education: 


"(a) Approval of the county superintendent's estimate of
 

anticipated revenue and expenditures pursuant to Section 1042
 

. . . .
 

"(b) Allowance of the actual and necessary travel expenses,
 

the expenses of the office of the county superintendent of schools
 

. . . .
 

"(c) By agreement with the county board of education, any
 

other duties and functions of an educational . . . nature which by
 

law are required or permitted to be performed by the county board of
 

supervisors. 


"(d) By agreement with the county board of education, the
 

community recreation functions authorized by Chapter 10 (commencing
 

with Section 10900) of Part 7 of this division. 


". . . . . . . . . . . . . . . . . . . . ."
 

With the exception of subdivision (d) of section 1042, supra,
 

expressly authorizing the board to contract with and employ any persons for the
 

furnishing to the board of "special services and advice" in financial, economic,
 

accounting, engineering, legal, or administrative matters (see generally Gov.
 

3. 88-901
 
 

 

 

 

Code, § 53060; Darley v. Ward (1982) 136 Cal.App.3d 614, 627-628; 71
 

Ops.Cal.Atty.Gen. 266, 272 (1988)), we find no provisions among the foregoing
 

mandatory, discretionary, or transferred duties of the board pertaining directly
 

to the general employment of permanent classified or certificated personnel. 


CERTIFICATED EMPLOYEES
 

We now examine the provisions relating specifically to certificated
 

county school employees. Section 1293 provides: 


"A county superintendent of schools may enter into contracts
 

of employment with persons employed by him in positions requiring
 

certification qualifications for periods of not to exceed the end of
 

the school year in which the term for which the county
 

superintendent of schools was elected or appointed expires and in no
 

event, for more than four years and six months." (Emphasis added.)
 

Section 1294, pertaining to leaves of absence, sick leave, and bereavement leave,
 

begins with the words: 


"Each person employed by a county superintendent of schools in
 

a position requiring certification qualifications, except employees
 

included in the civil service system or in any merit system. . . ."
 

(Emphasis added.) 


Section 1294.5, concerning employment for contract services and categorically
 

funded projects, provides in part: 


"Any county superintendent of schools may employ persons
 

possessing an appropriate credential as certificated employees in
 

programs and projects to perform services conducted under contract
 

with public or private agencies, or other categorically funded
 

projects of indeterminate duration. The terms and conditions under
 

which such persons are employed shall be mutually agreed upon by the
 

employee and the county superintendent and such agreement shall be
 

reduced to writing." (Emphasis added.) 


In view of the foregoing, the superintendent is authorized to appoint
 

certificated county school employees. 


The issues of discipline and compensation are more complex. Section
 

1296, subdivision (a), provides: 


"If the average daily attendance of the schools and classes
 

maintained by a county superintendent of schools is 250 or more,
 

each person who, after being employed for three complete consecutive
 

school years by the superintendent in a teaching position in those
 

schools or classes requiring certification qualifications and whose
 

salary is paid from the county school service funds, is reelected
 

for the next succeeding school year to such a position in those
 

schools or classes, shall be classified as and become a permanent
 

employee of the county superintendent of schools. . . ."2/ (Emphases
 

added.) 


2. For those who commenced employment during or after the
 

1983-1984 fiscal year, the probationary period is two years.
 

(§ 1296, subd. (b).) 


4. 88-901
 
 

 

 

 

 

The latter section further provides that such a permanent employee "shall have
 

the same rights and duties as employees of school districts to which section
 

44882 [repealed, Stats. 1987, ch. 1452, § 367; see now, § 44929.21] applies." 


Consequently, the rights and duties of a certificated county school
 

employee with permanent status, assuming an average daily attendance of 250 or
 

more, are the same as those of a school district with a similar attendance. Such
 

employees are employed by the governing board. (§§ 44830, 44831.) Disciplinary
 

charges may be filed with, and are heard by, the governing board provided that
 

a collective bargaining agreement has not been adopted. (§§ 44934, 44944.) The
 

governing board of a school district is required to fix and order paid the
 

compensation of certificated employees unless otherwise prescribed by law.
 

(§ 45022; 57 Ops.Cal.Atty.Gen. 199-200 (1974).) 


However, we do not deem the reference in section 1296 to "the same
 

rights and duties" as an incorporation of the specific provisions applicable to
 

school district employees, including the designation of the governing board as
 

the agency authorized to appoint, discipline, and establish compensation. While
 

the extent of entitlements and obligations must be essentially equivalent,
 

including, for example, the right to notice and hearing upon a disciplinary
 

action, their specific mode and implementation would nevertheless be determined
 

according to the terms and conditions of the contract between the county school
 

employee and the superintendent as provided in section 1293. In addition, it
 

must be noted that section 1296 itself twice refers to the superintendent as
 

employer, once in the context of the employee's attainment of permanent status.
 

Consequently, the superintendent is authorized to appoint,3/

 discipline, and
 

establish the salaries4/

 of certificated county school employees.
 

3. The superintendent is also authorized, through the county
 

school service fund, to provide for the coordination of educational
 

programs among school districts and community college districts.
 

(§ 1700.) In this regard, the superintendent may, with the
 

approval of the board employ qualified personnel for the
 

coordination of courses of study, guidance services, health
 

services, school library services, special education, and
 

attendance activities among the school districts under his
 

jurisdiction (§ 1703); employ supervisors to supervise instruction
 

in certain elementary schools (§ 1730); employ personnel to
 

supervise attendance (§ 1740), to provide health services (§ 1750),
 

and necessary guidance services (§ 1760), to pupils in certain
 

elementary, high school, and unified school districts. 


4. In the context of collective bargaining, the Public
 

Employment Relations Board has determined that the superintendent
 

is the sole employer of certificated employees. (See Gov. Code,
 

§ 3540.1(k); Southern Alameda County Teachers Assn. v. Alameda
 

County Board of Education, etc., PERB dec. no. 323 (June 30,
 

1983).) PERB's construction of a statutory provision falling
 

squarely within its legislatively designated field of expertise is
 

to be regarded with deference by a court, and will generally be
 

followed unless clearly erroneous. (Highland Ranch v. ALRB (1981)
 

29 Cal.3d 848, 859; 69 Ops.Cal.Atty.Gen. 268, 269, n. 1 (1986).)
 

5. 88-901
 
 

 

 

 

 

 

CLASSIFIED EMPLOYEES
 

It is clear that upon the transfer of powers to the board, the
 

employees assigned to those functions cease to be employees of the county.5/

 In
 

this regard, section 1312, pertaining to classified county school employees,
 

provides: 


"County employees assigned to the office of the county
 

superintendent of schools shall cease to be employees of the county
 

upon the establishment of a separate budget for the office of the
 

county superintendent of schools, and shall thereafter be paid from
 

the county school service fund. Other county employees assigned to
 

functions transferred to the county board of education pursuant to
 

Article 3 (commencing with Section 1080) of Chapter 1 of this part
 

shall cease to be employees of the county upon the effective date of
 

such transfer, and shall thereafter be paid from the county school
 

service fund." 


Section 1311 provides: 


"Each person employed by a county superintendent of schools in
 

a position not requiring certification qualifications and whose
 

salary is paid from the county school service fund shall be employed
 

in accordance with the provisions of Chapter 1 (commencing with
 

Section 44000) and Chapter 5 (commencing with Section 45100) of Part
 

25 of Division 3 of Title 2, and Chapter 1 (commencing with Section
 

87000) and Chapter 4 (commencing with Section 88000) of Part 51 of
 

Division 7 of Title 3." (Emphasis added.)6/
 

The italicized words suggest that the employer is the superintendent. 7/ The
 

section further provides, however, that classified employees "shall be employed
 

in accordance with the provisions [following §§ 44000 & 45100 respectively]."
 

Under those provisions, the governing board of a school district shall employ
 

persons for positions not requiring certification qualifications. (§ 45103.)
 

Unless otherwise prescribed by law, compensation is established by the governing
 

board. (§§ 45160, 45162.) Where a merit system is in effect (§ 1317; cf. 56
 

Ops.Cal.Atty.Gen. 421 (1973)), the governing board is required to employ and
 

compensate classified personnel. (§ 45241; 54 Ops.Cal.Atty.Gen. 77 (1971); and
 

5. It is assumed for purposes of this discussion that the
 

county, having transferred functions under section 1080 to the
 

county board of education, has adopted a resolution making the
 

provisions following section 1310 operative. 


6. The county school service fund is established by section
 

1600. The fund shall be employed by the superintendent to pay such
 

charges against the fund as are provided in the Education Code.
 

(§ 1602.) 


7. See also section 1319: 


"The county superintendent of schools may employ, in
 

accordance with the provisions of Chapter 5 (commencing
 

with Section 45100) of Part 25 of Division 3 of Title 2,
 

such personnel as may be necessary to act as guards at
 

pedestrian crossings to ensure the safety of
 

schoolchildren who use such intersections." 


6. 88-901
 
 

 

cf. Sonoma County Bd. of Educ. v. Pub. Emp. Rel. Bd. (1980) 102 Cal.App.3d 689:
 

the board is under a duty to bargain in good faith with representative of
 

classified service.) Disciplinary charges are filed with and heard by a
 

personnel commission. (§§ 45304, 45305.) 


However, we did not deem the reference in section 1311 to employment
 

"in accordance with" the provisions of section 45100 and following as an
 

incorporation of the specific provisions applicable to school district employees,
 

including the designation of the governing board as the agency authorized to
 

appoint, discipline, and establish compensation. While essential rights, duties,
 

and procedural prerequisites including, for example, the right to notice and
 

hearing upon a disciplinary action, must be recognized, nothing in sections 1311
 

and 1312 pertaining to county school employees indicates that the board, as
 

distinguished from the superintendent, is authorized to appoint, discipline, and
 

establish the compensation of those employees. 


On the contrary, section 1311 refers expressly to persons "employed
 

by the county superintendent of schools." If section 45103, for example, to
 

which section 1311 refers, providing that the governing board of a school
 

district shall employ classified personnel, were construed to require the
 

employment of such personnel at the county level by the county board, we would
 

be faced with an unwarranted contradiction. Finally, section 45100 itself
 

provides that that and succeeding sections apply "to all persons who are part of
 

the classified service who are employed by the county superintendent of schools
 

. . . ." 


In our view of the statutory scheme as a whole, the superintendent
 

is authorized to appoint, discipline, and establish the salaries of the
 

classified county school employees. The focus of the conclusions reached herein
 

are narrow and specific. While we identify the agency responsible for specified
 

functions, it is not suggested that the performance of those functions is not
 

constrained or regulated by other provisions of law. 


* * * * *
 

7. 88-901