Ocean View School District (PERB 0938E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GORDON BUSCH,
Complainant,
v.
OCEAN VIEW SCHOOL 	DISTRICT,
Respondent.
Case No. 	LA-PN-122
PERB Decision No. 	938
June 9, 	1992
Appearance: 	Gordon Busch, 	on his own behalf.
Before Hesse, 	Chairperson; 	Camilli and Caffrey, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on an appeal 	filed by
Gordon Busch 	(Busch) 	to an administrative determination
(attached) 	by a PERB regional director. 	The regional director
dismissed 	the 	complaint 	filed by Busch 	against 	the Ocean View
School 	District 	(District) 	which alleged that 	the 	District
violated section 3547(a), 	(b) 	and 	(c) 	of the Educational
Employment Relations Act 	(EERA).1
EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3547 provides, 	in pertinent
part:
(a) 	All 	initial proposals 	of 	exclusive
representatives 	and of public 	school
employers, 	which relate to matters within the
scope of representation, 	shall be presented
at 	a public meeting of 	the public 	school
employer 	and thereafter 	shall 	be public
records.
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(b) 	Meeting and negotiating 	shall not take
place on any proposal 	until 	a 	reasonable time
has 	elapsed after the 	submission of 	the
proposal 	to 	enable 	the public 	to become
informed 	and the public 	has 	the 	opportunity
to 	express 	itself 	regarding the proposal 	at 	a
meeting of 	the public 	school 	employer.
(c) 	After the public has had the opportunity
to express 	itself, 	the public 	school 	employer
shall, 	at a meeting which is open to the
public, 	adopt its initial proposal.
Specifically, 	Busch alleges 	that the District's 	initial
proposals 	"lack[ed] 	the 	specificity that would allow the public
to comprehend 	it, 	particularly as 	it 	relates 	to 	financial
impact." 	Busch also alleges 	that the District: 	(1) 	failed to
allow public 	comment after the September 	19, 	1991 	public 	board
meeting; 	and 	(2) 	failed to adopt its 	amended initial proposals
prior to negotiations.
The 	Board has 	reviewed the dismissal, 	and 	finding 	it 	free of
prejudicial 	error, 	adopts 	it as 	the decision of the Board 	itself
consistent with 	the 	following discussion.
DISCUSSION
Busch's 	first 	argument 	that 	the 	regional 	director 	failed 	to
make 	a 	determination regarding 	the 	District's 	initial 	proposals
is without merit. 	As 	stated by the regional director in her
administrative determination, 	PERB 	cases 	establish that 	in
determining 	the 	sufficiency 	and 	specificity 	of 	an 	initial
proposal, 	the Board may 	look to 	subsequent 	oral 	clarifications
and explanations. 	(Los Angeles 	Community College District 	(1985)
N	2

PERB Decision No. 	489; 	Los Angeles City and County School
Employees Union. 	Local 	99. 	Service Employees 	International Union,
AFL-CIO 	(1985) 	PERB Decision No. 	490; 	and Los Angeles Community
College District 	(1991) 	PERB Decision No. 	908.) 	In this 	case,
the 	regional 	director properly 	concluded 	that 	the 	District's 	oral
clarifications 	at the September 3, 	1991, 	public board meeting
were 	sufficient 	to 	cure any defects 	or 	insufficiencies 	in the
District's 	initial proposals.
In Busch's 	second argument, 	he admits that oral
clarifications are sufficient. 	However, 	Busch questions the
regional 	director's 	citations 	to PERB 	cases 	and 	states 	the 	only
remotely relevant 	case 	is 	the 	Board's 	decision 	in Los Angeles
-
Community College District, 	supra. 	PERB Decision No. 	908, 	where
the public 	school 	employer adopted 	an amended 	initial 	proposal
prior to negotiations. 	It appears 	Busch 	is 	asserting that the
District 	should have adopted the September 	3, 	1991 	oral
clarifications 	as 	amendments 	to 	the 	initial proposals 	or amended
initial proposals. 	In the PERB 	cases 	involving subsequent
clarifications 	of 	initial proposals, 	there 	is 	no requirement that
the public 	school 	employer amend its 	initial proposals. 	Rather,
the 	issue 	is whether the 	subsequent 	clarifications 	result 	in the
initial 	proposals 	being 	"sufficiently developed 	to permit 	the
public 	to 	comprehend 	them." 	(Palo Alto 	Unified 	School 	District
(1981) 	PERB Decision No. 	184.) 	Here, 	there were no amendments to
the District's 	initial proposals, 	only oral 	clarifications.
Based on 	these 	facts, 	the 	regional 	director correctly 	concluded
33

that 	oral 	clarifications 	of 	the District's 	initial proposals
constituted 	sufficient 	notice under 	section 	3547(a) 	of 	EERA.
Finally, 	Busch argues 	that the regional director's 	citation
to Los Angeles 	Unified School 	District 	(1987) 	PERB Order No.
Ad-162 	does 	not 	support her conclusion that 	the 	District 	is 	not
required to re-adopt 	its 	initial proposals. 	In PERB Order No.
Ad-162, 	the Board dismissed a public 	notice 	complaint because the
public 	school 	employer had 	voluntarily 	complied with 	a 	previous
cease 	and desist order and posting order, 	which resulted 	from a
settlement of a prior public 	notice complaint. 	In his 	appeal,
Busch has 	misstated the 	facts 	and holding of this 	case.
Therefore, 	Busch's argument must be rejected.
ORDER
The complaint 	in Case No. 	LA-PN-122 	is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members 	Camilli 	and Caffrey 	joined 	in this 	Decision.
4

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
OCEAN VIEW 	SCHOOL 	DISTRICT,
Respondent,
and
GORDON 	BUSCH,
Complainant.
) 	DISMISSAL OF PUBLIC
NOTICE COMPLAINT
Case No. 	LA-PN-122
March 17, 	1992
)
)
PROCEDURAL 	HISTORY
On August 	8, 	1991,1 Gordon Busch 	(Busch or Complainant)
filed a 	public 	notice 	complaint 	against 	the 	Ocean View School
District 	(District) 	alleging violations of section 3547(a), 	(b) ,
and 	(c) 	of the Educational Employment Relations Act.2 The
1 All 	dates 	referenced herein are 	in calendar year 	1991,
unless 	otherwise 	indicated.
2EERA 	is 	codified at Government Code 	section 	3540 	et.seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code.
Section 3547 provides 	in pertinent part:
(a) 	All 	initial proposals 	of exclusive
representatives 	and 	of public 	school
employers, 	which relate to matters within the
scope of representation, 	shall be presented
at 	a public 	meeting of 	the public 	school
employer 	and 	thereafter 	shall 	be public
records.
(b) 	Meeting and negotiating 	shall 	not take
place 	on any proposal 	until 	a 	reasonable 	time
has 	elapsed 	after the 	submission of the
proposal 	to 	enable 	the public 	to become
informed 	and 	the 	public 	has 	the 	opportunity
to 	express 	itself 	regarding the proposal 	at a
meeting 	of 	the public 	school 	employer.
)
)
)
)
)
)
______________ )

complaint 	alleges 	that 	the 	District's 	initial proposals 	"lacked
the 	specificity 	required 	for 	the 	public 	to 	reasonably 	comprehend
them on issues that are of major importance 	. 	. 	. 	particularly as
it 	relates 	to 	financial 	impact." 	During processing of 	the
complaint, 	on January 27, 	1992, 	Complainant further alleged a 	(b)
violation because 	the 	District 	did 	not 	allow public 	comment 	after
a 	September 	19 public 	Board meeting and a 	(c) 	violation due to
the district's 	failure to 	adopt 	its 	amended 	initial proposal
prior to 	the 	negotiations 	session conducted on September 	23.3
(c) 	After the public has 	had the opportunity
to 	express 	itself 	the public 	school 	employer
shall, 	at a meeting which 	is open to the
public, adopt its initial proposal . 	. 	.
The 	District presented 	its 	initial proposals 	at 	a public
Board meeting on June 	20, 	and provided the public 	an opportunity
to 	address 	its proposals 	at a public 	Board meeting on July 	8.
Busch addressed the 	Board on the 	issue of public 	notice.4
An 	informal 	settlement 	conference5 was 	conducted 	on August
3 Complainant's 	allegations 	were 	first 	raised 	in reply 	to
the District's 	December 23 	submission. 	Because the complaint 	is
being dismissed herein, 	the 	District was 	not required to 	file 	an
additional 	response.
4The 	record 	in this 	case does 	not 	contain the 	minutes 	of
this 	meeting which would 	reflect 	the 	specific 	comments 	made by
Busch. 	However, 	in the submissions 	in a related case, 	LA-PN-
119, 	a Board agenda 	for the July 8 	meeting is 	attached which
states 	that 	the 	Board 	advertised 	the 	meeting as 	one 	in which 	the
public would 	address 	the 	District's 	initial proposals.
5PERB 	regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001 	et seq. 	Regulation 32920
provides 	in part:
N	
2

23, 	with the District,6 OVTA7 and Busch. 	Although 	settlement of
the 	complaints 	was 	not reached at the 	informal 	conference, 	both
(a) 	When a complaint 	is 	filed, 	the case shall be assigned
to 	a 	Board agent 	for processing.
(b) 	The powers 	and duties 	of 	such 	Board agent 	shall 	be 	to:
(4) 	Facilitate 	communication and the 	exchange 	of
information between 	the 	complainant 	and the 	respondent 	or
respondents;
(5) 	Explore 	the possibility of 	and 	facilitate 	the
voluntary 	compliance 	and 	settlement 	of 	the 	case 	through
informal 	conferences 	or other means;
(6) 	Conduct 	investigatory conferences with the parties
to 	explore and resolve 	factual 	or 	legal 	issues;
(7) 	If 	the 	Board agent receives proof 	that 	the
respondent 	has 	voluntarily 	complied with the 	provisions 	of
Government Code 	sections 	3547 	or 	3595, 	a Board agent may
either 	approve 	the 	complainant's 	withdrawal 	of 	the 	complaint
or dismiss 	the 	complaint.
(8) 	Dismiss any complaint which, 	after investigation,
is 	determined 	to 	fail 	to 	state 	a prima 	facie 	allegation or
which 	is 	not 	supported by 	sufficient 	facts 	to 	comprise 	a
violation of Government; Code 	sections 	3547 or 3595. 	Any
such dismissal 	is 	appealable 	to 	the 	Board 	itself pursuant 	to
section 	32925 	of 	these regulations;
(9) 	If 	the 	complaint 	is 	found by the Board 	agent to
state 	a 	prima 	facie 	violation of 	Government Code 	sections
3547 	or 	3595, 	direct 	each respondent 	to 	file with the
regional 	office 	a written answer, 	signed by an authorized
agent of the respondent, 	which 	contains:
6The 	complaints 	against 	the 	District 	in this 	case 	and 	in LA-
PN-119 were 	consolidated 	for purposes 	of 	investigation.
7A 	separate public 	notice 	complaint 	(LA-PN-118) 	was 	filed
against OVTA on June 	6. 	Resolution of 	that 	complaint was 	also
attempted 	at 	the August 	2 3 	settlement conference by agreement 	of
the parties. 	However, 	since no settlement was obtained, 	a
separate 	investigation regarding 	the 	allegations 	against 	OVTA was
conducted.
33

the 	District 	and 	OVTA expressed 	a willingness 	to present 	further
explanation of 	their respective 	initial proposals 	at another
public 	Board meeting(s). 	The District and OVTA were also
encouraged 	at 	the 	conference 	and during 	subsequent 	telephone
conversations with 	the undersigned to provide the Complainant
with 	information 	and 	documentation which 	might 	facilitate
voluntary resolution of 	the 	complaints.
At a September 	3 	public 	Board meeting, 	the District provided
explanatory 	comments 	regarding 	the 	eleven 	separate Articles 	that
it wished to negotiate with the OVTA. 	At the end of the
District's presentation, 	the public was 	informed that an
opportunity 	to present 	input 	and questions 	would be provided 	at
the September 	17 	public 	Board meeting.8
Thereafter, 	at its 	September 	19 public Board meeting, 	the
public was 	afforded 	an opportunity to present 	input 	and 	ask
questions 	regarding the District's proposal. 	Two members 	of 	the
public 	addressed 	the 	Board, 	in addition to Busch who was 	allowed
thirty minutes 	to do 	so.9 The 	District and OVTA commenced
negotiations 	on September 	23. 	At this 	session, 	the parties 	set
8Although 	the 	September 	3 	minutes 	reflect that the 	next
meeting would be 	held on 	September 	17, 	documentation provided by
both parties 	reflects that it was, 	in fact, 	held on September 	19.
9Busch 	also 	mentions 	an October 	1 	public 	meeting wherein the
public was 	allowed 	to 	comment 	on 	the 	"District's 	amended
proposal". 	No minutes 	or additional 	information as 	to the
content or extent of 	the 	comments were provided, 	so this 	meeting
is 	not considered 	in this 	dismissal.
A	4

ground 	rules 	and 	apparently 	engaged 	in 	collaborative
bargaining.10
After various 	conversations with the Complainant, 	it was
determined 	by 	the 	undersigned 	that 	he 	would 	not withdraw this
complaint, 	regardless 	of the 	steps 	undertaken by the District.
Therefore, 	on November 22, 	the District was 	ordered to produce
documents 	and 	argument which 	substantiated 	its 	belief 	that 	it had
complied with 	the 	law. 	The Complainant was 	afforded 	an
opportunity 	to 	respond to 	the 	District's 	submissions. 	Both
parties 	filed timely responses 	on December 23 	and January 	27,
1992 	respectively.
POSITIONS 	OF THE PARTIES
Busch alleges 	that the District violated section 3547(3),
(c), 	and 	(b) 	because the District's proposals 	"lacked the
specificity 	required 	for 	the public 	to 	reasonably 	comprehend 	them
on issues that are of major importance 	. 	. 	. 	particularly as it
relates to financial 	impact." 	In his January 27, 	1992 	response,
Busch alleges 	a 	(b) 	violation because the District did not allow
public 	comment 	after 	its 	September 	19 meeting and a 	(c) 	violation
. . . . .
10In April, 	the 	District 	and OVTA participated 	in training
under 	the 	auspices 	of 	the 	California 	Foundation 	for the
Improvement 	of 	Employer/Employee 	Relations 	to 	learn the
techniques 	of 	collaborative bargaining. 	While PERB contributed
to the development of 	the training module, 	its participation in
the project ceased after March, 	1991. 	PERB does 	not 	endorse a
particular negotiations model 	over others, 	since 	its mission is
simply to 	administer and 	enforce 	the 	statutes under 	its
jurisdiction, 	regardless 	of 	the model 	or method 	chosen by the
parties 	to 	effectuate 	their 	labor 	relations.
5

due 	to 	the 	District's 	failure 	to 	adopt 	its 	amended 	initial
proposal prior to 	the 	negotiations 	session held on September 	23.
The 	District denies 	any wrongdoing and asserts 	that 	it has
presented proposals 	that 	clearly meet 	all 	statutory requirements
and that 	it did not negotiate until public 	comment occurred.
DISCUSSION
Specificity 	and 	Public 	Response 	Time
EERA's public 	notice 	statute, 	Government code 	section 3547,
contains 	no 	express 	provision 	stating 	that 	the 	initial proposals
which 	it 	requires 	be made public 	must be 	"specific" 	in their
nature. 	However, 	in Palo Alto Unified School District 	(1981)
PERB Decision No. 	184, 	the Board noted that 	such proposals must
satisfy the intent expressed in subsection 3547(e), 	i.e., 	that
. 	. 	. 	the public be informed of the issues that are
being negotiated upon and have 	full 	opportunity 	to
express 	their views 	on the 	issues 	to 	the public 	school
employer, 	and to know of the positions 	of 	their elected
representatives.
The 	Board went 	on to 	explain that 	"the 	initial proposals
presented 	to 	the 	public 	must 	be 	sufficiently developed 	to permit
the public 	to 	comprehend them." 	PERB 	found 	a proposal 	for a 	cost
of 	living 	adjustment 	based 	upon 	the 	Consumer 	Price 	Index 	to 	be
"sufficiently 	developed 	to 	inform the 	public 	what 	issue will 	be
on 	the 	table 	at 	negotiations," 	notwithstanding Complainant's
assertion that 	it was 	not 	specific. 	The 	same result was 	reached
in a 	later, 	similar case. 	American Federation of Teachers
College Guild. 	Local 	1521 	(1989) 	PERB Decision No. 	740.
66

- -
In other decisions, 	the Board has 	shown that 	it will 	look
beyond 	the 	actual 	initial 	proposal 	to 	determine whether the
requirements 	of 	section 3547 have been met. 	In Los Angeles
Community College District 	(1984) 	PERB Decision No. 	411, 	the
Board was 	presented with 	the 	issue 	of whether or not 	the
employer's 	initial 	proposal 	regarding 	amendments 	to 	life
insurance plans 	provided 	sufficient 	information. 	The 	Board 	found
it unnecessary to decide whether the proposal, 	alone, 	"[met] 	the
requirements 	of Government Code 	section 3547, 	because the
District 	also 	included 	explanatory 	information with 	its 	initial
proposal." 	(footnote omitted)
Explanation of 	an initial proposal 	to bring 	it 	into
conformity with 	the 	requirements 	of 	section 	3547 	need 	not be 	in
writing. 	Oral 	clarification of 	initial proposals 	at public
meetings 	held by 	the 	employer has 	been 	found to 	constitute
sufficient notice under 	subsection 3547(a) 	in Los Angeles
Community College District 	(1985) 	PERB Decision No. 	489, 	Los
Angeles 	City and County 	School 	Employees 	Union, 	Local 	99, 	Service
Employees 	International 	Union. 	AFL-CIO 	(1985) 	PERB Decision No.
490, 	and Los Angeles Community College District 	(1991) 	PERB
Decision No. 	908.
As 	noted previously, 	the 	District presented 	its 	initial
proposals 	at 	a public 	meeting on June 	20 	and provided 	an
opportunity 	for public 	response 	at 	a meeting on July 	8. 	These
proposals 	were presented 	in terms 	of proposed changes 	to 	eleven
distinct 	articles 	in 	the 	then 	current 	collective 	bargaining
7

agreement. 	Complainant perceived these proposals 	lacked 	the
requisite 	specificity, 	and 	filed the 	complaint 	in this 	case 	on
August 	8.
It 	is 	fair to 	say that the proposals presented by the
District 	on June 	20 	varied 	in the 	extent 	to which 	they provided
insight 	into 	the 	issues 	which would be 	at 	the negotiating 	table,
and 	some 	proposals 	might well 	have been found 	insufficiently
specific had there been no 	further explanation. 	However, 	it 	is
unnecessary 	to 	decide whether 	any 	of 	those written proposals 	were
inadequate 	standing alone, 	because, 	in response to the complaint,
and pursuant 	to 	agreement reached at 	the August 	23 	settlement
conference, 	the District provided oral 	explanation of 	each
proposal 	at the 	September 	3 public 	Board meeting. 	The
explanation consisted of 	a 	recitation of 	the 	original written
proposal 	followed 	by a more 	complete 	and detailed 	statement 	of
the District's 	intent. 	For example, 	the explanations 	of
proposals 	regarding two 	economic 	subjects, 	salary and health 	and
welfare benefits, 	each included, 	among other statements, 	the
revelation that 	the 	District 	sought 	to maintain the 	status 	quo.
Taken 	together, 	the 	initial written proposals 	and the 	subsequent
explanatory 	remarks 	are 	sufficiently developed 	to 	inform 	the
public 	of 	the 	issues 	which would be 	on the 	table when
negotiations began on September 23. 	Thus, 	even if the District's
proposals 	violated the requirements 	of 	subsection 	3547(a) 	at 	the
time 	the 	complaint was 	filed, 	the deficiencies were 	cured 	as 	of
September 	3.
8

Complainant 	does 	not 	disagree with 	the 	legal 	theory 	that
subsequent 	oral 	statements 	may be used to 	cure defects 	in 	initial
proposals. 	To the 	contrary, 	Complainant quotes 	approvingly the
following 	statement 	in the 	District's 	brief:
. . . :"
[B]oth 	the written 	initial proposal 	and 	any 	oral
statements 	explaining 	or presenting 	it 	must 	be 	used 	in
determining whether the proposal 	complies with the
public 	notice requirements'. 	District Brief 	at 	8.11
However, 	Complainant argues 	that the original and inadequate
written proposal 	"was 	not 	cured of 	its 	insufficiencies 	until
September 	19, 	1991, 	when the District representative responded to
Complainant's 	questions 	during a public 	meeting." 	(footnote
omitted) 	Thus, 	argues the Complainant, 	the District having
finally presented 	sufficient proposals, 	then had 	an obligation to
provide 	an 	opportunity 	for public 	response 	pursuant 	to 	subsection
(b), 	and to adopt its proposals pursuant to subsection 	(c).
The 	Complainant 	fails 	to acknowledge 	or mention the public
meeting 	of 	September 	3, 	notwithstanding the 	fact 	that 	the minutes
of 	that meeting 	and of 	the 	September 	19 	meeting 	confirm that 	he
was 	present12 and 	familiar with the District's
11Complainant's Brief p.10.
12On page 	113.1 	of 	the Board minutes 	of 	the 	September 	3,
1991, 	meeting appears the following:
Gordon Busch, 	parent, 	commented on closed session
notification and details 	given 	in public 	notices, 	and
stated 	that 	he 	had 	not 	dropped 	complaints 	related 	to
OVTA and 	District 	initial 	proposals 	for 	collective
bargaining, 	but 	looked 	forward to 	seeing the 	Board's
explanation.
99

explanations.13 In fact, 	in order to have asked the 	clarifying
questions at the. Septembers 19 meeting, 	Complainant had to have
understood 	the 	District's 	initial 	proposals 	as 	explained 	on
September 	3.14 A comparison of 	the minutes 	of 	the 	two meetings
fails 	to 	sustain Complainant's 	assertion that deficiencies 	in the
initial proposal were not 	cured until 	the 	latter meeting. 	The
minutes 	of 	the 	September 	19 	meeting reflect 	that 	Complainant
asked 	clarifying 	questions 	concerning 	four of 	the 	District's
proposals. 	The very nature of 	the Complainant's 	questions
indicates 	that he had an understanding of 	the 	issues 	which were
to be 	on the negotiating table.15 For 	example, 	addressing the
13At the September 	19 	meeting, 	Complainant asked the
following question which 	coul	- " 	d 	only have 	been in response 	to 	the
District's 	explanation on 	September 	3:
*
#2, 	under Salaries. 	Does 	status quo mean zero?
(September 	19 Board Meeting Minutes, 	p. 	137.18.)
14Section 	3547 	allows 	the public 	an opportunity to 	express
itself 	regarding 	initial proposals; 	agreement with those
proposals 	is 	not required and disagreement 	is 	not a basis 	for
finding a violation.
15Further, 	the paucity of 	questions 	asked and 	answered 	at
the 	September 	19 	meeting 	contradicts 	Complainant's 	argument 	that
deficiencies were not 	cured before 	that date. 	An 	examination 	of
the questions 	and comments 	of 	the public, 	including those 	from
Busch, 	as well as the District's answers, 	reveals relatively
little 	additional 	information was 	forthcoming 	compared 	to 	that
which was 	provided 	on September 	3.
10

District's 	early retirement 	incentive plan 	in the 	health 	and
welfare proposal, 	the Complainant asked the 	following:
The District proposes 	an early 	incentive 	[sic] 	plan
that will 	result 	in cost-savings 	to the 	District.
Could you explain to me what this plan is, 	how it will
save money, 	and whether or not 	the 	cost-savings
mentioned 	are 	based 	on 	short-term 	savings 	and 	long-
term 	savings 	and how much will we 	save?15
After a 	response 	from a District 	representative, 	the Complainant
added 	the 	following:
Well 	. 	. 	. 	what I have a concern about is that a lot of
these 	so-called 	early 	retirement plans 	-- 	incentive
plans -- may, 	in fact, 	early on save the District
money, 	but as you've moved through the years, 	end up
costing 	lots 	of money and 	it's 	a net 	loss 	instead of 	a
gain 	. . . 	I 	would 	appreciate 	the 	District 	making 	some
kind of 	a proposal 	so that we 	could reasonably
ascertain what kind of 	impact that might have 	on the
District, 	both 	short-term and long-term.17
The 	September 	19 	meeting was 	expressly 	identified as 	an
opportunity 	for the public 	to 	speak and 	ask questions 	on 	the
initial 	proposals,1 which is precisely what Complainant did.
Because Complainant was 	given this 	opportunity, 	more 	than two
weeks 	after presentation on September 	3 	of 	a detailed 	explanation
of the District's proposals, 	the requirements 	of Government Code
subsection 3547(b) 	were met.
Adoption 	of 	Initial 	Proposals
Complainant's 	final 	argument 	is 	that 	"the 	District 	violated
Govt. 	Code 	3547(c) 	by failing to adopt its 	sufficient 	initial
16September 19, 	1991, 	Board Meeting Minutes, 	p. 	137.19.
17September 19, 	1991, Board Meeting Minutes, p. 	137.20-2 1.
18September 3, 	1991 Board Meeting Minutes, 	p. 	113.10;
September 19, 	1991 Board Meeting Minutes, 	p. 	137.2.
11
'

proposal 	at 	a public 	meeting."19 The 	issue here 	is 	not whether
the District 	failed to adopt 	its 	initial proposal, 	for
Complainant's 	statement of 	the 	facts 	indicate that the District
adopted 	its 	June 20 proposal on August 20. 	Rather, 	the 	issue
apparently 	is whether the 	District was 	obligated 	to 	again adopt
its proposals 	after the September 	3 	explanation and the September
19 public 	comment. 	Complainant asserts 	that 	"[a]doption of 	the
amended 	initial 	proposal 	should have 	been made 	after 	the 	public
had an opportunity to comment on 	such proposal," 	and 	cites 	Los
Angeles 	Community 	College 	District 	and 	California 	School
Employees Association 	(1981) 	PERB Decision No. 	158, 	(Kimmett) 	in
support of that assertion. 	However, 	neither the 	facts 	in this
case nor Kimmett 	support Complainant's argument. 	First, 	despite
Complainant's 	repeated 	characterizations 	of 	the 	District's
proposals as having been amended, 	there is no evidence that 	such
amendment occurred, 	but only an explanation and 	elaboration of
the 	initial proposals. 	This distinction, 	however 	subtle 	it may
appear to be, 	is an important one. 	While the Board has, 	indeed,
held 	that 	amendments 	to 	initial proposals 	require public 	comment
before adoption, 	Los Angeles 	Unified School 	District 	(1987) 	PERB
Order No. 	Ad-162, 	there appear to be no cases which support a
conclusion 	that 	re-adoption of 	the 	District's 	proposals 	are
required 	in this 	case. 	The 	case 	cited by Complainant,
19Complainant's Brief p. 14.
In fact, 	the contrary is 	true. 	State of California
(Department of Personnel Administration) 	(1992) 	PERB Decision No.
921-S, 	involved alleged violations 	of 	the public 	notice
12

Kimmett, is 	completely 	inapposite, 	and 	simply 	stands 	for the
proposition 	that proposals 	regarding 	reopeners 	and 	amendments 	to
existing 	agreements 	must 	comply with 	the public 	notice
provisions.
provisions 	of 	the Dills Act, 	which differ 	somewhat 	from those 	in
EERA. 	However, 	the basic purpose of the provisions 	are the 	same,
and 	in that 	case, 	the Board 	specifically held that 	the 	State was
not 	required 	to 	sunshine 	a 	later and more 	specific 	set 	of
proposals 	than 	it 	had 	originally 	introduced.
The 	District 	may have 	been 	in violation of 	Government 	Code
section 3547(a), 	(b), 	and (c) when this complaint was filed, 	but
not because 	it had 	failed to 	adopt 	its 	proposal 	prior to 	allowing
public 	comment. 	The underlying cause 	of 	each of 	these possible
violations was 	the 	extent 	to which 	the 	initial proposals provided
sufficient 	information to the public, 	and once that deficiency
was 	eliminated, 	all of the requirements of 	section 3547 were met.
Requiring the District 	in this 	case 	to 	adopt 	again proposals
which have already been presented, 	proposed, 	explained
extensively, 	and commented upon, 	fails to 	serve the purpose of
the public 	notice provisions, 	and merely exalts 	form over,
substance.
CONCLUSION
For the 	foregoing reasons, 	this 	complaint 	is 	DISMISSED for
failure 	to 	state a violation of Government Code 	section 	3547.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulations,
any party 	adversely 	affected 	by 	this 	ruling 	may 	appeal 	to 	the
Board 	itself 	by 	filing a written appeal within 	twenty 	(20)
13

calendar days 	after 	service 	of 	this 	ruling 	(California
Administrative Code, 	title 8, 	section 32925) . 	To be timely-
filed, 	the original 	and 	five 	copies 	of 	such appeal 	must be
actually 	received by 	the 	Board 	itself 	before 	the 	close 	of
business 	(5:00 p.m.) 	or 	sent by telegraph, 	certified or Express
United States 	mail postmarked no 	later than the 	last 	date 	set 	for
filing 	(California Administrative Code, 	title 8, 	section 32135).
Code 	of 	Civil 	Procedure 	section 	1013 	shall 	apply. 	The Board's
address is:
Members, 	Public 	Employment Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
The appeal must 	state the 	specific 	issues 	of procedure,
fact, 	law or rationale that are appealed, 	must clearly and
concisely 	state 	the grounds 	for each 	issue 	stated, 	and must be
signed by 	the 	appealing party 	or 	its 	agent.
If a 	timely appeal 	of this 	ruling is 	filed, 	any other party
may 	file with 	the 	Board 	itself 	an original 	and 	five 	copies 	of 	a
statement 	in opposition within twenty 	calendar days 	following 	the
date 	of 	service 	of 	the appeal 	(California Administrative Code,
title 8, 	section 32625). 	If no timely appeal is 	filed, 	the
aforementioned 	ruling 	shall 	become 	final 	upon 	the 	expiration 	of
the 	specified time 	limits.
Service
All 	documents 	authorized 	to 	be 	filed 	herein must 	also 	be
"served" 	upon all 	parties 	to 	the proceeding 	and 	the 	San Francisco
Regional 	Office. 	A 	"proof 	of 	service" 	must 	accompany 	each 	copy
14

of a 	document 	served upon a 	party 	or 	filed with 	the 	Board 	itself.
(See California Administrative Code, 	title 8, 	section 32140 	for
the required contents 	and a 	sample 	form.) 	The 	appeal 	and any
opposition to 	an appeal will 	be 	considered properly 	"served" 	when
personally delivered 	or deposited 	in 	the 	first-class 	mail 	postage
paid 	and properly 	addressed.
Extension of 	Time
A request 	for an extension of 	time 	in which 	to 	file 	an
appeal 	or opposition to 	an appeal with 	the 	Board 	itself 	must 	be
in writing and 	filed with 	the 	Board 	at 	the previously 	noted
address. 	A request 	for an 	extension must be 	filed at 	least 	three
calendar days 	before 	the 	expiration of 	the 	time 	required 	for
filing the document. 	The 	request must 	indicate 	good 	cause 	for
and, 	if known, 	the position of each other party regarding the
extension, 	and 	shall be accompanied by proof of 	service of 	the
request upon each party 	(California Administrative 	Code, 	title 	8,
section 	32132).
Dated: 	March 	17, 	1992 Anita I. 	Martinez
Regional 	DirectorC
15
(_