San Diego Community College District (PERB 1467E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
AMERICAN FEDERATION OF TEACHERS
GUILD, CALIFORNIA FEDERATION OF
TEACHERS, LOCAL 1931,
Charging Party,
V.
SAN DIEGO COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. LA-CE-4217-E
PERB Decision No. 	146 7
November 	28, 	2001
Appearances: 	Gattey, Cooney & Baranic LLP by Michael P. Baranic, Attorney, for American
Federation of Teachers Guild, California Federation of Teachers, Local 1931; Liebert Cassidy
Whitmore by Bruce A. Barsook, Attorney, for San Diego Community College District.
Before Amador, Baker and Whitehead, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by American Federation of Teachers Guild, California Federation of
Teachers, Local 1931 (Guild) of a Board agent's dismissal of its unfair practice charge. 	The
charge alleged that the San Diego Community College District (District) violated the
Educational Employment Relations Act (EERA) 1 by prohibiting the use of its employee mail
system and other equipment for the distribution of political flyers.
After reviewing the entire record in this matter, the Board dismisses the unfair practice
charge based on the following.
1EERA is codified at Government Code section 3540 et seq.

BACKGROUND
The Guild's charge alleged that between September 21, 1999 and June 21, 2000, the
Guild distributed at least six different publications supporting particular candidates for the
District Board of Trustees through the District's mail system.
On June 21, 2001, Wayne Murphy (Murphy), the District's assistant chancellor for
human resources, sent a memorandum to all college and continuing education presidents and
directors of administrative services. He directed campus mailroom staff not to distribute
"clearly political flyers urging the support or defeat of any ballot measure or candidate for
election" through the campus mail system. He also directed that mailroom staff remove such
materials from campus mailboxes, even if they were placed there by others. Murphy stated
that this action was based on the District's interpretation of Education Code section 7054. He
sent a copy of the memorandum to Jim Mahler (Mahler), the president of the Guild.
On June 22, Murphy sent an e-mail to Mahler informing him that the prohibition
included the use of "District services, supplies and equipment to print political materials, even
if you are reimbursing Mesa College."
Education Code section 7054(a) states:
No school district or community college district funds, services,
supplies, or equipment shall be used for the purpose of the urging
the support or defeat of any ballot measure or candidate
including, but not limited to, any candidate for election to the
governing board of the district.
The Board agent based his dismissal of the charge for failure to state a prima facie case
on what he deemed to be the persuasive reasoning contained in a non-precedential
administrative law judge's (ALJ) final decision in Mt. San Jacinto Community College District
(1997) PERB Decision No. HO-U-650 (Mt. San Jacinto). In Mt. San Jacinto, the ALJ
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considered the impact of Education Code section 7054 on a union's right to distribute political
flyers endorsing candidates for a community college governing board. 	The ALJ found that the
express terms of Section 7054, coupled with legislative intent, indicate that a community
college district may not permit its mail box facilities to be used for political activities of the
type at issue. The Board agent reasoned in dismissing the instant charge that it concerned the
same type of political activities at issue in Mt. San Jacinto and that although the Board has not
decided a case on this issue, the ALJ's reasoning in Mt. San Jacinto is persuasive.
The charge additionally alleged that the District violated the rights of the Guild by its
decision to no longer print political materials for the Guild, even if reimbursed. 	The Board
agent dismissed this allegation as well, noting that "... section 7054 is a blanket prohibition
against the use of services and equipment. There is no exception."
The Guild claims on appeal that the Board agent improperly relied upon a non-
precedential ALJ decision. The Guild further claims that because the parties offer competing
interpretations and theories of law, a complaint should have issued and the matter should have
been submitted to a fact-finder for resolution after a hearing.
DISCUSSION
In reviewing an appeal from a Board agent's dismissal for failure to state a prima facie
case, the Board assumes that the essential facts alleged in the unfair practice charge are true.
(San Juan Unified School District (1977) EERB Decision No. 12.)2
In Richmond Unified School District/Simi Valley Unified School District (1979) PERB
Decision No. 99, the Board found that EERA section 3543.l(b) grants organizations the right
2 Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
3

to use employer mail facilities, subject to reasonable regulation, and that interference with this
right constitutes a violation
of
section 3543.5(a) and (b
).
	In this case, the Board must
determine whether and how the access provisions
of
section 3541.3(b) are affected by
Education Code section 7054. Specifically, the Board must determine whether Education
Code section 7054 requires the District to refuse to actively distribute union political materials3
through its mail system, refuse to passively allow its mailboxes to be used to distribute union
political materials, and refuse to print union political materials, even
if
reimbursed.4
The Attorney General (AG) has issued an opinion concluding that Education Code
section 7054 does not bar a school district or community college district from making
employee payroll deductions for a political action committee (PAC) established by the
organization representing the employees. (84 Ops.Cal.Atty.Gen. 52 (2001).) Opinions
of
the
AG are not binding, although they are entitled to considerable weight. (Andres v. Young
Men's Christian Assn. (1998) 64 Cal.App.4
th 85
[74 Cal.Rptr. 2d 788].) While an opinion
of
the AG is not controlling as to the meaning
of
a statute, the fact that an opinion
of
the AG has
not been challenged and he is an officer charged by law with advising officers responsible for
enforcement
of
law as to the meaning
of
it entitle his opinions to great weight. 	(Smith v.
Municipal Court (1959) 167 Cal.App. 2d. 534.)
The basis
of
the AG's opinion is that the "funds, services, supplies or equipment"
of
a
school district or community college district would not "be used for the purpose
of
urging the
3 For purposes of the memorandum at issue, union political materials are defined as
materials "urging the defeat or support of any ballot measure or candidate."
4 It should be noted that the Board is neither statutorily nor constitutionally permitted to
pass on the constitutionality of Education Code provisions. (Cal. Const., art. III, sec. 3.5.)
4

support or defeat
of
any ballot measure or candidate." Rather, it would be employees' funds
that might be so used by the union's PAC. According to the AG's opinion:
[T]he district's resources would only be affected to transfer the
employees' funds to the employees' designated recipient. 	The
district would have no control over the employees' funds other
than to act as the agent
of
the employees' in making the transfer
of
the employees' funds. 	This is not the type
of
'political activity'
to which section 7054's prohibition is directed. 	[See Stanson v.
Mott (1976)
17
Cal.3d 206 [130 Cal.Rptr. 697]; County
of
Ventura
v.
State Bar (1995) 35 Cal.App. 4 th 1055
[41
Cal.Rptr.
2d 794]; (73 Ops.Cal.Atty.Gen. 255 (1990).]
According to the opinion, the AG examined in detail the legislative history
of
Education Code section 7054, particularly with respect to its amendments in 1995 (Stats. 1995,
ch. 879, sec. 2 (Sen. No. 82)). The AG concluded the evident purpose
of
the statute is to
prevent partisan campaigning by a district and that a district's resources are not to be used for
campaigning. In this context, the opinion concludes:
It would be unreasonable to apply section 7054 where the school
district or community college district is merely transmitting a
portion
of
the employee's salary as directed by the employee.
This would be especially so here in light
of
the Legislature's
express protection
of
the political rights
of
school employees,
including the right to contribute political funds to their employee
organizations. (§ 7056.) The legislative history
of
section 7054
contains no indication that it is to be interpreted to prohibit
employee payroll deductions as directed and controlled by the
employee. In such circumstances the district itself cannot be said
to be 'campaigning' in a 'partisan' manner.
It appears that the A G's opinion reads "services" right out
of
the statute. 	There is not
too much room to argue that payroll deduction is not a "service". Nor is there too much room
to argue that use of the District's mail system is not use
of
a "service" or that use
of
the
District's mail boxes is not a use
of
"equipment."
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If the Board substituted in "mail service" for "payroll deduction service" and adopted
the rationale of the AG, the dismissal would be reversed and a complaint would issue.
However, the express words of Education Code section 7054 prevent such an action.
The legislative analysis for the version of Senate Bill 82 which was eventually enrolled
provides that then existing law (in 1995):
... generally prohibits the use of public funds for the purpose of
supporting or opposing local district ballot measures or
candidates.
It is also noted that:
[E]xisting law, however, exempts from this blanket prohibition
the preparation or dissemination of information by school or
community college governing boards ( or their individual
members) which urges the passage or defeat of certain local
ballot measures or which supports the candidacy of individuals
for election as district trustees.
Further, the analysis notes that:
Existing law permits a school or community college
administrative employees to advocate on behalf of certain ballot
measures, and pem1its any district employee to solicit or receive
campaign funds related to measures that affect their
compensation or working conditions, subject to optional district-
imposed limitations regarding such activities during working
hours and use of district facilities.
This bill would prohibit district employees from using working
hours or district facilities to solicit or receive funds to support or
defeat ballot measures that affect their compensation or working
conditions.
The elimination of these exemptions appeared to be a major component of Senate Bill 82.
The analysis further states the bill would conform the rule on the use of public funds by
school or community college districts with the rule on the use of public funds by a city, county
or the state.
6

While the legislative analysis and the AG's opinion indicate that the Legislature
attempted to conform the rule on the use of public funds to the Supreme Court's decision in
Stanson v. Mott, the words chosen by the Legislature are not the same as those used by the
court. In Stanson v. Mott, the court held that at least in the absence of clear and explicit
legislative authorization, a public agency may not expend public funds to promote a partisan
position in an election campaign. (17 Cal.3d 206.) If Education Code section 7054 merely
prohibited an expenditure of funds, it would have only used the term "funds." If the
Legislature was concerned about governing boards or employees circumventing the prohibition
of expenditure of "funds" it could have said funds include "in-kind" contributions and
expenditures. Instead, the Legislature chose the specific words of" ... district funds, services,
supplies, or equipment." It is entirely plausible that the Legislature found this language as an
appropriate restriction on political speech in the school setting in an effort to disassociate
schools from matters of politics and political controversy.
Despite the AG's opinion and the arguments of the Guild, the question before the Board
is not whether Section 7054 is reasonable, the question is whether the District's policy
conforms with the language and intention of Section 7054. As discussed above, the Board
concludes that it does. In interpreting the Education Code, the Board is guided by several
fundamental principles. Among these principles, if the language of a statute is not ambiguous,
then the plain meaning of the language shall govern its interpretation. (Barstow Unified
School District (1997) PERB Decision No. 1138b (Barstow), citing Lennane v. Franchise Tax
Bd. (1994) 9 Cal.4 th 263 [36 Cal.Rptr.2d 563].) Also, interpretations that render a term mere
surplusage should be avoided, and every word should be given significance, leaving no part
7

useless or devoid of meaning. 	(Barstow, citing City and County of San Francisco v. Farrell
(1982) 32 Cal.3d 47 [184 Cal.Rptr. 713].)
The plain meaning of Education Code section 7054 clearly prohibits the use of school
district or community college district funds, services, supplies, or equipment for the purpose of
the urging the support or defeat of any ballot measure or candidate. 	Such a prohibition is not
limited to the District only. Further, any interpretation of this section which limits the
prohibition to a District expenditure of funds would read use of "services" and "equipment" out
of the statute.
EERA section 3540 provides, in part, that nothing contained herein shall bedeemed to
"supersede other provisions of the Education Code." In Healdsburg Union High School
District and Healdsburg Union School District (1980) PERB Decision No. 132, the Board held
(at p. 19) that, where a provision of the Education Code requires a certain action, the parties
are prohibited from negotiating a provision which directly conflicts with the statutory
requirement. Further, the mandate of Education Code section 7054 removes the policies at
issue from the scope of representation to the extent that the statutory language of Section 7054
clearly evidences an intent to set an inflexible standard or insure immutable provisions.
(Tustin Unified School District (1987) PERB Decision No. 626, citing San Mateo City School
Dist. v. PERB (1983) 33 Cal.3d 850.)
The Board declines to harmonize Education Code section 7054 and EERA in the way
urged by the Guild. 	The District's prohibition on use of the inter-site mail system and
photocopying services, falls squarely within, and is in fact mandated by, the plain words of
Section 7054. 	On this basis, the charge is dismissed.
8

ORDER
The unfair practice charge in Case No. LA-CE-4217-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Amador and Whitehead joined in this Decision.
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