Los Angeles Community College District (Kimmett) (PERB A064E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
JULES
	KIMMETT,
Charging
	Party,
	APPELLANT,
V.
LOS 	ANGELES
	COJ:1MUNITY
	COLLEGE
	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
____________________ )
Case 	No. 	LA-PN-5
PERE
	Order
	No. 	Ad-64
Administrativ.e
	Appeal
April
	30,
	1979 .
Appearance:	
Jules
	Kirnmett,
	representing 	himself.
Before
	Gluck,
	Chairperson;
	Gonzales
	and 	Moore, 	Members.
DECISION
	AND
	ORDER
The
	dismiss?l 	of
	the 	complaint
	herein
	by
	the
	Los
	Angeles
Regional
	Director
	is
	hereby
	sustained
	by
	the
	Board
	itself.
	A
copy
	of
	the 	dismissal
	is
	attached.
	The 	Board
	finds 	the
	regional
director 	correctly
	determined
	that
	the 	complaint
	raised 	issues
outside
	the
	jurisdiction
	of 	the 	Public
	Employment
	Relations
	Board
and
	failed
	to
	state
	a
	cause
	of 	action
	under
	section
	3547
	of
	the
Educational
	Employment
	Relations
	Act.
	The
	decision
	is 	therefore
affirmed 	in
	its
	entirety.
PER 	CURIAM

PUBL1C
EXPLO~.Em' REμ.TIONS
	BOARD
OF
THE
STATE
OF
CALIFORNIA
JULES
	KIMMET'l',
Complainant,
v.
LOS ANGELES
COMMUNITY
COLLEGE
DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
_________________
)
Case
No. 	LA-PN-5
ORDER
OF
DISMISSAL
WITH
PREJUDICE
NOTICE
OF
RIGHT
TO
APPEAL
PROCEDURAL
HISTORY
On
September 20,
	1978 a
	letter
	was
	received
	from Mr.
	Jules
	Kimmett
which
	purported
	to complain
of alleged
violations
of
California
Government Code
	section
3547
	et.~-
1
by	
the
	Los
Angeles
	Community
College
District.
	On
October 6, 	1978,
	the
Los
Angeles
	Regional
Director,
	Public
Employment
Relations
Board
	(hereafter
	PERE),
	verbally
informed the Conplainant
	that his
	complaint
did not
state
	a
claim
under
EERA
section
3547 and
did
not
comply
with the 	requirements of
California
Administrative
Code,
	title
	8,
	section
37020.
2
On
October 23, 	1978,
	Mr, 	Kimmett
	filed
	another
	document
	incorporating
his
	first
	letter
	and
	setting forth certain facts 	required by
PERE
Regulation section
37020.
lEereafter 	referred to as 	"EERA",
	Educational
Employment
Relations
Act or 	"the Act."
2
aereafter 	all
	references 	to
California Administrative
	Code
	are
referred
	to as
	"PERB
Regulation section
___
	"

Mr. 	Kir.lmet-:: complains 	t:iat the Los Angeles Ccmmunity College
District violated EZR.-\ Article 8, 	section 3547 (e) 	by adopting 	its
1978-1979 budget at a meeting on August 30, 	1978, 	at 1:30 P.M. 	when
only 13 persons were present.
E.E.,qA section 3547 ~t. ~eq. 	provides in relevant part:
3547. 	(a) 	All initial proposals of
exclusive representati~1es and of public
sc..~col employers, 	which relate to ~atters
within the scope of representation, 	shall be
presented at a public meeting of the public
school employer and thereafter shall be
public records ••••
(e) 	The Board may adopt regulations 	for 	the
purpose of implementing this section, which
are consistent wit:i the 	intent of tbe
section; 	na.~ely, 	that the public be infor:ned
of t..~e 	issues that are being negociated upon
and have a 	full opportunity to express 	their
views on tne 	issues 	to the public school
employer, 	and to know of the positions of
their elected representativ~s.
PERS 	regulations provide a procedure for 	filing, 	processing
and review of complaints which allege violation cf EERA,
section 3547. 	In relevant part the regulations state:
37010, 	Filinq of Comolaint. 	A complaint
alleging that an employer or an exclusive
representative has 	failed 	to comply with
Government Code section 3547 may be filed in
the appropriate regional office by any
individual who 	is a resident oft.he school
district involved 	in the complaint or who is
the parent or guardian of a student in the
school district or 	is an adult student 	in
the district ..•••
2

37070.
	Obliqations
of
	the
Regional
Director.
(e)
	If
	the
	complaint
fails
	to
state
a
prima
facie violation of
Government Code
section
3547 and
	cannot
be amended
	to
state
a
prima
facie
	violation,
	the
Regional
Director
	shall
dismiss the complaint.
	A
copy
of
	the complaint
	and
	the
	letter
of
dismissal
shall
be
	served
on
the
	employer
and
the exclusive
	representative
by theRegional
Director
••••
DISCUSSION
The
complaint
alleges
	that
Los
Angeles
Community
College
District
adopted
an
	annual budget
without
complying
with the
requirements
of
EERA
subsection
3547(e). 	Subsection 3547(e),
however,
	is
	not
	a
section
which
sets 	forth rights
	and
obligatio~s of
persons or
entities
covered by the
Act.
	Rather,
this
	subsection
merely
permits
PERB
	to
	adopt
rules
	and
regulations
	to
	implement
	the public notice provisions of the
EEAA.
	Subsection
3547(e)
	further 	sets
	forth
	the
	intent
of
	the
Legislature
	in
adopting
section
3547, 	namely:
	"that
	the
public
be
	informed
of
th~
	issues
	that~
being
neqotiated
.::!.P2!2
and
have
	a
	full
opportunity to express
	their
	views
••••
"
·
[Emphasis
	supplied.
J
Assuming
	that
	the complaint
had been
filed
	under 	a
subsection of section
3547 which
governs
public school
employer
conduct
and assuming
	that
	the
	Los Angeles Community
College
District
had adopted
	its
	budget without following 	the
3

procedures outlined 	in ~~is section of the Act, 	still no pri~a
facie violation could be found. 3
The E2R.~ is 	limited in sco?e. 	The purpose of the rlCt is 	to
"improve personnel management and employer-e~ployee relations
wit.l-iin the public school systems in the ,State of California by
providing a uniform basis for 	recognizing the 	right of public
school employees 	to join organizations of their own choice, 	to
be represented by such organizations 	in their professional and
employment relationships with public school employers, 	to
select one employee organization as 	the exclusive
representative of 	the employees 	in an appro9riate unit, 	and to
afforj certificated e~?loyees a voice 	in the formu:aticn of
educational policy." 	(California Government Code section 3540.)
Thus, 	the Act does not purport to 	regulate every aspect of
the public school employer's conduct. 	Rather, 	the ZE..~~
regulates certain conduct by public school employers and
exclusive representatives concerning employer-employee
relations.
3The complaint 	in this matter 	is technically deficient 	i~
some particulars. 	However, 	as sho•,m below, 	the complaint dces
not state a prima facie case and cannot be amended to do so.
Therefore, 	the Complainant will not be asked to go through an
exercise of futility in amending 	~,e complaint.
-
4

Article 8, 	section 3547 of the EERA entitled 	"Public
Notice" 	requires 	that public school employers and exclusive
representatives ensure 	that the puqlic be 	informed of ninitial
contract proposals" and "new subjects of meeting and
negotiating arising after 	the presentation of initial
proposals. 	11 	(California Government Code section 3547(a)
and 	(d)) •
Except for 	initial contract proposals and new subjects of
meeting and negotiating, 	the EERA does not require 	that the
public be informed of subsequent contract proposals or even
final agreements let alone unspecified matters which may be
considered at a public school board meeting. 	The Legislature
was 	careful to 	limit the degree to which,govern.~ent would
intrude 	into the affairs of the public school employer
especially at 	its public board meetings.
By his complaint, 	the Complainant seeks 	to have the public
notice requirements of the EERA apply to the adoption of an
annual budget by a school district. 	Arguably, 	the Complainant
would have the public notice provisions apply to every
deliberation of the school district. 	This 	is simply not the
law. 	The Act 	is clear and unambiguous. 	The only business of a
public school employer 	subject to the public notice provisions
of EERA, 	section 3547 and the scrutiny of this agency relates
to 	initial co.ntract proposals or 	initial proposals on new
subjects of meeting and negotiating, 	While an annual budget
might relate 	in some tangential way to an employer's position
in bargaining, 	so might a plethora of other 	items of discussion
5

throughcut	
~~e
year.
	~he
Legislature
did
not
	intend to
open
	to
public
debate
	and
PERS
	review
every
item
of
business
which
might
	relate
	to
collective
bar;ai:1ing
	agre<E:ment.s.
	To
do
so
would
	transform
	this
	agency
frcm one
	entrusted
with
	limited
jurisdiction
over
	employer-employee
relations
	into
	the
conscience
of
public schcol
employers
and
exclusive
representatives.
CONCLUSION
For
	the 	reasons
	set
	fort.~ above,
	I
	find
	that
	the Public
Employment
Relations
3oard
	is
	without
	jurisdiction
	to hear
	a
com~laint
based
on
	the
	failure
of
a
public
school
employer
	to
comply
with
	the
provisions of
EERA
section
	3547 when
	adopting
an
	annual budget;
	and
	further, 	that
	the
complaint
	fails
	to
state
	a
cause
	of action
	under
	section
3547
	of
	the
EEAA.
ORDER
It
	is
	hereby
crdered
	that
	the complaint in
	this
matter
	is
dismissed with
prejudice.
Pursuant to California
Administrative
Code,
	title
	8,
section
37030(e),
	Complainant
may
appeal
	this
	dismissal
by
filing
	written exceptions with the
Board
	itself
at
	923
	12th
St=eet, 	Suite
	201, Sacramento,
	CA
	95814
	within seven
	(7)
calendar
	days 	following 	the date of receipt of
	this
	order.
	The
exceptions shall
be accompanied by a
proof of service of the
docu::-:ent upon 	the public school employer 	and
	the
Regiona_l
Director.
	The exceptions shall state the grounds upon which
the dismissal should be reversed.6

If
no
	exceptions are
	filed,
	the
	dismissal
shall
become
final
	at
	the
	end
of
	seven
	(7)
	calendar
	days.
Dated:
	November
	2,
	1978
7
Frances
A.
	Kreiling
Regional Director

September 	17,
	1978
TO:
	FRAN
	KREILING
FROM: 	JULES KIMME'IT
At
	the 	regular
	Board Meeting
	of 	the
	Los
	Angeles
	College
	Community
District
	of
	August
	30,
	1978
	THE ADOPrION OF THE
	1978-79
	BUDGET
W.AS
HELD
	BEFORE
	THE
	GRAND
	AND
	COLOSSAL PRESENCE
OF
	EIGHTEE.J.'T
	(18)
	PEOPLE.
On
	July
	ZS, 	1976
	by
	a
	motion
	of
	the 	Trustees
	of
	6
	to
	1
	in
	favor
	of
holding 	the
	annual budget
	hearings
	beginning
	at
	7:
00
	P.
	M.,
	at
	night
so
	that
	a
	greater
number
	of
	citizens
	could be	
involved
	to
	participate
and
	express
	their
views
	and
	feelings.
	On Monday
	August
	2,
	1976
	a
public
	hearing 	of
	the
	budget
	was
	held
	starting
	at
	7:00
	P.
	M., 	and
ending
	at
	12:
10
A.
	M., 	,;nth 	over
	forty-five
	(45)
	speakers 	proclaiming
their
views
	and,opinions
	on
	the
	budget.
This 	year 	the
	Board
	saw
	fit
	to 	deliberately flout
	and
	flaunt
	the
	will
of 	the
	people
	and
violate 	their
	basic
	constitutional 	rights
	guaranteed
by
	the
	First
	Amendment 	by
	holding 	the 	meeting
	of
	August
	30,
	1978
	at
1:30
	P. 	M
..
This 	arrogant
	and
	arbitrary action
was
	indicative 	of
	a
	callous 	indif-
ference
	deliberately
	designed
	to
	ignore,
blatantly 	disregard
	to
	render
the
	will
	of 	the
	people 	impotent,
	ineffective
	and
	to
	strip
	them
	of
	their
right
	to
	participate 	in
	the
	most
	important
	subject
	critical
	to 	the
f:
1
nction
	of
	the
	colleges
	------
	OF
	SPENDING THEIR HONEY.
Article
	8.
	3547
	Sub-Section
	E ·
of
	;t:;he
	Californicy G9ternment
	Coder./
11
T.HE	
PUBLIC
	BE
	INFORL'1ED	
AfID	
HAVE
.E"'LJLL
jff
PORTIJNT'.T"V
/rO...EXPRESS 	THE'TP,. --~VID.JS.
11	
/ 	l 	/	
J.
	.:.+
J.
',
-:rm::ES 	K.Ll'll".!.t.J.J.
'\·lrite-In
	Candidate
	For
Governor
11
Chairman Concerned
	Citizens
Comroittee
	of
	Burbank
Shop 	Steward Local
	99 	SEIU11
C
11
Shift 	CustodiansLos 	Angeles 	Valley 	College	JK/ck
PLEASE 	REPLY TO .4.DDR.ESS 	BELOH
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Bc11ilanl(,	
G'l]j_f
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2344	
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NHliHCtt
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Cfin[nHC!.,11.,,,-::,::
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Pcrnt.sf"v. Sccre,t r.ryJ-
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n>:1Sttrcr
848
..
69!7 	&+5-33S6	
-~~
S-+5-5086
October
	20,
	1978
TO:
	FR.A...'Ii..
	F:RE.ILilTG
FROM:
	JULES 	KIMMETT
In Re:
	September 	17, 	1978
	LACCD
	violation
	and
	your
	re~.i...--::i	
OJ.~,;;:
Lette=
	for 	Revision
•
	-.j
c;::,
1.	
LA.CCD,
	2140 	Olympic
	Boulevard,
	Los
	Angeles,
	California
	90006.
2.	
Same
	as
	above
	in
	No.
	1.
3.	
The 	Board
	of
	Tr~stees, 	Chancellor
	Kaltai
	and
	the
	Adr;nistrationof 	the
	Los 	Angeles 	College.
District 	all
	at
	the
	same
	address.
4.	
Article
	8
	Section 3547(e).
5.	
Body
	of
	letter
	enclosed.
6.	
There
	is
	no
	policy	
to 	resolve
	issues 	except 	to 	ignore
	and 	indulge
in
	stonewalling, 	silence
	and
	the 	constant use 	of 	the
	Fifth
Amend-
ment.
7.	
Same
	as
	No.
	6.
8. 	There
	is
	no
	pending
	litigation.
In
	conclusion
	and 	summing
up
	the
	Powe-rs
	to
	be
	at
	the
	PL"'ZS
	have 	been
dragging
	their 	feet,
	and
	to 	those y{'ry	
Powers
	agatn 	I 	am
	delivering
	a
stern
	admonition
	that
	the
	LAW
	BE f)lt1PL=
(I
F'iJl
·	
71
	/ L 	.
""'·
JULES 	KD.lrlETT
"Write-In Candidate 	for
	Governorrr
Chairman Concerned
	CitizensCormuittee 	of 	Burbank
Sho-o 	Steward 	Local 	99 	SEru
"c11
·Shift 	CustodiansLos 	Angeles 	Valley College
:JK/ck
:--c
....
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