STATE OF CALIFORNIA CALIFORNIA COMMUNITY COLLEGES CHANCELLOR’S OFFICE 1102 Q STREET SACRAMENTO, CA 95814-6511 (916) 445-8752 HTTP://WWW.CCCCO.EDU

December 11, 2002

Steve Bruckman, Esq. General Counsel Los Rios Community College District 1919 Spanos Court Sacramento, CA 95825

RE: Verification of Equivalency Criteria in Board Actions Pursuant to Education Code Section 87359 and Title 5, Section 53430(a) Legal Opinion L 02-28

Dear Mr. Bruckman:

In the course of our efforts to resolve a recent minimum conditions complaint, you suggested that the Los Rios Board of Trustees might satisfy the requirement for determination of equivalencies by making a generic declaration that it has complied with its equivalency procedures.

In connection with your proposal, we assessed what actions are necessary for districts to satisfy the requirements of Education Code section 87359 and California Code of Regulations, title 5, section 53430(a) regarding the verification of equivalencies to minimum qualifications for employment.

Education Code section 87400 provides in pertinent part that governing boards of community college districts may employ in academic positions only persons who possess qualifications prescribed by the Board of Governors. Education Code section 87356 requires the Board of Governors to adopt regulations that establish minimum qualifications for various types of service in the community colleges, including faculty service and service as an educational administrator. Education Code section 87359 requires the Board of Governors to adopt regulations that authorize districts to employ faculty members and educational administrators who do not meet the minimum qualifications.

Education Code section 87359(a) provides:

"No one may be hired to serve as a community college faculty member or educational administrator under the authority granted by the regulations unless the governing board determines that he or she possesses qualifications that are at least equivalent to the minimum qualifications specified in regulations of the board of governors adopted pursuant to section 87356. The criteria used by the governing board in making the determinations shall be reflected in the governing board's action employing the individual."

L 02-28 Steve Bruckman, Esq. 2 December 11, 2002

In response to Education Code sections 87356 and 87359, the Board of Governors adopted regulations that address both minimum qualifications for service as faculty and educational administrators, and the use of equivalencies when individuals lack the minimum qualifications established by Board regulations, but nevertheless possess qualifications that are equivalent to those regulatory minimum qualifications. The regulations appear in subchapter 4 of chapter 4 of division 6 of title 5 of the California Code of Regulations, and include sections 53400 through 53502.

Section 53430 of title 5 addresses equivalencies and provides as follows:

"53430. Equivalencies. (a) No one may be hired to serve as a community college faculty or educational administrator unless the governing board determines that he or she possesses qualifications that are at least equivalent to the minimum qualifications specified in this Article or elsewhere in this Division. The criteria used by the governing board in making the determination shall be reflected in the governing board's action employing the individual. (b) The process, as well as criteria and standards by which the governing board reaches its determinations regarding faculty, shall be developed and agreed upon jointly by representatives of the governing board and the academic senate, and approved by the governing board. The agreed upon process shall include reasonable procedures to ensure that the governing board relies primarily upon the advice and judgment of the academic senate to determine that each individual faculty employed under the authority granted by this Section possesses qualifications that are at least equivalent to the applicable minimum qualifications specified in this Division. (c) The process shall further require that the academic senate be provided with an opportunity to present its views to the governing board before the governing board makes a determination; and that the written record of the decision, including the views of the academic senate, shall be available for review pursuant to Education Code Section 87358. (d) Until a joint agreement is reached and approved pursuant to Subdivision (b), the district shall be bound by the minimum qualifications set forth in this Subchapter."

The foregoing section contemplates that the employing governing board will first make a determination of whether an individual seeking employment possesses qualifications that are at least equivalent to minimum qualifications. Nothing in the section prohibits the governing board from delegating the authority to make that assessment to an appropriate body or individual.

When faculty hiring is at issue, section 53430 requires the governing board to jointly develop and agree upon the process, criteria, and standards that will be used to assess equivalencies with the academic senate. The process must include assurances that the governing board will rely primarily on the advice and judgment of the academic senate that individuals possess qualifications that are at least equivalent to the minimum qualifications described in the

L 02-28 3 subchapter. We understand that districts have developed processes with their respective academic senates for the assessment of equivalencies for faculty minimum qualifications.

Section 53430 also describes the second step in the process: the requirement that the criteria used by the governing board (or its delegee) in making the equivalency determination be reflected in the board's action employing the individual who does not possess the actual minimum qualifications for employment, but who possesses qualifications that are at least equivalent. The action that is required of the board pursuant to section 53430 corresponds to the language of Education Code section 87359.

The language of both Education Code section 87359 and California Code of Regulations, title 5, section 53430 clearly requires that the board disclose the criteria used for each individual who is being employed on the basis of equivalencies. You have suggested that the requirements of these sections may be met by a notation on each board agenda that any persons who are hired on the basis of equivalencies have been properly assessed for such equivalencies. This approach, however, is not consistent with the plain language of the section that requires a disclosure when "employing the individual." A generic declaration of compliance fails to identify either the criteria used or the individual being employed and would not satisfy either section.

At a minimum, the criteria relied upon must be included in the board action. Because a district may establish criteria which permit demonstrating equivalency in various ways, the governing board's employment action must reflect the particular way in which the criteria were satisfied in a given case. For example, if a person claims the educational equivalency for a particular degree, he/she might be required to provide a transcript to demonstrate that he/she took courses equal to those needed for the major for that degree. Whatever the criteria used to establish the equivalency, that criteria must be reflected in the board action. Nothing in the statute or regulation indicates the specificity of information that is necessary, but it is reasonable to assume that the board action would at least indicate that the person met minimum qualifications through equivalent coursework, for example.

Additionally, both the Education Code and title 5 implicitly require that the board's action identify the individual who is being hired on the basis of equivalencies (". . . the determination shall be reflected in the governing board's action employing the individual." Emphasis added.) Accordingly, it is not enough for a district to merely verify that it has applied its equivalency process; that is a basic requirement in any event. The relevant sections require a verification of the particular criteria relied upon to hire a specific individual on the basis of equivalencies.

Sincerely,

Ralph Black General Counsel

RB:VAR:sj L 02-28 cc: Fusako Yokotobi, Vice-Chancellor Human Resources