Martinez v. Bd. of Trustees of the VenturaCountyCommunity College Dist.

Filed 6/26/07 Martinez v. Bd. of Trustees of the Ventura County Community College Dist. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or

a ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Rita Martinez and Raymond Brie, former academic administrators for the Ventura Community College District, appeal from the judgment entered against them on their petition for writ of peremptory mandate. Appellants seek reinstatement on the grounds that their terminations were invalid. They were terminated by notice from Chancellor Phillip Westin.

Appellants contend that respondent Board of Trustees of the Ventura Community College District could not validly delegate to Chancellor Westin the board's duty to give notice of intent not to re-hire pursuant to section 72411 of the Education Code.^[1] We disagree and affirm.

FACTS

Martinez and Brie both served as educational administrators^[2]through academic year 2000/2001. The district hired Rita Martinez in October of 1997 as an Economic Development Coordinator for the academic year 1997/1998. The district re-hired Martinez for academic years 1998/1999 and 1999/2000, as Director of Economic Development and Grants and Contracts at Oxnard College. The district hired Dr. Raymond Brie as Dean, Instruction/Innovation for academic year 1998/1999, and re-hired him in the same position for 1999/2000. Appellants' employment contracts were signed by Chancellor Westin.

The district did not re-hire Martinez or Brie for academic year 2000/2001, but their employment continued by operation of law through June 30, 2001, because they had not been notified of intent not to re-hire by March 15, 2000. ( 72411.) Chancellor Westin explained the continuing employment by operation of law to Martinez and Brie in letters dated June 13, 2000.

On March 12, 2001, Chancellor Westin wrote letters to Martinez and Brie notifying them of intent not to re-hire for 2001/2002. In those letters, he wrote, "Following up on my letter to you dated June 13, 2000, this will serve as notice that your employment with the District will terminate effective June 30, 2001."

ANALYSIS

Every community college district in California is under control of a board of trustees, referred to as "the governing board." ( 70902.) The governing board has the power and duty to employ and assign personnel, and to establish employment practices, not inconsistent with state law. (Id., subd. (b)(4).)

In 1999, the governing board of the Ventura Community College District delegated to the Chancellor certain personnel responsibilities, including hiring, termination and contract extension. (Resolution dated September 14, 1999, "Resolution Regarding Evaluation of Chancellor and Division of Responsibilities between Board and Chancellor on personnel issues.") The board reserved to itself governing powers and fiduciary responsibilities, and delegated to the Chancellor management powers. The board reserved the responsibility to make decisions granting tenure, to establish new positions, and to increase or decrease compensation and benefits. It "expressly delegate[d] to the Chancellor all other personnel decisions, including but not limited to those relating to hiring, termination, evaluation, salary placement, formal or informal discipline, change to permanent status of classified employees, assignment, reassignment, reclassification, establishment or modification of job duties, contract extension, and resignation."

Educational administrators serve by contract or appointment. ( 72411.) In order to terminate an educational administrator's employment, the governing board of a community college district must give notice of intent not to re-hire by March 15. (Id., subd. (b).)

The notice of intent not to re-hire in this case was given by the Chancellor, and not by the governing board directly. Section 72000, subdivision (d)(3) provides that "[e]xcept as otherwise provided by law, the governing board shall act by majority vote of all of the membership constituting the governing board." Section 70902 provides that the governing board may act by delegating its powers, so long as the power is not "expressly made nondelegable by statute." (Id., subd. (d).) Neither section 70902 nor section 72411 are "expressly nondelgable" by their terms. Thus, the governing board's personnel powers under section 70902, subdivision (b), and its duty to give notice of intent not to re-hire under section 72411, are both delegable pursuant to section 70902, subdivision (d), so long as delegation is consistent with state law.

The decision to reemploy is a matter of board discretion. Discretionary functions cannot be surrendered or delegated to subordinates in the absence of statutory authorization. State law prohibits delegation of discretionary functions absent statutory authority. (American Federation of Teachers v. Board of Education of Pasadena (1980) 107 Cal.App.3d 829, 834.) In American Federation of Teachers, a K-12 district was not authorized to delegate its powers and duties to accept a school teacher's resignation to its superintendent. "Having found no express statutory authorization for delegation of the duties and powers conferred upon the Board . . . validity depends upon whether it delegated to the superintendent a discretionary or ministerial function." (Id. p. 837.) The acceptance of the resignation was a ministerial act, and the delegation was held valid. In our case, express statutory authorization for delegation is found in section 70902, and the board's delegation was valid whether or not the act was ministerial.

Jenkins v. InglewoodUnifiedSchool Dist. (1995) 34 Cal.App.4th 1388 does not control. Section 35031 requires that the governing board of an elementary or secondary school give 45 day notice to an assistant superintendent prior to termination. In Jenkins, the superintendent gave notice of termination to an assistant superintendent without any prior approval or delegation of authority by the governing board. Board ratification after the fact was insufficient. The Jenkins court did not consider whether the board's duties could be validly delegated, because there was no attempt to do so. Here, by contrast, there was a board resolution in 1999 expressly delegating personnel powers and responsibilities to the Chancellor. That delegation was expressly authorized by statute and was consistent with state law.

The judgment is affirmed. Costs are awarded to respondent.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Henry J. Walsh, Judge

Superior Court County of Ventura

______________________________

The Torgow Law Firm and Martha A. Torgow for Plaintiffs and Appellants.

McCune & Harber, Louis E. Marino and Mampre R. Pomakian for Defendant and Respondent.

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^[1]All statutory references are to this code unless otherwise stated.

^[2]An administrator is a "person employed by the governing board of a community college district in a supervisory or management position" ( 87002, subd. (a)), and an educational administrator is "an administrator who is employed in an academic position designated by the governing board of the district as having direct responsibility for supervising the operation of or formulating policy regarding the instructional or student services program of the college or district. Educational administrators include, but are not limited to, chancellors, presidents, and other supervisory or management employees designated by the governing board as educational administrators." (Id., subd. (b).)