A Legal Advisory
from CTA
May 31, 2009

Second Round RIFS Legal and NODD Advisory

Although the March 15th RIF proceedings have only just concluded, many questions have been raised about the possibility of a second round of RIFS. This advisory is intended to answer some of those questions.

Can school districts proceed with a second round of layoffs of certificated employees after the March 15th RIF process? Yes but only if they satisfy three very specific conditions. The Education Code provides for second round reductions in force of certificated employees if three conditions are met: 1. The layoffs occur during the time period between 5 days after enactment of the Budget Act for a fiscal year and August 15th ; 2. The School District’s Board determines that its total revenue limit per unit of average daily attendance for that fiscal year will be less than 2%; and 3. The School District’s Board decides that, as a consequence, it is “necessary to decrease the number of permanent employees in the district.” Educ. Code 44955.5. The first two of these conditions have arguably been met in most school districts. California enacted a budget for the 2009-10 fiscal year on February 20, 2009, which means that the time period for second round layoffs is now open. In addition, under that budget, not only are most school districts slated to receive revenue limit increases of less than 2% but those numbers will likely fall further as well in the coming month after the Governor’s May Revision, which arguable satisfies the second condition for second round layoffs. The significant question that remains unanswered is whether school boards will determine that, as a result of the reduced revenue limits, it is “necessary to decrease the number of permanent employees in the district.” School districts are not currently in a position to make that determination because their budgets for next year will be significantly affected by the Governor’s proposed May Revision, the changes made by the Legislature to “balance” the 2009-2010 State Budget and the impact of the federal economic stimulus dollars. We expect that school districts will be in a position to make that determination by the end of June. Organizing efforts to prevent second round layoffs should focus right now on developing the arguments as to why, given the specific circumstances of your school district, layoffs of yet more certificated employees are not necessary due to the decreased revenue limits.

Have school districts ever proceeded with second round layoffs? Only rarely. Authority to proceed with second round layoffs was initially given to school districts in 1983. Since that time, only a few school districts have ever proceeded with second round layoffs and none have done so in the last several years. The fact that such layoffs have been so rare underscores that the second round layoff procedure is a very narrow exception to the usual March 15th layoff procedure.

If a school district decides to proceed with second round layoffs what procedures does the school district follow? The Education Code provides that school districts must follow the same basic procedure when conducting second round layoffs as they do in conducting March 15th layoffs albeit on a schedule set by the school board, which must conclude by no later than August 15th. The statute provides that school districts that want to proceed with second round layoffs are to adopt a schedule specifying when employees slated for layoff will receive notice of the proposed layoff as well as a hearing on the layoff. The statute does not set a deadline for this process to begin, but school districts should be urged to give employees as much advance notice of their plans as possible. At the very least, districts should be urged to send out any proposed layoff notices by the end of June, with hearings to follow by early August, proposed ALJ decisions to the school board by no later than August 7th, and final decisions by the school board and notifications of employees by no later than August 14th (as the 15th falls on a Saturday).

Can a school district use the second round layoff process to relitigate issues it lost in the March 15th RIF process? Because the grounds for second round layoffs are different than the grounds for March 15th layoffs, second round layoff hearings should not be identical to the March 15th RIF hearings. Rather, the second round layoff hearing should focus on whether or not the district can shown that it is “necessary” to reduce certificated employees due to decreases in the revenue limits that occurred after the March 15th layoff window closed (districts should have proceeded with RIFS due to any decreases in revenue limits that they knew about before the March 15th layoff procedure through that procedure). This financial necessity issue could not have been litigated in the March 15th RIF proceedings both because it is not a ground for March 15th layoffs and because the additional reduction in revenue limits had not yet occurred. If the district can show such a financial necessity, the hearing will then turn to whether or not the district has complied with the seniority preference in Education Code 44955, by retaining more senior employees who are certificated and competent to render a particular service unless the district can demonstrate a specific need for staff to teach a specific course or course of study, and that a more junior employee has the “special training and experience necessary to teach that course or course of study” that the more senior employee lacks. Educ. Code Sec. 44955(3)(a). This is the same issue that was litigated in the March 15th RIF hearings and the outcome of those prior hearings on these issues will certainly be persuasive authority to the administrative law judges hearing second round layoff challenges. The prior administrative outcomes of those hearings, however, will not bind either side in the second round layoff hearings as they do not reflect a final court adjudication of those issues.

If a school district proceeds with second round layoffs, what is the process for securing legal representation for members in those hearings? CTA will handle any second round layoffs the same way that it handles March 15th layoffs. Field staff with primary responsibility for a particular chapter should notify the CTA Legal Department if, and when, they learn that a district will proceed with second round layoffs and the number of layoffs expected. CTA will pay up to $5,000 for a GLS attorney to represent the members of the chapter who are notified that they are subject to layoff with the understanding that the chapter will pay half of any remaining outstanding balance due to the attorney subject, of course, to an appeal to CTA to pay some or all of any such outstanding balance. As has long been the case, field staff is free to select the GLS attorney that they would like to handle the second round layoff process subject, of course, to that attorneys’ availability. If field staff does not select an attorney to handle the layoff, the CTA Legal Department will do so. Staff and members must understand that the legal representation that CTA can provide in layoff hearings is necessarily limited to ensuring that school districts meet their burden of showing that the layoffs are necessary under the Education Code and that, in those instances in which the layoff does not proceed in seniority order, such skipping is justified under the Education Code.