Education Code section 87458 provides a community college administrator who does not have tenure as a faculty member in the same district, and who is not under contract in a program or project to perform services to public or private agencies, with the right to become a first-year probationary faculty member once his or her administrative assignment expires or is terminated (assuming specified requirements apply). This section is silent, however, regarding the salary payable to the former administrator who accepts a position as a first-year probationary faculty member.

The California Court of Appeal recently held such an employee is subject to the salary provisions of the collective bargaining agreement negotiated between the community college district and the faculty’s exclusive representative. Moreover, the negotiated agreement takes precedence over an employee handbook with a seemingly conflicting provision. (Hott v. College of the Sequoias Community College District (September 6, 2016) 2016 WL 4611056.)

Hott’s administrative position with College of the Sequoias Community College District (COS) was eliminated due to budget cuts. Hott had served as an administrator for 15 years, but never in a faculty position with COS. Pursuant to Education Code section 87458, COS offered Hott a first-year probationary faculty position. When Hott inquired about her new salary, the Dean of Human Resources initially said he thought her pay would remain the same. Hott was not provided with written confirmation of her new salary until after her reassignment was approved by the COS governing board. Under the collective bargaining agreement between COS and its faculty association, Hott was placed on the salary schedule as a first-year probationary faculty member, and given credit for the maximum of five years’ occupational experience. The resulting compensation was substantially lower than her administrator salary. Hott accepted the position, then filed a lawsuit alleging she was placed on the wrong step because she should have received full credit for her administrative experience, as required by a handbook for administrative employees. The trial court ruled in Hott’s favor, but the Court of Appeal disagreed.

COS argued that Hott was required to proceed through the Public Employment Relations Board (PERB) unfair labor practice charge process, and failing to do so she did not exhaust her administrative remedies. The Court rejected this argument, holding the improper placement of a teacher on the salary schedule is not an unfair practice under Government Code section 3543.5. Therefore, Hott was not required to exhaust the unfair labor practice charge process prior to filing a civil action for declaratory relief.

Hott argued that a Management Council handbook controlled her salary placement. The handbook indicated that a management employee who was reassigned to a non-management position would be granted year-for-year employment credit on the salary schedule. However, the handbook also included an appendix for administrator return rights that did not address seniority rights or salary placement, but did indicate the employee had the right to become a first-year probationary faculty member if the employee was not previously tenured at COS. In contrast, the negotiated agreement, which bound COS and its faculty members, stated newly hired faculty members would be given occupational experience credit, not to exceed five years, for initial step placement. The agreement also stated, "The retreat rights of an administrator never employed in a regular or contract faculty position at COS shall be determined by law." The court held that under both the handbook and agreement, an administrator’s retreat rights were determined by law.

The court held that although section 87458 does not explicitly address seniority rights or salary placement, it implies a former administrator will be treated the same as any other first-year probationary faculty member, including a corresponding placement on the salary schedule. As the agreement directly addressed the salary placement of a first-year probationary faculty member with occupational experience, and Hott was subject to the terms of the agreement as a faculty member, the agreement controlled her placement.

The court’s ruling emphasizes reliance on statutory and collectively bargained terms and conditions of employment. The handbook could not override the implication of section 87458, or the express language of the collectively bargained agreement. When reducing an administrator to a teaching assignment, community college and K-12 districts must comply with applicable statutes and negotiated agreements when placing the employee on a teaching salary schedule. The administrator should receive early written confirmation of the salary schedule placement in the new position to avoid arguments like those in the Hott case that the employee detrimentally relied on an assumption that the compensation would remain the same.