Wong v. San Francisco Bd. Of Ed.

Filed 9/28/06 Wong v. San Francisco Bd. Of Ed. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Petitioners Alan K. Wong, Tami Bryant, Jacques Fitch, and Jeremiah Jeffries appeal from a judgment denying their petition for a writ of mandate seeking to invalidate the employment contract between respondents San Francisco Board of Education (Board) and Arlene Ackerman, the San Francisco Unified School District (SFUSD) superintendent. They contend that the contract was made in violation of Education Code[1] section 1209 because the issue of increasing Ackerman’s salary was not first discussed at a regularly scheduled public meeting. We affirm because section 1209 is inapplicable to this action inasmuch as Ackerman’s contract is governed by sections 35032 and 35124.

I. FACTUAL BACKGROUND

In June 2000, the Board hired Ackerman as the superintendent of SFUSD for the term beginning August 1, 2000, and ending June 30, 2004. The contract set forth that Ackerman was to “serve as the Chief Executive Officer and Secretary of the BOARD, in charge of all educational and financial matters pertaining to the administration and operation of the DISTRICT, pursuant to California Education Code Section 35035.” The contract between the parties was subsequently modified several times providing for increases in salary and extending the contract term to June 30, 2007.

In November 2004, the Board contemplated further modification of Ackerman’s contract. Accordingly, on November 11, 2004, the Board noticed a special meeting to discuss the issue of Ackerman’s contract. A notice of special meeting and agenda was prepared and posted at SFUSD offices and on its Web site, as well as faxed to media outlets and organizations including United Educators of San Francisco, United Administrators of San Francisco, Coleman Advocates for Youth, and Local 790.

The Board conducted the special meeting on November 12, 2004. All seven Board members were present. The Board considered public comment on the proposed addenda to Ackerman’s contract including comments by petitioners Wong and Jeffries. The Board voted to approve the addenda by a vote of four to three. In particular, the addenda extended Ackerman’s contract term to June 30, 2008, increased her annual salary to $250,000, and provided for a severance package of 18 months salary in the event of a determination by the Board or Ackerman that they could no longer work compatibly with each other for the benefit of the SFUSD. Petitioners subsequently made no demand to the Board to “cure or correct” the November 12, 2004, action.[2]

On June 22, 2005, petitioners filed a petition for a writ of mandate seeking invalidation of Ackerman’s contract. They alleged that the Board and Ackerman violated section 1209 because Ackerman failed to submit the issue of the addenda to her contract at a regularly scheduled public meeting. On August 17, 2005, the trial court denied the writ, finding that section 1209 did not apply to the Board’s approval of an employment contract with its district superintendent.

In December 2005, Ackerman tendered her resignation. On February 14, 2006, at a regularly scheduled public meeting, the Board reviewed Ackerman’s contract in light of her resignation and approved additional modifications.II. DISCUSSION

Petitioners contend that the Board’s action in approving the November 2004 addenda violated section 1209 because the matter was not first addressed at a regularly scheduled public meeting. They argue that section 1209 is applicable to this case because Ackerman is a “county” superintendent. We conclude, as did the trial court, that section 1209 does not apply to Ackerman, a district superintendent. Rather, her employment contract is governed by sections 35032 and 35124.

A. Legislative Scheme

The Legislature has established two separate statutory schemes to govern school superintendents. First, the California Constitution provides for the election or appointment of a superintendent of schools for each county. (Cal. Const., art. IX, § 3.) A county superintendent has distinct and broadly delineated statutory powers and duties. (Ed. Code, § 1240 et seq.) Second, the Education Code provides for the employment of a district superintendent by certain districts. In particular, section 35026 provides that “[t]he governing board of any school district employing eight or more teachers may employ a district superintendent for one or more schools and may delegate to the district superintendent any of the duties provided for in Section 35250.” In San Francisco, the SFUSD is a “Unified School District . . . under the control and management of a Board of Education.” (S.F. Charter, § 8.100.) Because the City and County of San Francisco and the SFUSD are coterminous, the Legislature has provided that the district superintendent “shall have all the powers and duties . . . for a superintendent of any school district of the class of school that is included within the unified school district and also shall perform the duties of the county superintendent.” (Ed. Code, § 35124.)

B. Section 1209

Section 1209 prohibits an elected or appointed county superintendent from increasing his or her remuneration without first bringing the matter before the county board of education for discussion at a regularly scheduled public meeting. It provides: “A county superintendent of schools shall not increase his or her salary, financial remuneration, benefits, or pension in any manner or for any reason without bringing the matter to the attention of the county board of education for its discussion at a regularly scheduled public meeting of the board and without the approval of the county board of education.” (Ibid.) The statute was enacted in response to an incident in Riverside County where an outgoing county superintendent of schools unilaterally made substantial increases to his remuneration and retirement benefits as well as to those of his top aides leaving a large gap in the education budget for the county. (See Sen. Com. on Education, Hearing Analysis of Assem. Bill No. 857 (1999-2000 Reg. Sess.) July 14, 1999, p. 3; Enrolled Bill Mem. to Governor on Assem. Bill No. 857 (1999-2000 Reg. Sess.) Sept. 22, 1999.)

Petitioners’ reliance on section 1209 presupposes that Ackerman is a county superintendent who was elected or appointed. Ackerman, however, is a district superintendent, employed by SFUSD, whose contract is approved by the Board. Under section 35032 the Board has the authority to increase Ackerman’s salary at any time during the school year, effective on any date ordered by the Board.[3] Section 1209, by its express terms, simply was not implicated.

Petitioners acknowledge that section 35124 is applicable to Ackerman because she is the superintendent of SFUSD, “a unified school district that is coterminous with the boundaries of a city and county.” They argue, however, that Ackerman is also a county superintendent because, pursuant to that section, Ackerman is also charged with performing the duties of the county superintendent. (§ 35124.) It is one thing, however, to be charged with performing the duties of a county superintendent and quite another to be granted the powers of a county superintendent--powers much broader than those of a district superintendent (see §§ 1240-1281), including the power to increase one’s own compensation, subject to board approval (§ 1209). Section 35124, in contrast, specifically provides that “[t]he superintendent shall have his or her compensation fixed and ordered paid by the board of education . . . .” Here, the Board fixed Ackerman’s compensation in accordance with the statute. (See also § 35032 [authorizing the board to increase a district superintendent’s salary “at any time during any school year”].) Ackerman did not unilaterally increase her compensation, as a county superintendent is entitled to do under section 1209 subject to approval by the county board of education. Instead, as an employee of the SFUSD, and not an elected or appointed official, her employment contract was governed by the provisions of section 35035.[4]

It is well settled that in interpreting a statute, the court’s role is to “ ‘ “ascertain the intent of the Legislature so as to effectuate the purpose of the law.” [Citations.] In determining the Legislature’s intent, a court looks first to the words of the statute. [Citation.] . . .

. . . [giving] the language its usual, ordinary meaning. [Citations.] If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.’ “ (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1245.)

Here, section 1209 expressly applies only to a county superintendent. Inasmuch as Ackerman was the district superintendent of SFUSD, section 1209 was not applicable to her contract. Petitioners claim that this interpretation runs afoul of the Constitution because the Constitution requires that every county have a county superintendent. (Cal. Const., art. IX, § 3.) Assuming the Constitution so requires, petitioners do not explain why that requirement is not satisfied by the legislative mandate that, in San Francisco, the district superintendent carries out the duties of a county superintendent.[5]

Petitioners’ reliance on People v. Babcock (1896) 114 Cal. 559 (Young) and People v. Babcock (1899) 123 Cal. 307 (Webster) for the proposition that Ackerman is a county superintendent is misplaced. Those cases were decided when the superintendent of San Francisco’s public schools was an elected or appointed official and before the enactment of section 35026 et seq. governing employment of district superintendents. (Young, supra, 114 Cal. at p. 559; Webster, supra, 123 Cal. at p. 307.) McKenzie v. Board of Education (1905) 1 Cal.App. 406, 409, cited by petitioners because it refers to the San Francisco superintendent of schools as a county officer is also inapposite. Indeed, McKenzie states that the superintendent’s duties were then prescribed by former Political Code section 1543 (Stats. 1895, ch. 65, § 1, pp. 60-62). (McKenzie, supra, 1 Cal.App. at p. 409.) The law, of course, has since changed with the Education Code setting forth the duties of a school superintendent. (See §§ 1240, 35124.) As a school district that is coterminous with the boundaries of a city and county, the SFUSD now employs a district superintendent pursuant to section 35026. The Board was authorized to increase her salary at any time during the school year. (§ 35032.) Section 1209, governing county superintendents elected or appointed pursuant to the California Constitution, article IX, section 3, was simply inapplicable.[6]

III. DISPOSITION

The judgment is affirmed.

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RIVERA, J.

We concur:

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REARDON, Acting P. J.

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SEPULVEDA, J.

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[1] Unless otherwise indicated, all further statutory references are to the Education Code.

[2] Government Code section 54960.1 provides that a person seeking to challenge the validity of an action taken by a legislative body of a local agency as in violation of the open meeting provisions of Government Code section 54954.2 [notice requirements for regularly scheduled meetings] must first make a written demand of the legislative body “to cure or correct the action alleged to have been taken in violation” (id., § 54960.1, subd. (b)) of the statute.

[3] Section 35032 provides: “Notwithstanding Section 35031, the governing board of a school district may at any time during any school year increase the salaries of any district superintendent of schools . . . without terminating the term of employment of, and reelecting or reemploying, such employee and such increase may be effective on any date ordered by the governing board.”

[4] Section 35035 sets forth powers and duties of a district superintendent.

[5] Were this insufficient, that is, if the Constitution required every county to have not just a superintendent that performs the duties of a county superintendent, but a superintendent with identical powers to all other county superintendents, then section 35124 and its related provisions would be at best superfluous and at worst unconstitutional. But petitioners have not challenged any portion of the statutory scheme, and do not argue that the delegation of county superintendent duties in section 35124 is constitutionally infirm.

[6] Because we decide that section 1209 does not apply to San Francisco’s superintendent, we need not decide whether petitioners’ action was rendered moot by the Board’s February 2006 resolution, nor whether the Ralph M. Brown Act (Gov. Code, § 54950 et seq.)--including its requirement that a party make a demand to correct or cure any Brown Act violation before filing a lawsuit (id., § 54960.1, subd. (b))--applies to petitioners’ action.