Current Regulations and the Executive Order
Title 5 of the California Code of Regulations require community college districts to “actively recruit from both within and outside the district work force to attract qualified applicants for all vacancies,” which includes all vacant full-and part-time openings in all job categories and classifications—classified, academic, categorical, administrative and managerial. (Cal. Code Regs., tit. 5 § 53021.) Regulations prohibit in-house or “promotional only” recruitment (where only existing district employees may apply for the position) to fill any vacancy, except on an interim basis for the minimum time necessary (but no more than two years) to allow for a full and open recruitment. (Cal. Code Regs., tit. 5, § 53021, subd. (b).) The regulations also describe a number of circumstances when a “vacancy” is not created. (Cal. Code Regs., tit. 5, § 53021, subd. (c).) These regulations also apply to merit system districts. (Cal. Code Regs., tit. 5, § 53027.)
However, on April 27, 2020, the Chancellor of the California Community Colleges issued Executive Order 2020-04 entitled “Temporary Suspension of Regulations Limiting Interim Appointments to Address the Continuity of Education in Community Colleges During the COVID-19 Declared State of Emergency.” The Executive Order addresses concerns from community college districts that the regulations governing interim appointments impose undue burdens during the COVID-19 pandemic, particularly because logistical obstacles to typical recruitment activities. A memo dated April 27, 2020, from the Chancellor’s Office of General Counsel that accompanied the Executive Order stated COVID-19 “has resulted in emergency conditions hampering hiring cycles, increasing uncertainty over enrollment levels and funding, and delivery methods for educational and student support. (OGC 20-06.)
As a result of these concerns, the Executive Order states:
Due to the existing state of emergency, strict adherence to section 53021, subdivision (b)(1), of title 5, of the Code of California Regulations, will impose barriers to the continuity of education services. The provisions of the subdivision which limit specific interim appointments, including “in-house or promotional” recruitments, to “the minimum time necessary to allow for full and open recruitment,” and prohibit such interim appointments from exceeding two years in duration, are hereby temporarily suspended, for the duration of the COVID-19 state of emergency or the expiration of Section 52020, whichever is earlier.
Application
Accordingly, if a district cannot conduct a full and open recruitment, it may fill a vacancy through an in-house or promotional only recruitment and select a current employee for the vacant position. The employee in the vacant position may remain in that position on an interim basis for potentially more than two years pursuant to the Chancellor’s Executive Order. The Executive Order does not change the limitations on any positions filled by a temporary, short-term, or substitute employee appointed pursuant to Education Code sections 87422, 87480, 87482.5(b), 88003, 88106 or 88109. The Executive Order does not suspend other recruitment requirements, such as the selection process of an employee for an interim position (Cal. Code Regs., tit. 5 § 53021, subd. (b)(1) and (2)) or the two-year limitation on administrators hired through a professional services contract (Cal. Code Regs., tit. 5 § 53021, subd. (c)(7)).
Despite the Chancellor’s Executive Order, Districts should also be mindful of the limitations placed on classified employees in out-of-class appointments under Government Code section 20480. This statute prohibits classified employees from working more than 960 hours in a fiscal year in an out-of-class appointment. An “out-of-class appointment” is an appointment of an employee to an upgraded position or higher classification by the employer or governing board to a vacant position during recruitment for a permanent appointment in the position. While the Chancellor’s Executive Order allows for interim appointments of more than two years, the Executive Order does not override state statutes.
Other Considerations
In addition to the suspension of regulations regarding interim positions, the Chancellor’s Executive Order also states:
Notwithstanding the regulatory relief granted by this executive order, college districts are strongly encouraged to exercise their discretion in favor of conducting full and open recruitment when circumstances permit during the COVID-19 emergency.
The memo from the Chancellor’s Office of General Counsel also states that “where possible, full and open recruitment should be conducted through remote communications, and social distancing where they are practicable.” (OGC 20-06.)
Therefore, to the extent possible, we recommend districts continue to follow the title 5 regulations regarding interim appointments and only rely on the flexibility created by the Chancellor’s Executive Order when the district is unable, due to reasons related to COVID-19 and during the COVID-19 Declared State of Emergency, to conduct full and open recruitment even with remote communications and social distancing.