Fremont Unified School District (PERB 2397E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
FREMONT UNIFIED SCHOOL DISTRICT,
Employer,
and
FREMONT UNIFIED DISTRICT TEACHERS
ASSOCIATION, CTA/NEA,
Exclusive Re resentative.
Case No. SF-UM-721
PERB Decision No. 2397
November 14, 2014
Appearances: Dannis, Woliver & Kelley by Tami F. Essis Culkar, Attorney, for
Fremont Unified School District; California Teachers Association by Diana S. Reddy,
Attorney, for Fremont Unified District Teachers Association, CTA/NEA.
Before Huguenin, Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions by the Fremont Unified District Teachers
Association, CTA/NEA (Association) to a proposed decision (attached) by a PERB
administrative law judge (ALJ) denying the Association's petition to add Behavioral
Intervention Specialists (BIS) to the certificated bargaining unit. The ALJ concluded
that BIS were not "certificated employees" within the meaning
of
section 3545(b )(3)
of
the Educational Employment Relations Act (EERA), and therefore could not be added
to the certificated unit.1
The Board has reviewed the proposed decision and the record in its
consideration
of
the Association's statement
of
exceptions and the response thereto by
1 EERA is codified at Government Code section 3540 et seq. Section 3545(b)(3)
provides: "Classified employees and certificated employees shall not be included in the
same negotiating unit."

the Fremont Unified School District (District). The factual finp.ings
of
the proposed
decision are supported by the record. Accordingly, the Board adopts the findings
of
fact and hereby affirms the proposed decision in accordance with the following
discussion and consideration
of
the Association's exceptions.
FACTUAL SUMMARY
The facts
of
this case are not in dispute and we summarize them briefly for
purposes
of
the following discussion.
Behavior Intervention Specialists
The BIS are trained to assist special education teachers and other educators in
developing techniques to discourage disruptive behavior by special needs students. In
this District, the BIS act as Behavioral Intervention Case Managers (BICM), specially
designated professionals who are authorized to develop behavioral intervention plans.2
Prior to 2008, school psychologists performed BICM duties in the District,
however, this practice has recently been discontinued in favor
of
BIS acting as BICM.
The Education Code requires that a FAA is performed only by BICM. At present,
however, the District permits only the BIS to perform FAAs (and so act as BICM).
BIS indirectly help special education students by devising behavior plans that
address disruptive behavior. In some cases, this may mean conducting assessments and
creating behavior intervention plans using a process known as functional behavior
2 A BICM is a designation that was created under the Hughes Bill (Ed. Code,
§§ 56520-56525) to identify specific people within a school district who possess
training in behavior analysts and are able to complete a functional analysis assessment
(FAA)
of
special needs students. Being designated as a BICM allows an individual to
complete F AAs and develop a behavior intervention plan.
2

analysis.3 Functional behavior analysis involves observing the student's negative
behavior and defining it in concrete terms; identifying why the behavior is occurring,
when it occurs and for how long; and attempting to find a positive behavior to replace
the negative behavior.
As described in greater detail in the proposed decision, the BIS work in the
Special Services (Special Education) Department at the District, and interact primarily
with certificated employees (i.e., special education teachers) and classified para-
professional classroom aides. The BIS do not work directly with students, except
briefly to observe their behavior and to model for teachers the techniques the BIS
suggest as part
of
their behavior improvement plans.
BIS perform a variety
of
tasks including drafting behavior intervention plans for
students, reviewing behavior emergency reports, making phone calls and various other
office tasks.
Whether a BIS services are necessary in a particular circumstance depends upon
a number
of
factors. Typically, the BIS is called in to address a behavior that impedes
the student's access to the services identified in his or her Individual Education Plan
(IBP). The BIS will work with the student's case manager and the school psychologist
to develop a behavior support plan (BSP).
When the BIS is first assigned to a case, he or she will conduct an independent
evaluation
of
the student's behavior that includes direct observation
of
the student,
review
of
previous unsuccessful BSP, and interviews with staff and parents as well as
any other specialists assigned to work with the student. In some cases, the BIS may
3 A functional behavior analysis is the diagnostic tool used when a student's
behavior impedes his or her learning under 20 United States Code (U.S.C.)
section 1414(d)(3)(i).
3

determine that a new plan is not needed, but rather, that the staff members need to
be
re-trained
on.
the implementation
of
the existing plan. In other cases, a new plan will be
developed
by
the BIS. In either case, the BIS will train staff members who work with
the student to implement the chosen plan.
A BIS may also be assigned to a particular case when a student exhibits one
of
the behaviors identified in the California Education Code as "serious.',4 To address
serious behaviors, the District is required to complete an FAA. State law requires
specialized training in order to conduct an FAA. 5 Once an employee has been trained
in FAA, s/he is qualified under state law to serve as a BICM and to complete a behavior
intervention plan. The behavior intervention plan differs from the BSP in length and
complexity. While any certificated employee may complete a BSP, only BICM may
complete behavior intervention plans. Although there are several certificated
bargaining unit members who are qualified to act as BICM, the District currently
permits only BIS to work as a BICM on a particular case.
There are three BIS included in the Association's unit modification petition.
One
of
them was formerly a school psychologist and has a Pupil Personnel Services
(PPS) credential. The other two do not have any license or credential issued by the
California Commission on Teacher Credentialing (CTC). Instead, they are licensed as
Board Certified Behavior Analysts (BCBA)
by
the Behavior Analyst Certification
4 "Serious behavior problems" are defined as "behaviors which are self-
injurious, assaultive, or cause serious property damage and other severe behavior
problems that are pervasive and maladaptive for which instructional/behavioral
approaches specified in the student's IEP are found to be ineffective." (Cal. Code
Regs., tit. 5, § 3001(aa).)
5 See California Code of Regulations (CCR), title 5, section 3052(b).
4

Board (BACB), which is a professional association for behavior analysts, not associated
with or regulated
by
the State
of
California.
The District does not require that its BIS have any credential or other license
which is issued
by
the CTC. The District's job description for the BIS lists as "licenses
and certificates" required for the job as: certification as a BCBA, Board Certified
Associate Behavior Analyst (BCABA) or pupil personnel credential. (Assn. Exh. 1.)
PROPOSED DECISION
The threshold issue considered
by
the ALJ was whether the BIS is a certificated
or classified position under the Education Code. Because BERA does not define either
"certificated" or "classified" and because PERB must occasionally interpret the
Education Code in order to enforce or effectuate the purposes
of
BERA, the ALJ turned
to the Education Code definitions to guide her analysis.
The ALJ relied on Education Code sections 44001 and 451046 to conclude that
the default classification for school district employees is "class.ified service." Thus,
based on her reading
of
PERB precedents, the ALJ concluded that there must be strong
evidence
of
the legislative intent for the position to be considered certificated before
PERB will include that position in the certificated bargaining unit. 	(Proposed Dec.,
p. 29.)
After reviewing relevant PERB decisions, the ALJ observed that there appeared
to be two methods for distinguishing between classified and certificated employees:
6 Education Code section 44001 defines a certificated position as "every type of
service for which certification qualifications are established by or pursuant to
Sections 44000 to 44012, inclusive, Section 44065, and Chapter 2 (commencing with
Section 44200) of this part." Education Code section 45104 defines as "classified" as
"[ e ]very position not defined by this code as a position requiring certification
qualifications and not specifically exempted from the classified service according to the
provisions of Section 45103 or 45256
...
;"
5

the position could either be certificated as a matter
oflaw
"based
on
the specific
identification
of
the position and its duties
by
the Education Code; or the position is
certificated as a matter
of
fact because the majority
of
the duties performed
by
the
incumbent are certificated duties under section 44065." (Proposed Dec., p. 32.)
The ALJ determined that the BIS in this District are not certificated as a matter
of
law, because the professional license the District prescribes as a qualification for the
job, the BCBA, is not a "certificate" or "credential" issued either
by
the CTC or a
county board
of
education. (Ed.
Code,§§
44001, 44004; Proposed Dec., p. 33.)
The BCBA permits its holders to perform the duties
of
the BIS
in
the District,
i.e., to perform behavior assessments and intervention services. (Ed. Code, § 56525.)
However, as the ALJ noted, Education Code section 56525 does not mandate that those
services-behavior
intervention and
assessments-be
provided only
by
a BCBA
holder. For these reasons, the ALJ concluded that there was no basis for finding that
the BIS were certificated ~mployees as a matter
oflaw.
(Proposed Dec., pp. 32-33.)
. The ALJ then turned to an analysis
of
whether the BIS were certificated as a
matter
of
fact, which required an analysis
of
whether their duties fell within the
definition
of
Education Code section 44065. That section provides that any school
district employee who works in a position in which 50 percent or more
of
his or her job
duties consist
of
"directing, coordinating, supervising or administering any or all
of
the
following functions shall hold a valid teaching or service credential." Following this
paragraph is a list
of
thirteen functions, including, "the work
of
instructors and the
instructional program for pupils," counseling and placement services, planning courses
of
study to be used in the public schools, the school health program, school library
services, etc. The ALJ analyzed each of the thirteen functions and concluded that the
6

BIS did not spend 50 percent
of
their time "directing, coordinating, supervising or
administering all
of
the above-described functions." Therefore, they were not
certificated employees as a matter
of
fact. 	(Proposed Dec., pp. 34-46.)
Finally, the ALJ noted the Association's claim that because the District
established the PPS credential as one
of
the licenses that would satisfy the minimum
eligibility requirements for the BIS position, the BIS are de facto certificated
employees. The Association urged that Education Code section 44066 supports its
view that even
if
the law does not require a credential,
if
the District required it, then
BIS are certificated. The ALJ determined that it was unnecessary to decide this issue,
as the appropriate unit placement is determined "based on the duties performed by the
incumbents
in
the position." (Proposed Dec., p. 48.)
POSITIONS OF THE PARTIES
The Association's Exceptions
The Association excepts to several legal conclusions, and urges several reasons
the Board should overturn the proposed decision. Not included in those reasons is any
claim that the BIS are required to hold a certificate, credential, life diploma, permit,
certificate
of
clearance or waiver issued by the CTC.
Instead, the Association argues that the ALJ erred in relying on Education Code
section 44065 to detern1ine whether the BIS are certificated as a matter
of
fact.
According to the Association, Education Code section 44065 applies only to managers
and supervisors, and its purpose was to determine under what circumstances managers
and supervisors needed to be credentialed, not whether rank-and-file employees needed
to hold a credential. According to the Association, PERB has previously applied
Education Code section 44065 to determine whether the position in question performed
7

any
of
the thirteen listed functions, not whether the employee "direct[s], coordinate[s],
supervise[
s]
or
administer[ s
]"
the functions. Yet the ALJ applied Education Code
section 44065 "exactly as written" and concluded that the BIS did not spend 50 percent
or
more
of
their time, "directing, coordinating, supervising or administering" any
of
the
enumerated functions and were therefore not certificated as a matter
of
fact. The
Association asserts that no non-managerial, non-supervisory employee will ever be
found to spend 50 percent
of
their time "directing, coordinating, supervising or
administering" the listed functions because rank-and-file employees do not supervise,
direct or coordinate. Therefore, according to the Association, the ALJ erred
in
using
Education Code section 44065 to analyze whether the BIS performed certificated
functions.
While conceding that the definitions
of
"certificated" and "classified" are absent
from EERA and therefore must
be
discerned from the Education Code, the Association
asserts that
in
passing the Hughes Bill, the Legislature intended that persons who
provide behavior intervention services are to be certificated. For this claim the
Association relies on CCR, title 5, section 3001(e), which describes the requirements
for the BICM, a position that has been replaced in the District by the BIS.7
The Association further argues that the Legislature intended to designate the
BCBA as an alternative form
of
certification. According to the Association, Education
Code section 56525, part
of
the Hughes Act, does not state that no credential is required
to provide behavior intervention services, but that the BCBA license qualifies the
holders
of
the license to perfonn the tasks assigned to the BIS in the District. This, in
7 The Association and the ALJ cited this as section 3001(-f). However, it was
subsection (e) that described staffing requirements and qualifications of the BICM. We
therefore refer to that regulation, CCR, title 5, section 3001(e) in this decision.
8

the Association's view, establishes that the BCBA is an alternate form
of
certification,
justifying including the BIS in the certificated bargaining unit. As Education Code
section 44006, which defines "certificated person," places no limitation as to the body
that issues a certificate, credential or life diploma, the Association asserts that the
BCBA should be considered a "certificate" that qualifies the BIS' inclusion in the
certificated tmit.
Finally, the Association asserts that the District requires BIS to be certificated,
and that
by
operation
of
Education Code section 44066, they are therefore certificated
for purposes under EERA. Because the District's qualifications for the BIS can be
satisfied either
by
a PPS credential
or
a BCBA, the Association argues that the Board's
decision in Stanislaus County Office
of
Education (1993) PERB Decision No. 1022
(Stanislaus) commands that positions for which certification is required
by
the school
employer must be deemed certificated. According to the Association, because one
of
the two ways
of
meeting the minimum qualifications for the BIS is a PPS credential
issued
by
the CTC, that should be sufficient to consider the position "certificated."
The District's Response
The District urges that the Board uphold the proposed decision, as it correctly
concluded that because the CTC does not require a person rendering behavior
assessment or behavior intervention services to hold a credential, the position
of
BIS is ·
not certificated. The ALJ applied the correct tests for determining whether a position is
certificated or classified, according to the District, including applying the purported
presumption that all positions in public school districts are classified. Moreover, the
daily tasks performed by the BIS do not require any credential, so the ALJ's analysis of
9

those tasks in light
of
Education Code section 44065 was correct, according to the
District.
Neither should the BIS position be considered certificated simply because one
of
the BIS happens to hold a PPS credential. According to the District, Education Code
section 45104 makes clear that a classified position does not convert to certificated
merely because an employee in the position happens to
be credentialed.
DISCUSSION
Education Code Definitions
of
Certificated Position or Employee
We agree with the ALJ's conclusions that the BIS are not certificated employees
within the meaning
of
the Education Code and that the BCBA was not intended to
substitute for a credential issued by the state.
Education Code section 44006 defines "certificated person" as one who holds
"one or more documents such as a certificate, a credential, or a life diploma, which
singly or in combination license the holder to engage in the school service designated in
the document or documents." Education Code section 44002 defines "credential" to
include a "credential, certificate, life document, life diploma, permit, certificate
of
clearance, or waiver issued by the commission."8 (Emphasis added.) Thus, we join
with the ALJ in concluding that in order for a position to be certificated, it must require
certification as defined by the Education Code. The BIS position in this District does
not require a certificate or credential. The position is therefore not certificated.
We reject the Association's claim that "certificate" is a broader term than
"credential." A "certificate" has a precise definition in Education Code
section 44004--it is a document issued by a county board of education to license the
8 "Commission" refers to the CTC. (Ed. Code,§ 44001.1.)
10

holder to perform the service specified in the certificate. A "'life diploma' is a
document issued on the basis
of
a credential upon completion
...
of
specified
requirements." (Ed. Code, § 44003.) The term "credential" is the broader category,
because
by
definition,
it
includes credentials, certificates, life documents, life diplomas,
permits, certificates
of
clearance or waivers issued by the CTC. (Ed. Code, § 44002.)
The point is that "certificated person" is one who possesses a credential or certificate
issued
by
some arm
of
the state, not a non-state actor such as the BACB.
Because the BIS position does not require a "credential," the ALJ was correct in
concluding that the BIS
in
the District are not certificated employees.
Licensing Requirements for the BIS
The ALJ concluded that nothing in the Education Code required a BIS to hold a
credential. Education Code section 56525, upon which the Association relies for its
assertion that the Legislature intended that BIS must be certificated, provides:
(a) A person recognized
by
the national Behavior Analyst
Certification Board as a Board Certified Behavior Analyst
may conduct behavior assessments and provide behavioral
intervention services for individuals with exceptional
needs.
(b) This section does not require a district, special
education local plan area, or county office to use a Board
Certified Behavior Analyst to conduct behavior
assessments and provide behavioral intervention services
for individuals with exceptional needs.
We agree with the ALJ that this section does not require BIS to hold a credential. Nor
do we find that this section designates the BCBA as a type oflicense that would permit
its holder to be considered "certificated" within the meaning
of
the Education Code.
By its plain tenns, Education Code section 56525 does not require the BIS to
hold a credential or any other type of license. Subsection (a) of 56525 is written
11

permissively: a BCBA "may conduct behavior assessments and provide behavioral
intervention services." (Emphasis added.) But a school district is not required to use a
BCBA to provide those services.
Nevertheless,.the Association urges consideration
of
the CCR and all relevant
provisions
of
the Education Code in determining the Legislature's purported intent to
deem the BCBA an alternative credential that would bring the BIS within the definition
of"certificated." Specifically, the Association points to CCR, title 5, section 3001(e)
which defined "Behavioral intervention case manager" as:
[A] designated certificated school/district/county/
nonpublic school or agency staff member(s) or other
qualified personnel pursuant to subdivision (ac) contracted
by
the school district or county office or nonpublic school
or agency who has been trained in behavior analysis with
an emphasis on positive behavioral interventions. The
"behavioral intervention case manager" is not intended to
be a new staffing requirement and does not create any new
credentialing or degree requirements. The duties
of
the
"behavioral intervention case manager" may be performed
by
any existing staff member trained in behavioral
analysis with an emphasis on positive behavioral
interventions, including, but not limited to, a teacher,
resource specialist, school psychologist, or program
specialist.
(Emphasis added.)
The Association asserts that this regulation implementing the Hughes Bill
"created the first legal requirement that schools designate a specific position, the
BICM, to be the point person for [behavior intervention services.]" (Brief in Support
of
Exceptions, p. 17.) However, CCR, title 5, section 3001(e) was repealed, effective
July 1, 2013 by Education Code section 56523(a) which decrees:
(a) The Superintendent shall repeal those regulations governing
the use of behavioral interventions with individuals with
exceptional needs receiving special education and related services
that are no longer supported by statute, including Section 3052
12

and subdivisions (d), (e), (f), (g), and (ab)
of
Section 3001
of
Title 5
of
the California Code
of
Regulations, as those provisions
existed on January 10, 2013.
Consequently, we do not find the meaning
of
this repealed regulation to be helpful to our task
of
determining whether the BIS is a certificated position.9
The Association also asserts that because BIS perform duties that fall within the scope
of
the PPS credential, that BIS are therefore certificated employees. We disagree with this
logic. Simply because a PPS is authorized to "[ d]esign strategies and programs to address
problems
of
adjustment" and "coordinate intervention strategies for management
of
individuals
and schoolwide crises," (see FUDTA Ex. 16), does not mean that the PPS-credential holder is
the only individual that is qualified or authorized to perform similar duties. 	We concede that a
PPS, or a school psychologist, or a trained teacher may perform the duties
of
the BIS. It does
not follow from that proposition that such behavior intervention duties must be provided only
by the PPS, school psychologists or trained teacher. Education Code section 56525 provides
compelling support for the ALJ's conclusion here that the behavior intervention and
assessment functions may be provided by professionals who do not possess a CTC or county-
issued credential or certificate.
The Association points also to several examples in the Education Code in which
specific professional licenses are designated as adequate substitutes for the CTC-issued
credential. For example, Education Code section 44831 permits a school district to employ an
9 Even
if
this regulation were in effect, we disagree with the Association's
reading
of
CCR, title 5, section 3001(e). The plain meaning
of
that regulation states
that the BICM may be a "certificated
...
staff member(s), or other qualified
personnel
...
who has been trained in behavior analysis
....
" (Emphasis added.) The
regulation further provides: "The duties of the "behavioral intervention case manager"
may be perfonned by any existing staff member trained in behavioral analysis
...
including, but not limited to, a teacher, resource specialist, school psychologist, or
program specialist." (Emphasis added.) Therefore, nothing in this regulation requires
that the person perfonning BICM duties hold a credential within the meaning of the
Education Code.
13

"individual who holds a license issued
by
the Speech-Language Pathology and Audiology
Board" as a speech pathologist. Likewise, Education Code section 44873 permits school
districts to hire physicians for less than
half
time, provided they are licensed
by
the Medical
Board
of
California.
We
read these provisions differently than the Association. They
specifically exempt certain
jobs-speech
pathologists and half-time
physicians-from
any
credential requirement.
In
our view, these provisions are very similar to Education Code
section 56525, which states that behavioral intervention/assessment services may
be
performed
by
persons holding a license other than a CTC-issued credential. Simply because a school
district is given permission to hire such professionals, does not render them "certificated"
within the meaning
of
Education Code section 44006.
The Legislature is quite capable
of
clearly designating what constitutes a credential
or
certificate and the types
of
service for which those credentials are required.
	If
it intended the
BCBA to
be
an adequate substitute for a CTC-issued credential, it could have clearly said so. 10
We
agree with the ALJ that the default classification for school employees is "classified," as
Education Code section 45104 directs that "[ e]very position not defined
by
this code as a
'
position requiring certification qualifications
...
shall be a part
of
the classified service." The
Association's arguments that service providing behavioral assessment and intervention should
be provided only
by
individuals who have a credential or certificate within the meaning
of
Education Code section 44001 or 44006 are best addressed to the Legislature.
10
An example
of
the Legislature specifically designating a position as one
requiring certification is found in Education Code section 8366 which states: "Each
person employed by a public
...
agency
...
in a position requiring a child development
permit
...
shall be deemed to be employed in a position requiring certification
qualifications." (See also Gilroy Unified School District (1979) PERB Decision
No. 98, pp. 9-10.)
14

Duties Performed
by
the BIS Do Not Require a Credential
Having determined that the BIS need not be credentialed by any requirement
of
the
Education Code, we tum now to consider whether the duties they perform require a credential.
For this analysis, we
tum
to Education Code section 44065. (Modesto City School District
(1991) PERB Decision No. 884, p. 17-18 (Modesto).) The Association contends that this
provision is irrelevant to this case, because Education Code section 44065 applies only to
managers and supervisors, not to rank-and-file educators. As support, it relies on the following
language
of
section 44065: 	"any person employed
...
in which 50 percent
or
more
of
his or
her duties
...
consist
of
rendering service in directing, coordinating, supervising or
administering" the stated functions must hold a credential.
11
According to the Association,
"directing, coordinating, supervising or administering" are functions performed only
by
management or supervisory employees, and the statute should therefore not apply for
determining the scope
of
functions for rank-and-file employees.
The Education Code is quite opaque in this regard. The Association correctly points
out that section 44065 is found within an article
of
the Education Code entitled "Interchange
Between Certificated and Classified Positions, Exceptions." However, the introductory
section 44060, "Purpose
of
this article," describes the purpose
of
the article is to "provide a
basis
of
determination as to what constitutes a supervisory or administrative classified position
or a position requiring certification qualifications not clearly defined in other sections
of
this
code." (Emphasis added.) The remainder
of
the article contains sections regarding the
retention
of
rights
of
classified employees who change to certificated positions and vice versa;
a restriction on certification requirements; various "grandfather" provisions; and a section
declaring that school district business managers do not have to be credentialed.
The Association misquotes Education Code section 44065 slightly. The
statute uses the verb "administering," not "administrating."
15

The predecessor section to Education Code Section 44065 was enacted in 1961 as
Assembly Bill 2471 (Winton) and codified at former Education Code section 13055.
12
The
author described the bill as one addressing "the problem
of
what school positions should be
certificated and which should be non-certificated." (June 20, 1961, Ltr. from Gordon Winton
to Governor Edmund
G.
Brown.) While virtually no weight is given to the author's views
(Heavenly Valley
v.
El
Dorado County Bd.
of
Equalization (2000) 84 Cal.App.4th 1323, 1340-
1341), the report on AB 2471 by the Office
of
Legislative Counsel, July 10, 1961 is more
persuasive as to legislative intent. (Maben
v.
Superior Court (1967) 255 Cal.App.2d 708, 713
(digests
of
bills prepared
by
the legislative counsel may be relied
onto
determine legislative
intent when those statements are in accord with reasonable interpretation
of
the statute.) The
legislative counsel's report describes AB 2471 thus:
Redefines the particular administration and supervision
positions for which certification documents must be held,
specifies that a certification document shall be held by any
person, 50 percent or more
of
whose duties involve
activities in such positions, requires person employed in
any such position
...
to hold valid teaching credential and
a proper supervision or administration credential,
...
According to a letter from the California Teachers Association (CTA) to Governor
Edmund Brown in support
of
AB 2471, the legislation was necessary because some
administrative and supervisory positions were held by certificated employees and others were
held by classified employees, and it was important to delineate the difference. (June 27, 1961,
Ltr. from CTA to Governor Edmund Brown.)
Education Code section 13055 provided, in pertinent part:
(a) Any person employed by a school district
...
in a
position in which 50 percent or more of his duties
12
The Education Code was reorganized in 1976, resulting in the re-numbering
of this section to the current section 44065.
16

regularly performed during the school year consist
of
rendering service in directing, coordinating, supervising or
administering any portion or all
of
the types
of
functions
listed below in this section shall hold a valid teaching
credential issued or renewed pursuant to this code
....
On and after July
1,
1963, no school district shall employ
a person to render such service unless a person holds a
valid teaching credential, and also holds a supervision
credential or an administration credential authorizing the
particular service.
(Emphasis added.)
Amendments to Education Code section 13055 were made in 1967, but the
statute continued to require both a teaching credential and an administrative credential.
It
read: "any person employed
...
of
rendering service in directing, coordinating,
supervising or administering [the designated functions] shall hold a valid teaching or
service credential, and shall hold a supervision or administration credential, whichever
is designated in regulations
...
·."
By 1976, when the Education Code was reorganized and re-numbered, the
current subsection (a)
of
newly-numbered Education Code section 44065 appears. This
version dropped the requirement that a person performing the enumerated duties hold a
supervisor or administrative credential.
It
reads, in relevant part:
( a)
	...
any person employed
...
in a position in which
50 percent or more
of
his or her duties performed
...
consist
of
rendering service in directing, coordinating,
supervising or administering [the designated functions]
shall hold a valid teaching or service credential as
appropriate, whichever is designated in regulations
adopted by the Commission on Teacher Credentialing,
authorizing the particular service.
Even though the current version
of
the statute retains the words the Association
claims are associated with managing or supervising, we cannot presume the Legislature
17

engaged in an idle act when it deleted the requirement for a supervisory or
administrative credential.
The better reading
of
Education Code section 44065, in context with other
similar provisions that define "certificated" position, is the way that PERB has treated
this section in past decisions, and the way the ALJ applied the statute. Education Code
section 44065 provides a guidance as to the type
of
functions the Legislature deems to
be "certificated" functions. Whether section 44065 requires an administrative or
supervisory credential to render 50 percent or more
of
duties directing, coordinating,
supervising or administering the designated functions is not relevant to the inquiry at
hand, i.e., whether
the
duties the BIS performed fell within what is considered
"certificated" duties. The ALJ did not err in analyzing the BIS duties under Education
Code section 44065.
PERB has applied Education Code section 44065 in determining whether the
duties
of
a non-managerial, non-supervisory high school auditoriums manager should
be in the certificated or classified unit. (Modesto, supra, PERB Decision No. 884.)
Because the duties
of
the auditoriums manager did not include and were not related to
instructional program activities, the position was not certificated. In Stanislaus, supra,
PERB Decision No. 1022, PERB again considered Education Code section 44065 in
determining whether rank-and-file naturalists occupied a position requiring
certification. Because at least half
of
the naturalists' duties were instructional services,
"pursuant to Education Code section 44065, they are in a position requiring
certification
...
and are certificated employees." (Stanislaus, ALJ Dec. p. 17.)
We decline the Association's invitation to overrule these earlier decisions for
the reasons explained above. Education Code section 44065 provides appropriate
18

guidance in determining whether job functions are to be considered "certificated," an
inquiry that we must make when it is unclear whether the Education Code deems the
job classification to
be
one requiring certification.
No exception was taken to
theALJ's
factual findings regarding what the BIS
actual job duties were. The Association did except to the ALJ's interpretation and
application
of
Education Code section 44065 insofar as the ALJ's inquiry focused on
whether the BIS spend 50 percent or more
of
their time "directing, coordinating,
supervising or administering" any
of
the enumerated functions, an exception we reject
for reasons explained above. We agree with the Association that the issue is not
whether the BIS duties encompass "directing, coordinating, supervising or
administering" the enumerated functions, but whether they actually perform those
functions, such as participating in the instructional program, providing vocational
counseling, providing school library services, etc. Framed thusly, the record supports
the ALJ's conclusion that the BIS did not spend 50 percent or more
of
their time
performing the services enumerated in Education Code section 44065.
The District's Minimum Qualification Requirements for the BIS
The District requires its BIS to have either a PPS credential or a BCBA. The
Association argues that because the minimum qualification can be met with the PPS
credential, the position must be considered certificated. The Association further asserts
that Education Code section 44066 requires that the BIS be considered certificated.
The proposed decision did not resolve this claim, as the ALJ viewed PERB's job to
determine proper unit placement, not to detennine whether the District has violated
section 44066
of
the Education Code.
19

We do not view the Association's claim to seek enforcement
of
Education Code
section 44066, but rather an alternative basis for finding that the BIS are certificated
employees. We nevertheless reject the Association's assertion. It is premised on a
proposition that we have already rejected, namely, that the BCBA is the functional
equivalent
of
a credential within the meaning
of
the Education Code. We also disagree
with the Association's interpretation
of
Education Code section 44066, which states:
A
...
school district
...
shall not require an employee or
applicant to possess any certification, license, or other
credential unless the possession
of
such a certification,
license or other credential is required by statute or is
based upon a bona fide occupational qualification.
It is the intent
of
the Legislature that any person who had
served in a position for which certification, license, or
other credential not necessitated
by
statute or bona fide
occupational qualification, had been required, and in a
position which was designated by the governing board as
a position requiring certification qualifications, shall be
deemed to be an employee in a position requiring
certification qualifications for as long as he or she holds
such position and it is further the intent
of
the Legislature
that such position shall be deemed to be a certificated
position for as long as such person holds such position.
(Emphasis added.)
The main purpose
of
this section is to limit the ability
of
school districts to require
credentials for jobs for which the Education Code does not require credentials-in the words
of
the ALJ, to prevent such classifications as "certificated bus drivers." (Proposed Dec., p. 48.)
The second purpose
of
Education Code section 44066, described in its second paragraph, is to
"grandfather" those individuals who occupied jobs for which a district had improperly required
credentials. Those individuals are to be considered "certificated" and occupying "certificated
20

positions" for as long as they hold such positions.
13
Because the District did not require
"certifications" within the meaning
of
the Education Code for the BIS, Education Code
section 44066 does not apply to this case.
Education Code section 45104, related to classified employees, supports our reading
of
section 44066. Education Code 45104 provides, in pertinent part:
Every position not defined by this code as a position
requiring certification
...
shall be part
of
the classified
service. Such positions may not
be
designated as
certificated nor shall the assignment
of
a title to any such
position remove the position from the classified service,
nor shall possession
of
a certification document be made. a
requirement for employment in any such position.
The second paragraph
of
Education Code section 45104 answers the Association's
argument that because one
of
the minimum qualifications for the BIS position is a PPS
credential, the entire classification
of
BIS should be considered "certificated." It states:
Nothing in this section shall be construed to prohibit the
employment
of
any individual in a position described by
this section as part
of
the classified s·ervice who is in
possession
of
certification qualifications, nor shall the
possession
of
certification qualifications be grounds for
the elimination
of
an individual for consideration for
employment in such a position.
In other words, a school district may hire a person who happens to have a credential into a
classified position, but that does not convert the position to certificated. Because the District
did not require that the BIS have a credential (it is simply a coincidence that one
of
the three
BIS has a credential), we disagree with the Association's argument that Education Code
section 44066 converts the BIS into a certificated position.
13
We agree with the ALJ that footnote 22 in Stanislaus, supra, PERB Decision
No. 1022 offers no guidance in this case because the district in Stanislaus required the
certificated naturalists to have a teaching credential. As discussed previously, the
District in this case did not require the BIS to have any credential.
21

The question for PERB is whether the position in question, the BIS, is a certificated
position within the meaning
of
the Education Code. We have determined first that the BIS
position is not "certificated" because the position does not require any form
of
certification
within the meaning
of
the Education Code, i.e., a certificate, credential, or life diploma issued
by
the CTC. Second, nothing in the Education Code requires those who provide behavior
intervention and assessment services to hold a credential. Third, the actual duties the BIS
perform are not the kind
of
functions listed in Education Code section 44065, which describes
certificated functions such as instruction, counseling, curriculum development, library services,
school health programs, and similar functions. Fourth, the District does not require BIS to
hold a credential. The fact that one individual happens to have a PPS credential does not
convert the entire classification to "certificated." To find otherwise would contravene the
provisions
of
Education Code 45103.
We join with the ALJ in noting that this decision is based on the facts in this District
with regard to the BIS position created by this District. The conclusions reached here will not
necessarily pertain to similar positions in other districts.
Community
of
Interest
The Association argues in its brief in support
of
exceptions that the BIS share a
community
of
interest with the other employees in the certificated unit and therefore, the
Peralta presumption applies.14 The ALJ did not rule on community
of
interest claims, and we
comment on the matter here simply to reject the Association's assertion and to clarify the role
of
the Peralta presumption in cases where there is a dispute over certification status. The
threshold question in bargaining unit cases under EERA will always be whether the positions
14
See Peralta Community College District (1978) PERB Decision No. 77
(Peralta), creating a rebuttable presumption that all classroom teachers are
appropriately placed in the same bargaining unit.
22

in question are certificated or classified within the definitions
of
those terms found
in
the
Education Code. The Peralta presumption comes into play only after
it
is determined the
positions are certificated. (EERA, § 3545(b)(3).)
ORDER
Based on the foregoing and the entire record in this Case No. SF-UM-721-E, it
is hereby ordered that the unit modification petition
file_d
by
the Fremont Unified
District Teachers Association, CTAINEA is DENIED.
Members Huguenin and Banks joined in this Decision.
23

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
FREMONT UNIFIED SCHOOL DISTRICT,
Employer,
and
FREMONT UNIFIED DISTRICT TEACHERS
ASSOCIATION,
Exclusive Re resentative.
REPRESENTATION
CASE NO. SF-UM-721-E
PROPOSED DECISION
(11/25/2013)
Appearances: Dannis, \Voliver Kelley by Tami Essis Culkar, Attorney, for Fremont Unified
School District; Diana
S.
Reddy, Attorney, for Fremont Unified District Teachers Association,
CTA/NEA.
Before Alicia Clement, Administrative Law Judge.
PROCEDURAL HISTORY
On August 10, 2012, the Fremont Unified District Teachers Association (FUDTA or
Union) file a Unit Modification Petition (Petition) seeking to include the Behavior Intervention
Specialists (BISs) in the certificated bargaining unit that is exclusively represented by FUDTA.
The Fremont Unified School District (District) filed its opposition on September 5, 2012. An
informal settlement conference was held on November 13, 2012, but the parties did not reach a
settlement at that time. A formal hearing was held on March 19, 2013, May 9, 2013, and
June 3 and 4, 2013.
A. The Motion to Dismiss
On February 25, 2013, before the hearing, the District filed a Motion to Dismiss the
petition. The basis. for its motion to dismiss was a series of three declarations signed by BISs
Anne Tofte, Lisa Dillon, and Eric Plummer. These declarations track the language of
Education Code section 44065 and state that the declarant does not spend fifty percent or more

of
their work time performing any one
of
the
13
different types
of
duties listed in section
44065. The motion was denied and the hearing proceeded as scheduled.
B.	
The Motion for Summary Adjudication
On the first day
of
hearing, the Union called three witnesses, none
of
whom were BISs.
The Hearing Officer ordered the parties to produce the BISs for the taking
of
live testimony
regarding their day-to-day job duties. Additional days
of
hearing were scheduled. Before the
second day
of
testimony, the Union filed a "Letter Motion for Summary Adjudication on
PERB Authority." Ostensibly, this motion sought to have PERB "confirm its authority to
adjudicate the "classified" or "certificated" status
of
the Behavior Intervention Specialists in
this case."
The District responded to the motion on May 8, 2013. In its response, the District
stated that it "recognizes that in Modesto City School District, PERB Decision No. 884, PERB
reviewed the job duties
of
the position at issue to determine that it did not require a credential
under Education Code section 44065." The second day
of
hearing proceeded on May 9, 2013,
as noticed to the parties. Additional days
of
hearing were ordered on June 3 and 4, 2013.
FINDINGS OF FACT1
The Special Services/Special Education Department:
Student needs within the Special Services/Special Education2 Department at the District
are provided on a continuum and vary from mild physical, cognitive and emotional disabilities,
1 The facts in this case are taken from the testimony and evidence presented at hearing.
Often, the parties' testimony includes use of tenns and phrases commonly used in the field
of
education, but which may not be familiar outside the profession. For that reason, where a
phrase has been defined by applicable law or statute, or a service provided by the parties has
been mandated by law, this has been noted by footnote. 	Some of the services provided by the
District which have been testified to by witnesses are unique to this District or have not been
mandated by law.
2

to severe physical, cognitive and emotional disabilities. In order to ensure that all special
education students receive the ":free and appropriate public education"3 to which they are
entitled, an Individual Education Program (IEP)4 is created for every Special Education
student. An IEP is created by an IEP team that is made up
of
a number
of
individuals
including the parents
of
the child, the teacher whose classroom the student will be assigned to,
as well as a representative
of
the local education agency providing the services. 5 Other
members
of
the team may include other District employees who provide "Designated
Instructional Services" in non-academic areas where the student has demonstrated need, such
as a Speech Pathologist, Program Specialist, or the School Psychologist. The purpose
of
the
IEP is to identify areas where the special needs student may require additional instruction or
assistance and to articulate attainable goals for the school year.6 The IEP may contain a
2 "'Special education' means specially designed instruction, at no cost to the parents, to
meet the unique needs
of
individuals with exceptional needs whose educational needs cannot
be met with modification
of
the regular instruction progran1, and related services, at no cost to
the parent, that may be needed to assist these individuals to benefit :from specially designed
instruction." (Cal. Code Regs., tit. 5, § 3001(ac).)
3
"'Free appropriate public education' means special education and related services
that: (1) have been provided at public expense, under public supervision and direction and
without charge; (2) meets any
of
the standards established by state or federal law; (3) include
an appropriate preschool, elementary, or secondary school education in California; and (4) are
provided in conformity with the IEP required under state and federal law." (Cal. Code Regs.,
tit. 5, § 3001(p).)
4 An IEP is a written statement for each child with a disability that is developed,
reviewed, and revised in accordance with the Individuals with Disabilities in Education Act
(IDEA), found at section 614(d) of20 USCS § 1401.
5 See 20 U.S.C.S. § 1414(d)(l)(B).
6 See 20 U.S.C.S. §1414(d).
3

provision for Designated Instructional Services and may also state how and when the student
will receive these services to reach the goals that have been identified.7
Although all the members
of
an IEP team share some degree
of
responsibility for
monitoring the student's progress and implementing the IEP, a Case Manager may be assigned
to a particular student in order to schedule meetings on behalf
of
that student and to monitor
the student's progress in attaining the goals identified in the IEP. A Case Manager may also
make recommendations or requests for additional support for the student to achieve his or her
IEP goals. Even where a Case Manager has not been assigned to a particular student, however,
members
of
the IEP team routinely consult with each other to help the student reach the goals
outlined in the plan. While the IEP team must
be
led
by
a credential-holder, other members
of
the team may be non-credentialed employees or parent(s)
of
the student. Any member
of
an
IEP team can request additional services on behalf
of
a student, a process that will trigger
additional evaluations to determine
if
the additional service is required as part
of
that student's
free appropriate public education.
Some Special Education students are "mainstreamed" in regular classes with non-
special needs peers. These students are assigned to a "Resource Specialist." Students assigned
to a Resource Specialist have disabilities occupying a wide range
of
severity. The Resource
Specialist typically meets with students in a small group setting, often to address undesirable
behavior(s) by the student that impair academic success or progress.
Alternatively, some Special Education students are placed in Special Day Classes
comprised only
of
Special Education Students. Often these students have physical or cognitive
deficiencies and may also have behavioral problems that would prohibit them from succeeding
or inhibit other students from learning
if
they were assigned to a mainstream classroom.
7 See 20 U.S.C.S. § 1414(d)(l)(A)(i)(VII).
4

Special Day Teachers must possess a credential to teach students with mild to moderate
disabilities or those with moderate to severe disabilities. 8 Special Day classes are self-
contained classrooms and, in addition to the Special Day teacher, one or more para-
professionals9 (also referred to
by
the parties as "para-educators" and simply, "paras"), may be
assigned to work in the Special Day Classroom. Paraprofessionals may be assigned to a
particular student on a one-to-one basis, or they may be assigned to assist the Special Day
teacher in a particular classroom.
Students who have been identified as having some
of
the most severe disabilities are
assigned to the Intensive Instruction program at the District. The District currently has
11
Intensive Instruction classrooms, located throughout the District, that are populated with
approximately 90 students. Many
of
the students have been diagnosed with autism, and many,
if
not all,
of
the Intensive Instruction students are non-verbal. Typically, these students are
being taught what is referred to as a "life skills" curriculum, rather than a more traditional
academic curriculum. The "life skills" curriculum is intended to help students to be as
independent as possible when they transition out
of
school. It is not offered in every district,
but it is not unique to the District. "Life skills" for a student identified with severe needs
might be picking up a fork and feeding him or herself "Life skills" for a student defined as
having moderate or mild needs might include appropriate interactions in a social setting.
Special Day teachers provide instruction in "functional curriculum." Because the
students assigned to a Special Day class typically will not be able to cam a high school
8 See California Education Code section 44268.5 and California Code
of
Regulations,
title 5, section 80048.6(b).
9 A "school paraprofessional" includes the following job classifications: educational
aide, instructional aide, special education aide, special education assistant, teacher associate,
teacher assistant, teacher aide, pupil services aide, library aide, child development aide, child
development assistant, and physical education aide. (Ed. Code§ 44392(e).)
5

diploma, Special Day teachers focus on teaching a blend
of
life skills and academics to their
Special Education students. This may include teaching skills like how to count money,
appropriate responses in different social settings, and a variety
of
vocational skills. Given the
highly-individualized nature
of
the needs
of
Special Education students,
as
determined through
the IEP process, Special Day teachers are tasked with developing and purchasing the
appropriate curriculum and teaching materials needed by and for each student assigned to
them. In addition to teaching a highly individualized functional curriculum, Special Day
teachers also spend a significant volume
of
their classroom time providing vocational
counseling to students and managing pupil behavior.
As noted above, some para-professionals are provided on a one-to-one basis to assist
with students who need a greater amount
of
support services. The duties provided by these
para-professionals may range from simply keeping the student on task to managing very
serious behaviors that could cause injury to the student or others. At least one Special Day
teacher testified that although she would anticipate that the para-professionals in her classroom
would handle much
of
the behavior management
of
students,
if
the conduct in question was
physically aggressive or self-injurious, she would handle it herself.
The District has created a separate "moderate" strand for tracking students in the
moderate range
of
the spectrum from mild to severe. This has given the District the flexibility
to assign either "Moderate/Severe" or "Mild/Moderate" credential holders to the classrooms
populated by students whose needs are in the moderate range.
6

Behavior Intervention Case Managers (BICMs):
10
A BICM is a designation that was created under the Hughes
Bil1
11
to identify specific
people within a school district who possess training in behavior analysis and are able to
complete the functions or the procedures involved in a functional analysis assessment (FAA).
12
Being designated as a BICM allows an individual to complete FAAs
13
and develop a behavior
intervention plan (BIP).
14
Training to become a BICM is offered in some teacher training
progran1s.
Prior to 2008, School Psychologists performed BICM duties in FUSD, however, this
practice has recently been discontinued in favor
of
BISs acting as BICMs. The Education
10
A "Behavioral Intervention Case Manager" is defined as:
a designated certificated school/district/county/nonpublic school
or agency staff member(s) or other qualified personnel pursuant
to subdivision (ac) contracted by tlle school district or county
office or nonpublic school or agency who has been trained in
behavior analysis with an emphasis on positive behavioral
interventions. The "behavioral intervention case manager" is not
intended to be a new staffing requirement and does not create any
new credentialing or degree requirements. The duties
of
the
"behavioral intervention case manager" may be performed by any
existing staff member trained in behavioral analysis with an
emphasis on positive behavioral interventions, including, but not
limited to, a teacher, resource specialist, school psychologist, or
program specialist.
(Cal. Code Regs., tit. 5, § 3001(f).)
11
See Education Code sections 56520-56525.
12 See California Code
of
Regulations, title 5, section 3052(b).
13
See California Code
of
Regulations, title 5, section 3052(b).
14
A BIP is "a written document which is developed when the individual exhibits a
serious behavior problem that significantly interferes with the implementation
of
the goals and
objectives of the individual's IEP." (Cal. Code Regs., tit. 5, § 3001(g).) The BIP should
include a number of elements enumerated in the regulation and becomes a part of the IEP.
(See also Cal. Code Regs., tit. 5, § 3052(a)(l)-(3).)
7

Code requires that F AAs are performed only
by
BICMs. At present, however, the District
pennits only BISs to perform FAAs (and so act as BICMs).
Board Certified Behavior Analyst (BCBA):
15
A BCBA is a certification that is conferred
by
the Behavior Analyst Certification Board
(BACB), a professional association for behavior analysts. The BACB requires an applicant for
a BCBA to complete certain coursework related to behavior analysis and 1500 hours
of
field
work applying behavior analysis skills in several settings, including schools (though the
program for conferring a BCBA does not focus on schools).
Of
the 1500 hours
of
field work,
75
hours must be supervised by a BCBA. After completion
of
coursework and fieldwork,
there is an exam. There are additional annual renewal requirements and continuing education
requirements after an individual has received a BCBA.
Job Alike Meetings:
In addition to the highly collaborative nature
of
the work that Special Education
Department employees engage in when providing instruction and other educational tools to
students, they also engage in a variety
of
cross-training within and among their classifications.
This includes participating in in-service training, as well as "job alike" (JA) meetings that are
convened regularly throughout the school year. These meetings are facilitated
by
a Program
Specialist for each group
of
employees.
The District has instituted a practice
of
convening meetings for employees with similar
jobs to discuss common workplace concerns. Cun·ently, the JA meetings for BISs are
comprised
of
all the BISs with no other classification
of
employee, though in the past,
Inclusion Specialists were included in the JA meetings with BISs. These meetings are
convened approximately once a month while school is in session. Meeting topics are focused
15
See Education Code section 56525.
8

on work content like high profile cases, legal cases, placement issues, record-keeping issues,
corrective actions, and updates from the California Department
of
Education.
Special Education Local Plan Areas (SELPAs):
16
The SELPA that the District is in includes all the districts in the Mission Valley area:
Newark, New Haven, and Fremont. The New Haven District employs behaviorists,
but
it is
not clear whether the Newark District currently employs behaviorists.
Special Healthcare Para-Educators (Spec Paras):
The District created Spec Paras at a time when there was a shortage
of
nurses in the
District. It was detennined that some
of
the tasks associated with the District's medically
fragile Special Education students could be performed
by
specially trained para-educators. For
example, the District has a classroom dedicated to its most medically fragile students. One
of
these students is confined to a hospital bed and must be turned every 20 minutes. A Spec Para
is employed to perform this task. In addition, each BIS has a Spec Para assigned to work with
them and there is an additional Spec Para who is a "floater" and is assigned wherever she is
most needed.
Behavior Intervention Specialists:
BISs are assigned to the Special Services (Special Education) Department at the
District. BISs work 214 days per year, with summers off. The work calendar for a BIS is
roughly from one-week prior to the beginning
of
the academic year until one week after the
end
of
the academic year. BISs attend the Special Services Department meeting that is held at
16
Each school district must create a plan for the efficient distribution
of
special
education services. Districts may elect to join with other school districts or county offices
of
education in order to coordinate the provision
of
services to special needs students. The
methods
of
providing these services as well as the designation of responsibility for the
provision of various services is articulated in the special education local plan and updated
annually. The SELPA is responsible for administering the local plan and allocation of funds.
(See Ed. Code§§ 56195-56195.1; and 56205-56208.)
9

the beginning
of
each school year, which is attended by all Special Services Department
employees. This is an all-day meeting that includes a general address and several break-out
sessions in which employees may choose from several subject matters. BISs may lead training
sessions on behavior modification techniques during these break-out sessions, which typically
have a duration
of
an hour.
BISs are assigned cubicles where they perform a variety
of
tasks including drafting
BIPs for students, reviewing Behavior Emergency Reports, making phone calls and various
other office tasks. BISs report directly to the Director
of
Special Services or the Assistant
Director
of
Special Services. BISs' job performance is evaluated semi-annually by the
Director
of
Special Services. Evaluations include the adoption
of
personal professional goals
for the coming school year as well as an assessment
of
the BIS' s progress on previously-
designated goals.
The goal
of
the BIS is to help students gain access to their education as part
of
their
legally mandated free appropriate public education. The methodology used by BISs includes a
variety
of
behavior modification techniques that are applied at the school site in order to
discourage undesirable behavior and redirect the student's energy toward more desirable
behaviors. The goal is not to change the way the student thinks. Rather, the goal is to change
the way the student interacts with the world around them. In some cases, this may mean
conducting assessments and creating BIPs using a process known as Functional Behavior
Analysis.
17
Functional Behavior Analysis involves observing the negative behavior the student
is engaging in and defining it in concrete terms; identifying why the behavior is occurring;
when it occurs and for how long; and attempting to find a positive behavior to replace the
17
A functional behavior analysis is the diagnostic tool used when a student's behavior
impedes a child's learning under 20 U.S.C.S. § 1414(d)(3)(i).

negative behavior. Training in the creation
of
BIPs is included in the credential program for
special education teachers.
18
Whether a BIS' s services are necessary in a particular circumstance depends upon a
number
of
factors. Typically, the BIS is called in to address a behavior that impedes the
student's access to the services identified in his or her IEP. Once the undesirable behavior is
identified, the student's Case Manager writes up a behavior support plan (BSP) and
commences implementation
of
the BSP. If, after a period
of
time, there is no improvement in
the student's behavior, the Case Manager will make a referral to the school psychologist. The
school psychologist will make an independent assessment
of
the student's progress and suggest
modifications to the plan. This may result in a second BSP which, along with the first BSP, is
attached to the student's file.	
If
there is still no improvement in the student's behavior, the
Case Manager will submit a request for the assignment
of
a BIS.
When the BIS is first assigned to a case, the process begins anew. The BIS will
conduct an independent evaluation
of
the student's behavior that includes direct observation
of
the student, review
of
previous unsuccessful BSPs, and interviews with staff and parents as
well as any other specialists assigned to work with the student. In some cases, the BIS may
determine that a new plan is not needed, rather, that the staff need to be re-trained on the
implementation
of
the existing plan. In other cases, a new plan will be developed by the BIS.
In either case, the staff who work with the student will be trained to implement the chosen
plan.
Another circumstance when a BIS may be assigned to a particular case is when a
student exhibits one of the behaviors identified in the California Education Code as
18
See Education Code section 56520(b)(5).
11

"serious."
19
In order to address serious behaviors, the District is required to complete an FAA.
State law requires specialized training in order to conduct an FAA.2° What that training
consists
of
varies in some small degree from SELP A to SELPA.
21
Nevertheless, once an
employee has been trained in FAA, s/he is qualified to serve as a BICM and to complete a BIP.
The BIP differs from the BSP in length and complexity. While any certificated employee
may
complete a BSP, BIPs may only
be
completed
by
BICMs. Although there are several
certificated bargaining unit members who are qualified to act as BICMs, current District policy
is such that only BISs are assigned to work as a BICM on a particular case.
At
this time, the District employs four BISs, each
of
whom has a different work
assignment. 	Given the distinct nature
of
the assignments and tasks associated therewith, the
BIS's job
duties are described separately, below, with the exception
of
BIS Gladys Chan,
whose position was withdrawn from the Petition. Anne Tofte's assignment includes all the
BIPs and F AAs in all
of
the Intensive Instruction classrooms in the District. Lisa Dillon and
Eric Plummer share responsibility for the BIPs and F AAs for the remainder
of
the student
population throughout the District, excepting the infants in the Autism Resource Center (ARC)
Progran1 at the Glankler school site. Behavioral supports for the infants in the ARC Program
are assigned to Gladys Chan, and outside the scope
of
this Petition.
Anne Tofte
Tofte is the only BIS that is assigned to work with the Intensive Instruction program,
and has been working this assignment for the last two years. Her current case load is
19
A "serious behavior problem" is defined as "behaviors which are self-injurious,
assaultive, or cause serious property damage and other severe behavior problems that are
pervasive and maladaptive for which instructional/behavioral approaches specified in the
student's IEP are found to be ineffective." (Cal. Code Regs., tit. 5, § 3001 (ab).)
20
See California Code of Regulations, title 5, section 3052(b).
21
See California Code of Regulations, title 5, section 3052(j).
12

approximately 35 behavior plans, representing roughly one-third
of
those students assigned to
the Intensive Instruction program. Tofte receives her assigmnent from the Program Director
typically after some other staff member has made a request to the Special Education Program
Director for the services
of
a BIS.
Tofte' s primary responsibility is to conduct FAAs on students for whom an existing
BSP is not working. Upon receiving her assigmnent, she begins
by
reviewing prior behavior
plans for the particular student to see what methods have already been applied. Then she will
conduct direct observation
of
the student in the setting where the maladaptive behaviors are
occurring. She may speak with other specialists in the process. Then she will determine
whether a new behavior plan is needed or
if
the existing plan is sufficient but not being
properly implemented. Once she decides on a behavior plan for the student, she will train the
staff on how to implement it. Implementation can be done by BISs, teachers, parents, or paras.
The behavior plan that Tofte develops is intended to be a tool for the staff to use.
	It
is
not a tool for the student. Often, the determination
of
whether a BIP is warranted is based on
whether the BSP has produced the desired results
or
if
the student engages in one
of
the
"serious" behaviors identified in the Education Code.
If
a BIP is not warranted, Tofte may
write a new BSP.
Both a BIP and a BSP involve the same basic steps to complete: direct observation
without intervening; interviewing staff and parents; then training the staff to collect the data for
her, which is considered "indirect observation"; and finally, reviewing the student's records.
Once the data is compiled, her analysis consists
of
quantifying the occurrences and describing
the antecedents then giving the staff a breakdown
of
the antecedents and consequences of the
behavior. During this process, her communication is directly with the staff and parents. Most
of the students in the Intensive Instruction program are non-verbal, so Tofte directs very little
13

communication to the students. The ultimate goal
of
her assessment is to determine why the
student is engaging in the behavior and then devising a way to redirect the behavior.
Tofte interacts with students on a daily basis. But the interaction is limited to
approximately ten minutes per day, and the focus
of
the interaction is to model the behavior
that the rest
of
the staff should be engaged in to implement the behavior plan properly. Tofte
provided an example
of
how she might interact with students. She was recently in a classroom
observing a student who had been given a structured schedule
of
work, break, work, break, etc.
During one
of
his timed break periods, the student was sitting in a bean bag chair which he had
ripped open, and was proceeding to pull out the Styrofoam pellets. The paraprofessional
assigned to this student attempted to make the student stop the behavior by trying to take the
beanbag chair away from the student. The result was that the student and the paraprofessional
were now engaging in a tug
of
war over the beanbag chair. The paraprofessional looked up at
Tofte and asked, "what do I do?" Tofte intervened by approaching the paraprofessional and
the student and modeling the following behavior: she picked up the timer that was used to
time the student's breaks, showed it to the student, stated to the student, "twenty more seconds
of
your break," and walked away from the student. She then explained to the paraprofessional
that the student was not engaging in behavior that would hurt himself or anyone else, and she
should not get into a physical altercation with the student over Styrofoam pellets. When
tl1e
student's break was over, the student would go back to work and the staff could clean up the
mess. Although Tofte did interact with the student, her primary audience was the
paraprofessional. When she is in the classroom, it is common for staff to approach Tofte for
assistance.
Tofte acknowledged that she has, at times, suggested to the classroom teacher that
modifications be made to a student's curriculum. However, her suggestions do not encroach
14

on academic goals, rather, she might suggest a change to the work so that the student does not
need to engage in particular maladaptive behaviors to get out
of
doing the work. 	She would
then defer to the teacher to assign a similar task that would address the same academic goal.
She may also make
or
suggest modifications to the way the classroom is arranged
or
structured, including breaking up the length
of
time spent on a particular task; rearranging
seating; or using visual supports like icons or a posted schedule. Examples
of
the academic
goals
of
students in the Intensive Instruction program are toileting skills, hand washing,
feeding oneself, putting on your jacket, taking
off
your backpack, etc. She does not teach any
of
these skills
directly-the
skills are taught by the classroom teacher and paraprofessional.
Tofte is also involved in circumstances when staff have identified a "behavioral
emergency" which occurs when a student engages in serious behavior. When any school staff
observe serious behavior constituting a behavior emergency, a staff member is required to
complete a "behavior emergency form." Although Tofte never completes the form herself, she
is provided a copy in any instance where one has been completed involving an Intensive
Instruction student. In those cases, Tofte will review the form and immediately contact the IEP
case manager for the student. Working with the case manager, Tofte may schedule an IEP
meeting to review the student's behavior plan.
If
circumstances warrant further action, Tofte
may initiate an FAA.
Tofte has a Bachelor
of
Science in Psychology, a Master
of
Science in Psychology with
a specialization in applied behavior analysis, and a BCBA. She has also received the District's
BICM training. Tofte does not have a teaching credential. When asked to define "behavior
intervention," Tofte stated that it was a form
of
problem-solving. She also stated that it could
be considered a school
of
psychology or a type
of
applied psychology. 	She did not believe that
behavior intervention was a type
of
mental health service because she defined a mental health
15

service as trying to change something that was going on within the student's skin. She did not
believe that behavior modification changed the
student-rather,
it changed the way that the
student communicates his wants. Behavior modification does not attempt to address or change
how the student feels or thinks.
When asked whether the services she provides could
be
considered counseling, she
stated unequivocally that they did not. In her mind, counseling involved talk therapy, and
required the recipient
of
counseling services to
be
able to identify feelings. Most
of
her
students are not verbal and lack the self-awareness necessary to benefit from those kinds
of
services. Her function is to address the student's behavior, not their feelings. 	She also did not
believe that her services constituted educational or vocational counseling.
If
"guidancc" is the
act
of
facilitating a person to come to a conclusion, then she again stated that she did not
engage in that kind
of
activity.
\Vhen asked whether she engaged in activities involving "placement services," Tofte
responded that, as a member
of
an IBP team, she was involved in discussions about the proper
placement
of
the student on the spectrum
of
Special Education services. For example, she
might have a conversation with other IEP members over whether a particular student should be
in the Intensive Instruction program or whether the student should receive a non-public school
placement. During the prior school year, she had been involved in two or three
of
these types
of
decisions. Her involvement in these decisions is always that
of
a tean1
member-the
ultimate decision is based on the team's consensus.
Tofte works closely with one paraprofessional and is responsible for directing the work
of
that paraprofessional. She provides feedback to the paraprofessional directly and gives
input for the paraprofessional's evaluation. Tofte acknowledged that the level
of
supervision
she exerts over the paraprofessional assigned to work with her is similar to the level of
16

supervision that teachers exercise over the paraprofessionals assigned to their classrooms. One
distinction between the manner in which she works with the paraprofessional assigned to work
with her is that she is rarely in the same classroom
as
the paraprofessional
onany
given day.
The paraprofessional she works with perfonns many
of
the same functions Tofte performs
while Tofte is in the classroom: conducting observations, collecting data, modeling behavior
for other paras, and attending IEPs. Tofte has no authority to hire, fire, discipline or promote
the paraprofessional; however, she could recommend that the paraprofessional be transferred
away from her current assignment.
Tofte's performance is evaluated by the Program Director. Tofte does not report to the
school site principals, and neither teachers nor paraprofessionals provide any input into her
evaluation. Tofte does, however, provide "instruction" to other employees in the sense that she
tries to manage their behavior.
When asked whether she conducted "in-service" training, Tofte first defined in-service
training as broad-scope, for-credit professional development training. In prior years, Tofte has
provided this kind
of
training during the District's annual meeting at the beginning
of
the
school year as well as at other times throughout the school year. 	She may provide up to 10
hours
of
this kind
of
training in a given school year. She did not provide any such training
during the 2012-2013 school year, however. Rather, most
of
the training Tofte conducts
consists
of
teaching specific behavior modification techniques to teachers and
paraprofessionals relative to a particular student's IEP and behavior goals.
When asked to describe her day-to-day duties, Tofte stated that she spends
approximately 30 percent
of
her time conducting classroom observation. This is the largest
allotment of time spent in any one task. The next largest volume of her time is spent in her
cubicle writing reports, compiling data, conducting parent interviews over the phone, emailing
17

teachers and psychologists and other office tasks. In total, the volume
of
time spent in her
cubicle engaged in these various tasks is approximately 30 percent. The next highest volume
of
time allotment is spent in meetings, which Tofte estimated at 25 percent. Finally, she
spends approximately 10 percent
of
her time training other staff.
Lisa Dillon
At the time
of
the hearing, Dillon was in her third year with the District. However,
prior to her employment with the District, Dillon had perfonned behavior analysis services at
two other school 'districts (one in California, one in New York) and for one non-public school
for a total
of
15
years' experience as a behaviorist. She has both a bachelor's degree and a
master's degree in Psychology, a BCBA, and she has completed the District's BICM training.
She works directly with two paraprofessionals, whose work she directs on a daily basis.
Although she has no authority to discipline either
of
the paraprofessionals assigned to work
with her, she did sit on the hiring panel that hired both
of
them. When asked to review a
provision in the collective bargaining agreement for certificated employees, Dillon
acknowledged that the level
of
supervision she exercises over the paraprofessionals assigned to
work with her is comparable to the level
of
supervision that teachers exercise over
paraprofessionals, as described in the certificated contract. Dillon has never held a teaching
credential.
Dillon receives her assignments directly from the Program Director. The means by
which Dillon receives her assigmnents is similar to that described by Tofte. First, a teacher
identifies a student in need
of
a BSP and drafts a BSP for that student.
If
the BSP is not
bringing about a change in the maladaptive behavior, the teacher may do one revision
of
the
BSP before requesting the services of a BIS. The request is then granted or denied by the
18

Program Specialist, who decides whether Dillon is assigned to a particular case. At the time
of
the hearing, Dillon estimated her case load was between 30 and 50 BSPs.
Once Dillon is assigned a particular BSP, her first step is to talk to the teacher to gain a
better understanding
of
the particular behavior that is impeding the student's access to their
education. She usually arranges to meet with the teacher outside
of
the classroom to have this
discussion, but she can also accomplish this through e-mail communications with the teacher.
This may involve consulting with the teacher about the student's academic difficulties.
However, the focus
of
these discussions is always the student's behavior, either related to the
subject matter or the difficulty level
of
the subject being taught. She might suggest to the
teacher that they modify a lesson that was too difficult, but would not suggest any particular
content be used or omitted. 	She approaches these conversations as brainstorming
sessions-
she doesn't tell the teacher what to do.
By the time a plan gets to her, the teacher has already consulted with a school
psychologist. So
if
the plan assigned to Dillon is associated with a new student, Dillon might
also contact the school psychologist. She may also consult with other specialists who have
been active in the student's IEP.
Once she has a better idea
of
the type
of
behavior the student is engaging in, she will
observe the behavior in the classroom setting. During her classroom observation, she is
looking for antecedents and consequences to the behavior as well as the frequency
of
the
behavior. She is also trying to detem1ine what the student is trying to get from the behavior
and what kinds of replacement behaviors are feasible to implement in the classroom.
Behaviors don't occur in isolation, so Dillon is looking for the system that supports the
negative behavior. She takes notes during this process.
19

Once she has drafted a new BSP, Dillon schedules
an
IEP meeting to put the BSP in
place. Once the new IEP with BSP has been approved by the parent, she can begin training the
staff on how to implement the BSP. The initial training might consist
of
a meeting with just
the student and one paraprofessional or the teacher and giving them the written BSP to review.
If there are any concepts that the paraprofessional doesn't understand, she will explain them.
She might have the paraprofessional work on implenienting the basics
of
the plan for a week.
Once the basic plan is understood, she can add additional elements to the plan.
Implementation
of
the plan requires constant adjustment and retraining
as
the targeted behavior
changes. Throughout this process, she provides constant feedback to the staff about what
works and what does not work. She also models the plan for the staff in the classroom setting.
This process shows the staff what to
do to produce the desirable behavior. Dillon estimates
that 80 percent
of
her job is spent developing and implementing BSPs, with implementation
consuming the largest proportion
of
that 80 percent.
When it is evident that the BSP is not working, or in the event that a student exhibits a
serious behavior, an FAA might be warranted and provide more information. The IEP team
must first determine that an FAA is warranted, however. Dillon generates the FAA and brings
it back to the IEP team to approve. Upon the team's approval
of
an FAA, it is implemented
and Dillon begins to train the staff on the elements
of
the new behavior plan.
Occasionally, an IEP will call for a consultation with a BIS. When this is the case, the
consultation is always between the BIS and the teacher rather than the student. Dillon
schedules these consultations during the teacher's prep period or on Wednesday afternoons
when classes end early. The frequency and duration
of
consultations is detern1ined by the IEP
team. Informally, Dillon also gets emails and phone calls from teachers who want to discuss a
particular behavior or concern. These interactions occur periodically and are unscheduled.
20

Dillon also works directly with students. Usually, the contact Dillon has with students
is limited to modeling behavior for the other staff. This is done in the classroom because she
needs to observe the behavior in the environment where it occurs
if
she is going to come up
with a plan to address it. There is one student in particular for whom Dillon models
replacement behavior directly to the student. She estimated that she spends one or two hours a
week with this student.
When asked whether she believes she provides "counseling" services to students,
Dillon responded in the negative. In her mind, counseling is talking with someone who has a
problem. She doesn't do that. She was unfamiliar with the phrase, "behavioral counseling."
Dillon provides a training session at the beginning
of
the school year on the topic
of
Behavior Support Plans. When asked whether this was an "in-service" training, Dillon stated
that she did not consider it to be so, as it was infonnal, attendees didn't take notes, and she
doesn't have a practice
of
keeping track
of
who attended or other documentation regarding
what was taught. She estimates that less than one percent
of
her time is spent performing this
kind
of
training. This kind
of
training was differentiated from the training that occurs in the
classrooms on a near-daily basis when she is implementing a behavior plan.
Eric Plummer
At the time
of
the hearing, Plummer was in his eighth year as a BIS. Prior to being
hired as the District's first BIS, Plummer was employed by the District as a School
Psychologist. Plummer has a Pupil Personnel Services credential with a specialization in
psychology that authorizes him to work as a school psychologist. Plummer has a master's
degree in psychology with a specialty in behavior. Plummer does not have a BCBA.
While Plummer was employed as a school psychologist, there were no BISs working at
the District under that title. When the services of a behaviorist were needed, those services
21

were provided by Dr. Roche, another District employee who was titled a "Behavior Specialist."
When Plummer made the transition from being a school psychologist to being a BIS, it was at
the urging
of
the then-Director
of
Special Education, and coincided with Dr. Roche's
retirement. 	Because the District had designated the BIS position outside
of
the certificated
bargaining unit
of
which Plummer had been a member as a School Psychologist, he was
required to first resign his position as a School Psychologist and submit to a six month
probationary period
as
a BIS. At the time, he was given the choice
of
continuing to participate
in the State Teachers' Retirement System or changing his retirement benefits to the CalPERS
program. Plummer enrolled in CalPERS. Also as a result
of
the job change, Plummer stopped
paying union dues, which he had done as a School Psychologist.
As the only BIS who has also worked as a School Psychologist in the District, Plummer
noted a number
of
similarities between the two jobs. For example, School Psychologists also
assist in the development
of
BSPs and serve on IEP teams. Both positions are evaluated by the
Director
of
Special Services. School Psychologists complete functional behavior analyses
(FBAs) when the District is considering expelling or suspending a student for more than
10
days. FBAs are typically completed during an IEP meeting and therefore do not represent any
additional work time for the School Psychologist who would likely be present at the IEP
meeting in any case. BISs, on the other hand, complete FAAs, which are similar to FBAs but
more extensive. Since Plummer has been at the District, he has not known
of
any FAAs that
were completed by School Psychologists.
Plummer also noted differences between the two positions. The primary functions
of
a
School Psychologist are student assessments and report writing. The assessments are in order
to detennine whether a particular student should be placed in the Special Education program.
They may include intelligence testing, testing for visual processing, testing for auditory
22

processing, testing visual motor skills, testing social emotional measures, and testing to
determine
if
any emotional social issues are interfering with learning. These assessments
usually have legal timelines for completion, and so are given priority. Some School
Psychologists have time left over after this for student counseling services or behavior support,
but they general1y don't have time to spend in the classroom. Even though Plummer has
performed both jobs, he stated that the demands
of
the School Psychologist's job were such
that even assuming he had the proper skills to perform the work
of
a BIS, he did not believe
one could successful1y perform both jobs simultaneously.
As a BIS, Plummer does not provide any counseling or talk therapy to his students.
When prompted whether the work
of
a BIS could be considered "behavioral therapy,"
Plummer hesitantly agreed to the descriptor, but did not consider the services
of
a BIS to be a
health service. Because the student population he works with lack perspective on how their
behavior affects other people and how other people might see them, he does not engage in any
talk therapy with these students. When asked whether he would describe his current work as
"behavioral counseling," Plummer stated that he had never heard that phrase before. Initially,
Plummer stated that he would not describe his work as the "school adjustment
of
pupils,"
because he doesn't really help students adjust to the school environment. He reluctantly
agreed that one could use the phrase "school adjustment
of
pupils" to describe the work
of
a
BIS, however. In his estimation, a psychological intervention is a therapeutic intervention
through a form
of
therapy like cognitive behavioral therapy, straight-talk therapy or
psychoanalysis. As a BIS, he does not engage in any
of
these activities.
Plummer's current case load is 26 students and a few "whole class" settings, spread
across 17 different campuses throughout the District. When Plummer gets a new assignment,
typically the student has already had a BSP drawn up by a teacher and/or a School
23

Psychologist. The first thing he does is visit the classroom for the purpose
of
conducting direct
observations
of
the student when and where the behavior is occurring. While observing the
student, he collects data about the behavior like frequency and time
of
occurrence. He also
collects narrative data regarding what is occurring in the classroom at the time that the negative
behavior manifests. He will identify antecedents and consequences
of
the behavior and
identify other environmental issues like seating arrangements, ambient noise, student-to-
student contact, the types
of
visual displays used in the classroom, and whether the teacher is
facing the classroom or the whiteboard. He will then review the student's records and files and
his or her current IEP. He interviews the classroom teacher and the primary staff members
working with the student. Then he writes the plan. He described the writing process as "fairly
straightforward," though acknowledged that it can vary in complexity from case to case.
When implementing the BSP, he will set up an appointment with the teacher at a time
when there are no students in the classroom. He may invite other campus employees to the
initial meeting. During the initial meeting, he will model the task and role play with the
teacher, give feedback to the teacher with regard to both the performance
of
the task and the
rationale for it, then assist the teacher in performing the task in the setting where it will be
applied to the student.
There are some IEPs that call for "on-going support training." This could include
observation and data collection, or it could include retraining the existing staff or training a
new staff member. There are other teachers in the District who will simply contact Plummer to
problem solve, either over the phone or by e-mail.
Plummer is tasked with the duty to train other BICMs in the District. Plummer testified
that he received his BICM training during his graduate program for school psychology. The
District's BICM training program consists of training employees in the difference between
24

positive and negative reinforcement, punishment, extinction, and some common behavior
problems that arise in Special Education classrooms and how to address them. The training is
not linked to any particular student and is intended to be broad-based.
Plummer stated that he does not supervise paraprofessionals, although there is one
paraprofessional who is assigned to work with him. There are additional paraprofessionals in
the classrooms and he may assign them tasks, much in the same way that teachers assign tasks
to paraprofessionals. Ultimately, the site administrator is responsible for the supervision
of
paraprofessionals assigned to the school. He stated that he does not plan courses
of
study, but
that he is assigned to approximately 6 students who use behavior monitoring materials that he
creates. These are students who are capable
of
self-monitoring techniques. He does not
participate in any extracurricular activities. He does not consider the work he does to be part
of
the student health
program-he
considers the student health program to mean nursing
services.
When asked to estimate the amount
of
time he spends in each task, Plummer stated that
he spends approximately 10 hours per week in on-going support; 2-4 hours per week in
classroom training; 3-4 hours per week in IEP team meetings; 6-10 hours per year conducting
and preparing for in-service training; one hour per month in JA meetings; and I 0-12 hour per
week on behavior plans. \Vhen it was pointed out to Plummer that his estimate accounted for
only 27-31 hours per week, Plummer pointed out that the students are in the classroom for only
30 hours per week. Plummer estimates that the remainder
of
his workweek consists
of
reviewing emails, managing his schedule and list
of
tasks, traveling from school to school,
returning phone calls, consulting with special services providers, and writing reports.
25

ISSUE
Whether the position
of
Behavior Intervention Specialist should be included in th
certificated bargaining unit represented
by
FUDTA.
e
CONCLUSIONS OF LAW
I.
	PERB's Jurisdiction To Determine Unit Modification Petitions
The purpose
of
a unit modification petition is determined by the contents
of
the petition
itself. (Modesto City School District (1991) PERB Decision No. 884 (Modesto).) This
Petition was filed under PERB Regulation 32781(a)(l) to add unrepresented classifications or
positions to the unit. Thus, in this case, the question before PERB is whether the BISs should
be
included in the certificated bargaining unit. And, when unit modification petitions are filed
under EERA, as this one was, and the disputed position is newly created, as this one is, PERB
must first determine whether the position is certificated or classified under the Education Code
before it can determine a proper unit placement. (Ibid.) Thus, the Union's "Letter Motion for
Summary Adjudication on PERB Authority'' seeking to have PERB "confinn its authority to
adjudicate the 'classified' or 'certificated' status"
of
the BISs, is based on an eIToneous
premise. PERB has authority to detennine the proper unit placement
of
employees covered
under the EERA, the question that was raised in the unit modification petition filed by the
Union.
It is well-settled law that when enforcing the EERA, PERB must occasionally interpret
sections
of
the California Education Code. (San Mateo City School Dist.
v.
Public
Employment Relations Bd. (1983) 33 Cal.3d 850, 864-865, accord, Healdsburg Union High
School District and Healdsburg Union School District/San Mateo City School District (1984)
PERB Decision No. 375.) When undertaking the necessary function
of
interpreting statutes,
the intent of the Legislature should be examined in order to effectuate the purpose of the law.
26

(Long Beach Community College District (2003) PERB Decision No. 1564 (overruled in part
on other grounds, Long Beach Community College District (2009) PERB Decision No. 2002),
citing Moyer
v.
Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230. (Moyer).) Where
no ambiguity exists, the intent
of
the Legislature in enacting a law is to
be
gleaned from the
words
of
the statute itself, according to the usual and ordinary import
of
the language
employed. (Noroian
v.
Department
of
Administration, Public Employees' Retirement System
(1970)
11
Cal.App.3d 651, 654, hg. den.) However, in detennining intent, it is important to
examine the language
of
the statute and to give effect to each word. (Moyer.) It is also a
fundamental rule
of
statutory construction that a statute must be construed in context, "keeping
in mind the nature and obvious purpose
of
the statute where they appear." (Id.) "[t]he various
parts
of
a statutory enactment must
be
hannonized
by
considering the particular clause or
section in the context
of
the statutory framework as a whole." (Id.)
Unit determinations are among the most significant factors in industrial relations.
(Alameda County Assistant Public Defenders Assn.
v.
County
of
Alameda (1973) 33
Cal.App.3d 825, 832.) PERB's own regulations reflect the importance
of
unit modification
decisions granting broad authority to investigate and resolve unit modifications. PERB
regulation 32786(a) states:
Upon receipt
of
a petition for unit modification, the Board shall
investigate and, where appropriate, conduct a hearing and/or a
representation election, or take such other action as deemed
necessary in order to decide the questions raised by the petition
and to ensure full compliance with the provisions
of
the law.
Indeed, a failure to conduct a satisfactory investigation could be deemed an abuse
of
the
Hearing Officer's discretion. (Jefferson School District (1980) PERB Order No. Ad-82.) In a
unit modification hearing, the importance oflive testimony from incumbents in the disputed
positions cannot be overstated. PERB has refused to accept parties' stipulations regarding
27

what the incumbents to a vacant position would
do
upon
hire-instead,
deferring a decision
until the position was filled and testimony from someone actually performing the position
could be taken. (Mendocino Community College District (1981) PERB Decision No. 144a.) In
another circumstance, PERB has reversed a Board agent's finding that a community
of
interest
exists among positions when the detennination was based on findings made in prior decisions
rather than upon testimony adduced at the hearing. (Castaic Union School District (2010)
PERB Order No. Ad-384.) Nor should the Board agent accept parties' stipulated units without
scrutiny, which may include conducting a representation hearing and eliciting evidence in
support
of
the stipulated unit. ( Centinela Valley Union High School District (1978) PERB
Decision No. 62.)
At the close
of
the first day
of
hearing, the BISs had not been present and had not
testified, and there were no facts in the record upon which PERB could base a finding
of
what
job functions the BISs performed on a daily basis. Although the District had presented the
declarations
of
the BISs in its earlier motion to dismiss, these declarations were stated in the
negative-they stated what the BISs did not do, rather than what they did. The District's
motion for summary judgment prior to the taking
of
testimony from the BISs for the purpose
of
eliciting testimony regarding their day-to-day job duties, was premature and any finding based
on the dearth
of
evidence in the record at that time would have been akin to an abuse
of
discretion.
II. 	The Test for Whether the Behavior Intervention Specialist Should Be Included In The
Certificated Bargaining Unit
When a school district creates a new position, it must assign the position to either the
classified service or the certificated service. The EERA does not define "certificated" and
"classified" employees. Rather, a definition of these phrases may be found in the Education
Code. While PERB does not enforce the Education Code, as noted above, it is well settled that
28

PERB may interpret the Education Code in detennining questions arising under the statutes
thatit
enforces. (City
of
Pinole (2012) PERB Decision No. 2288-M.) The California
Education Code defines a certificated position as "every type
of
service for which certification
qualifications are established
by or
pursuant to sections 44000 to 44012, inclusive, section
44065, and Chapter 2 (commencing with section 44200)
of
this part." (See Ed. Code, §
44001.) A classified position is "[e]very position not defined by this code as a position
requiring certification qualifications and not specifically exempted from the classified service
according to the provisions
of
45103 or 45256
....
" (Ed.
Code,§
45104.)
As noted above, the only positions which need not be designated part
of
the classified
service are those positions requiring certification and those which are specifically exempted
from the classified service. Thus, the default classification for school district employees is the
classified service. As an examination
of
the few PERB decisions confronting this issue
demonstrates, there must be strong evidence
of
a Legislative intent for the position to be
certificated in order for PERB to ordet the position part
of
the certificated bargaining unit.
In Gilroy Unified School District (1979) PERB Decision No. 98 (Gilroy), the issue at
hearing was whether "permit teachers" at a children's center should be included in the "regular
certificated teachers unit." The district had been treating permit teachers as classified
employees. In order to address the issue, the Hearing Officer had to first determine whether
permit teachers were classified or ce1iificated employees within the meaning
of
BERA section
3545(b). The Hearing Officer in that case focused on Education Code section 8360 et seq.,
governing the eligibility requirements for staff in child development programs. That section
contains extensive discussion
of
what the positions require in terms
of
certification and who
should provide that certification. Indeed, the language in this section is so explicit as to leave
little doubt which positions in a child development program are certificated or classified, and
29

that the California Commission on Teacher Credentialing (CTC) shall establish the standards
for the issuance
of
those certificates or permits. (See Ed. Code, §8370.) The Hearing Officer
found that the permit teachers were "certificated as a matter
oflaw
and therefore may not be
included in a negotiating unit with classified employees." In approving the Hearing Officer's
analytical approach in that case, the Board stated that there was "ample support"
of
the
Hearing Officer's findings in other sections
of
the Education Code, citing sections 44006,
44002 and 8360.
In Modesto, supra, PERB Decision No. 884, the district filed a petition to remove the
"Auditoriums Manager" from the certificated unit. Again, the Board turned to the definitions
of
"certificated" and "classified" in the Education Code to begin its analysis. Unlike with the
Board's analysis in Gilroy, supra, PERB Decision No. 98, in Modesto, the Board analyzed the
Auditoriums Manager position under Education Code section 44065. After laying out the
criteria under section 44065 for a certificated position, the Board proceeded to analyze the
actual duties
of
the Auditoriums Manager against those criteria.
The Union argues that Education Code section 44065 addresses only which managerial
and supervisory employees must hold credentials, and that non-managerial, non-supervisory
credential issues are resolved in Chapter 2
of
Title 2, Division 3, Part 25
of
the Education
Code. In California Teachers Association
v.
Golden Valley Unified School District (2002) 98
Cal.App.4th 369, the issue was whether a particular employee was properly classified as a
probationary employee or
if
she should be classified as a permanent certificated employee.
Both parties acknowledged that a sixth grade math and science teaching position was a position
requiring certification. In dispatching this non-issue, the Court stated,
The phrase "position requiring certification qualifications" is
defined in section 44001 to include "every type of service for
which certification qualifications are established by or pursuant
30

to Section 44000 to 44012, inclusive, Section 44065 and [the
chapter on teacher credentialing, sections 44200 to 44374]."
The section
of
the Education Code identified
by
the Union as applicable to non-managerial,
non-supervisory employees is none other than sections 44200 to 44374. Clearly, these sections
apply to classroom teachers. BISs are not classroom teachers, and neither party argues that
BISs are classroom teachers. As such, reliance on this particular provision
of
the Education
Code, which applies explicitly to classroom teacher credentialing issues, is misplaced.
PERB has applied Education Code section 44065 to disputes involving non-managerial,
non-supervisory positions to determine the proper unit placement
of
a public school employee.
In Stanislaus County Office ofEducation (1993) PERB Decision No. 1022 (Stanislaus), the
Board upheld a Hearing Officer's decision to grant a unit modification petition seeking to add
the classification
of
"Outdoor Education Naturalist" to the certificated bargaining unit.
Historically, the Stanislaus County Office
of
Education (COE) required all its naturalists to be
credentialed employees. However, at some point, the COE realized that its best candidates did
not have a teaching credential. In response to the dearth
of
certificated candidates, the COE
created two classifications
of
naturalists-one with and one without certification. Naturalists
that were hired without a teaching credential were assigned to the classified bargaining unit
and naturalists that were hired with a teaching credential were assigned to the certificated
bargaining unit. The COE even maintained two separate job descriptions--one for naturalists
with a credential and one for naturalists without a credential. When a position came available,
the COE could then list a position for either a certificated or classified naturalist based on
differing levels
of
knowledge, ability, experience and qualifications, and offer different pay
scales to con-espond with those different qualifications.
After considering all the evidence of the actual job duties of both certificated and
classified naturalists, the Hearing Officer found that at least half the duties of the naturalists
31

were "instructional services," under Education Code section 44065, subsections (1) and (3),
and therefore, the position was one which required certification. These findings were based on
the actual
job
duties
of
both positions. Thus, once again, the Board's finding rests on the
actual
job
duties
of
the position, not the title, not the nominal classification given
by
the
employer, and not on a community
of
interest analysis.
Comparing the Board's approach in Gilroy, supra, PERB Decision No. 98 on the one
hand, with the Board's approach in Modesto, supra, PERB Decision No. 884 and Stanislaus,
supra, PERB Decision No. 1022 on the other,
it
appears that there are two methods
of
determining whether a position should be deemed certificated under EERA: 	either the position
is certificated as a matter
of
law based on the specific identification
of
the position and its
duties
by
the Education Code; or the position is certificated as a matter
of
fact because the
majority
of
the duties performed by the incumbent are certificated duties under section 44065.
The analytical approach did not change based on whether the employee was provisionally
deemed "supervisory" or "managerial."
A. The BISs are not certificated as a matter oflaw.
The Union argues that the Hughes Bill, under which the BIS position was created,
mandates that BISs are certificated as a matter
oflaw.
The Hughes Bill addresses the use
of
positive behavioral interventions and supports in order to address maladaptive behaviors in
school children with exceptional needs. (Ed. Code, § 56520 et seq.) Section 56525
of
the
Hughes Bill states:
(a) A person recognized by the national Behavior Analyst
Certification Board as a Board Certified Behavior Analyst may
conduct behavior assessments and provide behavioral
intervention services for individuals with exceptional needs.
(b) This section does not require a district, special education local
plan area, or county office to use a Board Certified Behavior
32

Analyst to conduct behavior assessments and provide behavioral
intervention services for individuals with exceptional needs.
The Union argues that Section 56525 designates a BCBA as
"a
form
of
licensure," that
permits employment in an "educational position," which is a form
of
certification and, by
extension, a BCBA is a "certificated person" under section 44006.
An "education position" is synonymous with a position requiring certification
qualifications under section 44001
of
the Education Code. (Ed. Code, § 44001.) The
Education Code defines a "certificate" as "the document issued by a county board
of
education
to license the holder to perform the service specified in the certificate." (Ed. Code, § 44004.)
A BCBA is not issued by a county board
of
education, so it cannot be considered a
"certificate." A "credential" is defined by the Education Code as
"a credential, certificate, life
document, life diploma, permit, certificate
of
clearance or waiver issued by the [Commission
on Teacher Credentialing, or 'CTC']." (Ed. Code,§ 44002.) A BCBA is not issued
by
the
CTC, and so is not a "credential."
The tenn "certification document" is defined by the Education Code as including "only
certificates [issued by county boards
of
education], credentials [which are issued by the CTC],
and life diplomas [which are issued by the CTC]."
If
for no other reason than that the BACB
is not one
of
the approved issuing agencies, BCBAs don't fit the definition
of
a certification
under the Education Code.
To be certain, there are other fonns oflicensure that are required by the Education
Code before an individual may be employed in certain certificated positions. For example, a
school nurse must simultaneously hold a license issued by the Board
of
Nurse Examiners
authorizing him or her to practice nursing and also a services credential with a specialization in
health, issued by the CTC. (See Ed. Code,§§ 44267-44267.5 and 44877.) Likewise, doctors,
dentists and dental hygienists all have additional licensure requirements beyond a services
33

credential issued
by
the CTC. (See Ed. Code,§§ 44267-44267.5, 44873, 44875, and 44876,
respectively.) Nevertheless, what makes these other positions "certificated" as defined under
the Education Code is the certificate issued
by
the CTC or County Board
of Education-not
a
professional license issued by another entity. Thus, in order for a position to be certificated, it
must require one
of
the fonns
of
certification defined
by
the Education Code as such.
Section 56525 authorizes the holder
of
a BCBA to perform behavior assessments and
behavior intervention services but does not mandate that these services are provided only
by
the holder
of
a BCBA. Even assuming a BCBA were deemed to be a certificate, Education
Code, section 56525, subsection b, states that a BCBA is not necessary in order to perform
behavior intervention services. In other words, a BCBA is authorized to perform behavior
intervention services, but the provider
of
those services need not
be
a BCBA. Thus, regardless
of
whether a BCBA is a "certificate" under the Education Code, the Hughes Bill does not
mandate that a certificate holder perform behavior intervention services. There is no basis for
finding, as a matter oflaw, that BISs are certificated.
B. BISs at FUSD are not certificated as a matter
of
fact
As noted above, when faced with a classification determination involving a position
that is not explicitly required by the Education Code to hold certification, PERB will apply the
criteria in section 44065 to detennine whether the duties
of
the position require certification.
(Modesto, supra, PERB Decision No. 884.)
Education Code section 44065 provides that any school district employee who works in
a position in which 50 percent or more
of
their job duties consists
of
directing, coordinating,
supervising or administering any or all
of
the following functions shall hold a valid teaching or
service credential:
(1) The work of instructors and the instructional program for
pupils.
34

(2) Educational or vocational counseling, guidance and
placement services.
(3) School extracurricular activities related to, and an outgrowth
of, the instructional and guidance program
of
the school.
(4) Planning courses
of
study to
be
used in
th.e
public schools
of
the state.
(5) The selection, collection, preparation, classification or
demonstration
of
instructional materials
of
any course
of
study
for use in the development
of
the instructional program in the
schools
of
the state.
(6) Research connected with the evaluation and efficiency
of
the
instructional program.
(7) The school health program.
(8) Activities connected with the enforcement
of
the laws
relating to compulsory education, coordination
of
child welfare
activities involving the school and the home, and the school
adjustment
of
pupils.
(9) The school library services
( 10) The preparation and distribution
of
instructional materials.
(11) The in-service training
of
teachers, principals, or other
certificated personnel.
(12) The interpretation and evaluation
of
the school instructional
program.
(13) The exan1ination, selection, or assignment
of
teachers,
principals, or other certificated personnel involved in the
instructional program.
In its closing brief, the Union argues that the Board should apply " a plain language
reading
of
the statute," rather than "highly technical interpretations" in accordance with the
rules
of
statutory interpretation. Where the language
of
a statue is clear, there is no need to
seek out and apply the "highly technical interpretations" that the Union is concerned about.
(Noroian
v.
Department
of
Administration, Public Employees' Retirement System, supra, 11
35

Cal.App.3d 651.) The statute should be read in context in order to ascertain the legislative
intent
of
the act. 	Some
of
the categories
of
duties are defined under the California Education
Code, and some are not. (Moyer, supra,
IO
Cal.3d 222.) Where the Education Code has
defined a particular phrase or term, that definition is applied in the analysis below. Where
there is no clear definition
of
a phrase or term, and the meaning
of
phrase or term is
ambiguous, the rules
of
statutory construction shall
be
applied to best ascertain legislative
intent.
Each
of
the thirteen categories
of
job duties for certificated personnel under Education
Code section 44065 are discussed below.
(1) Instructors and the Instructional Program
Neither party offered a definition
of
the "instructional program" for purposes
of
defining whether BISs direct, coordinate, supervise or administer any
of
the work
of
instructors
or the instructional program. In Modesto, supra, PERB Decision No. 884, the Board agent
who analyzed whether the disputed position was certificated or classified defined the relevant
"instructional program" as the "drama and music programs" at the high school. Although not
made explicit, the definition applied in that case was a broad~based definition that included all
courses in the subject areas
of
music and drama. Adopting the plain language reading
of
"instructional program," it is clear that BISs do not direct, coordinate, supervise or administer
the Special Education instructors or the Special Education instructional program. Although
BISs consult with teachers to determine the most effective means
of
implementing a behavior
plan, they have no authority to direct instructors to engage in particular conductor refrain from
particular conduct. Nor do they have authority to determine what instructional materials will
be used to achieve educational goals.
36

It is also clear that simply assisting teachers in the instructional programs does not
render an employee "certificated," as classified paraprofessional employees are expected to
assist teachers in the instructional program as a primary function
of
their job. (Cal. Code
Regs., tit. 5, § 12069-12070.) Based on the facts presented regarding the nature
of
the duties
performed
by
BISs in the classroom, they carmot be deemed "certificated" based on the fact
that they may assist teachers in the instructional program, even
if
they do so for a majority
of
their work time.
(2) Educational or vocational counseling, guidance and placement services
The Education Code defines "educational counseling" as "specialized services provided
by
a school counselor possessing a valid credential with a specialization in pupil personnel
services who is assigned specific times to directly counsel pupils." (Ed. Code, § 49600.)
Educational counseling includes helping students identify and achieve immediate and long-
range educational plans as well as career and vocational counseling and personal and social
counseling. (Ibid.)
As noted
by
the BISs, most
of
their students lack the cognitive skills and self-awareness
that is necessary for direct counseling services to
be
of
any real benefit. Even assuming the
students with behavior plans could benefit from educational
or
vocational counseling, BISs do
not provide this service.
(3) School extracunicular activities
The Education Code defines school extracunicular activities as, an1ong other things,
those activities that are "not a part
of
the regular school cuniculum, [are] not graded, [do] not
offer credit, and [do] not take place during classroom time." (Ed. Code,§ 35160.5.) Indeed,
"[ a] program that has, as its primary goal, the improvement
of
academic or educational
37

achievements
of
pupils is not an extracurricular or cocurricular activity
as
defined
by
this
section." (Ibid.)
The BISs all testified that the maladaptive behaviors which impede the learning process
primarily occur in the classroom during classroom time. On this basis alone, the work
of
the
BISs does not fall within the definition
of
"extracurricular activities." Although one BIS stated
that s/he might, on occasion, accompany the class on an outing, this was not a regular
occurrence and did not amount to a quantifiable volume
of
time spent in this task. None
of
the
BISs' tasks involve directing, coordinating, supervising or administering extracurricular
activities.
(4) Planning courses
of
study
A "course
of
study" is "the planned content
of
a series
of
classes, courses, subjects,
studies, or related activities." (Ed. Code,§ 51014.) Given the highly individualized nature
of
the instruction provided to Special Education students, it is clear that, even assuming the BIS
had some role in the creation
of
an individualized instructional program for a particular
student, that involvement would not meet the definition
of
planning a "course
of
study." None
of
the duties performed by the BISs appear to fall into this category.
(5) The selection, collection, preparation, classification or demonstration
of
instructional materials
"Instructional materials" are defined as "'all materials that are designed for use by pupils
and their teachers as a learning resource and help pupils to acquire facts, skills or opinions or
to develop cognitive processes. Instructional materials may be printed or nonprinted, and may
include textbooks, technology-based materials, other educational materials, and tests." (Ed.
Code,§ 60010(h).) None
of
the work described by the BISs appears to fit neatly into this
category. Some
of
the BISs did report that they created visual aids or icons for use in behavior
modification or self-monitoring by students. Even assuming these materials fall within the
38

definition
of
"instructional materials," the BISs spend a very small percentage
of
their time
directing, coordinating, supervising or administering the selection, preparation and
demonstration
of
these materials.
(6) Research
of
the Instructional Program
When BISs conduct research, it is undertaken with regard to a specific behavior plan to
address a particular maladaptive behavior. Assuming that the phrase "Instructional Program"
refers to an entire category
of
courses, it is clear that the BIS does not perfonn research
connected with the evaluation and efficiency
of
the instructional program. Nor can it be said
that they direct, coordinate, supervise or administer research connected with the evaluation and
efficiency
of
the instructional program.
(7) The School Health Program
The phrase, "the school health program"
is
not defined by the Education Code. From
context, it appears that the phrase refers to the act
of
safeguarding the health
of
school-aged
children rather than to the instruction
of
health education to children. Indeed, the latter
possible meaning
of
the phrase would appear redundant given the understanding
of
the phrase
"instructional program," endorsed above. Assuming "the school health program" is intended
to refer to the role
of
the public schools in safeguarding the health
of
students, the question
of
whether BISs serve 50 percent or more
of
their time directing, coordinating, supervising or
administering the school health program is a closer question.
Education Code section 49422 provides for the supervision
of
health and physical
development
of
pupils. This section states, among other things, that school district employees
shall not administer psychological tests or engage in other psychological activities involving
the application
of
psychological principles, methods, or procedures unless they hold a
39

credential or are a school psychology intern working under the direct supervision
of
a
credentialed employee. (Ed. Code,§ 49422(e)(l).) Section 49422(e) also states:
(2) The application
of
these principles and methods includes, but
is not limited to, procedures on interviewing, psychoeducational
assessment, diagnosis
of
specific learning and behavioral
disabilities, and amelioration
of
learning and behavioral problems
of
individuals or groups. 	[Emphasis added.]
(3) The person conducting a test or other assessment shall be
qualified in accordance with the requirements established by the
producer
of
the assessment instrument and shall follow all ethical
requirements for the use
of
the test or assessment as prescribed by
the appropriate professional organization.
Thus, to the extent that the amelioration
of
behavioral problems constitutes the
supervision
of
health and physical development
of
pupils, it would appear that the work
of
the
BISs is part
of
the school health program. Given the role the BISs play in developing and
implementing behavior plans, their role in the school health program could fall within the
meaning
of
the phrases, "directing, coordinating, supervising or administering" one aspect
of
the school health program. BISs work autonomously to develop and implement a behavior
plan for a particular student; they review the prior work
of
other certificated personnel in doing
so; and they coordinate with the other certificated staff and supervise the implementation
of
the
behavior plan once developed. BISs do not decide which students may be in need
of
behavior
modification plans, and do not have the authority to order that a particular behavior plan be
adopted.
This does not resolve the issue, however,
of
whether the authority BISs have over the
development and implementation
of
a particular behavior plan is the equivalent to directing,
coordinating, supervising or administering the "school health program."
If
an "educational
program" is "the entire school-sponsored offering for pupils of a district," (see Ed. Code,
§ 51011), then the "school health program" would appear to be the entire school-sponsored
40

offerings
of
health services for pupils
of
a district. Presumably, this would involve more than
just behavior modification services. 	Based on this definition, the amelioration
of
behavior
problems in individuals or groups would appear to be one part
of
a larger system
of
health
services offered
by
public school districts. It is by no means clear that the BISs' involvement
in behavior plans constitutes directing, coordinating, supervising or administering the school
health program.
The Board resolved a similar argument in l1Jodesto, supra, PERB Decision No. 884.
	In
,Modesto, the teacher's association argued that duties
of
the Auditoriums Manager had both
supervisory and instructional elements to it, and that the position should be included among the
certificated staff as a result. The Board rejected the argument that a position must be
considered certificated simply because it exercised some supervisory or instructional
responsibility over students, noting that there were many classified positions that exercised the
same kind
of
responsibility.
Overall, the record reflects that BISs perform a discrete but vital service to a targeted
audience
of
Special Education students. BISs do not select or identify the students in need
of
their services, and their involvement in a particular case occurs only after a behavior plan from
a certificated employee (either the pupil's teacher or the school psychologist) has already been
implemented without achieving the desired result. BISs' interaction with the students is
limited and occurs,
if
at all, during instructional time when the pupil is under the supervision
of
the classroom teacher.
In comparing the duties
of
the School Psychologist and the BIS, Plummer stated that
while School Psychologists are capable
of
providing behavior intervention services, creating
behavior plans and conducting FAAs is time-consuming and not easily accommodated with all
the other duties assigned to the School Psychologist. Yet school districts must provide
41

behavior intervention services
if
they wish to continue receiving federa] funds under the IDEA.
Demand for behavior intervention services is not likely to decrease in the future, necessitating
a clear understanding
of
the work these employees perform as well as their proper placement
within the school district. 	(See Ed. Code,
§§
56846-56847, acknowledging that autism is the
fastest growing Special Education eligibility category for public education in Califomia and
the nation.)
Certainly, the District could have simply hired more School Psychologists to absorb the
greater work load created
by
the increased demand for behavior modification services. It did
not do so, however, and instead removed this discrete task from the duties
of
the School
Psychologist and assigned it to a new classification
of
employee. Even assuming it could
be
timely raised
by
the Union, the question
of
whether this conduct amounts to an unlawful
transfer
of
bargaining unit work is not a concem that may
be
resolved
by
a unit modification
petition. Clearly the work
of
BISs was once performed
by
certificated employees and is still
capable
of
being performed
by
certificated employees. It does not follow, however, that the
work may only be performed
by
certificated employees.
Finally, when the text
of
the Hughes Bill is examined, it appears that the Legislature did
not intend that only certificated employees conduct behavior assessments and provide
behavioral intervention services. As with the job duties
of
the Auditoriums Manager in
Modesto, supra, PERB Decision No. 884, the fact that the BISs perfonn tasks that are also
performed by certificated employees does not, in itself, determine the status
of
the BISs.
Based on the facts presented here, it appears that the BISs' relationship to the school health
program is that
of
a suppmiing role, rather than a core component
of
the school health
program. Under the circumstances, it is not clear that the BISs fall within the meaning
of
Education Code section 44065(7).
42

(8) Compulsory Education, Child Welfare and School Adjustment
of
Pupils
The phrase, "school adjustment
of
pupils" is not defined in the Education Code. The
Union has proposed several possible meanings for the phrase, including decisions regarding
the appropriate school placement
of
students
as
well as assisting the pupil to adjust to the
school enviromnent in general. The phrase could refer to the decision
of
which school a
student should attend or it could reference a student's emotional adjustment to a school to
which they have been assigned. Lacking a clear definition, application
of
the rules
of
statutory
construction is appropriate to determine the legislature's intended meaning
of
the phrase
"school adjustment
of
pupils."
California Education Code, Title 2, Division 4, Part 27 governs the instruction and
services for elementary and secondary pupils. Chapter three
of
Part 27 is titled, "Compulsory
Continuing Education," and addresses such issues as the minimum attendance requirements
of
pupils and any exemptions from compulsory attendance. Chapter four
of
Part 27 is titled,
"Attendance at Adjustment Schools." Chapter four discusses a variety
of
non-traditional
public schools for the education
of
minor children. Section 48600 states, in relevant part:
The purpose
of
this article is to provide for the operation
of
24-
hour elementary schools
...
for minors
...
and to provide for the
attendance, maintenance, care, home supervision, guidance,
observation, and education
of
minors attending the schools, and
to provide the minors with that vocational, homemaking, mental,
moral, physical, and other training which will tend to strengthen
and develop them and enable them to become good and useful
citizens. The staff
of
every 24-hour school shall make adjustment
as rapidly as possible in order that the period
of
time the child is
away from ordinary community life may be as brief as
possible
....
Given the juxtaposition of these concepts-compulsory education, coordination of child
welfare activities involving the school and the home, and the school adjustment
of pupils-it
is
likely that the use of the phrase "school adjustment of pupils" in section 44065 is meant to
43

ensure that individuals providing pupil services at 24-hour elementary schools are certificated
under the Education Code. There are no facts demonstrating that any
of
the BISs provide
services to pupils attending 24-hour elementary schools.
(9) School Library Services
School library services are described in detail in Education Code sections 1770-1775.
BISs do not perfonn any duties related to the purchase, care and distribution
of
supplementary
books and
o-ther
material adopted for the course
of
study between the school districts. Nor do
they direct, coordinate, supervise or administer school library services.
(10) Preparation and Distribution
of
Instructional Materials
For the same reasons articulated in section (5) above, BISs spend, at most, a mere
fraction
of
their time preparing and distributing "instructional materials."
(11) In-Service Training
The Professional Development and Program Improvement Act
of
1968 created a system
of
"program improvement centers" to provide comprehensive in-service training programs to
teachers
of
students grades 1 through 12. (See Ed. Code,§§ 44630-44643.) The California
Code
of
Regulations defines "in-service training" as:
the education and training
of
teachers and other school personnel
who are employees
of
a local educational agency and require no
additional training or education to meet state teachers
certification qualifications. Exceptions are made for personnel
who have intern status and who need additional course work and
training to meet state certification requirements for the standard
teaching credentials." (Cal. Code Regs., tit. 5, §13025(i).)
Notwithstanding this broad definition
of
"in-service training," in order to qualify for
reimbursement
of
costs associated with in-service training under the Professional Development
and Program Improvement Act of 1968, the training must be provided by certain qualified
individuals and under certain conditions, all of which are established under the Education Code
44

sections 44630 through 44643 and California Code
of
Regulations sections 13025 through
13044. There are insufficient facts in the record to establish with any certainty whether the
training provided by BISs at the beginning
of
the school year would qualify as in-service
training under either the Education Code or the California Code
of
Regulations. Even
assuming the BISs did provide in-service training once or twice per school year, the volume
of
time spent in this task was admittedly minimal.
Although not dispositive
of
the definition
of
"in-service training" under the California
Education Code, it is noteworthy that the collective bargaining agreement between the District
and the Union includes several references to "in-service training." The parties' collective
bargaining agreement treats in-service training similarly to the manner in which in-service
training is defined under the Education Code sections cited above, in that only training that is
provided while certificated employees have been relieved
of
their regular duties is considered
"in-service" training under the collective bargaining agreement. In other words, on-the-job
training in the implementation
of
a particular behavior plan would not qualify as in-service
training under the parties' collective bargaining agreement, but the training led by BISs at
department-wide meetings could.
Under the circumstances, the Union's position that "in-service training" is intended to
include all training, based on a dictionary definition
of
the phrase, is not logically supported
either in the record or by the Education Code. Even assuming BISs performed some in-service
training, it is clear that they do not direct, coordinate, supervise or administer the in-service
training
of
teachers, principals, or other certificated personnel for more than 50 percent
of
their
work time.
45

(12) Interpretation and Evaluation
of
Certificated Personnel
There are no facts demonstrating that any
of
the work performed
by
BISs includes the
interpretation and evaluation
of
certificated personnel. Although all the BISs acknowledged
that they interact with certificated personnel in order to provide direction and guidance with
regard to implementation
of
behavior plans, they do not have any role in the evaluation
of
the
work performance
of
these certificated persons.
(13) Examination/Selection/Assignment
of
Certificated Personnel
There are no facts demonstrating that the BISs direct, coordinate, supervise or
administer the examination, selection, or assignment
of
teachers, principals, or other
certificated personnel involved in the instructional program.
Finally, even when aggregated, the facts presented establish that less than 50 percent
of
the BISs' working time is spent directing, coordinating, supervising or administering all
of
the
above-described functions. Accordingly, BISs are not certificated employees as a matter
of
fact.
C. This Decision Does Not Address Whether The BISs Are De Facto Ce1iificated
Employees
The Union argues that the District rendered the BISs de facto certificated employees by
virtue
of
the requirements it established for the position. That is to say, the Union argues that
because one
of
the two alternative "licenses and certificates" that must be held by the applicant
in order to meet the minimum eligibility requirements for the position is a pupil personnel
credential, the District has thereby made certification one
of
the requirements
of
the position.
This argument is based on the Union's interpretation
of
section 44066
of
the Education Code.
Although the Board has not ruled on the issue
of
whether section 44066 of the Education Code
is a factor to be determined in a unit placement issue, the Union's argument is acknowledged
in a footnote in Stanislaus, supra, PERB Decision No. 1022.
46

Stanislaus, supra, PERB Decision No. 1022 contains the following dicta:
Although the issue need not be decided in this case, it would
appear that even
if
certificated naturalists were deemed not to
require certification qualifications pursuant to Ed. Code section
44065, because the SCOE designated the position as certificated,
persons in such positions would
be
deemed to be certificated
pursuant to section 44066. 	Section 44066 provides, in pertinent
part, that any person who had served in a position for which
certification not necessitated
by
statute had been required and
which was designated
by
the governing board as a position
requiring certification qualifications shall
be
deemed to
be
an
employee in a position requiring certification qualifications for as
long as he or she holds such position. . . .
In its closing brief, the Union states, "Regardless
of
whether the law requires such
certification, the District has required it, and for this reason alone, the BI Specialists are
certificated under Education Code 44066." California Education Code section 44066 states, in
its entirety:
A governing board
of
any school district or a county board
of
education or a county superintendent
of
schools or other
appointing authority shall not require an employee or applicant to
possess any certification, license, or other credential unless the
possession
of
such a certification, license, or other credential is
required by statute or is based upon a bona fide occupational
qualification.
It is the intent
of
the Legislature that any person who had served
in a position for which certification, license, or other credential
not necessitated by statute or bona fide occupational
qualification, had been required, and in a position which was
designated by the governing board as a position requiring
certification qualifications, shall be deemed to be an employee in
a position requiring certification qualifications for as long as he
or she holds such position and it is further the intent
of
the
Legislature that such position shall be deemed to be a certificated
position for as long as such person holds such position.
Similar language appears in connection with classified employees. The Education
Code also states at section 45104:
Every position not defined by this code as a position requiring
certification qualifications and not specifically exempted from the
47

classified service according to the provision
of
Section 45103 or
45256 shall be classified as required
by
those sections and shall
be a part
of
the classified service. Such positions may not be
designated as certificated nor shall the assignment
of
a title to any
such a position remove the position from the classified service,
nor shall possession
of
a certification document be made a
requirement for employment in any such position.
Nothing in this section shall be construed to prohibit the
employment
of
any individual in a position described by this
section as part
of
the classified service who is in possession
of
certification qualifications, nor shall the possession
of
certification qualifications be grounds for the elimination
of
an
individual for consideration for employment in such a position.
One interpretation
of
these passages is that the Legislature sought to prevent employers
from manipulating the qualifications
of
a new position in a manner that would defeat the
Education Code's distinction between certificated positions and classified positions. Another
interpretation is that the Legislature sought only to prevent employers from creating positions
like "classified teacher" or "certificated bus driver'' in direct contravention
of
existing job
classifications already designated as either certificated or classified under the Education Code.
The District argues that
if
PERB finds that the BIS is a certificated position at the
District, then it must terminate Dillon and Tofte because they do not have pupil personnel
credentials. As the district argued in Stanislaus, supra, PERB Decision No. 1022, FUSD
argues here that its most qualified applicants do not have a credential. Thus,
if
PERB were to
grant the petition, it would have an immediate and lasting effect on the District's ability to hire
and retain the most qualified applicants for the job.
Fortunately, it is not necessary to decide this issue here. To reiterate, PERB's authority
is not to interpret the Education Code per se, but to determine whether a position is properly
assigned to a certificated or classified bargaining unit. The proper unit placement of the
position must be detennined based on the duties performed by the incumbents in the position.
PERB's function in this unit modification petition is not to determine if the District has
48

violated Education Code section 44066, but to determine
if
the BIS position may be
included
in
the certificated bargaining unit based on the definition
of
certificated employees under
Education Code section 44065.
Finally, it is important to note that this decision addresses only the Behavior
Intervention Specialists at the Fremont Unified School District. It is not intended to pronounce
judgment on similar positions at other school districts. This decision is based solely on the
facts presented at hearing with regard to the position created
by
and for the Fremont Unified
School District.
For all the reasons discussed in section II.A and ILB, above, the Petition is DENIED.
PROPOSED ORDER
Based upon the foregoing and the entire record in this case it is ordered that the unit
modification petition filed
by
the Fremont Unified District Teachers Association is DENIED.
49