Santa Maria-Bonita School District (PERB A400E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA MARIA ELEMENTARY EDUCATION
ASSOCIATION,
Charging Party,
V.
SANTA MARIA-BONITA SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5709-E
Administrative Appeal
PERB Order No. Ad-400
July 9, 2013
Appearances: William C. Smith, on his own behalf; Nancy S. Iarossi, President, for Santa
Maria Elementary Education Association; Timothy M. Cary & Associates by Timothy M.
Cary, General Counsel, for Santa Maria-Bonita School District.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by William C. Smith (Smith) from the administrative decision
issued by the PERB Appeals Assistant (Appeals Assistant) in response to a document entitled
"Call for Investigation" filed by Smith subsequent to the issuance of a proposed decision by a
PERB administrative law judge (ALJ) in this case. Treating the document as a statement of
exceptions, the Appeals Assistant denied the filing. 	The Appeals Assistant determined that
because Smith was not a party to the case, he was not entitled to file a statement of exceptions
to the ALJ' s proposed decision. 	On appeal, Smith requests that he be given party status and
that the proposed decision of the ALJ be set aside. For the reasons explained below, Smith's
appeal is denied.

PROCEDURAL HISTORY
On June 11, 2012, the Santa Maria Elementary Education Association (Association)
filed an unfair practice charge, alleging that the Santa Maria-Bonita School District (District),
acting through its agent, Smith, interfered with protected rights. 	Smith was an elected official
on the Board
of
Trustees, the governing body
of
the District. On October 5, 2012, the PERB
Office
of
the General Counsel issued a complaint alleging that the District's conduct violated
section 3543.5(a) and (b),
of
the Educational Employment Relations Act (EERA). 1 On
October 25, 2012, the District filed an answer to the complaint, denying that Smith was acting
as an agent
of
the District during the time period in question. An informal settlement
conference was held on December
6,
2012, but the parties were unable to resolve their dispute.
At the formal hearing, scheduled for March 7-8, 2013, the complaint was amended
twice to include additional allegations against the District. On April 18, 2013, the ALJ issued
the proposed decision framing the salient issues as whether Smith's conduct should be imputed
to the District and whether the conduct interfered with rights protected by EERA. The District
asserted that Smith was acting outside
of
his given authority at the time he took the actions as
alleged in the complaint. The ALJ found otherwise. After finding Smith to be an agent
of
the
District, the ALJ concluded that Smith's conduct as an agent
of
the District interfered with
protected rights. The ALJ proposed that the District be ordered to cease and desist from the
offending conduct and to post a public notice that a violation occurred.
On May 9, 2013, the District and the Association filed a joint "Stipulation to Waive
Right to File Appeal," requesting that the stipulation be accepted by the Board. The Board
took no action on this request. On May 13, 2013, Smith filed a document with the Board
entitled "Call for Investigation," which requested that PERB investigate what he referred to as
1 The EERA is codified at Government Code section 3540 et seq.
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"a travesty of justice." Smith alleged that the District and the Association conspired to use
PERB "to give a verdict that was more intended to try and humiliate me than to try and have a
fair hearing to come up with the truth." Smith asked that the Board listen to his testimony
from the formal hearing and examine the exhibits. Smith did not serve either party with a copy
of his "Call for Investigation" document.
By letter dated May 15, 2013, the Appeals Assistant informed Smith that neither party
had filed a statement of exceptions within the requisite time period and therefore the proposed
decision became final on May 14, 2013. Smith was also informed that the case had been
transferred to the Office of the General Counsel for compliance purposes. The Appeals
Assistant noted that Smith failed to serve the parties with his "Call for Investigation" document
and enclosed a copy with the letter. Regarding Smith's "Call for Investigation" document, the
Appeals Assistant stated:
If your 'Call for Investigation' letter dated May 13 is an attempt
at filing a statement of exceptions to the proposed decision, I
hereby deny your filing because you are not an actual party to this
case.
On May 23, 2013, Smith timely filed an appeal from the administrative decision of the
Appeals Assistant in a document entitled "Request to Become a Party and Set Aside of
Determination Pending a Review of Case." The appeal asserts that the District and its counsel
are biased against him. It describes numerous legal actions that the District and
Smith have against one another. 	Smith complains about the evidence adduced at the formal
hearing and the ALJ' s reliance on it in the proposed decision, and argues at length that his
conduct did not interfere with protected rights. Smith sums up his position in the following
way:
This is a political fight that really has no merit, and I am asking
the Board to remove the charge or have a hearing in which I can
be a party and present my side and witnesses. To smear a
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person's name when he has been denied due process because
of
a
hostile Board that has a grudge that needs to sign
off
on me filing
a complaint and
won't
because
of
ties with the Union like
supporting newly elected members is a sad situation.
On
June 6, 2013, the Association filed a response to Smith's appeal, requesting
that
Smith's request for joinder be denied. On June 7, 2013, the District filed a response to
Smith's
appeal, agreeing with the Appeals Assistant that Smith was not a party to the case. The
District makes the following three arguments in urging the Board to reject the appeal:
(1) Under EERA, Smith, as an individual member
of
the District Board
of
Trustees, does
not
meet the definition
of
a public school employer; (2) Smith's "Call for Investigation" document
does not comply with the requirements for filing a statement
of
exceptions nor was it served on
the parties; and (3) Smith waived his right to intervene.
DISCUSSION
The issue in this case is whether Smith has standing to pursue an appeal
of
the proposed
decision.
	If
he lacks standing, the Appeals Assistant was correct to deny Smith's "Call for
Investigation" document, treated as a statement
of
exceptions for purposes
of
the
administrative decision.
PERB Regulation 32300(a) provides, in pertinent part:
A party may file with the Board itself an original and five copies
of
a statement
of
exceptions to a Board agent's proposed
decision.
PERB Regulation 32305 provides:
Unless a party files a timely statement
of
exceptions to the
proposed decision, the decision shall become final on the date
specified therein.
The regulations are clear and unambiguous. Only a "party" to a proposed decision has
the right to file exceptions to it. There are two parties to the proposed decision, the
Association and the District. Neither party filed a statement of exceptions. Because Smith was
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not a party to the case and therefore lacked standing to file a statement
of
exceptions, the
Appeals Assistant was correct to deny his filing. By operation
of
PERB Regulation 32305, the
proposed decision became final on May 14, 2013.
As the Board explained in Regents
of
the University
of
California (Lawrence Berkeley
National Laboratory) (2013) PERB Order No. Ad-397-H:
The regulatory scheme delineates distinctions between the rights
of
parties and the rights
of
non-parties. PERB Regulation 32180,
for example, sets forth the rights
of
parties to a formal hearing as
including the right to appear in person, by counsel or by other
representative; the right to call, examine and cross-examine
witnesses; and the right to introduce documentary and other
evidence on the issues. By contrast, PERB Regulation 32210
allows
'any
person' to file a petition to submit an informational
brief or to argue orally in any case at a hearing or before the
Board itself. Notably, like PERB Regulation 32180, the
regulation governing the filing
of
exceptions grants appeal rights
to the more limited category
of
...
'parties.'
(See also John Swett Unified School District (1981) PERB Decision No. 188 ["PERB
rule 32300 only permits a 'party' to submit exceptions to a proposed hearing officer's decision.
Because the Association, and not O'Dwyer, is the charging party, we will not consider the
substance
of
the objections filed on O'Dwyer's behalf."]
Unfair practice charges may be brought against employee organizations or public
employers. Under EERA, the definition
of
"public school employer" or "employer" includes
the governing board
of
a school district, a school district, a county board
of
education, a county
superintendent
of
schools, a charter school (with certain qualifications), an auxiliary
organization (with certain exceptions) and a joint powers agency (with certain qualifications
and exceptions). (EERA § 3540. l(k).)
The District falls within the definition
of
"public school employer" or "employer"
under EERA. Smith, an elected official on the governing body of the District, the Board of
Trustees, does not. In a case where the conduct of respondent that is the subject of the unfair
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practice charge concerns the conduct of an individual rather than of the body as a whole, the
issue, as identified by the ALJ, is whether the conduct of the individual may be imputed to the
body.
Here, the ALJ, found Smith to be an agent of the District and found the District to
therefore be liable for his conduct. That the conduct concerned the conduct of an individual
trustee imputed to the District by operation of an agency relationship does not confer upon that
individual the status of a "public school employer" or "employer" within the meaning of
EERA. Accordingly, as Smith is not the "public school employer" or "employer," he not only
lacks standing to file exceptions, he lacks standing to seek party status. Both parties have
litigated their respective positions fully and agreed to abide by the ALJ's decision and order.
To accord Smith the right to appellate review of the ALJ's decision would be to contravene
both the statutory scheme's definition of "public school employer" and the regulatory scheme's
rules governing the filing of exceptions. It would also undercut the District's right to control
the administrative litigation of its case as the respondent party and both parties' expectations of
finality.
Assuming - solely for argument's sake - that Smith had the status of a "public school
employer" or "employer" for purposes of defending against a charge brought by an employee
organization, PERB' s j oinder application procedure under PERB Regulation 32164 would be
of no avail. Under subdivisions ( c) and (d), joinder is allowed only at the discretion of the
Board. Moreover, under subdivision (c), joinder is not permitted where it would unduly
impede the proceeding. The proposed decision became final on May 14, 2013. Smith
requested joinder for the first time on appeal from the administrative decision of the Appeals
Assistant denying Smith the right to file exceptions given his lack of party status. Joinder of
Smith would revive a proceeding that has already concluded, a result as problematic as
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impeding an ongoing proceeding. More importantly, to allow joinder at this stage
of
the
proceedings would be to subvert the clear and unambiguous meaning
of
PERB
Regulation 32300 conferring only on "parties" the right to file exceptions. As the Board
in
Regents
of
the University
of
California (Lawrence Berkeley National Laboratory), supra,
PERB Order No. Ad-397-H concluded, "Li]oinder under these circumstances is not
contemplated by the regulatory scheme." Accordingly, the Board denies the appeal.2
ORDER
William C. Smith's administrative appeal
of
the Appeals Assistant's denial
of
his.
filing
of
May 13, 2013, treated as a statement
of
exceptions to the
ALJ's
proposed decision in Case
No. LA-CE-5709-E, is hereby DENIED. As the ALJ's proposed decision became final
on
May 13, 2013, any further matters arising out
of
this case are referred to the Office
of
the
General Counsel for compliance.
Members Huguenin and Banks joined in this Decision.
The Appeals Assistant correctly noted that Smith failed to serve the parties with the
"Call for Investigation" document, treated as a statement
of
exceptions for purposes
of
the
administrative decision. Although the Board's conclusion that Smith has no standing to file
exceptions or seek party status is dispositive, the importance
of
following the service
requirements under PERB Regulation 32140, cannot be overstated. "These [service]
requirements are not merely ri.tualistic. They are basic to providing due process to the
involved parties." (Los Angeles Community College District (1984) PERB Decision No. 395.)
Although the Board has the authority to excuse defective service
if
the opposing party received
actual notice of the filing and there is no showing of prejudice (Coronado Unified School
District (1989) PERB Order No. Ad-188), this case involves a failure to serve, not defective
service.
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