Q. What are your thoughts on using one-time resources for COVID-19 relief for emergency staffing needs to compensate for learning loss and to comply with small cohorts per the California Department of Public Health directives? Can we employ certificated employees under a categorical temporary contract since the funding is not ongoing?
A. This is an excellent question, and one that School Services of California Inc. (SSC) staff has recently discussed in terms of staffing critical student needs with the use of temporary funding sources. Categorical funding is finite and includes specific beginning and end dates. Considering that state and federal funds have been provided that meet the finite test, the conclusion can be drawn that they are categorical. Specifically, local educational agencies (LEAs) have received temporary federal dollars through the Coronavirus Relief Fund, the Governor’s Emergency Education Relief (GEER) Fund, and the Elementary and Secondary School Emergency Relief (ESSER) Fund—with another round of ESSER dollars in the near future. In addition, one-time Proposition 98 funds also were distributed as part of the Learning Loss Mitigation Funds. All of these funds can be used to hire certificated employees under a categorical temporary contract. The allowable uses and time periods for the use of these funds are summarized on SSC’s website to help with developing the appropriate employment contract language. LEAs should review carefully and compare the deadlines for use of these different dollars so that you structure your temporary contract to optimize the period of time you need to employ the certificated employees.
Education Code Section (EC §) 44909 provides that the certificated temporary contract may be used as a staffing solution to address acute and temporary staffing needs. This includes staffing certificated position vacancies created by permanent employees on special assignment in a categorically funded project. The use of the temporary contract requires close attention and a level of caution, and that is especially the case when categorical funding applies. Certificated employees can be employed under a special categorical contract for positions funded with categorical funding; however, the termination of the contract must align with the termination of the categorically funded project. This is not explicitly stated in the statute; however, in March 2012, the California Court of Appeals issued an opinion on the matter:
Stockton Teachers Association CTA/NEA v. Stockton Unified School District et al.
Certificated employees employed pursuant to EC § 44909 whose positions are funded by private or public contracts or who are serving in categorically funded projects may be treated as temporary employees only in limited circumstances. To be treated as a temporary employee, the individual must be hired to perform services conducted under (a) contract with public or private agencies or (b) categorically funded projects which are not required by federal or state statutes, and the individual must be so employed for the complete term of the contract or categorically funded project. Absent a showing of facts that demonstrate these circumstances exist, the individual must be classified as a probationary employee and must be provided all rights and privileges of a probationary employee.
While it seems that the categorical temporary contract may fit the objective, due to the risks involved with misclassification of employees, it is recommended that LEAs check in with legal counsel to confirm. In addition, it is always good practice to make sure that the categorical temporary contract you are using is legally compliant, and it is also recommended that you request a template from legal while considering this option.
If the categorical temporary contract isn’t the right option for your LEA, here are some additional staffing considerations.
Option 1: Backfill Vacancies Created by a Long-term Leave With a Temporary Employee—If there are permanent employees on long-term leave, the temporary contract could be utilized to backfill their absence. If you have permanent employees on long-term absence and you have not classified their replacement as a temp, this may be a simpler option and will provide staffing relief where needed.
Option 2: Employ Substitutes—The option of employing substitutes is not the best for instruction, but it is there if the need is dire.
Option 3: Reassignment of Non-Classroom Teachers Back to the Classroom—One last and final option is to consider the use of non-classroom teachers to be reassigned to classrooms based on their credential in times of emergency, which may require bargaining, but if you are dealing with cohorts with no teacher, this may be a last resort.